ENGROSSED

COMMITTEE SUBSTITUTE

FOR

H. B. 4138

( By Delegates Ashcraft, Spencer,

S. Williams and Brum )


(Originating in the House Committee on Education)


[February 28, 1994]


A BILL to amend and reenact section twenty-two, article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section five, article five-a of said chapter; to amend and reenact sections three and five, article twenty of said chapter; and to further amend said article by adding thereto a new section, designated section one-c, all relating to assigning certain responsibilities to state superintendents of schools, county boards of education, certified school nurses, public school faculty senates and paraprofessionals/aides pertaining to assistance, strategic planning and training related to integrated classrooms, and basic and specialized health care procedures including administration of medications.

3 Be it enacted by the Legislature of West Virginia:

That section twenty-two, article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section five, article five-a of said chapter be amended and reenacted; that sections three and five, article twenty of said chapter be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section one-c, all to read as follows:
§ 18 - 5 - 22. Medical and dental inspection; certified school nurses; specialized health procedures; establishment of council of school nurses; training and information be provided to school employees relating to integrated classrooms serving students with exceptional needs, administration of medications and specialized health procedures.

(a) County boards of education shall provide proper medical and dental inspections for all pupils attending the schools of their county and shall further have the authority to take any other action necessary to protect the pupils from infectious diseases, including the authority to require from all school personnel employed in their county, certificates of good health and of physical fitness.

Each county board of education shall employ full time at least one certified school nurse for every one thousand five hundred kindergarten through seventh grade pupils in net enrollment or major fraction thereof: Provided, That each county shall employ full time at least one certified school nurse: Provided, however, That a county board may contract with a public health department for services deemed equivalent to those required by this section in accordance with a plan to be approved by the state board: Provided further, That the state board shall promulgate rules and regulations requiring the employment of certified school nurses in excess of the number required by this section to ensure adequate provision of services to severely handicapped pupils.
Any person employed as a certified school nurse shall be a registered professional nurse properly licensed by the West Virginia board of examiners for registered professional nurses in accordance with article seven, chapter thirty of this code.
(b) No school employee may be required to perform specialized health procedures including administering medications without the completion of training as set forth in this section and the proper delegation of such responsibilities by a certified school nurse.
Nothing herein shall prohibit any school employee volunteering to be trained and delegated the responsibility to perform specialized health care procedures including the administration of medications.
(c) Beginning with the school year one thousand nine hundred ninety--ninety-one, specialized health procedures that require the skill, knowledge and judgment of a licensed health professional, shall be performed only by certified school nurses, other licensed school health care providers as provided for in this section, or school employees who have been trained and retrained every two years and subject to the supervision and approval by certified school nurses. After assessing the health status of the individual student, a certified school nurse, in collaboration with the student's physician, parents and in some instances an individualized education program team, may delegate certain health care procedures to a school employee who shall be trained pursuant to this section, deemed competent, have consultation with, and be monitored or supervised by the certified school nurse: Provided, That nothing herein shall prohibit any school employee from providing specialized health procedures or any other prudent action to aid any person who is in acute physical distress or requires emergency assistance. For the purposes of this section "specialized health procedures" means, but is not limited to, catheterization, suctioning of tracheostomy, naso-gastric tube feeding or gastrostomy tube feeding; and "school employee" means teachers as defined in section one, article one of this chapter and aides as defined in section eight, article four-a, chapter eighteen-a of this code.
(d) After assessing the health status of an individual, a certified school nurse, in collaboration with the student's physician, parents, and in some instances individualized education program team, may delegate the performance of certain health care procedures and responsibilities for administering medication to school employees.
(e) Training mandated by this section shall include at least these types of training related to (1) integrated education; (2) basic health care procedures; and (3) specialized health care procedures including the administration of medications.
(1) Training related to integrated education shall be provided to all school employees, for a minimum of three hours, by the respective professional or service personnel staff development council and additional training shall occur at least every three years for at least three hours. The state department of education shall develop guidelines for such training which shall include, but not be limited to inclusion of students with special needs in the regular education program; environmental modifications; instructional modifications; characteristics of students with special needs; instructional strategies that promote integration; collaboration and teaming; and individualized education programs.
(2) Training related to basic health care procedures shall be provided to all school employees who have been assigned by their immediate supervisor to receive such training by a certified school nurse and retraining shall occur at least every year pursuant to the basic and specialized health care procedures manual for the West Virginia public schools as adopted by the state board of education.
(3) Training related to specialized health care procedures shall be provided to school employees who have been delegated the responsibility by a certified school nurse and who have been assigned for such training by their immediate supervisor. Said training shall be conducted by a certified school nurse, as deemed appropriate by a certified school nurse, pursuant to the basic and specialized health care procedures manual for the West Virginia public schools as adopted by the state board of education: Provided, That any employee who refuses to be trained in accordance with this subsection shall not have any such refusal considered in any transfer or promotion.
(4) Training related to the administration of medications shall be provided by a certified school nurse, as deemed appropriate, by a certified school nurse, pursuant to guidelines developed by the council of school nurses as adopted by the state board of education, to school employees who have been assigned for such training by their immediate supervisor.
(5) All training provided in furtherance of this section shall be considered in-service training of such school employee as required in this code.
(f) Any All school employees who elects to undergo training or retraining to provide, in the manner specified herein, such specialized health care procedures or the administration of medications and for whom such selection has been approved and assigned by both the principal and the county board, may receive additional pay at the discretion of the county board: Provided, That any training may be considered in lieu of required in-service training of such school employee. and a school employee cannot be required to elect to undergo the training or retraining: Provided, however, That commencing with the first day of July, one thousand nine hundred eighty-nine, any newly employed school employee in the field of special education shall be required to undergo the training and retraining as provided for in this section. Provided, , That commencing with the first day of July, one thousand nine hundred eighty-nine, any newly employed school employee in the field of special education shall be required to undergo the training and retraining as provided for in this section: Provided, however, That such school employees shall not be reassigned to more than one school.
(g) Each county certified school nurse, as designated and defined by this section, shall perform a needs assessment. These nurses shall meet on the basis of the area served by their regional educational service agency, prepare recommendations and elect a representative to serve on the council of certified school nurses.
There shall be established a council of certified school nurses which shall be convened by the state board of education. This council shall prepare a procedural manual for all training relating to basic and specialized health procedures and the administration of medications required to be provided by this section and shall provide recommendations regarding a training course to the director of the state department board of health education who shall consult with the state department of education health and human resources. The state department board of health education shall then have the authority to promulgate rules and regulations to implement the training and to create standards used by those performing basic and specialized health procedures including the administration of medications. The council shall meet every two years to review the certification and training program regarding school employees.
The state board of education shall work in conjunction with county boards to provide training and retraining every two years as set forth herein or as otherwise recommended by the council of school nurses and implemented by the state department of health.
(h) All county boards of education shall develop a specific medication administration policy which establishes the procedure to be followed for the administration of medication at each school and which at minimum provides that:
(1) Medication will be administered to students during the school day only when lack of such medication will impair the student's ability to attend school or to function adequately in the classroom.
(2) Medication shall be administered to students during the school day only when there is:
(i) an order from a duly licensed physician or dentist, and a signed authorization from the student's parent or guardian. The order and authorization shall contain clear instructions identifying the student's name, date, dosage and frequency of medication, route of administration, and possible side effects or reactions.
(ii) Medication brought to school in the original prescription bottle from the pharmacy. This bottle must be labeled from the pharmacy with the student's name, date, dosage and frequency of medication and route of administration.
(iii) A certified school nurse employed by the county school board has assessed the health status of the specific child in his specific educational setting and has determined that the administration of medication can be safely performed by someone who has received documented training with documented competence in the administration of medications, if responsibilities for the administration of medications is to be delegated to school personnel other than a licensed health professional.
(iv) A certified school nurse employed by the county school board has reviewed the physician's or dentist's order or prescription and the parent's signed authorization and has determined that the administration of medication can be safely performed by someone who has received documented training with documented competence in the administration of medications, if responsibilities for the administration of medications is delegated to school personnel other than a licensed health professional.
(3) Any employee shall have the right to request that another school board employee be present while the employee is administering the medication to a student to serve as a witness. After making such a written request the employee shall not be required to administer the medicine without such a witness.
(i) County boards of education may decline to participate in the administration of nonprescription medications or allow local schools the option of participating or not participating in the administration of nonprescription medications on a school by school basis: Provided, That if schools or county boards of education elect to participate in the administration of nonprescription medications, then such schools or county boards of education must develop a written plan for the administration of nonprescriptive medications, which (a) includes those school personnel who shall assume the responsibility for the administration of nonprescription medication, and (b) has been approved by the certified school nurse for said county board of education.
§ 18-5A-5. Public school faculty senates established; election of officers; powers and duties.

(a) There is established at every public school in this state a faculty senate which shall be comprised of all permanent, full-time professional educators employed at the school who shall all be voting members. Professional educators as used in this section means professional educators as defined in chapter eighteen-a of this code. A quorum of more than one half of the voting members of the faculty shall be present at any meeting of the faculty senate at which official business is conducted. Prior to the beginning of the instructional term each year, but within the employment term, the principal shall convene a meeting of the faculty senate to elect a chair, vice chair and secretary and discuss matters relevant to the beginning of the school year. The vice chair shall preside at meetings when the chair is absent. Meetings of the faculty senate shall be held on a regular basis as determined by a schedule approved by the faculty senate and amended from time to time if needed. Emergency meetings may be held at the call of the chair or a majority of the voting members by petition submitted to the chair and vice chair. An agenda of matters to be considered at a scheduled meeting of the faculty senate shall be available to the members at least two employment days prior to the meeting, and in the case of emergency meetings, as soon as possible prior to the meeting. The chair of the faculty senate may appoint such committees as may be desirable to study and submit recommendations to the full faculty senate, but the acts of the faculty senate shall be voted upon by the full body.

(b) In addition to any other powers and duties conferred by law, or authorized by policies adopted by the state or county board of education or bylaws which may be adopted by the faculty senate not inconsistent with law, the powers and duties listed in this subsection are specifically reserved for the faculty senate. The intent of these provisions is neither to restrict nor to require the activities of every faculty senate to the enumerated items except as otherwise stated. Each faculty senate shall organize its activities as it deems most effective and efficient based on school size, departmental structure and other relevant factors.
(1) Each faculty senate shall control funds allocated to the school from legislative appropriations pursuant to section nine, article nine-a of this chapter. From such funds, each classroom teacher and librarian shall be allotted fifty dollars for expenditure during the instructional year for academic materials, supplies or equipment which in the judgment of the teacher or librarian will assist him or her in providing instruction in his or her assigned academic subjects, or shall be returned to the faculty senate: Provided, That nothing contained herein shall prohibit such funds from being used for programs and materials that, in the opinion of the teacher, enhance student behavior, increase academic achievement, improve self-esteem and address the problems of students at-risk. The remainder of funds shall be expended for academic materials, supplies or equipment in accordance with a budget approved by the faculty senate. Notwithstanding any other provisions of the law to the contrary, funds not expended in one school year shall be available for expenditure in the next school year: Provided, however, That the amount of county funds budgeted in a fiscal year, shall not be reduced throughout the year as a result of the faculty appropriations in the same fiscal year for such materials, supplies and equipment. Accounts shall be maintained of the allocations and expenditures of such funds for the purpose of financial audit. Academic materials, supplies or equipment shall be interpreted broadly, but shall not include materials, supplies or equipment which will be used in or connected with interscholastic athletic events.
(2) A faculty senate may establish a process for faculty members to interview new prospective professional educators and paraprofessional employees at the school and submit recommendations regarding employment to the principal, who may also make independent recommendations, for submission to the county superintendent: Provided, That such process must permit the timely employment of persons to perform necessary duties.
(3) A faculty senate may nominate teachers for recognition as outstanding teachers under state and local teacher recognition programs and other personnel at the school, including parents, for recognition under other appropriate recognition programs and may establish such programs for operation at the school.
(4) A faculty senate may submit recommendations to the principal regarding the assignment scheduling of secretaries, clerks, aides and paraprofessionals at the school.
(5) A faculty senate may submit recommendations to the principal regarding establishment of the master curriculum schedule for the next ensuing school year.
(6) A faculty senate may establish a process for the review and comment on sabbatical leave requests submitted by employees at the school pursuant to section eleven, article two of this chapter.
(7) Each faculty senate shall elect three faculty representatives to the local school improvement council established pursuant to section two of this article.
(8) Each faculty senate may nominate a member for election to the county staff development council pursuant to section eight, article three, chapter eighteen-a of this code.
(9) Each faculty senate shall have an opportunity to make recommendations on the selection of faculty to serve as mentors for beginning teachers under beginning teacher internship programs at the school.
(10) A faculty senate may solicit, accept and expend any grants, gifts, bequests, donations and any other funds made available to the faculty senate: Provided, That the faculty senate shall select a member who shall have the duty of maintaining a record of all funds received and expended by the faculty senate, which record shall be kept in the school office and shall be subject to normal auditing procedures.
(11) On or after the first day of January, one thousand nine hundred ninety-two, any faculty senate may review the evaluation procedure as conducted in their school to ascertain whether such evaluations were conducted in accordance with the written system required pursuant to section twelve, article two, chapter eighteen-a of this code and the general intent of this Legislature regarding meaningful performance evaluations of school personnel. If a majority of members of the faculty senate determine that such evaluations were not so conducted, they shall submit a report in writing to the state board of education: Provided, That nothing herein shall create any new right of access to or review of any individual's evaluations.
(12) Each faculty senate shall be provided by its local board of education at least a two-hour per month block of noninstructional time within the school day: Provided, That any such designated day shall constitute a full instructional day. This time may be utilized and determined at the local school level and shall include, but not be limited to, faculty senate meetings.
(13) Each faculty senate must develop a recommended strategic plan to manage the integration of special needs students into the regular classroom at its respective schools and submit said recommended strategic plan to the superintendent of county board of education by the first day of March one thousand nine hundred ninety-five and periodically thereafter pursuant to guidelines developed by the state department of education. Each faculty senate must include the participation of local school improvement councils, parents and the community at large in the development of the strategic plan for each school.
ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.

§ 18-20-1c. Integrated classrooms serving students with exceptional needs; and requirements as to the assistance, training and information to be provided to the affected classroom teacher.

The regular classroom teacher shall be entitled to the following when placing a student with exceptional needs into an integrated classroom when the student's individualized education program requires an adjustment in either the curriculum, instruction or service to be provided by the regular classroom teacher:

(1) Training provided pursuant to the integrated classroom program required by section fourteen, article five of this chapter, and additional individualized training if requested by the regular classroom teacher to prepare the teacher to meet the exceptional needs of individual students. Whenever possible, such training shall be provided prior to such placement. Where prior training is not possible, such training shall be commenced no later than ten days following the placement of said student into the regular classroom. Unavoidable delays in the provision of training shall not result in the exclusion of a special needs student from any class in the event said training can not be provided in said ten days.
(2) A copy of the individualized education program for the special needs student prior to the placement of the student into the regular classroom;
(3) Participation in the individualized education program upon being identified as the regular classroom teacher of a student with exceptional needs;
(4) The ability to demand of the chair of the committee responsible for the individualized education program of students with special needs assigned to said regular classroom teacher, in writing, a meeting of all persons involved in a student's individualized education program and such meeting shall be held within twenty-one days of such demand.
(5) Assistance from persons trained or certified to deal with a student's exceptional needs whenever such assistance is part of the student's individualized education program as necessary to ensure the student's exceptional needs can be met without impairing the regular teacher's ability to serve the remaining students in the integrated classroom.
(6) Assignment of additional personnel who are trained or certified to deal with the student's exceptional needs in any integrated classroom where the student's individualized education program includes regular class curriculum involves activities which pose inherent risk to the health or safety of students and faculty, including, but not limited to, industrial arts, science, chemistry and physical education, if the responsible individual education program committee determines that the student's exceptionality could result in increased risk to the student or others as a result of the risk inherent in the classroom activity. Nothing in this section shall be construed to require any school employee to perform specialized health care procedures or receive training thereon, except as specified in section twenty-two, article five, chapter eighteen of this code.
§ 18 - 20 - 3. County reports.

Counties maintaining special schools, classes, regular class programs, integrated classroom strategic plans and training related to integrated education, basic and specialized health care procedures including the administration of medications home-teaching or visiting services and receiving or requesting reimbursement from state appropriated funds shall file with the state superintendent of schools on forms supplied by his office, applications, annual reports and such other reports as he may require.

§ 18-20-5. Powers and duties of state superintendent.

The state superintendent of schools shall organize, promote, administer and be responsible for:

(1) Stimulating and assisting county boards of education in establishing, organizing and maintaining special schools, classes, regular class programs, home-teaching and visiting-teacher services.
(2) Cooperating with all other public and private agencies engaged in relieving, caring for, curing, educating and rehabilitating exceptional children, and in helping coordinate the services of such agencies.
(3) Preparing the necessary rules, regulations, formula for distribution of available appropriated funds, reporting forms and procedures necessary to define minimum standards in providing suitable facilities for education of exceptional children and ensuring the employment, certification and approval of qualified teachers and therapists subject to approval by the state board of education.
(4) Receiving from county boards of education their applications, annual reports and claims for reimbursement from such moneys as are appropriated by the Legislature, auditing such claims and preparing vouchers to reimburse said counties the amounts reimbursable to them.
(5) Assuring that all exceptional children in the state, including children in mental health facilities, residential institutions, private schools, and correctional facilities as provided in section thirteen-f, article two, chapter eighteen of this code, receive an education in accordance with state and federal laws: Provided, That the state superintendent shall also assure that adults in correctional facilities shall receive an education to the extent funds are provided therefor.
(6) Performing such other duties and assuming such other responsibilities in connection with this program as may be needed.
(7) Nothing herein contained shall be construed to prevent any county board of education from establishing and maintaining special schools, classes, regular class programs, home-teaching or visiting-teacher services out of funds available from local revenue.
(8) Mandating the development of a county plan by the superintendents of the county boards of education to manage the integration of special needs students into the regular classroom pursuant to a strategic plan recommended by the faculty senates of each school in accordance with guidelines developed by the state department of education. Each school's strategic plan must include at least (a) a mission statement; (b) goals; (c) needs; (d) objectives and activities to implement plans relating to each goal; (e) work in progress to implement the strategic plan; (f) guidelines for the placement of additional staff into integrated classrooms to meet the needs of exceptional need students without diminishing the services rendered to the other students in integrated classrooms; and (g) guidelines for implementation of collaborative planning and instruction.
Each faculty senate shall include the participation of local school improvement councils, parents and the community at large in the development of the strategic plan for each school. The faculty senate of each school shall submit its recommended strategic plan to the superintendent of the county board of education by the first day of March, one thousand nine hundred ninety-five and periodically thereafter pursuant to guidelines developed by the state department of education.
Each county board of education must submit their county plan to the state superintendent of schools no later than the first day of July, one thousand nine hundred ninety-five and periodically thereafter pursuant to guidelines developed by the state department of education. The state superintendent of schools shall submit a report on compliance with this section of the code to the legislative oversight commission on education accountability no later than the first day of January, one thousand nine hundred ninety-six and periodically thereafter as the legislative oversight commission on education accountability may request.