H. B. 2595


(By Delegates Harrison, Mathews, Carmichael, Fahey, Overington, L. Smith and Beach)


[Originating in the Committee on Education

]


[February 28, 2001]


A BILL to amend and reenact section one, article eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section two, article nine-a of said chapter, all relating to instruction of children in the home or other approved place; requiring county board reports on exemptions to compulsory school attendance; providing for equal instructional terms; removing expired provisions; requiring a certified copy of birth certificate with request for certain exemptions from compulsory school attendance; requiring test giver for home instructed students to submit signed statement that test given in accordance with standardized conditions; requiring that teachers preparing portfolio assessment narratives be state licensed or certified teachers and that persons preparing narrative sign the narrative; removing requirement that person providing home instruction have formal education at least four years higher than most academically advanced student; providing time period for improvement of low test scores; authorizing child receiving home instruction to take same standardized test administered in public schools at county board expense, including scoring; providing for test administration, reporting of scores, remediation, and condition for loss of exemption; permitting certain students exempted from compulsory school attendance to take public school classes on internet with certain conditions and receive high school credit; permitting certain private school students to take classes in a public school under certain conditions; permitting home instructed and other exempted students to participate in public school extra curricular activities under certain conditions; and including home instructed and certain other exempted students in net enrollment count of public school support plan.

Be it enacted by the Legislature of West Virginia:
That section one, article eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section two, article nine-a of said chapter be amended and reenacted all to read as follows:
CHAPTER 18. EDUCATION.

ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.

§18-8-1. Commencement and termination of compulsory school

attendance; exemptions.
Compulsory school attendance shall begin with the school year in which the sixth birthday is reached prior to the first day of September of such year or upon enrolling in a publicly supported kindergarten program and continue to the sixteenth birthday.
Exemption from the foregoing requirements of compulsory public school attendance shall be made on behalf of any child for the following causes or conditions, each such cause or condition being subject to confirmation by the attendance authority of the county. No exemption from compulsory school attendance, except Exemptions A and K as herein provided, shall be granted for a child of compulsory school age unless the person requesting the exemption for the first time presents a copy of the child's original birth record certified by the state registrar of vital statistics confirming the child's identity, age, and state file number of the original birth record to the attendance authority of the county subject to and in conformity with the provisions of the provisions of section five-c, article two of this chapter relating to birth certificates required upon admission to the public schools: Provided, That nothing shall require the presentation of a second copy of the birth certificate if one was previously filed with the county superintendent or the child was previously enrolled in the public schools of the state. The county board shall annually report to the department of education the type of exemption granted, the number of students granted an exemption and student progress as indicated by student test scores or other measures authorized pursuant to this section as applicable:
Exemption A. Instruction in a private, parochial or other approved school. -- Such instruction shall be in a school approved by the county board of education and for a time equal to the school term instructional term for pupils of the county for the year. In all such schools it shall be the duty of the principal or other person in control, upon the request of the county superintendent of schools, to furnish to the county board of education such information and records as may be required with respect to attendance, instruction and progress of pupils enrolled between the entrance age and sixteen years;
Exemption B. Instruction in home or other approved place. -- (a) Such instruction shall be in the home of such child or children or at some other place approved by the county board of education and for a time equal to the school term instructional term for pupils of the county. If such request for home instruction is denied by the county board of education, good and reasonable justification for such denial must be furnished in writing to the applicant by the county board of education. The instruction in such cases shall be conducted by a person or persons who, in the judgment of the county superintendent and county board of education, are qualified to give instruction in subjects required to be taught in the free elementary schools of the state. It shall be the duty of the person or persons providing the instruction, upon request of the county superintendent, to furnish to the county board of education such information and records as may be required from time to time with respect to attendance, instruction and progress of pupils enrolled between the entrance age and sixteen years receiving such instruction. The state department of education board shall develop guidelines for the home schooling of special education students including alternative assessment measures to assure that satisfactory academic progress is achieved.
(b) Notwithstanding the provisions of subsection (a) of this Exemption B, the person or persons providing home instruction meet the requirements for Exemption B when the conditions of this subsection are met: Provided, That the county superintendent shall have the right to seek from the circuit court of the county an order denying the home instruction, which order may be granted upon a showing of clear and convincing evidence that the child will suffer educational neglect or that there are other compelling reasons to deny home instruction.
(1) The person or persons providing home instruction present to the county superintendent or county board of education a notice of intent to provide home instruction and the name and address of any child of compulsory school age to be instructed : Provided, That if a child is enrolled in a public school, notice of intent to provide home instruction shall be given at least two weeks prior to withdrawing such child from public school;
(2) The person or persons providing home instruction submit satisfactory evidence of: (i) a high school diploma or equivalent; and (ii) formal education at least four years higher than the most academically advanced child for whom the instruction will be provided: Provided, That during the school year two thousand--two thousand one only, the requirement of a formal education at least four years higher than the most academically advanced child is waived;
(3) The person or persons providing home instruction outline a plan of instruction for the ensuing school year; and
(4) The person or persons providing home instruction shall annually obtain an academic assessment of the child for the previous school year. This shall be satisfied in one of the following ways at the option of the person or persons providing home instruction:
(i) Any child receiving home instruction annually takes a standardized test, to be administered at a public school in the county where the child resides, or administered by a licensed psychologist or other person authorized by the publisher of the test, or administered by a person authorized by the county superintendent or county board of education: Provided, That when the test is not administered at a public school, the person administering the test shall submit a signed statement to the superintendent that the test was administered under standardized conditions as set forth by the published instructions of the selected test . The child shall be administered a test which has been normed by the test publisher on that child's age or grade group. In no event may the child's parent or legal guardian administer the test. Where a test is administered outside of a public school, the child's parents or legal guardian shall pay the cost of administering the test.
The public school or other qualified person shall administer to children of compulsory school age the comprehensive test of basic skills, the California achievement test, the Stanford achievement test or the Iowa tests of basic skills, achievement and proficiency, or an individual standardized achievement test that is nationally normed and provides statistical results which test will be selected by the public school, or other person administering the test, in the subjects of language, reading, social studies, science and mathematics and shall be administered under standardized conditions as set forth by the published instructions of the selected test. No test shall be administered if the publication date is more than ten years from the date of the administration of the test. Each child's test results shall be reported as a national percentile for each of the five subjects tested. Each child's test results shall be made available on or before the thirtieth day of June of the school year in which the test is to be administered to the person or persons providing home instruction, the child's parents or legal guardian and the county superintendent. Upon request of a duly authorized representative of the West Virginia department of education, each child's test results shall be furnished by the person or persons providing home instruction, or by the child's parent or legal guardian, to the state superintendent of schools. Upon notification that the mean of the child's test results for any single year has fallen below the fortieth percentile, the county board of education shall notify the parents or legal guardian of said child, in writing, of the services available to assist in the assessment of the child's eligibility for special education services: Provided, That the identification of a disability shall not preclude the continuation of home schooling.
If the mean of the child's test results for any single year for language, reading, social studies, science and mathematics fall below the fortieth percentile on the selected tests, then the person or persons providing home instruction shall initiate a remedial program to foster achievement above that level. and the student shall show improvement. If, after two calendar years, If the mean of the child's test results do not show improvement on the next annual test and if the mean of the child's test results continue to fall below the fortieth percentile level on the second following annual test, home instruction shall no longer satisfy the compulsory school attendance requirement exemption; or
(ii) The county superintendent is provided with a written narrative indicating that a portfolio of samples of the child's work has been reviewed and that the child's academic progress for the year is in accordance with the child's abilities. This narrative shall be prepared and signed by a teacher licensed or certified to teach at the appropriate program level in the public schools of West Virginia certified teacher or other person mutually agreed upon by the parent or legal guardian and the county superintendent. It shall be submitted on or before the thirtieth day of June of the school year covered by the portfolio. The parent or legal guardian shall be responsible for payment of fees charged for the narrative; or
(iii) Evidence of an alternative academic assessment of the child's proficiency mutually agreed upon by the parent or legal guardian and the county superintendent is submitted to the county superintendent by the thirtieth day of June of the school year being assessed. The parent or legal guardian shall be responsible for payment of fees charged for the assessment. ; or
(iv) Upon timely request to the county superintendent by the child's parents or legal guardian or the person or persons providing home instruction, any child receiving home instruction may annually take the same standardized test or tests as administered to students of the same age, age group or relevant grade level in the state's public schools. All costs of the purchase, scoring and administration of the test shall be paid by the county board. The test shall be administered at a public school in the county where the child resides. Each child's test results shall be made available on or before the thirtieth day of June of the school year in which the test is administered to the person or persons providing home instruction and the child's parents or legal guardian by the county superintendent.
Upon notification that the child's test results for any single year fall below the fortieth percentile, or in the event that the test used in the public schools is not a nationally normed test, then the level established by the state board as acceptable for public school students in the age, age group or relevant grade level and subject matter tested, the county board shall notify the parents or legal guardian of said child, in writing, of the services available to assist in the assessment of the child's eligibility for special education services: Provided, That the identification of a disability shall not preclude the continuation of home schooling.
If the child's test results for any single year fall below the fortieth percentile or acceptable level, then the person or persons providing home instruction shall initiate a remedial program to foster achievement above that level. If the child's test results do not show improvement on the next annual test and if the child's test results continue to fall below the fortieth percentile level or acceptable level on the second following annual test, home instruction shall no longer satisfy the compulsory school attendance requirement exemption.
(c) The superintendent or a designee shall offer such assistance, including textbooks, other teaching materials and available resources, as may assist the person or persons providing home instruction subject to their availability. Any child receiving home instruction or private instruction pursuant to Exemptions B and K of this section may, upon approval of the county board of education, exercise the option to attend any class offered by the county board of education as the person or persons providing home instruction or whose child is receiving private instruction may deem appropriate subject to preregistration at least two weeks prior to the beginning of the instructional term or semester as applicable and any other normal registration and attendance requirements.
(d) When classes recognized as part of the public school curriculum are available over the internet, any child exempted from compulsory school attendance pursuant to Exemptions B and K of this section shall, at the discretion of the parents or legal guardian, be permitted to take any such classes subject to registration requirements as shall be established by the state board. The county superintendent shall provide the child with the same textbooks and other curricular materials for public school classes taken via the internet as are provided to students taking such classes in the public schools: Provided, That nothing in this section shall require the public schools to provide exempted students with computers and other technology and services necessary for access to the internet. Any child who takes public school classes via the internet shall go into the public school each grading period to take a monitored test covering the subject matter of the class or classes. The test shall be administered by the county test coordinator or his or her designee. Any child who completes public school classes via the internet shall receive the same public school credit for the class as is provided to students completing the class in a traditional classroom setting in the public schools and such credits when awarded for classes at the high school level shall be applied toward the award of a public school diploma.
(e) Any child receiving home or private instruction pursuant to Exemptions B or K of this section who takes a combined total of two or more credits per semester under a straight block schedule or three or more credits per semester under another form of schedule, which credits are in core courses or core electives taken in the public schools or via the internet in accordance with subdivision (d) of this exemption, shall be eligible to participate in all extra curricular activities at the school in the attendance area in which the child resides, including sports, as are offered to students in the public school: Provided, That home instructed students meet the same attendance and academic performance requirements for the activity as public school students with respect to the credits taken.
(d) The legislative oversight commission on education accountability shall conduct a study on the effects of the home instruction exemption on the students being instructed in the home. The study shall include, but is not limited to, the effects that a home instructor's education attainment level has on the academic abilities of the child instructed. As part of the study, the legislative oversight commission on education accountability shall collect data relating to students who are instructed under the home school exception, including, but not limited to, assessment test scores or performance on other assessment mechanisms, the number of students who are instructed under the home school exemption, the grade level at which the students are being instructed and the age of the students: Provided, That the names of the students shall not be collected. The legislative oversight commission shall collect the data and complete the study on or before the first day of December, two thousand.
Exemption C. Physical or mental incapacity. -- Physical or mental incapacity shall consist of incapacity for school attendance and the performance of school work. In all cases of prolonged absence from school due to incapacity of the child to attend, the written statement of a licensed physician or authorized school nurse shall be required under the provisions of this article: Provided, That in all cases incapacity shall be narrowly defined and in no case shall the provisions of this article allow for the exclusion of the mentally, physically, emotionally or behaviorally handicapped child otherwise entitled to a free appropriate education;
Exemption D. Residence more than two miles from school or school bus route. -- The distance of residence from a school, or school bus route providing free transportation, shall be reckoned by the shortest practicable road or path, which contemplates travel through fields by right of permission from the landholders or their agents. It shall be the duty of the county board of education, subject to written consent of landholders, or their agents, to provide and maintain safe foot bridges across streams off the public highways where such are required for the safety and welfare of pupils whose mode of travel from home to school or to school bus route must necessarily be other than along the public highway in order for said road or path to be not over two miles from home to school or to school bus providing free transportation;
Exemption E. Hazardous conditions. -- Conditions rendering school attendance impossible or hazardous to the life, health or safety of the child;
Exemption F. High school graduation. -- Such exemption shall consist of regular graduation from a standard senior high school;
Exemption G. Granting work permits. -- The county superintendent may, after due investigation, grant work permits to youths under sixteen years of age, subject to state and federal labor laws and regulations: Provided, That a work permit may not be granted on behalf of any youth who has not completed the eighth grade of school;
Exemption H. Serious illness or death in the immediate family of the pupil. -- It is expected that the county attendance director will ascertain the facts in all cases of such absences about which information is inadequate and report same to the county superintendent of schools;
Exemption I. Destitution in the home. -- Exemption based on a condition of extreme destitution in the home may be granted only upon the written recommendation of the county attendance director to the county superintendent following careful investigation of the case. A copy of the report confirming such condition and school exemption shall be placed with the county director of public assistance. This enactment contemplates every reasonable effort that may properly be taken on the part of both school and public assistance authorities for the relief of home conditions officially recognized as being so destitute as to deprive children of the privilege of school attendance. Exemption for this cause shall not be allowed when such destitution is relieved through public or private means;
Exemption J. Church ordinances; observances of regular church ordinances. -- The county board of education may approve exemption for religious instruction upon written request of the person having legal or actual charge of a child or children: Provided, That such exemption shall be subject to the rules prescribed by the county superintendent and approved by the county board of education;
Exemption K. Alternative private, parochial, church or religious school instruction. -- In lieu of the provisions of Exemption A herein above, exemption shall be made for any child attending any private school, parochial school, church school, school operated by a religious order or other nonpublic school which elects to comply with the provisions of article twenty-eight, chapter eighteen of the code of West Virginia.
The completion of the eighth grade shall not exempt any child under sixteen years of age from the compulsory attendance provision of this article: Provided, That there is a public high school or other public school of advanced grades or a school bus providing free transportation to any such school, the route of which is within two miles of the child's home by the shortest practicable route or path as hereinbefore specified under Exemption D of this section.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.

§18-9A-2. Definitions.
For the purpose of this article:
"State board" means the West Virginia board of education.
"County board" or "board" means a county board of education.
"Professional salaries" means the state legally mandated salaries of the professional educators as provided in article four, chapter eighteen-a of this code.
"Professional educator" shall be synonymous with and shall have the same meaning as "teacher" as defined in section one, article one, chapter eighteen of this code.
"Professional instructional personnel" means a professional educator whose regular duty is as that of a classroom teacher, librarian, counselor, attendance director, school psychologist or school nurse with a bachelors degree and who is licensed by the West Virginia board of examiners for registered professional nurses. A professional educator having both instructional and administrative or other duties shall be included as professional instructional personnel for that ratio of the school day for which he is assigned and serves on a regular full-time basis in appropriate instruction, library, counseling, attendance, psychologist or nursing duties.
"Service personnel salaries" shall mean the state legally mandated salaries for service personnel as provided in section eight-a, article four, chapter eighteen-a of this code.
"Service personnel" shall mean all personnel as provided for in section eight, article four, chapter eighteen-a of this code. For the purpose of computations under this article of ratios of service personnel to adjusted enrollment, a service employee shall be counted as that number found by dividing his number of employment days in a fiscal year by two hundred: Provided, That the computation for any such person employed for three and one- half hours or less per day as provided in section eight-a, article four, chapter eighteen-a of this code shall be calculated as one half an employment day.
"Net enrollment" means the number of pupils enrolled in special education programs, kindergarten programs and grades one to twelve, inclusive, of the public schools of the county. Commencing with the school year beginning on the first day of July, one thousand nine hundred eighty-eight, net enrollment further shall include adults enrolled in regular secondary vocational programs existing as of the effective date of this section: Provided, That net enrollment shall include no more than one thousand such adults counted on the basis of full-time equivalency and apportioned annually to each county in proportion to the adults participating in regular secondary vocational programs in the prior year counted on the basis of full-time equivalency: Provided, however, That no tuition or special fees beyond that required of the regular secondary vocational student is charged for such adult students. Commencing with the school year beginning on the first day of July, two thousand one, net enrollment shall include each child receiving home instruction pursuant to Exemption B, section one, article eight of this chapter, counted as one-half full-time equivalent student. Commencing with the school year beginning on the first day of July, two thousand one, net enrollment shall include each child exempted from compulsory school attendance pursuant to said Exemption B who takes credit classes in a public school or who takes credit classes recognized as part of the public school curriculum via the internet as provided in section one, article eight of this chapter, counted as an additional one-sixth full- time equivalent student for each such credit class taken up to a combined total of three credit classes during the school year. Commencing with the school year beginning on the first day of July, two thousand one, net enrollment shall include each child exempted from compulsory school attendance pursuant to Exemptions A and K, section one, article eight of this chapter, who takes credit classes in a public school or who takes credit classes recognized as part of the public school curriculum via the internet as provided in section one, article eight of this chapter, counted as one-third full-time equivalent student for each such credit class taken up to a combined total of three credit classes during the school year.
"Adjusted enrollment" means the net enrollment plus twice the number of pupils enrolled for special education. Commencing with the school year beginning on the first day of July, one thousand nine hundred ninety, adjusted enrollment means the net enrollment plus twice the number of pupils enrolled for special education, including exceptional gifted, plus the number of pupils in grades nine through twelve enrolled for honors and advanced placement programs, plus the number of pupils enrolled on the first day of July, one thousand nine hundred eighty-nine, in the gifted program in grades nine through twelve: Provided, That commencing with the school year beginning on the first day of July, one thousand nine hundred ninety, no more than four percent of net enrollment of grades one through eight may be counted as enrolled in gifted education and no more than six percent of net enrollment of grades nine through twelve may be counted as enrolled in gifted education, exceptional gifted education (subject to the limitation set forth in section one, article twenty of this chapter) and honors and advanced placement programs for the purpose of determining adjusted enrollment within a county: Provided, however, That nothing herein shall be construed to limit the number of students who may actually enroll in gifted, honors or advanced placement education programs in any county: Provided further, That until the school year beginning on the first day of July, one thousand nine hundred ninety-two, the preceding percentage limitations shall not restrict the adjusted enrollment definition for a county to the extent that those limitations are exceeded by students enrolled in gifted education programs on the first day of July, one thousand nine hundred eighty-nine: And provided further, That no pupil may be counted more than three times for the purpose of determining adjusted enrollment. Such enrollment shall be adjusted to the equivalent of the instructional term and in accordance with such eligibility requirements and rules as established by the state board. No pupil shall be counted more than once by reason of transfer within the county or from another county within the state, and no pupil shall be counted who attends school in this state from another state.
"Levies for general current expense purposes" means ninety- eight percent of the levy rate for county boards of education calculated or set by the Legislature pursuant to the provisions of section six-f, article eight, chapter eleven of this code.
"Basic resources per pupil" for the state and the several counties means the total of (a) ninety-five percent of the property tax revenues computed at the levy rate for county boards of education calculated or set by the Legislature pursuant to the provisions of section six-f, article eight, chapter eleven of this code, , but excluding revenues from increased levies as provided in section ten, article X of the Constitution of West Virginia, and (b) basic state aid as provided in sections twelve and thirteen of this article, but excluding the foundation allowance to improve instructional programs as provided in section ten of this article, and excluding any funds appropriated for the purpose of achieving salary equity among county board employees, this total divided by the number of students in adjusted enrollment: Provided, That beginning with the school year commencing on the first day of July, one thousand nine hundred ninety-one, and thereafter, the foundation allowance for transportation costs as provided in section seven of this article shall also be excluded and the total shall be divided by the number of students in net enrollment: Provided, however, That any year's allocations to the counties of the eighty percent portion of the foundation allowance to improve instructional programs, as provided in section ten of this article, shall be determined on the basis of the immediately preceding school year's basic resources per pupil.