Senate Bill No. 155
(By Senator Barnes)
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[Introduced February 14, 2013; referred to the Committee on Education; and then to the Committee on Finance.]
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A BILL to amend and reenact §18-20-1 and §18-20-5 of the Code of West Virginia, 1931, as amended, all relating to requiring the State Board of Education be responsible for the funding of all special programs for exceptional children; and requiring the State Superintendent to be responsible for the payment for those programs.
Be it enacted by the Legislature of West Virginia:
That §18-20-1 and §18-20-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.
§18-20-1. Establishment of special programs and teaching services for exceptional children.
(a) In accordance with the following provisions, county boards of education throughout the state shall establish and maintain for all exceptional children between five and twenty-one years of age special educational programs, including, but not limited to, special schools or classes, regular classroom programs, home-teaching or visiting-teacher services for any type or classification as the state board shall approve. Special educational programs shall continue to be provided to those children who are at least twenty-one years of age and enrolled in the above mentioned "special education program" prior to September 1, 1991, until they reach twenty-three years of age. Provisions shall be made for educating exceptional children (including the handicapped and the gifted) who differ from the average or normal in physical, mental or emotional characteristics, or in communicative or intellectual deviation characteristics, or in both communicative and intellectual deviation characteristics, to the extent that they cannot be educated safely or profitably in the regular classes of the public schools or to the extent that they need special educational provisions within the regular classroom in order to educate them in accordance with their capacities, limitations and needs: Provided, That for the school year beginning on July 1, 1990, provisions shall be made for educating exceptional children, including the handicapped, the gifted in grades one through eight, the pupils enrolled on July 1, 1989, in the gifted program in grades nine through twelve and the exceptional gifted in grades nine through twelve. The term "exceptional gifted" means those students in grades nine through twelve identified as gifted and at least one of the following: Behavior disorder, specific learning disabilities, psychological adjustment disorder, underachieving, or economically disadvantaged. Exceptional gifted children shall be referred for identification pursuant to recommendation by a school psychologist, school counselor, principal, teacher, parent or by self-referral, at which time the placement process, including development of an individualized education program, and attendant due process rights, shall commence. Exceptional gifted children, for purposes of calculating adjusted enrollment pursuant to section two, article nine-a of this chapter, shall not exceed one percent of net enrollment in grades nine through twelve. Nothing herein shall be construed to limit the number of students identified as exceptional gifted and who receive appropriate services. Each county board of education is mandated to provide gifted education to its students according to guidelines promulgated by the state board and consistent with the provisions of this chapter. Upon the recommendation of a principal, counselor, teacher and parent, a student who does not meet the gifted eligibility criteria may participate in any school program deemed appropriate for the student provided that classroom space is available. In addition, county boards of education may establish and maintain other educational services for exceptional children as the State Superintendent of Schools may approve.
(b) County boards of education shall establish and maintain these special educational programs, including, but not limited to, special schools classes, regular class programs, home-teaching and visiting-teacher services. The special education programs shall include home-teaching or visiting-teacher services for children who are homebound due to injury or who for any other reason as certified by a licensed physician are homebound for a period that has lasted or will last more than three weeks: Provided, That pupils receiving such homebound or visiting-teacher services shall not be included when computing adjusted enrollment as defined in section two, article nine-a, chapter eighteen of this code. The state board shall adopt rules to advance and accomplish this program and to assure that all exceptional children in the state, including children in mental health facilities, residential institutions and private schools, will receive an education in accordance with the mandates of state and federal laws: Provided, however, That commencing with the school year beginning on July 1, 1991, all exceptional children in the state in foster care and correctional facilities will receive an education in accordance with the mandates of state and federal laws.
(c) All special educational programs, including, but not limited to, special schools or classes, regular classroom programs, home-teaching or visiting-teacher services for any type or classification that the state board approves pursuant to this section shall be funded by the state board.
§18-20-5. Powers and duties of state superintendent.
(a) 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) (A) Preparing the necessary rules, policies, 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: Provided, That no state rule, policy or standard under this article or any county board rule, policy or standard governing special education may exceed the requirements of federal law or regulation.
(B) The state superintendent shall annually review the rules, policies and standards of the state and federal law for serving the needs of exceptional children enrolled in the public schools and shall report to the Legislative Oversight Commission on Education Accountability by December 1, or as soon thereafter as requested by the commission, 2008, and in each year thereafter, the findings of the review along with an accounting of the services provided and the costs thereof for exceptional children enrolled in the public schools of this state during the latest available school year. An appropriation shall be made to the Department of Education to be distributed to county boards to support children with high acuity needs that exceed the capacity of county to provide with funds available. Each county board shall apply to the state superintendent for receipt of this funding in a manner set forth by the state superintendent that assesses and takes into account varying acuity levels of the exceptional students. Any remaining funds at the end of a fiscal year from the appropriation shall be carried over to the next fiscal year. When possible, federal funds shall be distributed to county boards for this purpose before any of the state appropriation is distributed. The state board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code that implements the provisions of this subdivision relating to distributing the funds to the county boards. The rule at least shall include a definition for “children with high acuity needs”.
(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 of this chapter receive an education in accordance with state and federal laws: Provided, That the state superintendent shall also assure that adults in correctional facilities and regional jails receive an education to the extent funds are provided therefor.
(6) Payment of all special educational programs, including, but not limited to, special schools or classes, regular classroom programs, home-teaching or visiting-teacher services for any type or classification that the state board has approved pursuant to section one of this article.
(6) (7) Performing other duties and assuming other responsibilities in connection with this program as needed.
(7) (8) Receive the county plan for integrated classroom submitted by the county boards of education and submit a state plan, approved by the state Board of Education, to the Legislative Oversight Commission on Education Accountability no later than December 1, 1995.
(b) Nothing contained in this section 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.
NOTE: The purpose of this bill is to require the state Board of Education be responsible for the funding of all special programs for exceptional children. The bill also requires the state superintendent to be responsible for the payment for those programs.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.