WEST virginia legislature
2021 regular session
House Bill 2013
[Originating in the Committee on Finance; February 13, 2021]
A BILL to amend and reenact §18-8-1 and §18-8-1a of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §18-9A-25; and to amend said code by adding thereto a new article, designated §18-31-1, §18-31-2, §18-31-3, §18-31-4, §18-31-5, §18-31-6, §18-31-7, §18-31-8, §18-31-9, §18-31-10, §18-31-11, §18-31-12, and §18-31-13, all relating to establishing the Hope Scholarship Program; providing for a short title and definitions; establishing the framework for the scholarship and establishing guidelines; creating the West Virginia Hope Scholarship Board and providing for membership qualifications therein; creating a process for awarding scholarships; establishing funding mechanisms for the scholarships; establishing qualified expense requirements; creating a renewal process for the scholarship; creating an administration process for the scholarships; establishing an auditing mechanism for the scholarships and potential suspension system for providers; creating requirements and right of education service providers; establishing responsibilities of resident school districts; and providing for legal proceedings and severability.
Be it enacted by the Legislature of West Virginia:
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-1. Compulsory school attendance; exemptions.
(a) Exemption from the requirements of compulsory public school attendance established in §18-8-1a of this code shall be made on behalf of any child for the causes or conditions set forth in this section. Each cause or condition set forth in this section is subject to confirmation by the attendance authority of the county. A child who is exempt from compulsory school attendance under this section is not subject to prosecution under §18-8-2 of this code, nor is such a child a status offender as defined by §49-1-202 of this code.
(b) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code if the requirements of this subsection, relating to instruction in a private, parochial or other approved school, are met. The instruction shall be in a school approved by the county board and for a time equal to the instructional term set forth in §18-5-45 of this code. In all private, parochial or other schools approved pursuant to this subsection, it is the duty of the principal or other person in control, upon the request of the county superintendent, to furnish to the county board such information and records as may be required with respect to attendance, instruction and progress of students enrolled.
(c) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code if the requirements of either subdivision (1) or subdivision (2) of this subsection, both relating to home instruction, are met.
(1) The instruction shall be in the home of the child or children or at some other place approved by the county board and for a time equal to the instructional term set forth in §18-5-45 of this code. If the request for home instruction is denied by the county board, good and reasonable justification for the denial shall be furnished in writing to the applicant by the county board. The instruction shall be conducted by a person or persons who, in the judgment of the county superintendent and county board, are qualified to give instruction in subjects required to be taught in public elementary schools in the state. The person or persons providing the instruction, upon request of the county superintendent, shall furnish to the county board information and records as may be required periodically with respect to attendance, instruction and progress of students receiving the instruction. The state board shall develop guidelines for the home schooling of special education students including alternative assessment measures to assure that satisfactory academic progress is achieved.
(2) The child meets the requirements set forth in this subdivision: Provided, That the county superintendent may, after a showing of probable cause, seek from the circuit court of the county an order denying home instruction of the child. The order may be granted upon a showing of clear and convincing evidence that the child will suffer neglect in his or her education or that there are other compelling reasons to deny home instruction.
(A) Upon commencing home instruction under this section the parent of a child receiving home instruction shall present to the county superintendent or county board a notice of intent to provide home instruction that includes the name, address, and age of any child of compulsory school age to be instructed and assurance that the child shall receive instruction in reading, language, mathematics, science and social studies and that the child shall be assessed annually in accordance with this subdivision. The person providing home instruction shall notify the county superintendent upon termination of home instruction for a child who is of compulsory attendance age. Upon establishing residence in a new county, the person providing home instruction shall notify the previous county superintendent and submit a new notice of intent to the superintendent of the new county of residence: Provided, That if a child is enrolled in a public school, notice of intent to provide home instruction shall be given on or before the date home instruction is to begin.
(B) The person or persons providing home instruction shall submit satisfactory evidence of a high school diploma or equivalent, or a post-secondary degree or certificate from a regionally accredited institution or from an institution of higher education that has been authorized to confer a post-secondary degree or certificate in West Virginia by the West Virginia Council for Community and Technical College Education or by the West Virginia Higher Education Policy Commission.
(C) Annually, the person or persons providing home instruction shall obtain an academic assessment of the child for the previous school year in one of the following ways:
(i) The child receiving home instruction takes a nationally normed standardized achievement test published or normed not more than 10 years from the date of administration and administered under the conditions as set forth by the published instructions of the selected test and by a person qualified in accordance with the test’s published guidelines in the subjects of reading, language, mathematics, science and social studies. The child is considered to have made acceptable progress when the mean of the child’s test results in the required subject areas for any single year is within or above the fourth stanine or, if below the fourth stanine, shows improvement from the previous year’s results;
(ii) The child participates in the testing program currently in use in the state’s public schools. The test shall be administered to the child at a public school in the county of residence. Determination of acceptable progress shall be based on current guidelines of the state testing program;
(iii) A portfolio of samples of the child’s work is reviewed by a certified teacher who determines whether the child’s academic progress for the year is in accordance with the child’s abilities. The teacher shall provide a written narrative about the child’s progress in the areas of reading, language, mathematics, science and social studies and shall note any areas which, in the professional opinion of the reviewer, show need for improvement or remediation. If the narrative indicates that the child’s academic progress for the year is in accordance with the child’s abilities, the child is considered to have made acceptable progress; or
(iv) The child completes an alternative academic assessment of proficiency that is mutually agreed upon by the parent or legal guardian and the county superintendent.
(D) A parent or legal guardian shall maintain copies of each student’s Academic Assessment for three years. When the annual assessment fails to show acceptable progress, the person or persons providing home instruction shall initiate a remedial program to foster acceptable progress. The county board upon request shall notify the parents or legal guardian of the child, in writing, of the services available to assist in the assessment of the child’s eligibility for special education services. Identification of a disability does not preclude the continuation of home schooling. In the event that the child does not achieve acceptable progress for a second consecutive year, the person or persons providing instruction shall submit to the county superintendent additional evidence that appropriate instruction is being provided.
(E) The parent or legal guardian shall submit to the county superintendent the results of the academic assessment of the child at grade levels three, five, eight and 11, as applicable, by June 30 of the year in which the assessment was administered.
(3) This subdivision applies to both home instruction exemptions set forth in subdivisions (1) and (2) of this subsection. The county superintendent or a designee shall offer such assistance, including textbooks, other teaching materials and available resources, all subject to availability, as may assist the person or persons providing home instruction. Any child receiving home instruction may upon approval of the county board exercise the option to attend any class offered by the county board as the person or persons providing home instruction may consider appropriate subject to normal registration and attendance requirements.
(d) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code if the requirements of this subsection, relating to physical or mental incapacity, are met. Physical or mental incapacity consists 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 is required. Incapacity shall be narrowly defined and in any case the provisions of this article may not allow for the exclusion of the mentally, physically, emotionally or behaviorally handicapped child otherwise entitled to a free appropriate education.
(e) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code if conditions rendering school attendance impossible or hazardous to the life, health or safety of the child exist.
(f) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code upon regular graduation from a standard senior high school or alternate secondary program completion as determined by the state board.
(g) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code if the child is granted a work permit pursuant to the subsection. After due investigation the county superintendent may grant work permits to youths under the termination age designated in §18-8-1a of this code, subject to state and federal labor laws and regulations. A work permit may not be granted on behalf of any youth who has not completed the eighth grade of school.
(h) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code if a serious illness or death in the immediate family of the child has occurred. 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 the facts to the county superintendent.
(i) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code if the requirements of this subsection, relating to destitution in the home, are met. 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 the 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 is not allowed when the destitution is relieved through public or private means.
(j) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code if the requirements of this subsection, relating to church ordinances and observances of regular church ordinances, are met. The county board may approve exemption for religious instruction upon written request of the person having legal or actual charge of a child or children. This exemption is subject to the rules prescribed by the county superintendent and approved by the county board.
(k) A child is exempt from the compulsory school attendance requirement set forth in §18-8-1a of this code if the requirements of this subsection, relating to alternative private, parochial, church or religious school instruction, are met. 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 §18-28-1 et seq. of this code.
(l) Completion of the eighth grade does not exempt any child under the termination age designated in §18-8-1a of this code from the compulsory attendance provision of this article.
(m) A child is exempt from the compulsory school attendance requirements set forth in §18-8-1a of this code if the child is an eligible recipient participating in the Hope Scholarship Program, as provided for in §18-31-1 et seq. of this code and provides a notice of intent to participate in the Hope Scholarship Program to the county superintendent. The county superintendent shall enter the following into the West Virginia Education Information System (WVEIS):
(1) The filing of the notice of intent pursuant to this subsection;
(2) In the case of a Hope Scholarship recipient who chooses an individualized instructional program, annually, the child’s test results or determination that a student is making academic progress commensurate with his or her age and ability, as applicable, pursuant to §18-31-8(a)(4) of this code; and
(3) In the case of an eligible recipient enrolling in a participating school, annually, the filing of a notice of enrollment pursuant to §18-31-11(a)(6) of this code.
§18-8-1a. Commencement and termination of compulsory school attendance; public school entrance requirements; exceptions.
(a) Notwithstanding the provisions of section one of this article, compulsory school attendance begins with the school year in which the sixth birthday is reached prior to September 1 of such year or upon enrolling in a publicly supported kindergarten program and, subject to subdivision (3) of this subsection, continues to the sixteenth birthday or for as long as the student continues to be enrolled in a school system after the sixteenth birthday.
(1) A child may be removed from such kindergarten program when the principal, teacher and parent or guardian concur that the best interest of the child would not be served by requiring further attendance: Provided, That the principal shall make the final determination with regard to compulsory school attendance in a publicly supported kindergarten program.
(2) The compulsory school attendance provision of this article shall be enforced against a person eighteen years of age or older for as long as the person continues to be enrolled in a school system and may not be enforced against the parent, guardian or custodian of the person.
(3) Notwithstanding the provisions of section one of this article, compulsory school attendance begins with the school year in which the sixth birthday is reached prior to September 1 of such year or upon enrolling in a publicly supported kindergarten program and continues to the seventeenth birthday or for as long as the student continues to be enrolled in a school system after the seventeenth birthday: Provided, That beginning in the school year 2019-2020, compulsory school attendance begins with the school year in which the sixth birthday is reached prior to July 1 of such year or upon enrolling in a publicly supported kindergarten program.
(b) A parent, as defined in §18-31-2 of this code, shall have the option, prior to enrolling in a publicly supported kindergarten program, to apply for a Hope Scholarship on behalf of his or her child as set forth in §18-31-1 et seq. of this code. Every year thereafter, a parent shall have the option to renew his or her child’s enrollment in the Hope Scholarship Program pursuant to §18-31-8 of this code.
(b) (c) Attendance at a state-approved or Montessori kindergarten,
as provided in section eighteen, article five of this chapter, is deemed school
attendance for purposes of this section. Prior to entrance into the first grade
in accordance with section five, article two of this chapter, each child must
(1) Successfully completed such publicly or privately supported, state-approved kindergarten program or Montessori kindergarten program; or
(2) Successfully completed an entrance test of basic readiness skills approved by the county in which the school is located. The test may be administered in lieu of kindergarten attendance only under extraordinary circumstances to be determined by the county board.
(c)(d) Notwithstanding the provisions of this section, section
five, article two of this chapter and section eighteen, article five of this
chapter, a county board may provide for advanced entrance or placement under
policies adopted by said board for any child who has demonstrated sufficient
mental and physical competency for such entrance or placement. (d)(e) This section does not prevent a
student from another state from enrolling in the same grade in a public school
in West Virginia as the student was enrolled at the school from which the
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-25. Funding for Hope Scholarship Program.
(a) Notwithstanding any other provision of this article to the contrary, for fiscal year 2023 and each fiscal year thereafter, in addition to all other amounts required by this article, the Department of Education shall include in its budget request, and the Governor shall include in each budget bill submitted to the Legislature, an appropriation to the Department of Education for the greater of an amount not less than two percent of net public school enrollment adjusted for state aid purposes or the total number of eligible Hope Scholarship applications received by the Treasurer, if available, multiplied by the prior year’s statewide average net state aid allotted per pupil. The amount appropriated shall be transferred by the Department of Education to the State Treasurer to be used solely to meet the Hope Scholarship Program obligations set forth in §18-31-1 et seq. of this code except as otherwise provided in this section. The Governor shall also provide in each budget for the reappropriation for expenditure during the ensuing fiscal year for those purposes any balance of the annual appropriation to the Department of Education that was not transferred to the State Treasurer due to an accumulated balance from prior years as provided under subsection (b) of this section.
(b) Each fiscal year, the amount required to be requested and included in the budget bill for appropriation under subsection (a) of this section shall be reduced by the sum of:
(1) Any unused accumulated amounts transferred to the State Treasurer for these purposes from previous years; and
(2) Any unused appropriations made to the Department of Education for these purposes that were not transferred to the State Treasurer due to an accumulated balance from prior years.
ARTICLE 31. hope scholarship PROGRAM.
§18-31-1. Short title.
This article shall be known as the “Hope Scholarship Act.” The program created by this act shall be known as the “Hope Scholarship Program.”
The following words have the meanings ascribed to them unless the context clearly indicates a different meaning:
(1) “Account” or “scholarship” means a Hope Scholarship account, awarded pursuant to this article, to which funds are allocated by the Treasurer to the parent or parents of an eligible Hope Scholarship student in order to pay qualifying education expenses to educate the student pursuant to the requirements and conditions of this article;
(2) “Board” means the Hope Scholarship Board created pursuant to §18-31-3 of this code;
(3) “Curriculum” means a complete course of study for a particular content area or grade level, including any supplemental materials required by the curriculum;
(4) “Education service provider” means a person or organization that receives payments from Hope Scholarship accounts to provide educational goods and services to Hope Scholarship students;
(5) “Eligible recipient” means a child who:
(A) Is a resident of this state; and
(B) Is enrolled in a public elementary or secondary school program in this state at the time of application, or is eligible or otherwise required to enroll in a kindergarten program in this state pursuant to §18-8-1a of this code;
(6) “Hope Scholarship student” means a student who receives a scholarship pursuant to this article;
(7) “Parent” means a biological parent, legal guardian, custodian, or other person with legal authority to act on behalf of an eligible recipient or Hope Scholarship student;
(8) “Participating school” means any private school that provides education to elementary and/or secondary students and has notified the Treasurer of its intention to participate in the program and comply with the program’s requirements;
(9) “Resident school district” means the county school district in which the student resides; and
(10) “Treasurer” means the West Virginia State Treasurer’s Office.
18-31-3. West Virginia Hope Scholarship Board; members; terms; compensation; proceedings generally.
(a) The West Virginia Hope Scholarship Program shall be administered by the West Virginia Hope Scholarship Board.
(b) The board shall consist of seven members and include the following:
(1) The State Treasurer;
(2) The State Auditor, or his or her designee;
(3) A representative of an organization in the state designated as a Protection and Advocacy agency, as provided in 45 CFR §1326.20, appointed by the Governor, with the advice and consent of the Senate; and
(4) Four members appointed by the Governor with the advice and consent of the Senate who are parents of Hope Scholarship students, or for the initial appointments of board members following the effective date of this article, parents who intend to apply for the Hope Scholarship on behalf of eligible recipients, to be appointed as follows:
(A) Only state residents are eligible for appointment to the board;
(B) The members shall reside in geographically diverse areas of the state, with no more than two members residing in the same county;
(C) Members shall be initially appointed to staggered terms as follows:
(i) One member appointed by the Governor to a one-year term;
(ii) One member appointed by the Governor to a two-year term; and
(iii) Two members each appointed by the Governor to a three-year term.
After the initial staggering of terms, appointed board members shall serve for three-year terms and are eligible for reappointment at the expiration of their terms; and
(E) If there is a vacancy among appointed members, the vacancy shall be filled by appointment to the unexpired term of a person meeting the requirements of this section by the Governor with the advice and consent of the Senate. Members of the board shall serve until the later of the expiration of the term for which the member was appointed or the appointment of his or her successor.
(c) Members of the board shall serve without compensation. The Treasurer may pay all reasonable and necessary expenses, including travel expenses, actually incurred by board members in the conduct of their official duties. Any expense payments shall be made from the West Virginia Hope Scholarship Program Expense Fund at the same rate paid to state employees.
(d) The Treasurer is the chairman and presiding officer of the board. The Treasurer may provide office space and staff as requested by the board.
(e) A majority of the members of the board constitutes a quorum for the transaction of the business of the board.
(f) The board shall be subject to the Open Governmental Proceedings Act set forth in §6-9A-1 et seq. of this code and the Freedom of Information Act set forth in §29B-1-1 et seq. of this code.
§18-31-4. Powers of the board.
The board is authorized to take any action necessary to effectuate the provisions of this article and to successfully administer the Hope Scholarship Program, subject to applicable state and federal law, including, but not limited to the following:
(1) Adopt and amend bylaws;
(2) Execute contracts and other instruments for necessary goods and services, employ necessary personnel and engage the services of private consultants, actuaries, auditors, counsel, managers, trustees, and any other contractor or professional needed for rendering professional and technical assistance and advice: Provided, That election of these services is not subject to the provisions of §5A-3-1 et seq. of this code;
(3) Implement the program through the use of financial organizations as account depositories and managers;
(4) Develop and impose requirements, policies, procedures, and guidelines to implement and manage the program;
(5) Determine whether an expenditure of Hope Scholarship funds is or was a qualifying expense to educate a Hope Scholarship student pursuant to §18-31-7 of this code. The board may approve or deny expenditures by a majority vote.
(6) Review any appeals made pursuant to §18-31-10(b) and §18-31-10(d) of this code.
(7) Establish the method by which funds shall be allocated to pay for administrative costs and assess, collect and expend administrative fees, charges, and penalties;
(8) Authorize the assessment, collection and retention of fees and charges against the amounts paid into and the earnings on the trust funds by a financial institution, investment manager, fund manager, West Virginia Investment Management Board, West Virginia Board of Treasury Investments, or other professional managing or investing the trust funds and accounts;
(9) Invest and reinvest any of the funds and accounts under the Treasurer and board’s control with a financial institution, an investment manager, a fund manager, the West Virginia Investment Management Board, West Virginia Board of Treasury Investments, or other professionals investing the funds and accounts: Provided, That investments made under this article shall be made in accordance with the provisions of §44-6C-1 et seq. of this code.
(10) Solicit and accept gifts, including bequests and other testamentary gifts made by will, trust, or other disposition; grants; loans; aid; and property, real or personal of any nature and from any source, or to participate in any other way in any federal, state, or local governmental programs in carrying out the purposes of this article: Provided, That the Treasurer and board shall use the property received to effectuate the desires of the donor, and shall convert the property received into cash within 180 days of receipt;
§18-31-5. Award of Hope Scholarships.
(a) The Hope Scholarship Program is established to provide the option for a parent to better meet the individual education needs of his or her eligible child. The program shall be operational no later than July 1, 2022.
(b) The board shall create a standard application form that a parent can submit to establish his or her student’s eligibility for the award of Hope Scholarship funds, to be placed in a personal education savings account to be used for qualifying education expenses on behalf of the eligible recipient as provided for in §18-31-7 of this code. Information about scholarship funds and the application process shall be made available on the Treasurer’s website.
(c) The Treasurer’s Office shall make such applications available no later than March 1, 2022 and shall begin accepting applications immediately thereafter. The board may update the application as needed. The board shall issue an award letter to eligible recipients within 45 days of receipt of a completed application and all required documentation.
(d) The board shall approve an application for a Hope Scholarship if all of the following circumstances are met:
(1) A parent submits an application for a Hope Scholarship in accordance with the procedures established by legislative rule by the board;
(2) A student on whose behalf the parent is applying is an eligible recipient, as provided for in §18-31-2(5) of this code;
(3) The parent signs an agreement with the board, promising to do all of the following:
(A) To provide an education for the eligible recipient in at least the subjects of reading, language, mathematics, science, and social studies;
(B) To use the Hope Scholarship funds exclusively for qualifying expenses as provided for in §18-31-7 of this code;
(C) To comply with the rules and requirements of the Hope Scholarship program; and
(D) To afford the Hope Scholarship student opportunities for educational enrichment such as organized athletics, art, music, or literature; and
(4) The Treasurer confirms with the West Virginia Department of Education that the student satisfies §18-31-2(5)(B) of this code: Provided, That if the department does not reply within 30 days, this criteria is considered satisfied.
(e) An application for a Hope Scholarship is confidential and not a public record subject to release pursuant to the West Virginia Freedom of Information Act, as codified in §29B-1-1 et seq. of this code.
§18-31-6. Funding of Hope Scholarships.
(a) There is hereby created in the State Treasury a special revenue fund designated and known as the West Virginia Hope Scholarship Program Trust Fund. The fund shall be administered by the Treasurer and shall consist of funds transferred by the Department of Education in accordance with §18-9A-10(a)(6) and §18-31-6(b) of this code.
(b) The amount of Hope Scholarship funding granted to an eligible recipient on a yearly basis shall be equal to 100 percent of the prior year’s statewide average net state aid share allotted per pupil based on net enrollment adjusted for state aid purposes, subject to the provisions of subsection (c) of this section: Provided, That the amount of the funding to an eligible recipient who is awarded a Hope Scholarship account for less than a full fiscal year shall be prorated based on the portion of the fiscal year the eligible recipient is awarded the Hope Scholarship account. On or prior to the submission of the Department of Education’s budget request each year, the Treasurer shall notify the Department of Education of the total number of eligible Hope Scholarship applications received by the Treasurer, for purposes of facilitating the necessary transfer of funds pursuant to §18-9A-10(a)(6) of this code.
(c) Expenditures from the Hope Scholarship Fund shall be limited to the purposes set forth in this article: Provided, That an amount not to exceed five percent of the fund shall be transferred annually to the West Virginia Hope Scholarship Program Expense Fund established in subsection (h) of this section to cover the annual administrative costs of the Hope Scholarship Program. If the number of Hope Scholarship accounts increases significantly after any fiscal year, the Treasurer may request an appropriation by the Legislature to the West Virginia Hope Scholarship Program Expense Fund in an amount equal to the administrative costs associated with the increase in Hope Scholarship accounts.
(d) The first deposit of Hope Scholarship funds into an eligible recipient account shall be subject to the execution of the parental agreement required by §18-31-5 of this code. Upon execution of the required parental agreement, and subject to the provisions of §18-31-9(7) of this code, one half of the total annually required deposit shall be made no later than August 15 of every year into an eligible recipient’s Hope Scholarship account, and one half of the total annually required deposit shall be made no later than January 15 of every year. Any funds remaining in a Hope Scholarship account at the end of the fiscal year may be carried over to the next fiscal year upon successful renewal of the account.
(e) Funds deposited in a student’s Hope Scholarship account, other than those funds expended on transportation services pursuant to §18-31-7(11) of this code, do not constitute taxable income to the parent or the Hope Scholarship student.
(f) The Treasurer shall continue to make deposits into an eligible recipient’s Hope Scholarship account in accordance with the provisions of this section unless any of the following conditions have occurred:
(1) A parent of an eligible recipient fails to renew a Hope Scholarship account or withdraws from the Hope Scholarship Program;
(2) The board determines that a student is no longer eligible for a Hope Scholarship;
(3) The board suspends or revokes participation in the Hope Scholarship Program for failure to comply with the requirements of this article;
(4) The Hope Scholarship student successfully completes a secondary education program; or
(5) The Hope Scholarship student reaches 21 years of age.
(g) If any of the conditions in subsection (f) of this section occur, the board shall notify the parent that the eligible recipient’s account will be closed in 45 calendar days. If a parent fails to adequately address the condition or conditions upon which closure is based or does not respond within 30 calendar days of receipt of notice, the board shall close the account and any remaining moneys shall be returned to the state.
(h)(1) There is hereby created in the State Treasury a special revenue fund designated and known as the West Virginia Hope Scholarship Program Expense Fund. The account shall consist of moneys received pursuant to §18-31-6(c) of this code, or any governmental or private grants and any state general fund appropriations, if any, for the Hope Scholarship Program.
(2) All expenses incurred by the Treasurer or the board in developing and administering the Hope Scholarship Program shall be payable from the West Virginia Hope Scholarship Expense Fund.
§18-31-7. Qualifying Expenses for Hope Scholarship Accounts.
(a) Parents of a Hope Scholarship student shall agree to use the funds deposited in their student’s Hope Scholarship account only for the following qualifying expenses to educate the student:
(1) Ongoing services provided by a public school district pursuant to §18-31-8(f) of this code, including without limitation, individual classes and extracurricular activities and programs;
(2) Tuition and/or fees at a participating school;
(3) Tutoring services provided by an individual or a tutoring facility: Provided, That such tutoring services are not provided by a member of the Hope Scholarship student’s immediate family;
(4) Fees for nationally standardized assessments, advanced placement examinations, any examinations related to college or university admission, and tuition and/or fees for preparatory courses for the aforementioned exams;
(5) Tuition and/or fees for programs of study or the curriculum of courses that lead to an industry-recognized credential that satisfies a workforce need;
(6) Tuition and/or fees for nonpublic online learning programs;
(7) Tuition and/or fees for alternative education programs;
(8) Fees for after-school or summer education programs;
(9) Educational services and therapies, including, but not limited to, occupational, behavioral, physical speech-language, and audiology therapies;
(10) Curriculum as defined in §18-31-2 of this code;
(11) Fees for transportation paid to a fee-for-service transportation provider for the student to travel to and from an education service provider; and
(12) Any other qualified expenses as approved by the board established pursuant to §18-31-3 of this code.
(b) The funds in a Hope Scholarship account may only be used for educational purposes in accordance with subsection (a) of this section. Nothing in this section requires that a Hope Scholarship student be enrolled, full- or part-time, in either a private school or nonpublic online school.
(c) Hope Scholarship funds may not be refunded, rebated, or shared with a parent or student in any manner. Any refund or rebate for goods or services purchased with Hope Scholarship funds shall be credited directly to a student’s Hope Scholarship account.
(d) Nothing in this section prohibits the parents of a Hope Scholarship student from making payments for the costs of educational goods and services not covered by the funds in their student’s Hope Scholarship account. However, personal deposits into a Hope Scholarship account are not permitted.
§18-31-8. Renewal of Hope Scholarship Accounts; participation in public school system.
(a) A parent must renew an eligible recipient’s Hope Scholarship on an annual basis. Notwithstanding any changes in eligibility, a Hope Scholarship student who has previously qualified for a Hope Scholarship account remains eligible to apply for renewal until one of the conditions set forth in §18-31-6(f) occurs: Provided, That the board shall verify with the Department of Education the following information by July 1 of every year:
(1) A list of all active Hope Scholarship Accounts;
(2) The resident school district of each Hope Scholarship student;
(3) For a Hope Scholarship student who chooses to attend a participating school, annual confirmation of his or her continued attendance at a nonpublic school that complies with all requirements that other nonpublic school students must comply with; and
(4) For a Hope Scholarship student who chooses an individualized instructional program:
(A) (i) He or she has annually taken a nationally normed standardized achievement test of academic achievement;
(ii) The mean of the child’s test results in the subject areas of reading, language, mathematics, science and social studies for any single year is within or above the fourth stanine or, if below the fourth stanine, show improvement from the previous year’s results; and
(iii) The child’s test results are reported to the county superintendent; or
(B) (i) A certified teacher conducts a review of the student’s academic work annually;
(ii) The certified teacher determines that the student is making academic progress commensurate with his or her age and ability; and
(iii) The certified teacher’s determination is reported to the county superintendent.
(b) Each county superintendent shall submit the test results and determinations reported to him or her pursuant to subsection (a) of this section to the Department of Education each year on or before June 15.
(c) If a parent fails to renew an eligible recipient’s Hope Scholarship, the board shall notify the parent that the eligible recipient’s account will be closed in 45 calendar days. If a parent chooses not to renew or does not respond within 30 calendar days of receipt of notice, the board shall close the account and any remaining moneys shall be returned to the state.
(d) If an eligible recipient decides to return to the Hope Scholarship Program after failing to renew, they must reapply.
(e) The board, in consultation with the Department of Education, may adopt rules and policies to provide the least disruptive process for Hope Scholarship students who desire to stop receiving Hope Scholarship payments and return full-time to a public school.
(f) The board, in consultation with the Department of Education, may adopt rules and policies for Hope Scholarship students who want to continue to receive services provided by a public school or district, including individual classes and extracurricular programs, in combination with an individualized instructional program. The board, in consultation with the Department of Education, shall ensure that any public school or school district providing such services receives the appropriate pro rata share of a student’s Hope Scholarship funds based on the percentage of total instruction provided to the student by the public school or school district. County boards shall charge tuition to Hope Scholarship students who enroll for services in a public school within the county. Hope Scholarship students who enroll for services part-time in public school shall not be included in net enrollment for state aid funding purposes under §18-9A-2 of this code. Nothing in this subsection prohibits a Hope Scholarship student from using the funds deposited in his or her account on both services provided by a public school or district and other qualifying expenses as provided for in §18-31-7 of this code.
§18-31-9. Administration of Hope Scholarship Accounts.
In addition to the duties, obligations, and authority stated in other parts of this article, the board has the following duties, obligations, and authority with respect to the administration of Hope Scholarship accounts:
(1) To maintain an updated list of participating schools and shall ensure that the list is publicly available through various sources, including the internet.
(2) To provide parents with a written explanation of the allowable uses of Hope Scholarship funds, the responsibilities of parents, the duties of the Treasurer and the board and the role of any private financial management firms or other private organizations that the board may contract with to administer the Hope Scholarship Program or any aspect of the program.
(3) To ensure that parents of students with a disability receive notice that participation in the Hope Scholarship Program is a parental placement under 20 U.S.C. §1412 of the Individuals with Disabilities Education Act (IDEA) along with an explanation of the rights that parentally placed students possess under (IDEA) and any applicable state laws and regulations.
(4) The board may contract with private organizations to administer the Hope Scholarship Program. This includes, but is not limited to, private financial management firms to manage Hope Scholarship accounts.
(5) The board shall implement, or contract with a private organization to implement, a commercially viable, cost effective, and parent-friendly system for payment for services from Hope Scholarship accounts to participating schools or education service providers, including, but not limited to, the use of debit cards or other electronic or online fund transfers: Provided, That a Hope Scholarship account may not be reduced for debit card or electronic payment fees.
(6) The board shall also seek to implement a commercially viable, cost-effective, and parent-friendly system for publicly rating, reviewing, and sharing information about participating schools and education service providers, ideally as part of the same system that facilitates the electronic or online funds transfers so as to create a one-stop-shop for parents and Hope Scholarship students.
(7) If an education service provider requires partial payment of tuition or fees prior to the start of the academic year to reserve space for a Hope Scholarship student admitted to the education service provider, such partial payment may be paid prior to the start of the school year in which the Hope Scholarship is awarded, and deducted in an equitable manner from subsequent Hope Scholarship deposits to ensure adequate funds remain available throughout the school year; but if a Hope Scholarship student decides not to use the education service provider, the partial reservation payment must be returned to the Treasurer by such education service provider and credited to the student’s Hope Scholarship account.
(8) The Treasurer may accept gifts and grants from any source to cover administrative costs, to inform the public about the Hope Scholarship Program, or to provide additional funding for Hope Scholarship Accounts.
(9) The board may propose legislative rules for legislative approval pursuant to §29A-3-1 et seq. of this code, including emergency rules, if necessary, to meet timelines set forth in this article, that are not inconsistent with this article and that are necessary for the administration of this article, including:
(A) Establishing or contracting for the establishment of a fraud reporting system;
(B) Policies that require a surety bond for education service providers receiving more than $100,000 in Hope Scholarship funds;
(C) Procedures for refunding payments from education service providers back to Hope Scholarship accounts; and
(D) Procedures for entering into reciprocal agreements with other state education savings account agencies or entities, whether public or private, to recognize and allow education service providers approved in other states to receive payments from Hope Scholarship accounts under this article.
(10) Any rules or policies adopted by the board should avoid excessive bureaucracy and overly prescriptive mandates and instead focus on easing parental involvement and encouraging education service providers to provide parents and Hope Scholarship students with a broad array of educational options.
§18-31-10. Auditing of Hope Scholarship Program; suspension of accounts and providers.
(a) The board may propose legislative rules for legislative approval pursuant to §29A-3-1 et seq. of this code for the auditing of individual Hope Scholarship accounts and shall conduct or contract for the random auditing of individual Hope Scholarship accounts as needed to ensure compliance with the requirements of this article and rules promulgated pursuant to this article.
(b) As part of the auditing process, the board may remove a parent or eligible recipient from the Hope Scholarship program and close a Hope Scholarship account for failure to comply with the terms of the parental agreement required by §18-31-5 of this code, failure to comply with the applicable laws, failure of the student to remain eligible, or intentional and fraudulent misuse of Hope Scholarship funds: Provided, That the board shall create procedures to ensure that a fair process exists to determine the removal of a parent or eligible recipient from the Hope Scholarship program and a parent or Hope Scholarship student may appeal the decision to make the student ineligible for funds to the board.
(c) The board may conduct or contract for the audit of education service providers accepting payments from Hope Scholarship accounts if it determines that the education service provider has:
(1) Intentionally and substantially misrepresented information or failed to refund any overpayments in a timely manner; or
(2) Routinely failed to provide students with promised educational goods or services.
(d) If the board determines that an education service provider has intentionally and substantially misused Hope Scholarship funds, the board may bar the education service provider from continuing to receive payments. The board shall create procedures to ensure that a fair process exists to determine whether an education service provider may be barred from receiving payment from Hope Scholarship accounts and an education service provider may appeal a decision to bar it from receiving payments to the board. If the board bars an education service provider from receiving payments from Hope Scholarship accounts, it shall notify parents and students of its decision as quickly as possible.
(e) If the board obtains evidence of potential fraudulent use of Hope Scholarship funds, it may refer suspected cases to the State Auditor for purposes of investigation, collection and potential criminal investigation.
§ 18-31-11. Requirements for and rights of education service providers.
(a) To be eligible to accept payments from a Hope Scholarship account, an education service provider shall:
(1) Submit notice to the Treasurer that they wish to participate in the Hope Scholarship Program;
(2) Provide participating parents with a receipt for all qualifying educational expenses for the Hope Scholarship student;
(3) Agree not to refund, rebate, or share Hope Scholarship funds with parents or students in any manner, except that funds may be remitted or refunded to a Hope Scholarship account in accordance with §18-31-7(c) of this code;
(4) Certify that it will not discriminate on any basis prohibited by 42 U.S.C. §1981;
(5) Agree to submit any employee who will have contact with Hope Scholarship students to a criminal background check; and
(6) In the case of a participating school, provide notice of enrollment annually to the county superintendent of any student for which a student’s tuition is being paid through the Hope Scholarship Program.
(b) This article does not limit the independence or autonomy of an education service provider or make the actions of an education service provider the actions of the state government.
(c) Education service providers shall be given maximum freedom to provide for the educational needs of Hope Scholarship students without governmental control.
(d) A participating school or education service provider is not required to alter its creed, practices, admission policy, hiring policy or curriculum in order to accept eligible recipients whose parents pay tuition or fees from a Hope Scholarship account pursuant to this article.
(e) This article does not expand the regulatory authority of the state, its officers, or any school district to impose any additional regulation of education service providers beyond those necessary to enforce the requirements of the program.
§18-31-12. Responsibilities of resident school districts.
The resident school district or school district in which a Hope Scholarship student was last enrolled, as applicable, shall provide an education service provider that has enrolled the student with a complete copy of the student’s school records, while complying with the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. §1232 g).
§18-31-13. Legal proceedings; severability.
(a) In any legal proceeding challenging the application of this article to a participating education service provider, the state bears the burden of establishing that the challenged action, rule, or requirement is necessary and does not impose any undue burden on education service providers.
(b) No liability arises on the part of the board or the state or of any county school district based on the award or use of a Hope Scholarship awarded pursuant to this article.
(c) If any part of this article is challenged in a state court as violating either the state or federal constitutions, parents of eligible Hope Scholarship students are permitted to intervene in the lawsuit for the purposes of defending the article’s constitutionality. However, for the purposes of judicial administration, a court may limit the number of parents permitted to intervene or require that all parents file a joint brief, so long as they are not required to join any brief filed on behalf of any named state defendant.
(d) If any provision of this article or the application of any such provision of this article to any person or circumstance is held invalid by a court of competent jurisdiction, the remainder of this article or the application of its provisions to persons or circumstances other than those to which it is held invalid is not affected thereby.