West Virginia Code
(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. 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, 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) Each county board of education shall adopt a policy that allows a student with disabilities whose individualized education program provides for a modified diploma to participate in the graduation ceremony of his or her same grade classmates if requested in writing by his or her parent or legal guardian. The county board shall also permit the student to continue receiving his or her special education services after the graduation ceremony. The county board may not terminate, deny or declare the student ineligible for post-graduation ceremony special education services due to his or her participation in the graduation ceremony.
(a) During the school year beginning on July 1, 1985, each county board of education shall develop a coordinated service delivery plan in accordance with standards for preschool programs for severely disabled children to be developed by the State Board of Education and begin services where plans are already developed.
(b) Only in any year in which funds are made available by legislative appropriation, and only to the extent of such funding, each county board of education shall establish and maintain a special educational program, including, but not limited to, special classes and home-teaching and visiting-teacher services for all severely disabled children between the ages of three and five according to the following schedule:
(1) By the school year beginning on July 1, 1986, and thereafter, for severely disabled children who are age four before September 1, 1986;
(2) By the school year beginning on July 1, 1987, and thereafter, for severely disabled children who are age three before September 1, 1987.
As used in this section, the term "severely disabled children" means those children who fall in any one of the following categories as defined or to be defined in the State Board of Education standards for the education of exceptional children: Severe behavioral disorders, severely speech and language impaired, deaf-blind, deafness or hearing difficulties, autistic, physically handicapped, disabled profoundly intellectually disabled, trainable intellectually disabled or visually impaired.
Before August 1, 1985, the State Board of Education shall adopt rules and regulations to advance and accomplish this program and to assure that an appropriate educational program is available to all such children in the state, including children in mental health facilities, residential institutions and private schools.
This section does not prevent county boards of education from providing special education programs, including, but not limited to, special schools, classes, regular class programs and home-teaching or visiting-teacher services for severely disabled preschool children prior to such times as are required by this section. In addition, county boards of education may provide these services to preschool exceptional children in disability categories other than those listed above.
(a) During the school year beginning on July 1, 1991, each county board of education shall develop a coordinated service delivery plan in accordance with standards for preschool programs for handicapped children to be developed by the State Board of Education and begin services where plans are already developed.
(b) Each county board of education shall establish and maintain special education programs, including, but not limited to, special classes, regular classes and home-teaching and visiting-teacher services for all handicapped children ages three through five, inclusive.
As used in this section, the term "handicapped children" means those children who fall in any one of the following categories as defined or to be defined in the State Board of Education standards for the education of exceptional children: Severe behavioral disorders, communication disordered, deaf-blind, developmentally delayed, deaf or hard of hearing, other health impaired including autism, physically handicapped, mentally impaired or visually impaired.
Before August 1, 1991, the State Board of Education shall adopt rules to advance and accomplish this program and to assure that an appropriate educational program is available to all such children in the state, including children in mental health facilities, residential institutions, foster care, correctional facilities and private schools.
This section does not prevent county boards of education from providing special education programs, including, but not limited to, special schools or classes, regular class programs and home-teaching or visiting-teacher services for severely handicapped preschool children prior to such times as are required by this section.
(a) The regular classroom teacher is entitled to the following when placing a student with exceptional needs into an integrated classroom when the student's individualized education program requires an adjustment in either the curriculum, instruction or service to be provided by the regular classroom teacher:
(1) Training provided pursuant to the integrated classroom program and additional individualized training, pursuant to the rules developed by the State Board of Education, if requested by the regular classroom teacher to prepare the teacher to meet the exceptional needs of individual students. Whenever possible, the training shall be provided prior to the placement. Where prior training is not possible, the training shall be commenced no later than ten days following the placement of the student into the regular classroom. Unavoidable delays in the provision of training may not result in the exclusion of a special needs student from any class if the training cannot be provided in ten days;
(2) A signed copy of the individualized education program for the special education student prior to the placement of the student into the regular classroom. The receiving and referring teachers shall participate in the development of that student's individualized education program and shall also sign the individualized education program as developed. In all cases the teacher shall receive a copy of the individualized education program for the special education student prior to or at the time of the placement of the student into the regular classroom. Any teacher disagreeing with the individualized education program committee's recommendation shall file a written explanation outlining his or her disagreement or recommendation;
(3) Participation by referring teachers in all eligibility committees and participation by referring and receiving teachers in all individualized education program committees which involve possible placement of an exceptional student in an integrated classroom;
(4) Opportunity to reconvene the committee responsible for the individualized education program of the student with special needs assigned to the regular classroom teacher. The meeting shall include all persons involved in a student's individualized education program and shall be held within twenty-one days of the time the request is made; and
(5) Assistance from persons trained or certified to deal with a student's exceptional needs whenever assistance is part of the student's individualized education program as necessary to promote accomplishment of the program's goals and objectives: Provided, That aides in the area of special education cannot be reassigned to more than one school without the employee's consent.
(b) Except teachers already required to participate in the development of a student's individualized education program and sign it as provided in subdivision (2) of this section, all other teachers in whose class or program a student with exceptional needs is enrolled shall:
(1) Participate in the meeting to develop the student's individualized education program, or read and sign a copy of the student's individualized education program plan acknowledging that he or she has read and understands it; and
(2) Make accommodations and modifications for the student, if needed or identified, to help the student succeed in the class or program.
This requirement includes, but is not limited to, teachers of music, musical education, art, driver education and other instruction offered.
The state board shall adopt a basic model for individualized education programs to be used by all special education teachers throughout the public schools of the state when preparing individualized education programs for students with exceptional needs.
The model shall comply with, but may not exceed, all state laws and federal laws, policies, rules, and regulations relating to providing education services to students with exceptional needs and shall include instructions for adapting the model to specific exceptionalities.
No professional educator may be required to prepare or implement an individualized education program which exceeds the requirements of federal and state laws, policies, rules or regulations.
(a) Each county board shall provide suitable educational facilities, special equipment and special services that are necessary. Special services include provisions and procedures for finding and enumerating exceptional children of each type, diagnosis by appropriate specialists who will certify the child's need and eligibility for special education and make recommendations for treatment and prosthesis as may alleviate the disability, special teaching by qualified and specially trained teachers, transportation, lunches and remedial therapeutic services. Qualifications of teachers and therapists shall be in accordance with standards prescribed or approved by the state board.
(b) A county board may provide for educating resident exceptional children by contracting with other counties or other educational agencies which maintain special education facilities. Fiscal matters shall follow policies approved by the state board.
(c) The county board shall provide a four-clock-hour program of training for any teacher aide employed to assist teachers in providing services to exceptional children under this article prior to the assignment. The program shall consist of training in areas specifically related to the education of exceptional children, pursuant to rules of the state board. The training shall occur during normal working hours and an opportunity to be trained shall be provided to a service person prior to filling a vacancy in accordance with the provisions of section eight-b, article four, chapter eighteen-a of this code.
(d) The county board annually shall make available during normal working hours to all regularly employed teachers' aides twelve hours of training that satisfies the continuing education requirements for the aides regarding:
(1) Providing services to children who have displayed violent behavior or have demonstrated the potential for violent behavior; and
(2) Providing services to children diagnosed as autistic or with autism spectrum disorder. This training shall be structured to permit the employee to qualify as an autism mentor after a minimum of four years of training. The county board shall:
(A) Notify in writing all teachers' aides of the location, date and time when training will be offered for qualification as an autism mentor; and
(B) Reimburse any regularly employed or substitute teacher's aide who elects to attend this training for one half of the cost of the tuition.
(e) For any student whose individualized education plan (IEP) or education plan established pursuant to Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794, requires the services of a sign support specialist or an educational sign language interpreter I or II:
(1) Any educational sign language interpreter I or II assigned to assist that student is a related service provider member of the education team who participates in IEP meetings and works with the team to implement the IEP;
(2) A sign support specialist may be assigned to a student with an exceptionality other than deaf or hard of hearing if it is determined that the student needs signs to support his or her expressive communication; and
(3) A sign support specialist may be assigned to a student who is deaf or hard of hearing in lieu of an interpreter only if an educational sign language interpreter I or II is unavailable, and the sign support specialist is executing a professional development plan while actively seeking certification as an educational sign language interpreter I or II. After two years the sign support specialist may remain in the assignment only if an educational sign language interpreter I or II remains unavailable, and with an approved waiver by the West Virginia Department of Education. An employee in this situation is entitled to full payment of the costs of certification acquisition or renewal pursuant to the certification renewal provisions of section four, article two, chapter eighteen-a of this code.
(f) Every teacher of a student for whom a school or county board of education prepares a plan of accommodation pursuant to Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794, shall receive specific instruction from the school regarding the contents and requirements of the plan and, if the plan is prepared in writing, the teacher shall receive a copy of the written plan and every update thereto and the teacher shall sign an acknowledgment of receipt of each plan and update.
Each county shall, after having received from the faculty Senates in its schools the strategic plans mandated by subsection (13), section five, article five-a of this chapter, develop a county strategic plan to manage the integration of special needs students into the regular classroom and submit said strategic plan to the State Superintendent of Schools prior to October 1, 1995.
Counties maintaining special schools, classes, regular class programs, integrated classroom strategic plans and training related to integrated education, basic and specialized health care procedures including the administration of medications, home-teaching or visiting services and receiving or requesting reimbursement from state appropriated funds shall file with the State Superintendent of Schools on forms supplied by his office, applications, annual reports and such other reports as he may require.
Each child prior to enrolling in a special education program shall be examined by an appropriate medical specialist, psychologist or educational specialist (reading specialist, speech and language clinician, or other specialists as required by the state Board of Education for specific areas of exceptionality) who shall report to the county superintendent of schools. The specialists' report shall carry recommendation for eligibility and placement in regular school or in the special education facility, indicate the nature and extent of disability, and advise with reference to treatment and prosthesis for alleviating the child's disability.
No educationally exceptional child shall be excluded from attending public or other suitable schools.
(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) 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) Performing other duties and assuming other responsibilities in connection with this program as needed.
(7) 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.
There shall be an advisory council for the education of exceptional children which shall advise and consult with the state Board of Education on matters pertinent thereto. The advisory council shall be composed of twelve members appointed by the state superintendent of free schools, four of which shall be parents of exceptional children utilizing or eligible for the services of the special educational programs established hereunder. Other members of the advisory council shall include at least one handicapped individual, teacher of exceptional children, state education official, local education official, and an administrator of programs for exceptional children. No more than two officers and employees of the state may be eligible for appointment to the advisory council. Members shall be appointed for terms of three years except for initial terms which may be for one, two or three years. Each year the terms of office of one third of the advisory council shall expire. The members of the advisory council shall be citizens and residents of this state, who by reason of their training, education or experience are qualified to carry out the functions of the advisory council under this article.
The first term of office for the newly appointed members shall begin June 30, 1978.
At its first meeting, to be held the second Wednesday in July, 1978, the advisory council shall elect a chairman from among its members, who shall preside over its meetings until the second Wednesday in July of the next year. Thereafter, the advisory council shall elect a chairman on the second Wednesday in May of each year.
All members shall be eligible for reappointment. A member shall, unless sooner removed, continue to serve until his term expires and his successor has been appointed and has qualified. A vacancy caused by the death, resignation or removal of a member prior to the expiration of his term shall be filled only for the remainder of such term.
For the purpose of carrying out its functions under this article, six members of the advisory council shall constitute a quorum. The advisory council shall meet at least four times each year at least two of which shall be held at a building in the State Capitol complex and at a time designated by the chairman. Additional meetings may be held when called by the chairman or when requested by six members of the advisory council.
The time and place of all meetings and agenda items must be publicly announced and available to the public upon request at least ten days prior to the meeting, and meetings must be open to the public. Official minutes must be kept of all council meetings and shall be made available to the public upon request.
Members of the council shall not receive any compensation for their services on the council, but shall be reimbursed any actual expenses incurred by them in carrying out their duties from funds appropriated to the Department of Education.
The council shall:
(a) Consult with the state Board of Education concerning and comment publicly upon any rules and regulations formulated by such board regarding the education of handicapped children;
(b) Consult with and advise the state board and superintendent and the Legislature concerning any problems presented to the council including unmet needs within the state in the education of handicapped children;
(c) Hold public meetings at such times and places as the advisory council deems appropriate;
(d) Periodically review and comment publicly upon the state plan for special programs and make any recommendations it may have concerning changes it may deem proper. By July 1, of each year, the advisory council shall submit an annual report of its activities and suggestions to the state Board of Education and the superintendent, and shall make such report available to the public.
The state board shall establish exceptional children program compliance review teams to conduct random unannounced on-site reviews of such programs at least every four years in each county for the purpose of reviewing identification procedures, complying with any or all applicable laws and policies, delivering services, verifying enrollment and attendance reports, recommending changes, and fulfilling such other duties as may be established by the state board.
Each review team unit shall consist of five members including one member of an exceptional children advocacy group who is not an employee of any county or state government agency, one teacher of exceptional children in the specific category or categories to be reviewed, one person certified to interpret psycho-educational assessments, one school finance official and one financial Auditor who shall not be an employee of any county board, all appointed by the state superintendent.
(a) The state departments of health, human services and education shall enter into a collaborative agreement for the purpose of developing a statewide plan of coordinating comprehensive, multidisciplinary interagency programs providing appropriate early intervention services to all developmentally delayed and at-risk children, ages birth through five years, and their families to be phased in by the school year 1990-99.
This comprehensive, coordinated statewide plan shall include, at a minimum:
(1) Specification of the population to be served;
(2) The development of regulations and procedural safeguards;
(3) The development of procedures for administration, supervision and monitoring;
(4) The identification and coordination of all available resources; and
(5) The development of formal interagency agreements that define the financial responsibility of each agency and all additional components necessary to ensure meaningful cooperation and coordination.
(b) To assist in the development of such a plan, an advisory council consisting of twelve members shall be created. The departments of health, human services and education shall each appoint four members, and each shall include in such appointments one parent of an exceptional child under the age of six; one public or private provider of early intervention services for developmentally delayed and at-risk children; one individual involved in the education training of personnel who work with preschool handicapped; and one other person.
The functions of the council shall include the following:
(1) Meet at least quarterly;
(2) Solicit information and opinions from concerned agencies, groups and individuals; and
(3) Advise and assist the departments of health, human services and education in the development of the statewide plan herein required.
Following the submission of the advisory council’s first annual report, the joint committee on education is authorized and empowered to disband the council or alter its functions as it deems advisable.
The members of the council may be reimbursed for actual and necessary expenses incurred in the performance of their official duties in accordance with state law from appropriations to the departments of health, human services and education or available federal funds.
Notwithstanding any other provision of this code to the contrary, the teacher-student ratio for gifted, honors, and advanced placement education in grades nine through twelve shall be the same as regular classroom education and not as required for special education of exceptional children: Provided, That this shall not apply to education of exceptional gifted, as defined in section one, article twenty of this chapter. The state board shall review class sizes and enrollment percentages of students in gifted, exceptional gifted, honors, and advanced placement programs in grades nine through twelve and report its findings to the standing education committees of the Senate and House of Delegates by January 10, 1991.
(a) The Legislature finds as follows:
(1) Reading difficulties are the most common cause of academic failure and underachievement;
(2) There are many students who demonstrate significant weaknesses with reading, writing and mathematics that are the root causes of specific learning disabilities, including dyslexia, dyscalculia and related learning difficulties. Of those who are referred to special education services in public schools, the majority are referred because of problems with language, reading, writing, or a combination of each;
(3) Teaching reading effectively, especially to students experiencing difficulty, requires considerable knowledge and skill. Informed and effective classroom instruction, especially in the early grades, can prevent and relieve the severity of language difficulties, and significantly improve literacy development;
(4) For those students with specific learning disabilities, including dyslexia and dyscalculia, who need specialized instruction, competent intervention can lessen the impact of the disorder and help the student overcome the most debilitating symptoms;
(5) While programs for specific learning disabilities, including dyslexia and dyscalculia, that certify or support teachers, clinicians or specialists differ in their preparation methodologies, teaching approaches and organizational purposes, they should ascribe to a common set of professional standards for the benefit of the students they serve. Compliance with such standards can assure the public that individuals who serve students with specific learning disabilities in public schools are prepared to implement scientifically based and clinically proven practices;
(6) The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), and the federal Individuals with Disabilities Education and Improvement Act of 2004 (IDEA) offer widely-adopted and consistent standards to guide the preparation, certification and professional development for teachers of reading and related literacy skills in classroom, remedial and clinical settings; and
(7) The basis of ascribing to common standards to benefit students with specific learning disabilities, including dyslexia and dyscalculia, requires recognizing common characteristics of the disabilities. The Legislature finds that the definitions of dyslexia and dyscalculia prescribed by IDEA and DSM-5 are the appropriate measure for recognizing characteristics of dyslexia and dyscalculia in students.
(b) The Legislature recognizes the following regarding dyslexia and dyscalculia:
(1) Dyslexia and dyscalculia are conditions that may be considered under the specific learning disability category, and their definitions are consistent with IDEA and state board policy. State board policy provides that "specific learning disability" means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia;
(2) Dyslexia is an alternative term used to refer to a pattern of learning difficulties characterized by problems with accurate or fluent word recognition, poor decoding, and poor spelling abilities. If dyslexia is used to specify this particular pattern of difficulties, it is important also to specify any additional difficulties that are present, such as difficulties with reading comprehension or math reasoning; and
(3) Dyscalculia is an alternative term used to refer to a pattern of learning difficulties characterized by problems processing numerical information, learning arithmetic facts, and performing accurate or fluent calculations. If dyscalculia is used to specify this particular pattern of mathematic difficulties, it is important also to specify any additional difficulties that are present, such as difficulties with math reasoning or word reasoning accuracy.
(c) The state board is responsible for the following:
(1) Ensuring that all students receive the necessary and appropriate screenings, evaluations and early assessments for specific learning disabilities, including dyslexia and dyscalculia;
(2) Ensuring that any Individualized Education Program regarding specific learning disabilities, including dyslexia or dyscalculia, which is developed or implemented, is consistent with the provisions of this section; and
(3) Providing ongoing information and education to parents regarding specific learning disabilities, including dyslexia and dyscalculia, and the services available to students with such disabilities.