HB 4722 Text

WEST virginia legislature

2016 regular session

Introduced

House Bill 4722

By Delegate Lane

[Introduced February 23, 2016; Referred
to the Committee on Education then the Judiciary.]

A BILL to amend and reenact the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18-20A-100, §18-20A-101, §18-20A-102, §18-20A-103, §18-20A-104, §18-20A-105, §18-20A-201, §18-20A-202, §18-20A-203, §18-20A-301, §18-20A-302, §18-20A-303, §18-20A-304, §18-20A-401, §18-20A-402, §18-20A-403, §18-20A-404, §18-20A-500, §18-20A-501, §18-20A-502, §18-20A-503, §18-20A-504, §18-20A-505, §18-20A-506, §18-20A-600, §18-20A-601, §18-20A-602, §18-20A-603, §18-20A-604, §18-20A-700, §18-20A-701, §18-20A-702, §18-20A-703, §18-20A-801, §18-20A-802, §18-20A-803, §18-20A-804, §18-20A-901, §18-20A-902, §18-20A-903, §18-20A-1001, §18-20A-1002, §18-20A-1003, §18-20A-1004, §18-20A-1005, §18-20A-1006, §18-20A-1007, §18-20A-1008, §18-20A-1009, §18-20A-1010, §18-20A-1100, §18-20A-1101, §18-20A-1102, §18-20A-1103 and §18-20A-1104, all relating to codification of the West Virginia Procedures Manual for the Education of Students with Exceptionalities.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §18-20A-100, §18-20A-101, §18-20A-102, §18-20A-103, §18-20A-104, §18-20A-105, §18-20A-201, §18-20A-202, §18-20A-203, §18-20A-301, §18-20A-302, §18-20A-303, §18-20A-304, §18-20A-401, §18-20A-402, §18-20A-403, 18-20A-404, §18-20A-500, §18-20A-501, §18-20A-502, §18-20A-503, §18-20A-504, §18-20A-505, §18-20A-506, §18-20A-600, §18-20A-601, §18-20A-602, §18-20A-603, §18-20A-604, §18-20A-700, §18-20A-701, §18-20A-702, §18-20A-703, §18-20A-801, §18-20A-802, §18-20A-803, §18-20A-804, §18-20A-901, §18-20A-902, §18-20A-903, §18-20A-1001, §18-20A-1002, §18-20A-1003, §18-20A-1004, §18-20A-1005, §18-20A-1006, §18-20A-1007, §18-20A-1008, §18-20A-1009, §18-20A-1010, §18-20A-1100, §18-20A-1101, §18-20A-1102, §18-20A-1103 and §18-20A-1104, all to read as follows:

Article 20A. DUTIES AND PROCEDUREs FOR THE Education of Students with Exceptionalities.

Part I. Free Appropriate Public Education

§18-20A-100. Requirement of free appropriate public education.

Every county board of education shall ensure that, except as noted below, a free appropriate public education is available to all students residing within the county who are eligible for special education services and who are between the ages of three and twenty-three. The determination of an appropriate education shall be made on an individual basis for each student. The county board of education shall ensure that eligible students shall also have available to them the variety of education programs and services available to students without exceptionalities including art, music, industrial arts, consumer and homemaking education and vocational education.

§18-20A-101. Criteria for services.

The special education and related services that shall be included within a free appropriate public education shall conform to the following criteria:

(1) They are provided without charge at public expense;

(2) They are provided in conformity with an appropriate individualized education program developed in adequate compliance with the procedures outlined in this manual and reasonably calculated to enable the student to receive educational benefit;

(3) They are provided under public supervision and direction; and

(4) They comprise an appropriate preschool, elementary or secondary education that meets the education standards, regulations, and administrative policies and procedures issued by the West Virginia Department of Education, including the requirements of the Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 (2004).

§18-20A-102. Eligible students; inclusion within the provision of services.

(a) The county board of education shall make free appropriate public education available to each eligible student in the county including all of the following:

(1) Students who are at least three years old and are eligible for special education services unless the parent or adult student has refused special education services;

(2) Students who have not yet turned twenty-one years of age prior to September 1 of the current year and have not graduated with a standard high school diploma;

(3) As specified in section one, article twenty of this chapter, students with disabilities whose individualized education programs provide for a modified diploma shall be allowed to participate in graduation ceremonies with their same grade classmates when requested by parents in writing and shall be allowed to continue to receive services until twenty-one years of age;

(4) Students with disabilities whose suspension(s) or expulsion(s) results in a change of placement;

(5) Students with disabilities who have been suspended or expelled from school as provided for in part VII of this article;

(6) Students determined in need of special education and related services, even though the student has not failed or been retained in a course or grade, and is advancing grade to grade.

(b) The provision of a free appropriate public education includes students who reside in group, personal care, or foster homes, as well as state operated facilities and students who are migratory or homeless.

(c) Eligible students with disabilities who are in state correctional institutions shall be afforded special education and related services that are in accordance with applicable state and federal laws and regulations. This includes students who had received services in accordance with an individualized education program, but who had left school prior to their incarceration, as well as students who did not have an individualized education program in their last educational setting, but who had actually been identified as a student with a disability for services under Part B of the Individuals with Disabilities Education Improvement Act of 2004.

(d) Students with exceptionalities shall be provided an instructional day, a school day and school calendar at least equivalent to that established for students without exceptionalities of the same chronological age in the same setting.

(f) The county board of education shall ensure that extended school year services are available as necessary to provide free appropriate public education as determined by the individualized education program team for all students with disabilities, including children aged three through five.

The county board of education shall ensure that students with exceptionalities are afforded an equal opportunity to participate in nonacademic and extracurricular services and activities by providing the supplementary aids and services determined appropriate and necessary by the student’s individualized education program team.

In addition, physical education services, specially designed if necessary, shall be made available to every student receiving a free appropriate public education in accordance with West Virginia Board of Education policies.

(g) The county board’s requirement to provide special education services does not relieve an insurer or similar third party from a valid obligation to provide or pay for services for an eligible student. In cases where the payment source for services is being determined, the county board of education shall ensure there is no delay in implementing the student’s individualized education program consistent with the provisions of part V of this article.

§18-20A-103. Exceptions to free appropriate public education.

The obligation to provide free appropriate public education does not apply to the following persons:

(1) Students ages eighteen through twenty-one who, in the last educational placement prior to their incarceration in an adult correctional facility, were not actually identified as being a student with a disability and did not have an individualized education program; however, this exception shall not apply to a student who had been identified as a student with a disability and had received services in accordance with an individualized education program, but left school prior to incarceration or did not have an individualized education program in their last educational setting, but who had actually been identified as a student with a disability;

(2) Students who have graduated high school with a standard high school diploma;

(3) Students ages three through five who are eligible under developmental delay, but who receive early intervention services from the West Virginia Birth to Three program; and

(4) Students removed from school for disciplinary reasons for less than eleven cumulative school days in a school year.

§18-20A-104. Providers of programs and services.

Special education programs and services may be provided by any one or more of the following:

(1) A single local educational agency;

(2) Two or more local educational agencies cooperatively;

(3) A regional educational service agency; or

(4) Other public or private agencies or individuals.

If placement of the student in a public or private residential program is necessary, the program shall be at no cost to the parents of the student.

§18-20A-105. Using private and public funds to provide services.

(a) If a student is covered by a parent’s private insurance, the county board of education may access this insurance only if the parent provides informed consent. Each time the county board of education proposes to access the private insurance, the county board of education shall obtain written parental consent and inform the parent that his or her refusal to permit the county board of education to access the private insurance does not relieve the county board of education of its responsibility to ensure that all required services are provided at no cost.

(b) The financial responsibility of public agencies, including Medicaid and other public insurers obligated under Federal or State law or assigned responsibility under State policy, shall precede financial responsibility of the county board of education. However, if the public agency other than the educational agency fails to provide or pay for special education or related services, the county board of education responsible for developing the student’s individualized education program shall provide or pay for these services to the student in a timely manner. Students with disabilities who are covered by public benefits or insurance may not be disqualified from an eligible service for Medicaid reimbursement because that service is provided in a school context.

(1) The public agency is required to provide written notification to the child’s parents prior to accessing a child’s public benefits or insurance for the first time and annually thereafter. The notice shall inform the child’s parents of the following:

(A) Prior written parental consent to release personal information from a child’s education records or information about the services that may be provided for the purpose of billing Medicaid or another specific agency for individualized education program services will be requested.

(B) The consent form will state the student’s personal education records and information that will be disclosed, the purpose of the disclosure (e.g. Medicaid billing) and the agency to which the records will be released. Parents will state they understand and agree that their or their child’s public benefits or insurance will be accessed to reimburse the cost of services.

(C) Parents cannot be required to sign up for or enroll in public benefits or insurance programs for their child to receive free appropriate public education, that is, individualized education program services.

(D) Parents are not required to pay out-of-pocket expense such as a deductible or co-pay amount resulting from filing a claim, but may pay the cost that otherwise would be paid by parents.

(E) Parents shall be informed that their public insurance (e.g., Medicaid) will not be billed if it would:

(i) Result in a decrease in lifetime benefits;

(ii) Result in the child’s parents paying for services that would otherwise be covered and that are needed for the child outside of the time the child is in school;

(iii) Result in an increase in premiums or discontinuation of public benefits or insurance; or

(iv) Risk loss of eligibility for home and community-based waivers based on the total aggregated health-related expenditures for the child or the child’s parents.

(F) Parents have the right to withdraw consent to disclose their child’s personal information for billing purposes at any time.

(G) Parents’ withdrawal of consent, or refusal to provide consent, to release their child’s personal information for purposes of accessing their public benefits or insurance (e.g., for Medicaid billing) does not relieve the county board of education of its responsibility to ensure that all required services are provided at no cost to parents.

(2) To access a student’s public insurance (e.g., Medicaid reimbursement), the county board of education shall obtain and maintain documentation of parent or adult student one-time prior consent specifying:

(A) The personally identifiable information that may be disclosed (e.g., records or information about the services that may be provided to the child);

(B) The purpose of the disclosure of educational records;

(D) That the parent understands and agrees that the public agency may access the parent’s or the child’s public benefits or insurance to pay for services.

(3) If a child moves to a new public agency, the new public agency shall obtain a new one-time prior consent consistent with the services the new public agency is providing to the child.

(4) At any time a parent withdraws consent to disclose their child’s personal information for billing purposes, the withdrawal shall be submitted in writing, and the public agency may no longer bill the child’s public insurance.

(c) If it is unable to obtain parental consent to use the parents’ private insurance, or public benefits or insurance when the parents would incur a cost for a service specified on their child’s individualized education program, the county board of education may use Part B funds to pay for services to ensure free appropriate public education. To avoid financial cost to parents who otherwise would consent to use private insurance, or public benefits or insurance if the parent would incur a cost, the county board of education may use its Part B funds to pay the amount the parents otherwise would have to pay, such as a deductible or co-pay amount, to use the parents’ benefits or insurance.

(d) Proceeds from public or private insurance will not be treated as program income for purposes of 34 CFR §80.25. If a county board of education spends reimbursements from federal funds for services under this part, those funds will not be considered “state or local” funds for the purpose of the maintenance of effort provisions of Part B of the Individuals with Disabilities Education Improvement Act of 2004.

Part II. Identification of Eligible Students – the Child Find System

§18-20A-201. Duty to identify eligible students; scope of inclusion.

The county board of education is responsible for establishing and implementing an ongoing “Child Find” system to locate, identify, and evaluate students with disabilities residing in the county, between the ages of three and twenty-one, inclusive, regardless of the severity of the disability, gifted students from first through eighth grades and exceptional gifted students in grades nine through twelve who may need special education. The county board of education is also responsible for coordinating with the West Virginia Department of Health and Human Resources regarding the Child Find system for children ages birth to three years.

The Child Find system shall include all students suspected of needing special education and related services within the county’s geographic boundaries who are:

(1) Enrolled in public school;

(2) Home schooled;

(3) Enrolled in private schools, including religious schools, located in the county;

(4) Not enrolled in school, including children ages birth through five;

(5) Highly mobile students including migrant students;

(6) Homeless students;

(7) Wards of the state; or

(8) Suspected of having a disability even though the student has not failed or been retained in a course or grade and is advancing from grade to grade.

§18-20A-202. Identification of eligible children ages three and under; dissemination of information.

(a) The West Virginia Department of Health and Human Resources WV Birth to Three program is responsible for implementation and operation of the Child Find system for infants and toddlers, birth to three years of age. In order to fulfill these duties the department of health and human resources is authorized to enter into state and local interagency agreements to provide for collaboration and coordination of services. The county board of education shall develop local interagency agreements and procedures to maximize resources and services for students and families and ensure a smooth and effective transition from early childhood programs to public school.

(b) The county board of education shall annually take the ongoing steps necessary to ensure that parents, county board of education staff, private school representatives and the general public are informed of the following:

(1) The nature of students with exceptionalities;

(2) The availability of special education and related services;

(3) A student’s right to free appropriate public education;

(4) Confidentiality protections; and

(5) The referral process, including the person to contact for initiating a referral.

This information may be provided through a variety of methods such as distributing brochures or flyers, including providing information in school or district publications, disseminating articles and announcements to newspapers, and/or arranging for radio and television messages and presentations.

§18-20A-203. Referrals.

(a) A parent or any other interested person or agency may refer a student who is suspected of needing special education and related services. Referrals received from an outside source shall be forwarded to the student assistance team at the student’s school for consideration. For preschool age children or home-schooled students, the referral shall be received and processed directly by the special education director or designee.

Each county board of education shall locate, identify and evaluate all students suspected of needing special education services who are enrolled by their parents in private, including religious, elementary and secondary schools located in the school district in accordance. Referrals for private school students shall be directed to, and processed directly by, the county special education director or designee.

(b) The general education process conducted to determine whether there are problems or potential problems in the areas of vision, hearing, speech and language shall be conducted annually for all students entering kindergarten or preschool and all students entering public and private schools for the first time.

Additionally, the county board of education shall conduct developmental screening for children under the compulsory school attendance age upon the request of a parent or guardian of a child residing in the district or attending a private school within the district. This developmental screening shall be conducted within thirty school days of the written request. The county board of education is not required to provide such screening to the same child more than once in any one school year. Children identified through the screening process shall be referred for further evaluation.

At least ten days prior to initiation of screening activities, the county board of education shall provide public notice of the screening program. Information released through media sources should include the purpose, types and dates of screenings and the means for parents to request that their child not participate.

(c) Each public school shall establish a student assistance team that consists of at least three persons, including a school administrator or designee, who shall serve as the chairperson, a current teacher and other appropriate professional staff. The student assistance team shall be required to:

(1) Receive training in referral procedures for multidisciplinary evaluations, alternative education placements, disciplinary procedures and other school processes as appropriate for ensuring student progress and maintenance of a safe school environment;

(2) Collect and maintain data on the activities of the team, including dates of meetings and the results of its recommendations;

(3) Conduct the problem-solving process that includes designing and monitoring implementation of interventions and/or reviewing interventions designed by other school teams;

(4) Receive and process written referrals from outside sources suspecting a student may need special education, including referrals and requests for initial evaluations made by parents; and

(5) Initiate initial evaluation for special education and related services for students, when warranted based on the outcome of interventions.

(d) When the student assistance team receives a written referral for a special education multidisciplinary evaluation, or a written parent request for initial evaluation, the team must take the following actions:

(1) Within five school days of receipt of a written referral for a multidisciplinary evaluation, the team shall identify and notify appropriate persons of the date, time, location and specific information needed for a meeting with the team.

(2) Within ten school days of receipt of the written referral, the student assistance team shall conduct a review of the areas of concern, collect and analyze available educational data and review previous interventions and make a determination regarding further action. This action may include any of the following options:

(A) Conduct a student assistance problem-solving process to initiate, continue or modify interventions within a timeline established for the student by the student assistance team; review the effectiveness of the student assistance team’s recommendations within the timeline established for the student, but in no case may the review take place beyond forty-five school days; ensure problem solving activities of the student assistance team are not used to delay processing a request for initial evaluation where immediate action is warranted; and close the problem-solving process when appropriate based on results of interventions; or

(B) Request an initial evaluation, in cases where warranted, for example, a sensory impairment or other significant disability requiring immediate attention or when presented evidence and documentation of previous interventions sufficient to make a decision; or

(C) When a written request for initial evaluation has been initiated by the parent, determine whether the evaluation will be conducted, and provide written notice of the decision and a copy of the procedural safeguards to the parent.

(3) The student assistance team shall invite parents to review recommendations made by the student assistance team in regard to the student’s program and to provide feedback to the team about those recommendations.

(4) Within five days of the student assistance team decision to request an initial multidisciplinary evaluation, or to conduct an evaluation requested by the parent, written notice and a copy of the procedural safeguards disclosure shall be provided to the parent, and informed parental consent is requested for conducting the evaluation. The request for parent consent shall be completed by the multidisciplinary evaluation team at the direction of the special education director or designee. The student assistance team may serve as the multidisciplinary evaluation team to determine the evaluations to be requested, provided it has the required membership for a multidisciplinary evaluation team.

(5) The principal, classroom teacher or other designated individual is responsible for documenting the date written parental consent for initial evaluation is received and immediately forwarding this request to the special education director or designee.

(6) Within five days of a student assistance team decision to refuse a written parent request for initial evaluation, the county board of education shall provide written notice and a copy of the procedural safeguards disclosure to the parent.

Part III. Evaluation and Reevaluation.

§18-20A-301. Duty and composition of evaluation team; when meetings required.

Decisions regarding evaluations and assessments shall be made by an evaluation team. This team includes the same membership as the individualized education program team and other qualified professionals as appropriate. The parent or the adult student is a member of the evaluation team and shall be provided an opportunity to provide input and participate in making team decisions including what additional data, if any, are needed to fulfill the purposes of an initial evaluation or reevaluation. The evaluation team may conduct its business with or without holding a meeting; however, if requested by the parent or the adult student, a team meeting shall be held.

§18-20A-302. Definition of evaluation; procedures for conducting a multidisciplinary evaluation.

(a) For the purposes of this article, “evaluation” means procedures used in accordance with the protection in evaluation requirements of the Individuals with Disabilities Education Improvement Act of 2004 and section one, article twenty of this chapter to determine whether a student has a disability or is gifted, and the nature and extent of the special education and related services the student needs. The term means those procedures used selectively with an individual student and does not include basic tests administered to or procedures used with all students in a school, grade or class. Screening of a student by a teacher or specialist to determine the appropriate instructional strategies for curriculum implementation is not considered to be an evaluation for eligibility for special education and related services and does not require parental consent. However, the evaluation team may consider the results of such screenings to assist in determining areas to evaluate.

(b) The principal, classroom teacher or other designated individual is responsible for documenting the date written parental consent for initial evaluation is received and immediately forwarding this request to the special education director or designee. Within eighty days of the documented date, the county board of education shall conduct a full, individual initial evaluation and convene an eligibility committee to determine the student’s eligibility for special education before the provision of special education and related services to a student with an exceptionality. The eighty-day time limit shall not apply if:

(1) The parent fails or refuses to produce the student;

(2) The student changes district of enrollment during evaluation process;

(3) School districts are closed due to circumstances resulting in a state of emergency determined by the Governor of West Virginia, in which case time limit shall be extended in direct proportion to the duration of the state of emergency;

(4) The school district is closed due to weather conditions determined by the county superintendent, in which case the time limit shall be extended in direct proportion to the duration of the adverse weather conditions and the county board missed shall be clearly document the number of days missed in the student’s file to accurately record the interruption; or

(5) Summer break.

(1) Whether the student has a disability or is gifted;

(2) The educational needs of the student, including present levels of academic achievement and related developmental needs of the student;

(3) The effects of the exceptionality on educational and functional performance;

(4) If the student needs specially designed instruction; and

(5) The nature and extent of the special education needed by the student.

(d) As part of an initial evaluation, the evaluation team shall review, where appropriate, existing evaluation data on the student including:

(1) Evaluations and information provided by the parent or adult student; and

(2) Data regarding the student’s response to scientific research-based general education interventions using:

(A) Current classroom-based assessments and classroom-based observations;

(B) Observations by teachers and related service providers; and

Based on that review, and input from the parent or adult student, the team will decide what additional data, if any, are needed to fulfill the purposes of an initial evaluation. If the team determines that no additional data are needed, the county board of education shall notify the parents/adult student of that determination and the reasons for the determination and the right of the parents to request an assessment.

(d) Within three years of the date of the last eligibility committee meeting, or more frequently if the parent or teacher requests or conditions warrant, the county board of education shall conduct an individual multidisciplinary reevaluation to determine a student’s educational needs and continued eligibility for special education and related services and whether any additions or modifications to the student’s special education and related services are needed to enable the student to meet their measurable annual individualized education program goals and to participate, to the extent appropriate, in the general education curriculum. As part of the reevaluation, the individualized education program team and other qualified professionals, as appropriate, shall review existing evaluation data on the student, including:

(1) The current individualized education program and the student’s progress toward meeting the annual goals;

(2) Evaluations and information provided by the parent of the student;

(3) Current classroom-based, local or state assessments and classroom-based observations; and

(4) Observations by teachers and related service providers.

This team may conduct its review with or without holding a meeting but shall document its decisions on a form designated by the department.

If the individualized education program team decides that additional evaluations are needed, the team shall obtain consent as described in section three hundred three of this article. This evaluation shall be conducted prior to the established triennial review date. For students with giftedness, a reevaluation shall be conducted during the eighth grade year to determine eligibility for exceptional gifted.

If the individualized education program team decides that no additional assessments are needed to determine the educational needs of the student and whether the student continues to be a student in need of special education, the county board of education shall provide written notice to the parent or adult student of that determination and the reasons for the determination and of his or her right to request an assessment for this purpose. If the student’s parent, teacher or the adult student requests a reevaluation, this evaluation shall be conducted prior to the established triennial review date.

Reevaluations may not occur more than once a year without the agreement of the county board of education and parent.

(e) Before making a determination that a student is no longer eligible for special education, the county board of education shall reevaluate a student with a disability, unless the student graduates with a standard high school diploma or the student reaches the age of twenty-one.

For a student whose eligibility terminates under circumstances described above, the county board of education shall provide the child with a summary of the child’s academic achievement and functional performance, including recommendations on how to assist the student in meeting his/her postsecondary goals. PWN shall be provided to the parent or adult student if the student is exiting special education due to graduation with a standard high school diploma.

(f) Any additional evaluations requested by the eligibility committee or individualized education program team shall be completed and a meeting of the committee or team shall be held within sixty days of receipt of parental consent for the identified evaluations. Request for parental consent for additional evaluations shall be sent within ten school days of the meeting at which the request for evaluation is generated.

If the eligibility committee or individualized education program team determines that a comprehensive multidisciplinary evaluation is required to determine whether a student meets the criteria for a different exceptionality, the county board of education shall conduct the evaluation within eighty days of the documented date of receipt of parental consent.

In those instances when an outside agency is requested to conduct an additional evaluation but is unable to complete the evaluation within sixty days, the county board of education shall document its efforts to obtain the additional evaluation within sixty days. Where the county board of education has documented reasonable efforts to obtain the evaluation within the sixty days, the county board of education is not considered to be in violation of the sixty day timeline.

(g) Upon receipt of a written parental request for an additional evaluation, the individualized education program team shall considers the request, with or without holding a meeting, and within ten days of receipt shall provide prior written notice of its response. If the parent or adult student requests an additional assessment for reasons other than the determination of educational needs or eligibility, such as admission to college, the county board of education is not obligated to conduct the evaluation but shall consider the request and provide written notice of the county board of education’s response to the request.

§18-20A-303. Written notice and consent for evaluation

(a) Within five days of the county board of education’s decision to evaluate or reevaluate, written notice requesting consent for evaluation or reevaluation shall be provided to the parent or adult student. Written notice shall be in plain language, understandable to the general public. It shall be provided in the native language or other mode of communication normally used by the parent or adult student unless it is clearly not feasible to do so. If the native language or other mode of communication is not a written language, the county board of education shall take steps to ensure the parent or adult student understands the content of the notice. Any non-written notice shall be documented with written evidence that the requirements of this section have been met.

(b) The written notice shall include the following information:

(1) A description of the evaluation or reevaluation proposed or refused by the county board of education;

(2) An explanation of why the county board of education proposes to evaluate or reevaluate the student;

(3) A description of other options the county board of education considered and the reasons why those options were rejected;

(4) A description of each evaluation procedure, assessment, record, or report the county board of education used as a basis for the proposed or refused evaluation or reevaluation;

(5) A description of any other factors relevant to the evaluation or reevaluation;

(6) A statement that the parent or adult student has protection under the procedural safeguards, and a description of how to obtain a copy of the Procedural Safeguards Notice; and

(7) Sources to contact to obtain assistance in understanding the Procedural Safeguards Notice.

In addition to this notice, the parent or adult student shall be provided with a Notice of Individual Evaluation/Reevaluation Request form shall be provided. The date of receipt by the school or the county board of the signed parental consent form shall be documented in the student’s individual West Virginia Education Information System (WVEIS) student record.

(c)(1) For the purposes of this part of this article, “consent” means that the parent or adult student:

(A) Has been fully informed in his or her native language or other mode of communication of all information relevant to the evaluation for which consent is sought;

(B) Understands and agrees in writing to the carrying out of the activity;

(C) Has been given enough information to make informed decisions about the county board of education’s request to conduct an evaluation, including information about the various types of assessments for which consent is sought; and

(D) Understands that the granting of consent is voluntary on the part of the parent or adult student and may be revoked at any time.

If consent is revoked, the revocation shall not be retroactive and does not negate an action that has occurred after the consent was given and before the consent was revoked. Consent for evaluation shall not be construed as consent for the initial provision of special education and related services.

(2) Written consent shall be sought for every evaluation and reevaluation. The county board of education shall seek consent to administer the needed assessments, based on recommendations from the evaluation team, within five days of the decision to evaluate or reevaluate. If the parent or adult student fails to respond within ten school days of the initial request for consent, the county board of education shall mail or hand-deliver a second notice. If the parent or adult student once again fails to respond, the county board of education shall document reasonable measures taken to obtain consent, which may include:

(A) A record of telephone calls made or attempted and the results of those calls;

(B) Copies of correspondence sent to the parent or adult student and any response received; and

(C) Detailed records of visits made to the parent’s or the adult student’s home or place of employment and the results of those visits.

(d) If the parent or the adult student fails to respond after the county board of education has taken reasonable measures to obtain consent for assessments and after the passage of thirty school days from the initial request for consent, the county board of education may:

(A) As part of a reevaluation, provide written notice that the county board of education will conduct the reevaluation; or

(B) As part of an initial evaluation, pursue the evaluation by using mediation or filing a due process complaint.

(e) If the parent refuses consent, the county board of education may use mediation or due process hearing procedures if the student is enrolled in or seeking enrollment in a public school. However, the county board of education cannot pursue the evaluation if the student is in a parental private placement or is home schooled.

(f) Neither written notice nor consent is required for:

(1) The review of existing data as part of an evaluation or reevaluation;

(2) The administration of a test or other assessment that is administered to all students unless consent is required of the parents of all the students;

(3) Screening, including monitoring of progress by a teacher or specialist, to determine the appropriate instructional strategies for curriculum implementation; and

(4) Initial evaluations, when the student is a ward of the state and is not residing with the student’s parent, if:

(A) Despite reasonable efforts, the county board of education cannot discover the whereabouts of the parents;

(B) The rights of the parents have been terminated under state law; or

(C) The rights of the parents to make educational decisions have been subrogated by a judge in accordance with state law and consent has been provided for the initial evaluation by an individual appointed by the judge to represent the child.

(g) The county board of education is not required to obtain the consent of the parent or the adult student in order for the county board to request information from other counties that the student has attended or to send information to other public school districts, including schools maintained by the Office of Institutional Education Programs or the West Virginia Schools for the Deaf and Blind, in which the student enrolls or intends to enroll.

(h) Parental consent is required prior to the sharing of information between the district of residence and the district where a private school is located if a student has been parentally-placed in the private school.

(i) Before the county board of education seeks to obtain relevant information about a student from other agencies, consent shall be obtained from the parents. A copy of the signed consent form for release of information shall be included with each request for the information. A copy of the signed consent form for release of information shall be maintained in the student’s confidential file.

§18-20A-304. Requirements for the evaluation process.

(a) For an initial evaluation, the student shall be evaluated in all areas related to the suspected exceptionality including, if appropriate, health, vision, hearing, social and emotional status, adaptive skills, behavioral performance, general intelligence, academic performance, communicative status, motor abilities, assistive technology services or devices, post-secondary interests and preferences and vocational aptitudes. The evaluation shall be sufficiently comprehensive to identify all of the student’s special education and related needs for services, whether or not commonly linked to the suspected exceptionality.

(b) The county board of education shall ensure, at a minimum, that the evaluation or reevaluation meets the following requirements:

(1) A variety of assessment tools and strategies shall be used to gather relevant, functional, developmental and academic information about the student, including information provided by the parent or the adult student. This information shall be used to determine:

(A) Whether the student is a student with an exceptionality; and

(B) The content of the student’s individualized education program including information related to enabling the student to be involved in and progress in the general education curriculum should the student be determined to require special education and related services.

(2) No single measure or evaluation may be used as the sole criterion for determining whether a student is a student with an exceptionality and for determining an appropriate educational program for the student.

(3) The county board of education shall use technically sound instruments to assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(4) Assessments and other evaluation materials shall be:

(A) Selected and administered so as not to be discriminatory on a racial or cultural basis;

(B) Provided and administered in the student’s native language and in the form most likely to yield accurate information on what the student knows and can do academically, developmentally and functionally unless it is not feasible to do so. The attempts to provide a qualified examiner in the student’s native language or mode of communication shall be documented by the county board of education;

(D) Administered in accordance with any instructions provided by the producer of the assessments.

(5) Tests and other assessment materials shall include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.

(6) Tests shall be selected and administered so as to best ensure that if a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the student’s impaired sensory, manual, or speaking skills unless those are the factors that the test purports to measure. This includes the provision of accommodations, such as assistive technology, Braille and interpreters.

(7) Assessments of students with exceptionalities who transfer from one district to another district in the same academic year shall be coordinated with the student’s prior and subsequent schools, as necessary and as expeditiously as possible, to ensure prompt completion of full evaluations.

(8). The county board of education shall provide and use assessment tools and strategies that produce relevant information that directly assists persons in determining the educational needs of the student.

(9) All services and assessments shall be provided at no expense to the parent or adult student.

(1) Appropriately certified, licensed or otherwise qualified to administer the evaluations for which they are responsible;

(2) Trained in the use of the specific evaluation instruments or techniques for which they are responsible;

(3) Knowledgeable in the area of concern; and

(4) Knowledgeable in the applicable state and federal regulations.

(d) Each evaluator, including the classroom teacher, shall write, sign and date an individual evaluation report. Prior to the reevaluation date or within eighty days of initial parental consent for evaluation, each evaluator shall make the written report available to the eligibility committee and to the parent or adult student.

Part IV. Eligibility

§18-20A-401. Determination of eligibility.

(a) Within eighty days of receipt of consent for an initial evaluation or after the completion of a reevaluation and prior to the established reevaluation date, the county board of education shall convene an eligibility committee meeting to determine whether a student is or continues to be a student in need of special education services. Eligibility committee members should be selected in consideration of the presented evaluation information and shall consist of the parent or adult student and qualified professionals as follows:

(1) District administrator of special education, principal or designee;

(2) Members of the multidisciplinary evaluation team;

(3) General or special educator;

(4) Additional individuals with specific expertise related to the student and the area(s) of concern;

(6) For initial eligibility committees, the referring teacher; and

(7) For students suspected of having a specific learning disability, the student’s general education teacher and at least one person qualified to conduct individual diagnostic examinations of students such as a school psychologist, speech language pathologist or remedial reading teacher.

(b) The county board of education shall provide written notice to the parent and/or adult student and other eligibility committee members of the meeting time, date, place, purpose and invited members no less than eight days prior to the scheduled meeting date. If the parent is unable to attend, the county board of education shall use other methods to ensure participation such as videoconferences and conference calls.

(c) The eligibility committee will draw upon information from a variety of sources, including, as appropriate, but not limited to, formative assessments, aptitude and achievement tests, parent or adult student input, teacher observations, health, social or cultural background, adaptive behavior, and functional assessments. The eligibility committee shall ensure that information obtained from all of these sources is documented and carefully considered. The eligibility committee will consider these evaluation or reevaluation findings and determine whether the student meets or continues to meet eligibility criteria.

(d) Results of the multidisciplinary evaluation shall be utilized by the eligibility committee as the primary source of information to determine the student’s educational needs and whether the student no longer meets the eligibility criteria or no longer needs specially designed instruction or whether the student meets the eligibility criteria in one of the designated exceptionalities; experiences an adverse effect on educational performance; and needs special education;

(e) A student cannot be identified as a student in need of special education services if the primary reason for such a decision is a lack of appropriate instruction in reading, including the essential components of reading instruction as defined by the Elementary and Secondary Education Act (ESEA) – phonemic awareness, phonics, vocabulary development, reading fluency, including oral reading skills, and reading comprehension strategies; a lack of appropriate instruction in math; or limited English proficiency.

(f) Using the results of the multidisciplinary evaluation, the eligibility committee shall determine the student’s primary exceptionality when more than one exceptionality condition is present. The committee shall discuss how each exceptionality affects the student’s educational and functional performance and determine and document which has the most adverse impact on the student’s participation and progress in the general curriculum.

(g) If consensus upon the primary exceptionality cannot be reached, the district administrator or designee shall make the decision and provide the parent or adult student with written notice of the decision.

§18-20A-402. Report of eligibility committee.

Upon completing the review of the student’s multidisciplinary evaluation or reevaluation, the eligibility committee shall prepare an eligibility committee report and provide a copy of the report to the parent or adult student. The parent or adult student and other individualized education program team participants shall have all the information they need to participate meaningfully in the individualized education program team meeting. Copies of the evaluation reports and documentation of eligibility determination shall be provided at no cost to the parent or adult student.

The eligibility committee report shall include the following information:

(1) Signatures with dates and positions of all eligibility committee members;

(2) All data on the student as required in the state eligibility criteria established under section four hundred three of this article for the area of suspected exceptionality;

(3) The specific exceptionality determined for state and federal reporting purposes;

(4) Information about how the student’s exceptionality affects his or her educational performance;

(5) The committee’s decision regarding whether the student needs special education services;

(6) Recommendations for those students deemed ineligible for special education to be considered by the student assistance team or the instruction and intervention team; and

(7) The date of the eligibility determination.

Even if no new assessments have been conducted, the eligibility committee shall prepare required to write a report detailing how the student meets eligibility requirements. The report shall address each required eligibility component and include results of previous assessments if they are being used to determine eligibility.

For students suspected of having a specific learning disability, the committee shall also complete a specific learning disability team report pursuant to the provisions of section four hundred three of this article. For students who are gifted, the eligibility committee report is required to document compliance with reevaluation timelines.

If the eligibility committee report indicates that a student meets the criteria for blindness, low vision, deafness, hard of hearing or deafblindness, the parents or guardians shall be provided information pertaining to the West Virginia Schools for the Deaf and Blind to make them aware of the options available and to help them make an informed decision regarding educational services and programming for their child.

§18-20A-403. Consideration of reevaluation data.

School districts shall carefully consider the reevaluation of students initially found eligible for special education. Districts shall consider the effect of exiting a student from special education who has received special education for many years and how the removal of such supports will affect the student’s educational progress, particularly for a student who is in the final years of high school.

§18-20A-404. State criteria for eligibility for special education and related services.

The county board of education shall use the following eligibility criteria and assessment procedures when determining eligibility for special education.

(a) Autism -- “Autism” is a developmental disability, generally evident before age three, significantly affecting verbal and nonverbal communication and social interaction and adversely affecting educational performance; however, a student who manifests the characteristics of autism after age three may be diagnosed as having autism if the criteria in this section are satisfied. Other characteristics often associated with autism include, but are not limited to, engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.

A student is eligible for special education services as a student with autism when all of the following American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition criteria.

(b) Blindness and low vision – “Blindness and low vision” refers to an impairment in vision that, even with correction, adversely affects a student’s educational performance. The term includes both partial sight and blindness.

A student is eligible for special education services as a student with blindness and low vision when the following criteria are met:

1. The student has a documented visual impairment, not primarily perceptual in nature, as determined by an optometrist, ophthalmologist or neurologist as evidenced by at level one of the following conditions:

(A) Measured acuity of 20/70 or less in the better eye with correction at distance or near;

(B) Visual field restriction of twenty degrees or less in the better eye;

(D) A visual loss caused by a disturbance of the posterior visual pathway and/or cortex with the characteristic behaviors associated with cortical visual impairment; or

(E) Measured acuity of 20/70 or better in the better eye with correction at distance or near and a functional vision evaluation conducted by a certified teacher of the visually impaired determines the student:

(i) Has limited ability in visually accessing program-appropriate educational media and materials including but not limited to textbooks, photocopies, chalkboards, computers or environmental signs without modification;

(ii) Has limited ability to visually access the full range of program-appropriate educational media and materials without accommodations including but not limited to changes in posture, body movement focal distance or squinting;

(iii) Demonstrates variable visual ability due to environmental factors including but not limited to contrast, weather, color or movement, that cannot be controlled, or

(iv) Experiences reduced or variable visual ability due to visual fatigue or factors common to the eye condition;

(2) The student’s physical eye condition, even with correction, adversely affects educational performance; and

(3) The student needs special education.

(c) Deafblindness – “Deafblindness” means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs designed solely for students with deafness or blindness or students who are hard of hearing or partially sighted.

A student is eligible for special education services as a student with deafblindness when all of the following criteria are met:

(1) The student exhibits characteristics consistent with the definition.

(2) The student is diagnosed by an optometrist or ophthalmologist for vision loss and by an otologist, otolaryngologist, or audiologist for hearing loss.

(3) The student’s condition adversely affects educational performance.

(4) The student needs special education.

When a student meets these criteria, deafblindness shall be the primary basis for the eligibility of the student.

(d) Deafness – “Deafness” is a hearing impairment that is so severe that the student is impaired in processing linguistic information through hearing, with or without amplification, which adversely affects a student’s educational performance.

A student is eligible for special education services as a student who is deaf when all of the following criteria are met:

(1) The student exhibits characteristics consistent with the definition and relies primarily on vision to access spoken communication.

(2) The student has been diagnosed by an otologist, otolaryngologist, or audiologist as having a hearing loss.

(3) The student’s condition adversely affects educational performance.

(4) The student needs special education.

(e) Developmental Delay – “Developmental delays” occur in students, ages three through five, who are functioning at, or lower than, seventy-five percent of the normal rate of development in two or more of the following areas: cognition, physical development including gross motor and/or fine motor skills, communication, social or emotional or affective development, or self-help skills.

A student is eligible for special education services as a student with developmental delay when all of the following criteria are met:

(1) The student exhibits characteristics consistent with the definition; and

(2) The student needs special education.

(f) Emotional or Behavioral Disorder -- An emotional or behavioral disorder means a condition in which a student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: an inability to learn that cannot be explained by intellectual, sensory, or health factors, an inability to build or maintain satisfactory interpersonal relationships with peers and teachers, inappropriate types of behavior or feelings under normal circumstances, a general pervasive mood of unhappiness or depression, a tendency to develop physical symptoms or fears associated with personal or school problems, or schizophrenia. The term does not include students who are socially maladjusted unless it is determined they have an emotional/behavioral disorder.

A student is eligible for special education services as a student with an emotional or behavioral disorder when all of the following criteria are met:

(1) The student continues to exhibit an emotional/behavioral disorder consistent with the definition after targeted and intensive interventions have been implemented within the Support for Personalized Learning framework;

(2) The student has been observed exhibiting one or more of the characteristics listed in the definition of emotional or behavioral disorder and the characteristics have been observed and documented:

(A) For a long period of time;

(B) By more than one knowledgeable observer trained in data gathering;

(D) At a level of frequency, duration, and/or intensity that is significantly different from the student’s peers in the same or similar circumstances;

(3) The student’s condition adversely affects educational performance in the area of academics, peer or teacher interaction, and participation in class and school activities;

(4) The student exhibits behaviors that are not primarily the result of physical, sensory or intellectual deficits; and

(5) The student needs special education.

(g) Gifted – “Giftedness” is exceptional intellectual abilities and potential for achievement that requires specially designed instruction or services beyond those normally provided in the general classroom instruction.

(1) A student in grades one through eight is eligible for special education services as a gifted student when the following criteria are met:

(A) General intellectual ability score at the 97th percentile rank or higher on a comprehensive test of intellectual ability in consideration of 1.0 standard error of measurement;

(B) At least one of the four core curriculum areas of academic achievement at the 90th percentile rank or higher as measured by an individual standardized achievement test, or at least one of the four core curriculum areas of classroom performance demonstrating exceptional functioning as determined during the multidisciplinary evaluation; and

(C) There is a need for specially designed, differentiated instruction or services beyond those normally provided in the general classroom

(2) Before the end of the eighth grade year, the individualized education program team shall:

(A) Conduct a reevaluation determination to review existing evaluation data which includes evaluations and information provided by the parents of the student, current classroom-based assessments and observations, and observations by teachers and related service providers; and

(B) On the basis of that review, identify what additional data, if any, are needed to determine that a student is eligible for special education services as an exceptional gifted student in grades nine through twelve using one or more of the following criteria:

(i) The eligibility criteria for one or more of the disabilities as defined in this section;

(ii) The definition for economically disadvantaged;

(iii) The definition for underachievement, which takes into consideration the student's ability level, educational performance and achievement levels; or

(iv) The definition for psychological adjustment disorder as documented by a comprehensive psychological evaluation.

(C) If the student is eligible as exceptional gifted, the county board of education shall develop an individualized education program. If the student is not eligible as exceptional gifted, the individualized education program team shall write a four-year plan that appropriately addresses the student’s educational needs. The four-year education plan replaces the Personalized Education Plan (PEP) and, includes honors, advanced placement or International Baccalaureate classes that shall be provided for the student in grades nine through twelve. The county board of education shall implement and conduct an annual review of this plan. The review team shall include the student, parent and school representative.

(h) Hard of Hearing – “Hard of hearing” is an impairment in hearing, whether permanent or fluctuating, that adversely affects a student’s educational performance but that is not included under the definition of deafness.

A student is eligible for special education services as a student who is hard of hearing when all of the following criteria are met:

(1) The student exhibits characteristics consistent with the definition and relies primarily on hearing to access spoken communication.

(2) The student has been diagnosed by an otologist, otolaryngologist, or audiologist as having a hearing loss.

(3) The student’s condition adversely affects educational performance.

(4) The student needs special education.

(i) Intellectual Disability – “Intellectual disability” is defined as significantly sub-average intellectual functioning that exists concurrently with deficits in adaptive skill areas. These deficits are manifested during the developmental period and adversely affect the student’s educational performance.

A student is eligible for special education services as a student with an intellectual disability when all of the following criteria are met:

(1) (A) The student with mild to moderate intellectual disability has general intellectual functioning ranging from two to three standard deviations below the mean, in consideration of 1.0 standard error of measurement as determined by a qualified psychologist, using an individually administered intelligence test; or

(B) The student with moderate to severe intellectual disability has general intellectual functioning more than three standard deviations below the mean, in consideration of 1.0 standard error of measurement as determined by a qualified psychologist, using an individually administered intelligence test;

(2) The student exhibits concurrent deficits in adaptive functioning expected for his or her age in at least two of the following areas: communication, self-care, home living, social or interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, or safety;

(3) The age of onset is eighteen or below;

(4) The student’s condition adversely affects educational performance;

(5) The student needs special education.

When determining eligibility, only those tests designed and normed for the population being tested may be used. Tests measuring intellectual ability that are translated into another language by the examiner or an interpreter shall not be used as the basis of the eligibility determination. Evaluation teams shall consider using nonverbal tests of intellectual ability when the student is culturally or linguistically diverse.

(j) Orthopedic Impairment – “Orthopedic impairment” means a severe physical limitation that adversely affects a student’s educational performance. The term includes impairments caused by congenital anomaly, an impairment caused by disease, or an impairment from other causes.

A student is eligible for special education services as a student with an orthopedic impairment when documentation of all of the following criteria exists:

(1) The student exhibits characteristics consistent with the definition;

(2) The student has an orthopedic impairment diagnosed and described by a licensed physician;

(3) There are particular educational needs as a result of the orthopedic impairment;

(4) The student’s condition adversely affects educational performance; and

(5) The student needs special education.

(k) Other Health Impairment – “Other health impairment” means having limited strength, vitality or alertness, including heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that is due to chronic or acute health problems. These health problems may include, but are not limited to, asthma, attention deficit disorder (ADD), attention deficit hyperactivity disorder (ADHD), cancer, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, Tourette syndrome and stroke to such a degree that it adversely affects the student’s educational performance.

A student is eligible for special education services as a student with an “other health impairment” when documentation of all of the following criteria exists:

(1) The student exhibits characteristics consistent with the definition;

(2) The student has a chronic or acute medical or health condition as diagnosed and described by a licensed physician;

(3) The existence of educational needs as a result of the medical or health condition;

(4) The student’s condition adversely affects educational performance; and

(5) The student needs special education.

(l)(1) Specific Learning Disability – “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 calculation, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, intellectual disability, emotional/behavioral disorder or environmental, cultural, or economic disadvantage.

A student shall not be determined to have a specific learning disability if the determinant factor is a lack of appropriate instruction in reading including the essential components of reading instruction (phonemic awareness, phonics, vocabulary, fluency or comprehension), lack of appropriate instruction in math, or limited English proficiency.

(2) The determination of whether a student manifests a specific learning disability shall be made by the student’s parents and a team of qualified professionals, which shall include the student’s general education teacher, or if the student does not have a general education teacher, a general education classroom teacher qualified to teach a student of his or her age, for a student of less than school age, an individual qualified to teach a student of his or her age, and at least one person qualified to conduct individual diagnostic examinations of the student, such as a school psychologist, speech-language pathologist, or reading specialist.

Eligibility committees shall draw upon information from a variety of assessment tools and strategies and as specified in section ten, article twenty of this chapter, ensure all students receive necessary and appropriate screenings and early assessments for specific learning disabilities. The eligibility committee may not rely on any single procedure for determining eligibility for special education and related services. The eligibility committee shall also ensure that information obtained from all of these sources is documented and carefully considered.

Using the support for personalized learning process and comprehensive assessment the eligibility committee shall determine eligibility for specific learning disability based on the following standards specified in this section. Each standard shall be discussed at the eligibility committee meeting and corresponding documentation shall be on file for each student.

(A) Standard 1- Level of Learning

The first element in identifying a student with a specific learning disability is whether the student does not achieve adequately for his or her age or does not meet state-approved grade level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the student’s age or state-approved grade-level standards:

(i) Oral expression;

(ii) Listening comprehension;

(iii) Written expression;

(iv) Basic reading skill;

(v) Reading fluency skills;

(vi) Reading comprehension;

(vii) Mathematics calculation; or

(viii) Mathematics problem solving.

The performance measure used to verify this standard shall be both representative of the student’s curriculum and useful for instructional planning. The student’s response to customized instruction shall be documented and include results of formative assessments administered pre- and post-instruction, cumulative record reviews, student class work samples, anecdotal teacher records, or standardized assessments.

(B) Standard 2- Rate of Learning or Pattern of Strengths and Weaknesses

The second element in identifying a student with a specific learning disability may be met by determining insufficient rate of learning or a pattern of strengths and weaknesses in cognitive and academic abilities.

(i) Rate of Learning -- The data gathered through ongoing progress monitoring of the student’s performance during an intervention period shall be used to determine if rate of learning has been met. This standard is met when the student’s learning rate or growth toward target skills is substantially below grade-level peers and, based on progress monitoring data, a reasonable rate of progress cannot be projected even when the student is provided supplemental intervention instruction of reasonable intensity and duration.

(ii) Pattern of Strengths and Weaknesses -- In addition to not achieving adequately on age or state-approved grade level achievement standards, a specific learning disability may be confirmed if the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the eligibility committee to be relevant to the identification of a specific learning disability, using appropriate assessments.

(C)Standard 3- Exclusion Factors

The final standard by which the eligibility committee may determine eligibility based upon a specific learning disability is the assurance that the student’s underachievement is not primarily the result of any of the following:

(i) A visual, hearing, or motor disability;

(ii) Intellectual disability;

(iii) Behavior or emotional disorder;

(iv) Cultural factors;

(v) Environmental or economic disadvantage; or

(vi) Limited English proficiency.

(3) The eligibility committee shall ensure that the underachievement of a student suspected of having a specific learning disability is not due to lack of appropriate instruction in reading and English language arts, written expression or mathematics, and the team shall consider, as part of the evaluation described in section three hundred four of this article, the following factors:

(A) Data that demonstrate that prior to or as part of the referral process, the student was provided appropriate instruction in general education settings; and

(B) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the student’s parents.

(4) The student suspected of having a specific learning disability shall be observed in the learning environment, including the general classroom setting, to document the student’s academic performance and behavior in the areas of difficulty. The eligibility committee shall decide to:

(A) Use information from an observation in routine classroom instruction and monitoring of the student’s performance that was done before the student was referred for evaluation; or

(B) Have at least one member of the evaluation team conduct an observation of the student’s academic performance in the general classroom after the student has been referred for an evaluation and parental consent is obtained.

In the case of a student of less than school age or out of school, a group member shall observe the student in an environment appropriate for a student of that age. The purpose of the observation is to document how the academic concern impacts the student’s academic performance. The observation shall also document the name and title of the observer and the site, date and duration of the observation.

(5) The special eligibility committee report shall contain a statement of:

(A) Whether the student has a specific learning disability;

(B) The basis for making the determination, including an assurance that the determination has been made in accordance with required evaluation procedures specified in section three hundred four of this article;

(C) The relevant behavior, if any, noted during the observation of the student and the relationship of that behavior to the student’s academic functioning; and

(D) The educationally relevant medical findings, if any;

(E) Whether the student does not achieve adequately for the student’s age or to meet state-approved grade-level standards; and the student does not make sufficient progress to meet age or state-approved grade-level standards, or the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-level standards or intellectual development;

(F) The determination of the group concerning the effects of a visual, hearing, or motor disability; intellectual disability; emotional/behavioral disorder; cultural factors, environmental or economic disadvantage; or limited English proficiency on the student’s achievement level.

(G) If the student has been provided support for personalized pursuant to section four hundred five of this article:

(i) The instructional strategies used and the student-centered data collected; and

(ii) The documentation that the student’s parents were notified about:

(I) The state’s policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided;

(II) Strategies for increasing the student’s rate of learning; and

(III) The parent’s right to request an evaluation at any time throughout the SPL process.

(6) The report shall be dated and evaluation team members shall certify in writing whether the report reflects each team member’s conclusions. If the report does not reflect an individual team member’s conclusions that team member shall submit a separate statement presenting the member’s conclusions.

(m)(1) Speech or Language Impairment -- A “speech or language impairment” as a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment that adversely affects a child's educational performance.

(2) A student is eligible for special education and or related services as a student who has a language disorder when the following criteria are met:

(A) Two or more procedures, at least one of which yields a standard score, are used to assess both expressive and receptive modalities;

(B) The student exhibits:

(i) Language abilities which are substantially and quantifiably below those expected for the students’ chronological age and cognitive state of development, resulting in functional limitation in effective communication, social participation, academic achievement, or occupational performance, individually or in any combination;

(ii) Norm referenced language tests which yield two subtest or total test scores with the following characteristics: one and one-half or more standard deviations below the mean, a language quotient standard score of seventy-eight, a stanine of two or a percentile of eight;

(iii) Non-standardized or informal assessment indicates that the student has difficulty understanding or expressing ideas or concepts to such a degree that it interferes with the student’s social and educational progress;

(iv) For a pre-school child to be considered for language intervention, the child’s language should be determined to have a negative impact on social-communicative interactions and one or both of the following characteristics shall exist:

(I) Norm referenced language tests which yield two subtest or total test scores with the following characteristics: one and one-half or more standard deviations below the mean, a language quotient standard score of seventy-eight, a stanine of two or a percentile of eight;

(II) Non-standardized/informal assessment indicates that the student has difficulty understanding and/or expressing ideas and/or concepts to such a degree that it interferes with the student’s social/educational progress;

(D). The student needs special education.

(3) A student is eligible for special education and related services as a student who has an articulation/phonology disorder when the following criteria are met:

(A) At least two procedures are used to assess the student, one of which is a standardized measure.

(B) The student’s speech is determined to have a negative impact on academic, social and/or vocational functioning, and one of the following characteristics exists:

(i) Two or more phonemic errors not expected at the student’s current age or developmental level are observed during direct testing and/or conversational speech;

(ii) Two or more phonological processes not expected at the student’s current age or developmental level are observed during direct testing and/or in conversational speech;

(C) For a preschool student to be considered for articulation/phonology therapy, the student’s speech should be determined to have a negative impact on social-communicative interactions and one or both of the following characteristics shall exist:

(i) Multiple phonemic errors that significantly reduce the student’s speech intelligibility and are not expected at the student’s current age or developmental level are observed during direct testing and/or conversational speech; or

(ii) Two or more phonological processes that significantly reduce the student’s speech intelligibility and are not expected at the student’s current age or developmental level are observed during direct testing and/or in conversational speech;

(D) Application of developmental norms from diagnostic tests verifies that speech sounds may not develop without intervention;

(E) The student’s disability adversely affects educational performance; and

(F) The student needs special education.

(4) A student is eligible for special education and related services as a student who has a fluency disorder when all of the following criteria are met:

(A) The student has a fluency rating of moderate or severe on the Fluency Rating Scale;

(B) The student’s disability adversely affects educational performance;

(5) A student is eligible for special education and related services as a student who has a social communication disorder based on the following:

(A) Assessment measures that include norm referenced tests, multiple observations, checklists and structured tasks;

(B) Assessment procedures that are contextually based and involve multiple settings and communication partners;

(C) Assessment results indicate deficits in functional limitations in effective communication, social participation, social relationships, academic achievement, and/or occupational performance, individually or in combination;

(D) Social pragmatic communication disorder cannot be diagnosed in the presence of restricted repetitive behaviors, interests, and other activities related to the diagnosis of autism;

(E) The student’s disability adversely affects educational performance;

(F) The student needs special education.

(6) Voice disorders are the absence or abnormal production of voice quality, pitch, intensity, or resonance. Voice disorders may be the result of a functional or an organic condition.

A voice disorder exists when the vocal characteristics of quality, pitch, intensity, or resonance interfere with communication, draw unfavorable attention to the speaker, adversely affect the speaker or listener, or are inappropriate to the age and gender of the speaker. A voice disorder does not exist when the vocal characteristics of quality, pitch, intensity, or resonance are the result of temporary physical factors such as allergies, colds, or abnormal tonsils or adenoids, are the result of regional dialectic or cultural differences or economic disadvantage, or do not interfere with educational or developmental performance.

A student is eligible for special education and/or related services as a student who has a voice disorder when all of the following criteria are met:

(A) The student has a voice production rating of moderate or severe on the Voice Rating Scale for students ages three through twenty-one years;

(B) The existence or absence of a structural or functional pathology is verified by an otolaryngologist;

(D) The student needs special education.

(n) Traumatic Brain Injury – “Traumatic brain injury” means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a student’s educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing, and speech. The term does not apply to congenital or degenerative brain injuries or to brain injuries induced by birth trauma.

A student is eligible for special education services as a student who has a traumatic brain injury when all of the following criteria are met:

(1) The student has an acquired injury to the brain caused by an external physical force resulting in a total or partial functional disability or psychosocial impairment, or both as diagnosed by a licensed physician;

(2) The student’s condition adversely affects educational performance; and

(3) The student needs special education.

Part V. Individualized Education Programs.

§18-20A-500. Definitions of special education and specially designed instruction; definition and purpose of individualized education program.

“Special education” is defined as specially designed instruction, provided at no cost to the parent, based on peer-reviewed research to the extent practicable, to meet the unique needs of a student with a disability or giftedness including instruction in the classroom, the home, hospitals, institutions and other settings. The definition of special education also includes instruction in physical education, speech and language therapy, transition services, travel training, assistive technology services and vocational education.

“Specially designed instruction” means adapting the content, methodology or delivery of instruction to address the unique needs of the student that result from his or her disability or giftedness and ensure access to the general education curriculum so that the student with disabilities can meet the education standards that apply to all students.

A standards-based “individualized education program” is a product of collaboration between a parent or adult student and educators who, through full and equal participation, identify the unique needs of a student with a disability or giftedness and plan the special education and related services to meet those needs. It sets forth in writing a commitment of resources necessary to enable the student to receive needed special education and related services. In addition, the individualized education program is a management tool that is used to ensure that each eligible student is provided special education and related services appropriate to the student’s special learning needs. It serves as an evaluation device for use in determining the extent of the student’s progress toward meeting the projected outcomes. The individualized education program is a compliance and monitoring document that may be used by authorized monitoring personnel from each governmental level to determine whether an eligible student is actually receiving the free appropriate public education agreed to by the parents and the school.

§18-20A-501. Initiation of individualized education programs.

(a) The primary purpose of an individualized education program team meeting is to design an individualized education program that will meet the unique needs of an eligible student. The individualized education program team plans the special education and related services designed to provide access to and progress in the general curriculum. The parent or adult student, county board of education personnel and other individualized education program team members shall participate in an open discussion regarding the student’s individual needs and how those needs affect the student’s mastery of the content standards and objectives. Placement decisions shall be considered after the necessary special education services are determined.

Informal or unscheduled conversations involving district personnel on various issues, such as teaching methodology, lesson plans or coordination of service provisions, are not considered to be a meeting as long as no decisions are made regarding issues addressed on the student’s individualized education program. A meeting does not include preparatory activities that district personnel engage in to develop a proposal or a response to a parent or adult student proposal that will be discussed at a later meeting.

(b) The individualized education program meeting shall serve as a communication vehicle between the parent or adult student and school personnel that enables them to make joint, informed decisions regarding the student’s special education services. All members of the individualized education program team shall work toward consensus regarding the content of the student’s individualized education program to ensure that he or she receives free appropriate public education. Consensus means that all members are in general agreement regarding the individualized education program content.

If the parent or adult student and other individualized education program team members cannot reach consensus regarding an individualized education program decision, then the county board of education representative on the individualized education program team shall make the decision and provide written notice of the decision to the parent or adult student at the conclusion of the meeting and prior to implementing the individualized education program. The parent or adult student may exercise his or her right to mediation or a due process hearing regarding the decision.

(c) An individualized education program meeting shall be convened for each of the purposes and under the specific circumstances specified as follows:

(1) To develop an individualized education program within thirty days of eligibility determination and prior to the initiation of services;

(2) To review the individualized education program periodically, but no longer than three hundred sixty-five days from the date of development of the current individualized education program;

(3) When another agency fails to deliver transition or other services outlined in the individualized education program, the individualized education program team shall reconvene to identify alternative strategies to meet the transition objectives for the child set out in the individualized education program;

(4) Within twenty-one days of a written request by any member including the parent or adult student; however, the county board of education may refuses a parent’s or adult student’s request to convene a meeting by responding to the parent or adult student within five days of receipt of the request in writing;

(5) Within twenty-one days of receipt of written request by a general education teacher who has responsibility for implementing the individualized education program in accordance with section one-c, article twenty of this chapter; and

(6) Within ten school days of any disciplinary removal resulting in a change of placement, the individualized education program team shall conduct a manifestation determination and if appropriate, complete a functional behavioral assessment and/or develop or review a behavioral intervention plan.

(d) An individualized education program team shall be comprised of the following persons:

(1) The natural, adoptive, or foster parent of a child, a guardian but not the state if the child is a ward of the state, an individual acting in the place of a natural or adoptive parent with whom the child lives, or an individual assigned to be a surrogate parent of the child;

(2) At least one general education teacher of the student, if the student is or may be participating in general education environment, including universal pre-K programs and Head Start;

(3) At least one special education teacher of the student or, when appropriate, special education service provider attending to the student;

(4) A representative of the county board of education who is qualified to provide or supervise the provision of special education, knowledgeable about the general education curriculum and knowledgeable about the availability of resources of the county board of education and has the authority to allocate resources to the individualized education program;

(5) An individual who can interpret the instructional implications of evaluation results, although this person does not need to be a separate member of the team if one of the other required persons also meets this qualification; and

(6) The student, when the purpose of the meeting is consideration of the postsecondary goals and transition services needed for reaching those goals, and at other meetings when deemed appropriate by the parent or county board of education.

In addition to the foregoing required participants, the individualized education program team may include the following individuals under the specific circumstances as follows:

To the extent appropriate and with parent or adult student consent, a representative of any participating agency that is likely to be responsible for providing or paying for transition services;

For a child previously served under West Virginia Birth to Three program, the parent may invite the Part C service coordinator or other representatives of the Part C system to assist with the smooth transition of services;

For a student being considered for or currently in a private school placement made by the individualized education program team, ensure participation of a representative of the private school or facility through attendance at the meeting, or other methods such as conference telephone calls; and

At the discretion of the parent or county board of education, others with knowledge or special expertise regarding the child, including related services personnel as appropriate.

The county board of education shall document the names, identities and representative roles of each individualized education program team member on a form specified by the department.

(e) A member of the individualized education program team is not required to attend an individualized education program meeting, in whole or in part, if the parent of a student with a disability and the county board of education agree, in writing, that the attendance of the member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting.

Members of the individualized education program team may be excused from an individualized education program meeting, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if the parent or adult student and county board of education consent to this in writing, or the member submits, in writing to the parent and the individualized education program team, input into the development of the individualized education program prior to the meeting.

School personnel shall contact the parent to discuss excusals, obtain parent consent, and provide forms to the identified team members to submit reports in lieu of attendance. Excused team members shall submit the form to parents and the individualized education program team chair between receipt of parent consent for the excusal and the individualized education program team meeting.

(f) The general education teacher’s role in the development, review and revision of the individualized education program includes discussion of the student’s involvement and progress in the general education curriculum; determination of appropriate positive behavioral interventions and strategies for the student; and determination of supplementary aids and services, program accommodations, modifications and supports for school personnel.

(g) The county board of education shall have the following duties regarding scheduling and facilitating meetings of the individualized education program team:

(1) Schedule and notify the parent of the meeting at a place and time mutually agreed on by the parent or adult student and the county board of education;

(2) Take steps to ensure one or both parents attend or have the opportunity to participate;

(3) No less than eight days prior to the meeting unless waived by the parent, provide the parent or the adult student with written notice of the meeting using the form designated by the department and shall include:

(A) The purpose, time and location of the meeting;

(B) Who will attend the meeting; and

(C) Information regarding the parent’s or adult student’s right to bring other people who have knowledge or special expertise regarding the student to the meeting.

(4) Beginning not later than the first individualized education program to be in effect when the student turns sixteen, or younger if determined appropriate by the individualized education program team, the notice also shall indicate that the purpose of the meeting will be consideration of the post-secondary goals and transition services for the student, indicate that the county board of education will invite the student, and identify any other agency that will be invited to send a representative with the consent of the parent or adult student.

(5) Invite the student, if appropriate or required, to attend and participate in his or her individualized education program team meeting and if a purpose of the meeting is to consider transition, but the student does not attend, the county board of education shall take other steps to ensure that the student’s preferences and interests are considered;

(6) Take whatever action is necessary to ensure that a parent or adult student understands the proceedings at an individualized education program team meeting, including arranging for an interpreter for a parent or adult student who has a hearing impairment or whose native language is other than English;

(7) Document its attempts to arrange a mutually agreed upon time and place for the meeting;

(8) When neither parent can attend in person, provide alternatives to physical meetings such as video and telephone conferencing in the place of physical individualized education program meetings if the parent or adult student and county board of education agree;

(9) If the parent refuses to attend or the county board of education cannot convince the parent to attend, conduct the individualized education program team meeting and provide prior written notice of the decisions made; and

(10) To the extent possible, the county board of education shall encourage the consolidation of all individualized education program team meetings, including meetings that may involve eligibility, reevaluation and individualized education program development.

§18-20A-502. Development of an individualized education program.

The West Virginia Department of Education provides individualized education program and special education process forms/templates, including the online individualized education program, to ensure that all individualized education programs are developed in compliance with federal and state regulations. Therefore, districts are required to use the West Virginia Department of Education Online IEP in the development of a student’s individualized education program. The individualized education program requirements are listed below.

(a) All individualized education programs shall include demographic components required by federal law.

(b) The county board of education shall ensure the attendance and participation of the individualized education program team members at the individualized education program meeting and the county board shall document the attendance of team members by their signatures and positions of team members. Team member signatures including parent or adult student do not reflect agreement or disagreement with the individualized education program, but only indicate attendance.

(c) In developing each student’s individualized education program, the individualized education program team shall consider:

(1) Strengths of the student;

(2) Concerns of the parents for enhancing the education of their child;

(3) Results of the initial evaluation or most recent evaluation of the student; and

(4) Academic, developmental and functional needs of the student.

Where any of the following special factors are applicable, the individualized education program team shall include these factors in their consideration and document the team’s conclusions on them:

(1) For students with giftedness, the individualized education program team will consider if acceleration is a focus of gifted service, and if so, its effect on high school graduation;

(2) The child’s needs for assistive technology devices and services, the type of device and provision for home use, if any;

(3) The communication needs of the student;

(4) If the student’s behavior impedes his or her learning or that of others, the individualized education program team shall consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior;

(5) If the student has blindness or low vision, the individualized education program shall provide for instruction in braille and the use of braille unless the individualized education program team determines that braille is not appropriate for the student; Provided, That this determination may only be made after an evaluation of the student’s reading and writing skills, needs and appropriate reading and writing media, including an evaluation of the student’s future needs for instruction in braille or the use of braille;

(6) In the case of the student who is deaf or hard-of-hearing, the individualized education program team shall consider the language and communication needs of the student, opportunities for direct communications with peers and professional personnel in the student’s language and communication mode, the student’s academic level and his or her full range of needs including opportunities for direct instruction in the student’s language and communication mode;

(7) If the student has limited English proficiency, the individualized education program team will consider the language needs of the student as those needs relate to the individualized education program;

(8) Consider the transition needs of the student; and

(9) Consider the student’s ability to access print if the student has a physical disability and cannot manipulate the material without strenuous effort or if the student is unable to read and comprehend grade level print at a rate to complete the academic task independently and with success; or if the student is blind or a low vision student.

(d) Using the information considered in subsection (c) of this section, the individualized education program team shall identify and develop statements of present levels of academic achievement and functional performance and measurable annual goals that enable school personnel to track the effectiveness of services and to accurately report progress toward goals.

Statements of present levels of academic achievement and functional performance shall address how a school-age student’s disability or giftedness affects his or her involvement and progress in the general education curriculum or, in the case of a preschool student, how the student’s disability affects his or her involvement and progress in the West Virginia Early Learning Standards Framework and how the disability affects the student’s participation in appropriate activities.

Each statement shall:

(1) Be written in objective, measurable terms and easy-to-understand non-technical language;

(2) Establish a basis for the other components of the individualized education program;

(3) Provide a starting point for annual goal development; and

(4) Articulate the gaps between the student’s grade level expectations and his or her demonstrated performance.

(e) Measurable academic and functional annual goals shall be related to the needs described in the present levels of academic achievement and performance statements.Specifically, annual goals shall be written to:

(1) Include a measurable statement that describes what a student is reasonably expected to accomplish from the special education program within the time period covered by the individualized education program;

(2) Enable the student to be involved in and make progress in the general education curriculum and to meet other educational needs that result from the disability or giftedness;

(3) Include the timeframe, condition, behavior and the evaluation procedure with performance criteria.

For students taking the statewide alternate accountability assessment based on alternate academic achievement standards, each goal shall have at least two objectives. The written objectives shall include a statement of how far the student is expected to progress toward the annual goal and by what date.

The individualized education program team has the discretion to use objectives for any student eligible for individualized education program services.

For purposes of determining the need for extended school year services, for each student with a disability, the individualized education program team shall identify at least one critical skill area that is needed for the student to maintain levels of performance.

The individualized education program shall include a statement describing how the student’s progress toward individualized education program goals will be measured and when the parent or adult student will be informed of the student’s progress toward meeting the annual goals.

(f) “Secondary transition services” are defined as a coordinated set of activities for a student with an exceptionality that are designed within a results-oriented process focused on improving the academic and functional achievement of the student to facilitate movement from school to post-school activities, including post-secondary education, vocational education, integrated employment, continuing and adult education, adult services, independent living or community participation. The activities include instruction, community experiences, development of employment and other post school adult-living objectives and, if appropriate, acquisition of daily living skills and a provision of functional vocational evaluation. These activities are based on the individual student’s needs, taking into account the student’s preferences and interests.

Beginning with the first individualized education program to be in effect when a student is sixteen years old, or earlier if deemed appropriate by the individualized education program team, the individualized education program shall include:

(1) Appropriate, measurable postsecondary goals related to independent living skills, if needed;

(2) Appropriate measurable postsecondary goals based upon age-appropriate transition assessment related to training, education and employment; and

(3) Transition services, including courses of study, needed to assist the student in reaching postsecondary goals identified on the individualized education program.

The goals and transition services shall be updated annually in the individualized education program.

The individualized education program shall determine whether or not special education rights will transfer to the student on his or her eighteenth birthday and, no later than the student’s seventeenth birthday, shall inform the student of this determination and make a record of this notice to the student as part of the individualized education program. Special education rights will transfer from the parent to the student when the student turns eighteen years old unless the parent has obtained legal guardianship.

(g) Each student’s individualized education program shall describe the special education and related services, supplementary aids and services, based on peer-reviewed research to the extent practicable, and program modifications or supports for school personnel that will be provided to or on behalf of the student to enable the student to advance appropriately toward attaining the annual goals, be involved in and make progress in the general education curriculum, have an equitable opportunity to participate in extracurricular and other nonacademic activities; and be educated, and participate, with other students with and without disabilities.

The description of services in the individualized education program shall identify:

(1) Supplementary aids and services and program accommodations, modifications and supports for school personnel. “Supplementary aids and services” means aids, services, and other supports that are provided in general education classes or other education-related settings to enable students in need of special education services to be educated with students without exceptionalities to the maximum extent appropriate in accordance with requirements for the least restrictive environment. These services shall be considered prior to removing a student from the general education classroom.

The determination of which supplementary aids and services are appropriate for a particular student shall be made on an individual basis. Supplementary aids and services are any material/curricular/human resource or assistance, beyond what is normally afforded students without exceptionalities, provided to support a student with an exceptionality’s placement. Supplementary aids may include, but are not limited to, large print books, positive behavioral interventions, assistive technology devices, auditory trainers, curriculum accommodations, services and other supports that are provided in general education classes or other education related settings to enable students in need of special education services to be educated with students without exceptionalities to the maximum extent appropriate. Supplementary services may include, but are not limited to direct instruction, peer tutoring and note taking.

An accommodation can be a device, practice, intervention, or procedure provided to a student with a disability that affords equal access to instruction or assessment. Accommodations do not change the content of the general education curriculum, nor reduce learning or achievement expectations, but allow students with disabilities access to the curriculum through technology, universal design for learning (UDL), differentiated instruction (DI), cognitive strategies instruction and scaffolding.

Modifications are changes in educational expectations for the student. These include actual changes in the general education curriculum and instruction or the use of an alternative or supplemental curriculum. Examples include mastery of essential concepts, acceleration, different test questions and material at a different reading level.

Supports for school personnel may include, but are not limited to, additional training in the use of assistive technology, specific instructional strategies or the use of technology; other professional development activities such as mentoring or coaching; and assistance in planning lessons using differentiated instruction.

(2) “Special education services” include specially designed instruction to meet the unique needs of the student. Special education services are those necessary to enable the student to achieve the annual goals, make progress in the general education curriculum and participate in extracurricular and other non-academic activities. Special education services document the goal area requiring specially designed instruction. Special education services are either direct or indirect. Direct services are instruction, therapies or interventions provided one-on-one or in groups to an eligible student in the general education classroom or in a special education school environment, home or community. Indirect services are services provided by a special education teacher or provider to the student’s teachers to directly benefit the student.

(3) The term “related services” refers to transportation and such developmental, corrective and other supportive services required to assist an eligible student to benefit from special education as described in the individualized education program. The term “related services” does not include a medical device that is surgically implanted, the optimization of that device’s functioning, and maintenance of that device or the replacement of such device. Related services include, but are not limited to the following:

Assistive technology,

Audiology,

Speech-language therapy

Interpreting services,

Psychological services,

Physical therapy,

Occupational therapy,

Therapeutic recreation,

Counseling services,

Early identification and assessment of students’ exceptionalities,

Rehabilitation counseling services,

Orientation and mobility services,

Medical services for diagnostic or evaluative purposes,

School nurse services,

Social work services in school,

Supports for school staff,

Parent counseling and training, and

Transportation.

This list of related services is not exhaustive and may include other developmental, corrective, supportive services or transition services. Although services may be of benefit to a student with an exceptionality, all of the services listed above may not be required for each individual student. Related services are the responsibility of the county board of education only if the individualized education program team determines they are required to assist the student to benefit from special education. The student is not entitled to related services if he or she does not need special education, or the parent or adult student does not consent to special education services.

For each service identified as a supplementary aid and service, a special education service or a related service as detailed above, the individualized education program shall:

(1) State the location where services and modifications will be provided;

(2) List the anticipated extent and frequency of the service;

(3) State the date services will be initiated, in consideration of written notice requirements, and the expected duration of the services and modifications.

(g) The individualized education program team shall annually determine and document whether a student has a need for extended school year services. Students entitled to extended school year services are those who require special education and related services in excess of the regular school year to maintain identified critical skills as described in the current individualized education program. In making its determination of a student’s need for extended school year services the individualized education program team shall review available documentation indicating that the student exhibits, or may exhibit:

(1) Significant regression during an interruption in educational programming;

(2) A limited ability to recoup, or relearn skills once programming has resumed;

(3) Regression or recoupment problems that interfere with the maintenance of identified critical skills as described in the current individualized education program; and

(4) Other factors that interfere with the maintenance of identified critical skills as described in the current individualized education program, such as predictive data; degree of progress; emerging skills and breakthrough opportunities; interfering behaviors; nature and/or severity of the disability; and special circumstances.

The lack of clear evidence of such factors may not be used to deny a student extended school year services, if the individualized education program team determines the need for such services and includes these services in the individualized education program.

The type and length of the services the student requires is determined on an individual basis by the individualized education program team. Extended school year services shall consist of activities developed to maintain critical skills identified on the individualized education program developed for the academic year. The individualized education program team shall document the duration, number of hours per week and physical location of the special education and related services to be delivered.

Extended school year services may not be limited to a particular category of disability or be unilaterally limited in the type, amount or duration of those services and shall be provided at no cost to the parent. The county board of education shall annually inform parents of students with disabilities of the availability of extended school year services and of procedures and criteria for determining a student’s need for extended school year services, and of their right to refuse extended school year services.

(i) Students with disabilities shall participate at the grade level at which they are enrolled in all components of the West Virginia Measures of Academic Progress under standard conditions or with accommodations based upon the criteria in either regular or alternate accountability assessments.

The individualized education program team shall determine how the student participates in the West Virginia Measures of Academic Progress, including whether the student takes the WESTEST2 or meets the criteria for participation in the West Virginia Alternate Performance Assessment and whether the student needs allowable accommodations to be assessed appropriately. The parent, and the student if appropriate, shall be involved in and informed of decisions regarding assessment participation. The implications of the decisions shall be carefully explained to the parent and the student. The individualized education program shall specify the conditions in which the student will participate in all the applicable assessments, either under standard conditions applicable to all students, or with specific and acceptable accommodations, or whether the student meets criteria for alternate assessment and why the student cannot participate in the regular assessment.

When the student participates in the regular accountability assessment the student will also participate in the other components of the West Virginia Measures of Academic Progress. The accommodations needed for any statewide standardized accountability assessment or district assessment tests, shall be specified on the individualized education program and be acceptable accommodations. The accommodations indicated in the individualized education program shall be provided and documented during test administration to verify appropriate assessment accommodations were implemented.

(j) An eligible student shall be educated with general education students in the general education classroom to the maximum extent appropriate. Removal from the general education environment occurs only when the nature or severity of the exceptionality is such that education in general classes and other settings with general education students cannot be achieved satisfactorily even with the use of supplementary aids and services. This requirement is known as the least restrictive environment. An appropriate, least restrictive environment is one that enables the student to receive individualized education program services and make reasonable gains toward goals identified in an individualized education program.

In determining an appropriate placement in the least restrictive environment, the individualized education program team shall first consider the general education environment with supplementary aids and services. If the student’s individualized education program cannot be implemented in that environment with an expectation of reasonable progress on and achievement of individualized education program goals, a placement on the continuum of placement options providing less education with students without disabilities may be considered. An eligible student is not to be removed from age-appropriate general education classrooms solely because of needed accommodations and modifications to the general education curriculum.

The individualized education program shall explain the extent, if any, to which the student will not participate in the general education classroom, the general education curriculum, or extracurricular or other nonacademic activities and indicate the percentage of time in general and special education.

The individualized education program team shall determine the supplementary aids and services appropriate and necessary for the student to participate with students without disabilities in nonacademic and extracurricular services and activities to the maximum extent appropriate. These services and activities may include, but are not limited to, meals, recess, field trips, counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the county board of education, referrals to community agencies, career development and assistance in making outside employment available.

Reassignment of students to another classroom or building in the school district is not a change of placement for a student as long as the individualized education program goals remain unchanged and the degree of interaction with peers without disabilities remains the same.

Placement decisions for a student shall be made after all sections of the individualized education program, except the educational environment section, have been completed. Placement shall be determined at least annually by the individualized education program team. The individualized education program team shall consider the following when determining the least restrictive environment in which the individualized education program can be implemented:

(1) The maximum extent to which the student may be educated with age-appropriate, non-exceptional peers, without regard to whether the students are educated in public or private institutions or other care facilities;

(2) The services and placement needed by each student shall be based on the student’s unique needs that result from his or her disability or giftedness, not on the student’s category of exceptionality or the availability of placement options, services, staff or space;

(4) A student with a disability shall be enrolled in the school he or she would attend if not disabled, unless the individualized education program requires another location in which case, the student shall be provided an educational program as close to the student’s home as possible;

(5) In considering a setting outside the general education environment, the individualized education program team shall determine placement in environments, including classrooms and schools, with similar-age peers;

(6) Consideration shall be given to any potentially harmful effects of the placement on the student or on the quality of services;

(7) Consideration shall be given to the array of services and continuum of placement options to meet the individual needs of each student.

In determining an appropriate placement for a student with an exceptionality in the least restrictive environment, the individualized education program team shall consider the student’s needs and the services required to meet those needs. Regardless of placement, the student shall be given access to the general education curriculum unless the individualized education program team determines it to be inappropriate.

(k) If the parent or adult student to whom rights have been transferred refuses to consent to the initial provision of special education and related services described in the individualized education program, the county board of education will not provide special education and related services to the student. The county board of education shall document its efforts to obtain informed consent from the parent or adult student for the initial provision of special education and related services.

A parent or adult student may revoke consent for continued provision of special education and related services at any time. The revocation of consent shall be in writing. Within five days of receipt of the written revocation of consent, the county board of education shall provide prior written notice to the parent, and to the adult student, if applicable, that special education and related services will cease.

When a parent or adult student refuses to respond to a request for or refuses consent to the initial provision of special education and related services or revokes consent for continued special education and related services:

(1) The county board of education shall provide written notice containing all the content required by section one thousand three of this article and shall fully inform the parent of the reasons the county board of education believes the student should receive special education and the potential consequences of refusing services, such as implications for student achievement, graduation, discipline protections and transition to post school outcomes.

(2) Neither mediation nor a due process complaint may be used to attempt to obtain agreement or ruling that services be provided.

(3) The county board of education will not be in violation of the requirement to make free appropriate public education available to the student or the requirement to provide special education and related services; and

(4) The county board of education will not be required to convene an individualized education program meeting or develop an individualized education program for the student.

When consent for continued provision of special education and related services is revoked after the student has initially been provided services the county board of education is not required to amend the student’s educational records to remove any references to the student’s receipt of special education and related services because of the revocation of consent; the parent or adult student maintains the right to request initial evaluation; the county board of education is not deemed to have knowledge that the student is a student with a disability, and the student may be disciplined as a general education student.

(l) The revocation of consent provisions in this section apply to revocation of all special education and related services. Consent cannot be revoked for a particular service. Disagreements with the provision of a particular service, a change in placement or other individualized education program components may be addressed by the individualized education program team and the dispute resolution processes. If the individualized education program team agrees that a free appropriate public education would be provided if the student does not receive the service or individualized education program provision in question, the individualized education program may be revised accordingly. If, however, the individualized education program team and parent or adult student disagree regarding individualized education program provisions, the county board of education shall provide written notice of the proposed or refused changes. The parent may use dispute resolution processes as defined in part XI of this article.

(m) At the conclusion of the individualized education program team meeting, prior written notice and a copy of the individualized education program shall be provided to the parent /adult student. Prior to the initiation of services, the county board of education shall ensure that the student’s individualized education program is accessible to each service provider who is responsible for its implementation, including but not limited to each general education teacher (including teachers of music, musical education, art and driver education), special education teacher, related service provider and other providers. In addition, each teacher and provider shall be informed of his or her specific responsibilities related to implementing the student’s individualized education program and the specific accommodations, modifications and supports that shall be provided for the student in accordance with the individualized education program. Teachers in whose class or program a student with exceptional needs is enrolled shall read and sign a copy of the student’s individualized education program acknowledging that he or she has read and understands it as specified in section one-c, of article twenty of this chapter.

§18-20A-503. Reviews of the individualized education program.

(a) Each student’s individualized education program shall be reviewed at least annually. Meetings may be held any time throughout the school year, as long as the individualized education program is reviewed annually and is in effect at the beginning of each school year. Either at or after the annual review, written notice that the new individualized education program changes will be implemented shall be provided to the parent or adult student.

The purposes of the individualized education program review include, but are not limited to, the following:

(1) To determine whether the student’s annual goals have been achieved;

(2) To revise the individualized education program if there is any lack of expected progress toward annual goals and in the general education curriculum, where appropriate;

(3) To consider whether a reevaluation is necessary or to address the results of reevaluation;

(4) To address information about the student provided to, or by, the parent or adult student; and

(5) To address the student’s anticipated needs.

(b) In making changes to a student’s individualized education program after the annual individualized education program meeting for a school year, the parent/ adult student and the county board of education may agree, in writing, not to convene an individualized education program meeting for the purposes of making such changes, and instead, may develop a written document to amend the student’s current individualized education program. Districts shall document the changes made to the individualized education program on the individualized education program Amendment Form and provide a copy to the parents. The changes made during the amendment process shall be incorporated into the Online IEP. The parent or adult student may request a copy of the revised individualized education program with the amendment incorporated. The annual review date remains the date of the original Online IEP. In accordance with section one-c, article twenty of this chapter, each service provider impacted by the changes shall read and sign a copy of the student’s individualized education program.

(c) If the parent or adult student believes that the student is not progressing satisfactorily or that there is a problem with the current individualized education program, he or she may request an individualized education program team meeting. The county board of education shall grant any reasonable request for such a meeting. If the county board of education refuses to convene an individualized education program meeting requested by the parent or adult student, the county board of education shall provide written notice to the parent or the adult student, including an explanation of why the county board of education has determined the meeting is unnecessary.

If any other member of the individualized education program team feels that the student’s placement or individualized education program services are not appropriate, that team member may request an individualized education program team meeting.

§18-20A-504. Creation, modification and application individualized education programs for transfer students.

(a) When a student with a current individualized education program transfers school districts within the state within the same school year, and enrolls in a new school, the county board of education in the destination county shall make reasonable efforts to consult with the parent within two school days of initial enrollment and to initiate free appropriate public education for the student within one school day of the parent consultation. The program of instruction shall include services comparable to those described in the previously held individualized education program. Within ten school days of the parent or adult student consultation, the county board of education shall adopt the previously held individualized education program or develop and implement a new individualized education program.

(b) When a student with a disability transfers from out of state to a West Virginia school district within the same school year, and enrolls in a new school, and had an individualized education program that was in effect in that other state, the county board of education shall make reasonable efforts to consult with the parent within two school days of initial enrollment and to initiate free appropriate public education for the student within one school day of the parent consultation. The program of instruction shall include services comparable to those described in the previously held individualized education program, in consultation with the parent or adult student, until such time as the county board of education conducts an evaluation, if necessary, determines eligibility, develops and implements a new individualized education program, if appropriate.

Within two school days of enrollment, the receiving county board of education shall request records and supporting documents and any other records related to the provision of special education and related services from the sending district. If the county board of education decides an evaluation is necessary to determine the transfer student’s eligibility under West Virginia eligibility criteria, the county board of education shall conduct the evaluation using the requirements and timelines for initial evaluation, including obtaining parental consent.

(c) The county board of education in which the student was previously enrolled shall take reasonable steps to respond within one school day to the request for records from the receiving district. This includes schools administered by the Office of Institutional Education Programs and the West Virginia Schools for the Deaf and Blind. Parental consent is not required when transmitting records to a district in which the student seeks or intends to enroll.

§18-20A-505. Individualized education programs within the West Virginia Birth to Three Program.

(a) Each county board of education shall develop and have in effect an interagency agreement with the West Virginia Department of Health and Human Resources for purpose of the West Virginia Birth to Three Program. The agreement shall outline the obligations of each agency to ensure a smooth and effective transition of children assisted under the West Virginia Birth to Three Program to programs serving students within county school systems. All county boards of education are required to develop procedures for the transition of these children to receive necessary services within the school system.

In the case of a child who may be eligible for services because of developmental delays, the county board of education shall participate in a transition planning conference with the family that is arranged by the department of health and human resources. With the family’s agreement, the conference shall be conducted at least ninety days and no more than nine months prior to the child’s third birthday to discuss eligibility requirements and any services the child may receive.

The department of health and human resources has the following duties to effect the child’s transition:

(1) Review the child’s program options for the period from the child’s third birthday through the remainder of the school year; and

(2) Establish a transition plan that includes steps to support the transition of the child with a disability to preschool services.

(b) A child three through five years old who is eligible as a student with developmental delays shall have an individualized education program implemented by his or her third birthday. If a child’s third birthday occurs during the summer, the individualized education program team shall determine the date when services under the individualized education program will occur. At the discretion of the county board of education, the individualized education program team may consider an individual family service plan, which may be used in place of an individualized education program, if the child’s parent is provided with a detailed explanation of the differences between this plan and an individualized education program and if written parental consent to use the individual family service plan is obtained. The county board of education shall not be required to develop an individual family service plan instead of an individualized education program. The county board of education is required to implement only the educational components of the individual family service plan, if one is used.

(c)(1) When a student with a disability transitions from the West Virginia Birth to Three Program or similar program, parental consent for the initial provision of special education and related services in any program from students with exceptionalities and written notice of the proposed individualized education program or individual family service plan are required.

(2) The county board of education shall obtain written parental consent for the release of information to obtain pertinent student records from non-educational agencies such as the department of health and human resources, developmental disabilities programs, medical providers, day-care centers and Head Start.

(3) At the transition planning conference, if further assessments are necessary to determine eligibility and the student’s present levels of performance, informed consent to evaluate is required. Otherwise, only written notice to inform the parent of the district’s decision to use the current evaluation data and not to conduct any further assessments shall be provided to the parent. The parent shall also be informed of his or her right to request additional assessments.

(d) The timelines for transition from WV Birth to Three to the local school district will not apply to a district under any of the following, documented circumstances:

(1) The parent repeatedly fails or refuses to produce the student for an evaluation or otherwise interrupts the evaluation process;

(2) The child moves or transfers out of the district;

(3) There is a delay due to exceptional family circumstances including, but not limited to: the family rescheduling or canceling the individualized education program meeting due to sickness or unavailability of the parent and/or child; and extreme weather conditions or a natural disaster where the length of the delay in conducting the meeting is directly proportional to the duration and severity of the disruption caused by the extreme weather conditions or natural disaster; or

(4) The child was referred to the West Virginia Birth to Three Program less than ninety days before the child’s third birthday. When the child is referred to the county board of education less than ninety days before the third birthday, the evaluation shall be completed within eighty days of the parent’s consent, even if the timeline exceeds the child’s third birthdate. Every effort shall be made to complete evaluation, eligibility and the individualized education program, if applicable, by the third birthdate.

(e) If an educational placement dispute arises involving a child transitioning from the West Virginia Birth to Three Program to a public school program or public school services, the child may not remain or continue in prior program when he or she is over the age of three. With written consent of the parent, the child shall be placed in the public school until completion of all the hearing proceedings. If the parent does not give written consent, the student shall not receive services until completion of the hearing proceedings.

(f) A copy of the procedural safeguards notice as specified in section one thousand two of this article shall be made available to the parent or adult student only one time a year except that a copy will also be given upon:

(1) Initial referral or parental request for evaluation;

(2) The first occurrence of the filing of a due process or state complaint;

(3) Issuance of a disciplinary notice of suspension or expulsion resulting in a change of placement; and

(4) The request of a parent or adult student.

§18-20A-506. Students with disabilities in adult prisons

The following are exceptions for students with disabilities who are convicted as adults under West Virginia law and incarcerated in adult prisons:

(1) The student may not participate in statewide assessments;

(2) Transition planning and services do not apply if the student will remain incarcerated beyond his or her twenty-first birthday.

The individualized education program team may revise the student’s individualized education program and placement, regardless of the least restrictive environment requirements, if the state has demonstrated a bona fide security or other compelling penological interest that cannot be otherwise accommodated.

Part VI. Administration of Services.

§18-20A-600. Duty to provide necessary services.

Each county board of education shall provide the special education and related services necessary to implement each student's individualized education program.

§18-20A-601. Initiation of services

A complete individualized education program shall be in effect prior to the provision of special education and related services. For initial individualized education programs, services shall be implemented as soon as possible. Short delays in the immediate initiation of services may occur when individualized education program team meetings are held during the summer or a vacation period, or when arrangements for services, such as transportation, shall be made. A delay during the school year shall not exceed fifteen days. The implementation of the individualized education program shall begin in the fall, unless the individualized education program team determines that the student needs extended school year or other services during the summer, in which case these services shall be then provided.

For a preschool student, the individualized education program shall be in effect by the student’s third birthday. If the third birthday occurs during the summer the individualized education program team shall meet to complete the individualized education program prior to the third birthday and to determine the date when services will be initiated. If the individualized education program team determines the child needs extended school year or other services during the summer, these services shall be provided once the child turns three years of age, otherwise the implementation of the individualized education program shall begin in the fall.

A current individualized education program shall be in effect at the beginning of each school year for each student receiving special education and related services. For a student transferring from another district or state, and in consultation with the parent or the adult student, the county board of education shall initiate special education services comparable to those provided by the previous district until the current individualized education program is adopted or revised as specified in section five hundred four, part V of this article.

§18-20A-602. Provision of individualized education program Information

The student's individualized education program shall be accessible to each general education teacher, special education teacher, related service provider and others responsible for its implementation. Each teacher and provider shall be informed of his or her specific responsibilities related to implementing the student's individualized education program.

§18-20A-603. Services to be provided by county board of education.

The county board of education shall provide:

(1) A continuum of service options in order to respond to the intensity and severity of student needs;

(2) Services in school facilities that serve age-appropriate non-exceptional peers;

(3) Classrooms for eligible school age students with exceptionalities in close proximity to classrooms for age-appropriate non-exceptional peers;

(4) Classrooms for eligible students with exceptionalities that are adequate and comparable to the classrooms for students without exceptionalities;

(5) Classrooms and facilities for eligible students with exceptionalities with physical or sensory impairments that are in compliance, to the extent necessary, with the requirements of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the specifications outlined in article ten-f, chapter eighteen of this code, the current Uniform Federal Accessibility Standards and Policy 6200 of the West Virginia State Board of Education;

(6) Transportation, specially designed if necessary, for all students with exceptionalities in accordance with section thirteen, article five, chapter eighteen of this code and state board of education policies governing transportation;

(7) Appropriate grouping of students with exceptionalities for specially designed instruction based upon meeting the students’ similar social, functional and/or academic needs, as specified in their individualized education programs and without regard to identified exceptionality;

(8) Opportunity for students with disabilities to earn the required credits for graduation;

(9) Daily monitoring of hearing aids or the external component of a surgically implanted devices worn by students in schools in accordance with established procedures to assure they are functioning properly;

(10) Assistive technology devices or assistive technology services, or both, to a student with a disability if required as part of the student’s special education, related services or supplemental services;

(11) On a case-by-case basis, school-purchased assistive technology devices in a student’s home or in other settings if the student’s individualized education program team determines that the child needs access to those devices in order to receive free appropriate public education; and

(12) Services for young children in the least restrictive environment which includes utilizing approved participating partners in West Virginia Pre-K. The socioeconomic level, ability and funding streams may not be considered as deterrents to providing fully inclusive programs.

§18-20A-604. Staffing requirements and limits on class size.

(a) Each county board of education shall provide highly qualified personnel who are appropriately trained for the areas of exceptionality in which they have primary responsibility and who are adequate in number to implement the individualized education program of each eligible student in the county. Service personnel shall be appropriately trained and supervised by qualified professionals.

As required by section one-c, article twenty, of this chapter, an individualized education program may specify training for general education teachers to assist them in implementing the individualized education program goals and objectives. This training may be provided through individual consultation or formal professional development and shall be provided by persons trained or certified to address the student's exceptional needs. In addition, general education teachers are entitled to training regarding the integrated classroom program and additional individualized training developed by the county board of education, if requested, to prepare the teacher to meet the exceptional needs of individual students. Whenever possible, this training shall be provided prior to placement. Where prior consultation or training is not possible, it shall be provided no later than ten days following the placement of the student into the general education classroom. Unavoidable delays in the provision of training shall not result in the exclusion of a student from any class.

(b) The county board of education shall provide adequate staff to implement the individualized education program of each student. The number of students served in an instructional period and the assignment of paraprofessionals or aides shall be determined based on the intensity of services required by the students. Teachers’ class lists and student schedules shall be developed and monitored to ensure the implementation of individualized education program services. While highly qualified teachers and licensed therapists shall design and provide initial or original instruction, support personnel may provide reinforcement and practice of previously taught skills or content. Additionally, support personnel may be required to provide assistance to students in response to specific needs related to significant cognitive or sensory impairments, communication, safety, mobility; personal care, behavior, medical management or health care, or other unique circumstances.

When making staffing determinations the county board of education shall also take the following factors in to consideration: planning time, data collection, observation, assessment and report preparation, consultation and individualized education program planning with general educators, individualized education program management, individualized education program team meetings and meetings with parents, the additional assistance that may be required for assisting younger children with personal tasks such as toileting, dressing and feeding, and travel time for itinerant personnel.

(c) To ensure the provision of a free appropriate public education and adherence to procedural requirements, professional special education personnel may be assigned a group of students for whom they not only provide direct or indirect special education services but also for whom they provide specific case management or procedural accountability duties such as sending parent notices, scheduling individualized education program meetings, reporting progress to parents, coordinating services, tracking timelines and managing paperwork. The maximum number of students that may be assigned to particular service providers shall be determined from the following Table One:

Table One Maximum Limits of Case Management Assignments
Teachers of students with developmental delays, ages 3-5	20 students with individualized education programs
Teachers of the gifted	45 students
Speech therapists	50 students
Teacher of all other exceptionalities	30 students

These shall be maximum limits within which the school or district administrator, in consideration of the teacher’s schedule and overall responsibilities, shall determine the number of students assigned to specific teachers or providers.

(d) All WV Pre-K classrooms, including special education, should to the extent practicable reflect the natural proportions of students with disabilities to those without disabilities within the school or community, but with no more than ten students with disabilities per session. Pre-K classrooms shall be limited to no more than twenty students per session. Pre-K special education classrooms require at least one aide regardless of the number of students being served. The provision of additional support staff shall be determined based on student needs and the individualized education program. All Universal Pre-K classrooms, including special education, shall provide a minimum of thirty-five square feet per child of usable indoor space for daily program activities.

(e) To maximize the effectiveness of instruction for all students, the percentage of students with disabilities, excluding those with speech and language impairments, receiving specially designed instruction in general education settings should approximate natural proportions that are no more than thirty percent of the total class enrollment when integrated classrooms are established in the four core academic subjects: English and Language Arts, Science, Social Studies and Math. For integrated classrooms where instructional responsibilities are shared, the special educator shall not be assigned to more than two co-teaching or integrated classrooms during one instructional block.

(f) Students may receive special education services in special education environments. Special education staffing per instructional period shall be based on the student’s level of need without regard to the area of disability. When assigning students within special education environments, the district special education administrator or designee shall consider the following characteristics of needs:

(1) Students with Level I needs typically, but not exclusively, function within the school setting by:

• Receiving varying levels of assistance from a special educator during general education core academic classes or elective classes;

• Receiving small group instruction within special education classes;

• Taking the regular assessments under standard conditions or with accommodations;

• Participating in physical education classes independently;

• Participating in co-curricular or extracurricular activities independently;

• Receiving special education services in GEFT or GEPT;

• Using assistive technology to access WV CSOs;

• Working toward a standard diploma; or

• Participating in transition activities leading to a vocational completer certificate, postsecondary education, military service or employment.

(2) Students identified with Level I needs may reflect varied levels of capacity across the areas below:

• Cognition;

• Academic performance;

• Social interaction;

• Emotional/behavioral areas;

• Communication;

• Sensory abilities;

• Perceptual abilities;

• Motor abilities;

• Health/medical areas; and/or

• Other manifestations of their disability.

(4) Students with Level II needs typically, but not exclusively, require services such as the following to function within a school setting:

• A markedly modified curriculum with a focus on basic or functional academics and life skills;

• Close adult supervision in structured opportunities when participating in general education classes, co-curricular and/or extracurricular activities;

• Close adult supervision to maintain the safety of the student or others;

• Close adult instruction, assistance and/or supervision with the use of assistive technology, medical equipment, medical procedures, travel training or mobility;

• A wide array and/or intensity of related services;

• A large number of repetitive trials or opportunities to demonstrate skills with a concomitant need for progress monitoring and record keeping on a daily basis;

• Transition activities that focus on special education vocational classes, supported employment or sheltered workshops; and/or

• Instruction until the age of twenty-one.

(4) Students identified with Level II needs have significant and comprehensive needs related to:

• Cognition;

• Academic performance;

• Functional performance;

• Social interaction;

• Emotional/behavioral areas;

• Communication;

• Sensory abilities;

• Perceptual abilities;

• Motor abilities;

• Health/medical areas; and/or

• Other manifestations of their disability.

(5) Level Three is an additional, optional level which may be used in consideration of additional needs and staffing requirements. Students with Level III needs typically, but not exclusively, demonstrate those needs shown at Level II as well as needs such as those shown below to function within a school setting:

• Intense adult supervision across settings because the student poses a danger to him or herself or to others;

• Intensive instruction, services, safety assistance and supervision to learn and maintain skills and to increase independence in activities of daily living; and

• Transition services that include coordination and linkages with the Office of Behavioral Health Services for Mental Retardation/Developmental Disabilities Waiver Program and adult community services and community use.

(6) Class size for instructional periods for students with disabilities shall be limited by the students’ programmatic level and level of service needs pursuant to the following Table Two:

Table Two

Maximum Number of Students per Instructional Period Based on Level of Service

Early Learning Programs

Grades K-5

Middle Level Programs

Grades 6-8

Adolescent Education Programs

Grades 9-12

Level I service needs

12 students

with a minimum staffing ratio of 1:6

12 students

Level II service needs

12 students

with a minimum staffing ratio of 1:6

12 students

with a minimum staffing ratio of 1:6

12 students

with a minimum staffing ratio of 1:6

Level III service needs

(optional)

8 students

with a minimum staffing ratio of 1:4

8 students

with a minimum staffing ratio of 1:4

8 students

with a minimum staffing ratio of 1:4

When students with different levels of service need are provided instruction in the same class, the minimum staffing ratio for the highest level of need applies. These ratios do not preclude the use of additional staff to support a student with Level II or Level III service needs. Staffing reflects both the standards as set forth in policy and the needs of the student as reflected on the individualized education program. Chapter 6, Section 4 requires each county board of education to provide highly qualified personnel in adequate numbers to implement the individualized education program of each eligible student in the county board of education.

(g) Waivers of maximum limits may be requested in writing through the department of education. Waivers may require an on-site visit, will be considered on a case-by-case basis and remain valid for the current school year only.

(h) When gifted services are delivered in a special education setting, no more than fifteen students may be scheduled in an instructional period.

(i) Class size for children, ages three through five, shall be determined according to the following Table Three:

Table Three Maximum Number of Students Per Classroom for Children with Developmental Delays
Program	Maximum Students Per Classroom	Staff
Universal Pre-K with Students with IEPs	20 students per classroom with limit of 10 students with IEPs per classroom	2 staff persons per classroom (1 teacher and 1 additional staff person) with no more than 9 students with IEPs
		3 staff persons per classroom (1 teacher and 2 additional staff persons) required for 10 students with IEPs
Special Education Pre-K	8 students	1 teacher and 1 additional staff person
	10 students	1 teacher and 2 additional staff persons

When student numbers exceed staffing ratios a waiver shall be submitted. Waivers to staffing ratios may be requested in writing through the OSP waiver process. Waivers may require an on-site visit, will be considered on a case-by-case basis and remain valid for the current school year only.

Part VII. Discipline.

§18-20A-700. Disciplinary situations and protections for the student.

(a) If a student’s behavior, regardless of the student’s disability, impedes his or her learning or the learning of others, the individualized education program team shall consider the use of strategies, including positive behavioral interventions and supports, to address the behavior. If the individualized education program team determines that such services or supports are needed, they shall be included in the individualized education program and be implemented.

The county board of education shall consider any unique circumstances on a case-by-case basis when determining whether a change of placement is appropriate for a student with a disability. However, these procedures do not prevent county board of education personnel from maintaining a safe environment conducive to learning that is critical for all students.

(b) If the county board of education has knowledge that the student has a disability before the occurrence of behavior that precipitates disciplinary action even if no eligibility determination has yet been made pursuant to section four hundred one of this article. The county board of education is deemed to have knowledge that the student has a disability under one or more of the following circumstances:

(1) The parent or adult student has expressed concern to county board of education professional personnel that results in written documentation, that the student may need special education and related services;

(2) The parent or adult student has requested in writing that the student be evaluated for special education; or

(3) The student’s teacher or other district personnel have expressed concern about a pattern of behavior demonstrated by the student directly to the director of special education or to other district supervisory personnel in accordance with the district’s established child find system and referral process.

Pursuant to section seven hundred three of this article, these protections may also apply if a request for an evaluation of a student who is not currently eligible for special education is made during the period in which the student is subject to disciplinary measures.

These protections are not afforded to students who are eligible solely under the category of gifted. The protections also do not apply when there is no basis of knowledge that a student has a disability because an evaluation was conducted and a determination was made that the student did not have a disability, the parent or adult student did not give written consent for an evaluation, or the parent or adult student refused special education services.

If the county board of education did not have a basis of knowledge that a student was a student with a disability prior to taking disciplinary measures, the student is subject to the same disciplinary measures that are applied to all other students who engage in comparable behaviors.

(c) “Disciplinary removals” are out-of-school suspensions, expulsions and placements in interim alternative educational settings. In determining the number of cumulative school days a student has been removed, consideration may be given to days of removal due to in-school suspensions, partial day suspensions and bus suspensions. An in-school suspension is not considered a day of suspension for purposes of this chapter as long as the student is afforded the opportunity to continue to participate in the general curriculum, continue to receive services specified on the student’s individualized education program and continue to participate with students without disabilities to the extent he or she would have in his or her current placement. Portions of a school day that a student has been suspended may be considered a removal in regard to determining whether there is a pattern of removals that constitutes a disciplinary change of placement.

Whether a bus suspension counts as a day of suspension depends on whether the bus transportation is a part of the student’s individualized education program. If bus transportation is a part of the student’s individualized education program, a bus suspension shall be treated as a disciplinary removal unless the county board of education provides the bus service in some other way, because transportation is necessary for the student to obtain access to the location where services will be delivered. If bus transportation is not a part of the student’s individualized education program, a bus suspension is not a disciplinary removal. In these cases, the student and the student’s parent have the same obligation to get the student to and from school as a student without disabilities who has been suspended from the bus. However, the county board of education should consider whether the behavior on the bus is similar to behavior in a classroom that is addressed in the individualized education program and whether the student’s behavior on the bus should be addressed in the individualized education program or in a behavior intervention plan.

(d) A “disciplinary change of placement” is a removal from the student’s current educational placement for more than ten consecutive school days or a series of removals that constitutes a pattern. A pattern is established when the series of removals totals more than ten cumulative school days in a school year, the student’s behavior is substantially similar to his/her behavior in the previous incidents that resulted in the series of removals, and additional factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals to one another. Whether a pattern of removals constitutes a change of placement shall be determined on a case-by-case basis by school personnel and shall be documented on forms provided by the department of education. These determinations are subject to due process and judicial review.

After a student with a disability has been removed from his or her current placement for ten school days in the same school year, during any subsequent day of removal the county board of education shall provide individualized educational program services to the student.

§18-20A-701. Provisions for short term removal of a student.

During the initial ten cumulative days of removal, services need not be provided to a student with a disability unless services are provided to students without disabilities. These removals shall be applied to the same extent as they are applied to students without disabilities.

School personnel may remove a student with a disability for up to ten consecutive school days per incident for separate acts of misconduct in a school year as long as the removals do not constitute a pattern resulting in a change of placement.

For each subsequent removal beyond ten cumulative school days in a year that is not a change in placement, school personnel in consultation with at least one of the student’s teachers shall determine the extent to which services are needed to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s individualized education program. This consultation shall be documented on a form provided by the department of education.

§18-20A-702. District actions when considering a disciplinary change of placement

(a) A manifestation determination is required if the county board of education is considering removing a student with a disability from his or her current educational placement for disciplinary reasons beyond ten consecutive school days or more than ten cumulative school days when the county board of education deems that a pattern exists. A “manifestation determination” is a review of the relationship between the student’s disability and the behavior subject to disciplinary action. This review shall be documented on a form provided by the department of education. When considering a disciplinary action that will result in a change of placement, the county board of education shall:

(1) Provide same day written notice of the removal, the written notice specified in section one thousand three of this article and the procedural safeguards notice specified in section one thousand two of this article to the parent or adult student of the disciplinary action to be taken; and

(2) Within ten school days of any decision to change placement, meet with the parent and relevant members of the individualized education program team to conduct a manifestation determination by reviewing all pertinent information in the student’s file, including the student’s individualized education program, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was caused by, or had a direct and substantial relationship to the student’s disability and if the conduct in question was the direct result of the county board of education’s failure to implement the individualized education program. If the county board of education, the parent and relevant members of the individualized education program team determine that either of the foregoing conditions is met, the conduct shall be determined to be a manifestation of the student’s disability, and the county board of education shall take immediate steps to remedy those deficiencies.

(b) When the conduct is determined to be a manifestation of the student’s disability, the individualized education program team shall:

(1) Conduct a functional behavior assessment, unless an assessment was conducted before the behavior, which resulted in the change of placement, occurred;

(2) Develop and implement a behavior intervention plan, or review the existing behavior intervention plan and modify, as needed, to address the current behaviors; and

(3) Return the student to the placement from which the student was removed, unless the parent and the county board of education agree to a change of placement as part of the modification of the behavior intervention plan.

(c) When the conduct is determined not to be a manifestation of the student’s disability, school personnel may apply relevant disciplinary procedures in the same manner for the same duration as the procedures applicable to students without disabilities, except as provided below:

(1) Convene the individualized education program team to determine the educational services to be provided to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s individualized education program; and

(2) Provide, as appropriate, a functional behavioral assessment, and behavior intervention services and modifications that are designed to address the behavior violation so that it does not recur.

(d) School personnel may remove a student to an interim alternative educational setting for not more than forty-five school days without regard to whether the behavior is determined to be a manifestation of the student’s disability if the student:

(1) Carries or possesses a weapon at school, on school premises or at a school function;

(2) Knowingly possesses, carries, or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises or at a school function; or

(3) Inflicts serious bodily injury to another person at school, on school premises, or at a school function.

For the purposes of this section,

“Weapon” means a device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of causing death or serious bodily injury, except that such a term does NOT include a pocket knife with a blade of less than two and one-half inches in length;

“Illegal drug” means a controlled substance, a drug or other substance identified under schedules I, II, III, IV or V in Section 202(c) of the Controlled Substance Act, 21 U.S.C. §812 (c), but “illegal drug” does not include a controlled substance that is legally possessed or used under the supervision of a licensed health care professional or used under any other authority under the Controlled Substance Act or under any other provision of federal law.

“Serious bodily injury” means an injury to a person that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ or mental faculty.

When used, the interim alternative educational setting shall enable the student to receive educational services and participate in the general education curriculum and to progress toward meeting the goals set out in the student’s individualized education program. The setting shall include, as appropriate to the student, a functional behavioral assessment and behavioral intervention services and modifications to address the behavior violation so that it does not recur.

(e) Through an expedited due process hearing, county board of education administrators may ask a West Virginia Department of Education hearing officer to remove a student with a disability to an appropriate interim alternative educational setting if the county board of education believes that maintaining the current placement of the student is substantially likely to result in injury to the student or others. The hearing officer may order a change of placement to an appropriate interim alternative educational setting for not more than forty-five school days. This procedure may be repeated if the county board of education believes the student would be dangerous if returned to the original placement.

(f) If the student’s placement will change to an interim alternative educational setting, the individualized education program team shall create or select an interim alternative educational setting that enables the student to:

(1) Continue to receive education services so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in his or her individualized education program; and

(2) Receive, as appropriate, a functional behavioral assessment and behavioral intervention services to address the behavior violation so that it does not recur.

§18-20A-703. Expediting hearings; parental requests for evaluation; referral to enforcement and judicial authorities.

(a) An “expedited hearing” is a hearing conducted by a West Virginia Department of Education special education due process hearing officer that occurs within twenty school days of the request with a decision rendered within ten school days of the hearing.

An expedited due process hearing may be requested if:

(1) The parent or adult student disagrees with the manifestation determination decision or any decision of the individualized education program team regarding a change of placement during a disciplinary proceeding, or a decision regarding the student’s placement in an interim alternative educational setting; or

(2) The county board of education believes that maintaining the current placement is substantially likely to result in injury to the student or to others.

A decision of a hearing officer in an expedited hearing is subject to judicial review by a circuit court as provided in section four, article five of chapter twenty-nine-a of this code or may be appealed to an appropriate federal district court.

When a request for an expedited hearing has been made, the student shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the disciplinary removal, whichever occurs first unless the parent and the department of education or the county board of education agree otherwise.

(b) If a request for an evaluation of a student who is not currently eligible for special education is made during the period in which the student is subject to disciplinary measures, the evaluation shall be conducted in an expedited manner. Pending the results of the evaluation, the student remains in the educational placement determined by county board of education officials, which can include suspension or expulsion without educational services if services cease for students without disabilities.

(1) If the student is subsequently determined eligible for special education, the county board of education shall immediately:

(A) Convene an individualized education program team meeting to develop an individualized education program, and

(B) Conduct a manifestation determination.

(2) If the evaluation team determines that the student is not a student with a disability and is not eligible for special education, he or she will be subject to the same disciplinary actions as all other students without disabilities who engage in comparable behaviors.

(c) The county board of education may report a crime committed by a student with a disability to appropriate authorities. If a student brings a firearm to school, law enforcement shall be contacted pursuant to pertinent provisions of state and federal law. If the county board of education reports a crime, it shall ensure that copies of the special education and disciplinary records of the student are provided to the appropriate law enforcement authorities for consideration, to the extent the release of records is permitted by the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and the policies of the West Virginia Board of Education.

Part VIII. Private School Students

§18-20A-801. Categories of private school placements.

For purposes of determining and establishing the county board of education’s responsibilities for serving private school students, the placement of a student in a private school shall be categorized based on the person or entity who enrolls or places the student in a private school and why.

(1) Voluntary Enrollment by a Parent -- A parent may choose to enroll his or her child in a private school for a variety of personal reasons, such as to obtain a religious education, to attend a school with a particular philosophy or curriculum, or because the parent is dissatisfied with the services offered or provided by the county board of education.

(2) Placement by the County Board of Education -- A county board of education may place a student in a private school or facility to fulfill its obligation to provide a free appropriate public education pursuant to the determinations and program made by an individualized education program team.

(3) Unilateral Placement by a Parent -- A parent may withdraw a student with a disability from a public school and then enroll the student in a private school or provide services from a private provider at parent expense because he or she believes the county board of education has not provided a free appropriate public education in a timely manner. All students who are unilaterally placed are also deemed to be voluntarily enrolled in a private school.

§18-20A-802. Students voluntarily enrolled by a parent; funding obligations.

The extent of services provided through funds is determined based on the number and location of the students enrolled in private schools in the district.

(a) The county board of education shall have an ongoing Child Find system to locate, identify, and evaluate all students with disabilities ages three through twenty-one residing or educated within the district’s geographic boundaries, including students who have been placed by a parent in a private school located in the county regardless of the student’s residency.

The Child Find process shall ensure the equitable participation of parentally-placed private school students with disabilities and include activities similar to the activities for public school students including comparable timelines for the evaluation process. The county board of education shall consult with private school representatives and representatives of parents who place their children in private schools regarding the development, implementation and modification of Child Find procedures.

(b) The county board of education shall conduct an annual count of the number of parentally-placed private school students with disabilities on December 1. This count shall be used to determine the amount of funds the county board of education shall expend to provide special education and related services to private school students in the next fiscal year in accordance with the provisions of this section. The county board of education shall consult with representatives of private school students to determine how to conduct the count. All eligible parentally-placed private school students shall be counted, regardless of whether they are receiving services. Each county board of education shall maintain and provide the West Virginia Department of Education with a record of the number of students evaluated, the number of students determined to be students with disabilities and the number of students receiving services for students with exceptionalities.

(c) To ensure timely and meaningful consultation, a county board of education shall consult with private school representatives and representatives of parents of parentally-placed private school students with disabilities during the design and development of special education and related services for the students, including the following:

(1) The Child Find process and how parentally-placed private school students suspected of having a disability can participate equitably, including how parents, teachers, and private school officials will be informed of the process;

(2) The determination of the proportionate amount of federal funds available to serve parentally-placed private school students with disabilities, including the determination of how the amount was calculated;

(3) The consultation process among the county board of education, private school officials and representatives of parents of parentally-placed private school students with disabilities, including how such process will operate throughout the school year to ensure that parentally-placed private school students with disabilities identified through the Child Find process can meaningfully participate in special education and/or related services;

(4) How, where, and by whom special education and related services will be provided for parentally-placed private school students with disabilities, including a discussion of:

(A) Types of services, including direct services and alternate service delivery mechanisms;

(B) How the services provided will be evaluated;

(D) How and when these decisions will be made;

(5) If the county board of education disagrees with the views of the private school officials on the provision of services or the types of services, whether provided directly or through a contract, how the county board of education will provide to the private school officials a written explanation of the reasons why the county board of education chose not to provide services directly or through a contract; and

(6) Provision for obtaining a written affirmation signed by the representatives of participating private schools when timely and meaningful consultation has occurred and documentation of the consultation process to the West Virginia Department of Education when written affirmation is not provided within a reasonable time.

(d) A private school official has the right to submit a complaint to the West Virginia Department of Education that the county board of education did not engage in consultation that was meaningful and timely or did not give due consideration to the views of the private school official. If the private school official wishes to submit a complaint, the official shall provide the basis of the complaint to the West Virginia Department of Education. The county board of education shall forward the appropriate documentation to the department of education. If the private school official is dissatisfied with the decision of the West Virginia Department of Education, the official may submit a complaint to the Secretary of the United States Department of Education by providing the basis of the complaint against the county board of education to the secretary, and the West Virginia Department of Education will forward the appropriate documentation to the secretary.

(e) To determine the proportionate amount of government funds used to provide services for parentally-placed students in private schools, the county board of education shall first determine the number of these private school students through the Child Find activities developed in the consultation process.

The number of parentally-placed private school students who are found eligible as a student with a disability as of December 1 of the previous year shall divided by the total number of students with disabilities in all placements in the county to arrive at the percentage of private school students with disabilities. This percentage shall then be applied to the total funding received by the county board of education under Part B and Section 619 of the Individuals with Disabilities Education Improvement Act of 2004 to determine the county board of education’s obligation.

(1) State and local funds may supplement but may not supplant the proportionate amount of federal funds required to be expended for parentally-placed private school students with disabilities.

(2) The costs of private school consultations and execution of Child Find activities, including individual evaluations, may not be paid from the proportionate share of funds.

(3) The cost of any special education or related service, such as direct service, consultation, equipment, materials, or transportation may be used to determine that the county board of education has satisfied its expenditure requirement for private school students with disabilities.

(4) If a county board of education has not expended for equitable services all of the funds described in the expenditure requirements by the end of the fiscal year, the county board of education shall obligate the remaining funds for special education and related services to parentally-placed private school students with disabilities during a carry-over period of one additional year.

(f)(1) The county board of education shall control and administer funds provided under Part B of the Individuals with Disabilities Education Improvement Act of 2004 that are used to provide special education and related services for parentally-placed private school students with disabilities.

(2) The county board of education may place equipment and supplies that are purchased with federal funds in a private school for a period of time needed for a program for eligible students with disabilities; however, the county board of education shall:

(A) Retain title and exercise continuing administrative control over all equipment and supplies;

(B) Ensure that all equipment and supplies are used only for the purposes specified in the Individuals with Disabilities Education Improvement Act of 2004;

(D) Remove equipment and supplies if no longer needed or if necessary to prevent unauthorized use.

(3) The county board of education may use the federal funds to pay an employee of a private school to provide services to students with disabilities with a service plan when the employee performs the services outside of his or her regular hours of duty and under public supervision and control.

(4) A county board of education may use relevant federal funds to make public school personnel available in private facilities to the extent necessary to implement the students’ service plans and if those services are not normally provided by the private school.

(5) Part B and Section 619 funds shall not be used to:

(A) Finance the existing level of instruction in the private school or otherwise benefit the private school;

(B) Meet the needs of the private school; or

(6) Part B and Section 619 funds shall not be used for repairs, remodeling, or construction of private school facilities.

(7) Part B and Section 619 funds shall not be used for classes that are organized separately on the basis of school enrollment or religion if the classes are on the same site and include students enrolled in public and private schools.

(g) No private school student with a disability has an individual right to receive some or all of the special education and related services that the student would receive if enrolled in the county board of education. Decisions about the services that will be provided shall be made in accordance with the consultation requirements of subsection (c) of this section.

(1) Following consultation with the private school representatives, the county board of education shall make final decisions with respect to services to be provided. Annual consultation is not required to make these decisions. The county board of education shall determine the period between consultations based on changing circumstances within the county board of education, such as significant changes in the total amount of funds to be expended and/or the number and location of private school students with disabilities.

(2) If a student is designated to receive services, the county board of education shall initiate and conduct meetings to develop, review and revise a service plan for the student. A team composed of the same members required for individualized education program teams shall develop the service plan. In addition, the county board of education shall ensure that a representative of the religious or other private school attends the meeting. If the representative cannot attend, the county board of education shall use other means to ensure participation, including individual or conference telephone calls. The service plan shall describe the specific special education and related services that shall be provided to the student in light of the determinations that have been made by the county board of education.

If a parent makes clear his or her intention to keep his or her eligible child enrolled in the private elementary or secondary school located in another county board of education, the county board of education where the student resides need not provide the free appropriate public education to the student.

(h) (1) Private school students with disabilities may receive a different amount of services than public school students with disabilities and are not entitled to every service or the amount of service that they would receive if enrolled in public school.

(2) Each student receiving services shall have a service plan that describes the specific special education and related services the county board of education shall provide in light of the services the county board of education determined, through the consultation process, it will make available.

(3) To the extent appropriate, the county board of education shall initiate and conduct meetings to develop, review, and revise service plans consistent with the requirements for developing an individualized education program as outlined in part V of this article.

(4) The county board of education shall ensure that a representative of the private school attends each meeting. If the representative cannot attend, the county board of education shall use other methods to ensure participation by the school, including individual or conference telephone calls.

(5) Services shall be provided by employees of the county board of education or through contract by the county board of education with an individual, association, agency, organization, or other entity.

(6) Special education and related services, including materials and equipment, shall be secular, neutral and nonideological.

(7) Services may be provided on the premises of private, including religious, schools, to the extent consistent with law.

(8) Services provided to private school students with disabilities shall be provided by personnel meeting the same standards as personnel providing services in the public schools.

(9) If necessary for a private school student to benefit from or participate in the services the county board of education has selected to provide, the county board of education shall provide transportation from the student’s school or home to the site where services will be provided. The county board of education shall take the student back to either the private school or the home, depending on the timing of the services. Transportation costs may be included in the county board of education’s expenditure requirement. The county board of education shall not be required to transport the student from home to the private school.

(i) Given the services that the county board of education has elected to provide to private school students, the service plan shall meet the requirements of the individualized education program to the extent appropriate. The service plan excludes elements that, although typical for an individualized education program, would be inappropriate given the services the county board of education has elected to provide.

(j) Parents of private school students may only file a due process complaint, as provided in section one thousand one hundred four of this article, on the issues of evaluation and Child Find activities. The due process complaint request shall be filed with the county board of education in which the private school is located and a copy shall be forwarded to the state department of education. Parents may challenge decisions regarding the provision of services by filing a formal state complaint with the department of education in accordance with procedures outlined in section one thousand one hundred two of this article.

§18-20A-803. Students placed in private facilities by the school district.

(a) When the county board of education, through the individualized education program team, places a student with a disability in a private school or facility, the county board of education shall ensure the following:

(1) A meeting is initiated and conducted to develop an individualized education program for the student;

(2) All special education procedures and timelines are followed;

(3) Special education and related services are provided in accordance with an individualized education program;

(4) A representative of the private school or facility shall attend the meeting to develop the individualized education program or other methods are used to ensure participation by the private school or facility, including individual or conference telephone calls if the representative cannot attend;

(5) The responsibility for reviewing and revising individualized education programs remains with the county board of education;

(6) Services are provided at no cost to the parent, including reimbursement to the parent for transportation and other costs associated with participation at an individualized education program meeting conducted in a geographical area outside the jurisdiction of the county board of education;

(7) The placement in the private school or facility is the least restrictive environment for that student.

(8) The student is provided an education that meets state and district standards.

(9) The student is afforded the same rights as students with disabilities who attend public schools and the parent is afforded the same rights as parents of students attending public schools.

(10) Even if a private school or facility implements a student's individualized education program, responsibility for compliance with this part remains with the county board of education and the state department of education.

(b) At the discretion of the county board of education, once a student with a disability enters a private school or facility, meetings to review and revise the individualized education program may be initiated and conducted by the private school or facility. If the private school conducts a meeting, the county board of education shall ensure that the parent and a county board of education representative are involved in and agree to any proposed changes in the individualized education program before the changes are implemented.

(c) The county board of education may only place a student with a disability in a private school or facility outside of West Virginia after documenting the following conditions

(1) A free appropriate public education cannot be provided within the county, within the region, or within the state;

(2) More than one private school or facility was investigated as to the feasibility of providing appropriate and necessary services;

(3) The selected private school or facility has an approved status in the state in which it is located, and assurances have been provided that the school or facility meets the requirements of the Individuals with Disabilities Education Improvement Act of 2004;

(4) A current and complete individualized education program has been developed; and

(5) A current signed contract between the county board of education and the private school or facility exists.

§18-20A-804. Unilateral placement by a parent.

(a)(1) The county board of education is not required to pay for costs of tuition, special education, or related services at a private school or facility for a student who was unilaterally placed there by a parent if the county board of education made a free appropriate public education available to the student in a timely manner. However, the student is shall be included in the population considered for services through the consultation process for parentally-placed private school students to the extent applicable.If a parent disagrees with the availability of a free appropriate public education and there is a question about financial responsibility, the parent may file a due process complaint.

(2) If the parent of a student with a disability, who previously received special education and related services from the county board of education, enrolls the student in a private elementary or secondary school without the consent of the county board of education, a court or hearing officer may order the county board of education to reimburse the parent for the costs of unilaterally placing the student in a private school if the court or a hearing officer determines that:

(A) The county board of education had not made a free appropriate public education available to the eligible student in a timely manner prior to the time the parent enrolled the student in the private school; and

(B) The private school placement is appropriate. A hearing officer may find a student’s placement in a private school or facility by a parent appropriate even if the private school or facility does not meet state standards.

(b) A court or hearing officer may reduce or deny reimbursement to a parent for the cost of a unilateral placement in a private school or facility under the following circumstances:

(1) Prior to removal of the student from the public school, the county board of education informed the parent of its intent to evaluate the student, including a statement of the purpose of the evaluation that was appropriate and reasonable, but the parent did not make the student available for the evaluation;

(2) There is a finding by the court or hearing officer, that the actions taken by the parent were unreasonable; or

(3) The parent did not inform the county board of education in writing that he or she rejected the placement proposed by the county board of education to provide a free appropriate public education and did not state his or her concerns and intent to enroll the student in a private school. This written notification by the parent shall have been provided to the individualized education program team at the most recent individualized education program meeting prior to removing the student from the public school or the county board of education in writing at least ten business days, including any holidays that occur on a business day prior to removing the student from public school.

Reimbursement shall not be reduced or denied if the county board of education did not notify the parent of his or her obligation to provide the foregoing written notice, the school prevented the parent from providing notice or the county board of education’s proposed placement would likely result in physical harm to the student.

Reimbursement may not be reduced or denied for the parent’s failure to provide the notice referenced above, in the discretion of the court or hearing officer if the parents are not literate or cannot write in English or if he reduction or denial of reimbursement would likely result in serious emotional harm to the student.

Part IX. General Supervision and Accountability For Performance And Compliance

§18-20A-901. State responsibilities for compliance with federal law regarding students with exceptionalities.

(a) The West Virginia Board of Education shall establish policies and shall ensures that procedures are in effect to provide a free appropriate public education to all students with exceptionalities in accordance with state and federal laws and regulations. The board shall ensure that the West Virginia Department of Education implements the general supervision of all programs and services for eligible students with exceptionalities and that all services meet state standards and the requirements of the Individuals with Disabilities Education Improvement Act of 2004.

The West Virginia Board of Education shall have the primary responsibility to:

(1) Establish rules pertaining to the education of all eligible students with exceptionalities in the state;

(2) Establish standards pertaining to the education of all eligible students with exceptionalities in the state;

(3) Establish regulations to protect student and parent rights as they pertain to the education of all eligible students with exceptionalities in the state;

(4) Ensure that eligible students with exceptionalities in the state, including individuals in residential institutions and private schools, receive an education in accordance with state and federal laws;

(5) Establish certification requirements for personnel providing educational and related services to eligible students with exceptionalities;

(6) Approve allocations and disburse state and federal funds designated for the education of eligible students with exceptionalities;

(7) Administer education programs, including programs providing special education and related services for students with exceptionalities, in the state's correctional institutions in accordance with applicable state and federal laws and regulations;

(8) Adopt the National Instructional Materials Accessibility Standard for purposes of providing instructional materials to persons with blindness or other persons with print disabilities in a timely manner after publication of the National Instructional Materials Accessibility Standard in the Federal Register; and

(9) Work collaboratively, to the maximum extent possible, with the state agency responsible for assistive technology programs.

(b) The West Virginia Department of Education has the primary responsibility for administering the requirements of the Individuals with Disabilities Education Improvement Act of 2004 and ensuring that students with exceptionalities receive a free appropriate public education. The West Virginia Department of Education shall develop quality educational services for eligible students with exceptionalities in the state, provide guidance in the implementation of state board of education policies and regulations governing the education of eligible students with exceptionalities, and provide direction and assistance for special education services in the state. General supervision responsibilities of the West Virginia Department of Education include administration of funding, monitoring and supervision of local educational agency implementation and implementation of interagency agreements to ensure collaboration among agencies serving students with exceptionalities. The West Virginia Department of Education has the duty to ensure that:

(1) The requirements of Part B of the Individuals with Disabilities Education Improvement Act of 2004 shall be implemented;

(2) Each educational program for students with exceptionalities administered within the state, including each program administered by any other state or local agency, is under the general supervision of the West Virginia Department of Education and meets the education standards of the department;

(3) Policies and procedures implementing the state monitoring and enforcement requirements of the Individuals with Disabilities Education Improvement Act of 2004 are in effect;

(4) The requirements of Subtitle B of title VII of the McKinney-Vento Homeless Assistance Act, 42 U.S.C. § 11431 et seq., are met in the provision of special education services to homeless students;

(5) The West Virginia Advisory Council for the Education of Exceptional Children is supported in order to provide guidance with respect to the education and related services for students with exceptionalities in the state;

(6) Policies and procedures are in place to prevent inappropriate overidentification or disproportionate representation by race and ethnicity of students as students with disabilities:

(A) Data shall be collected and examined to determine if significant disproportionality based upon race and ethnicity is occurring in the state and the school districts with respect to:

(i) The identification of students as students with disabilities, including those with a particular impairment;

(ii) The placement in particular educational settings of these students; and

(iii) The incidence, duration and type of disciplinary actions, including suspensions and expulsions.

(B) When a significant disproportionality in identification or placement is determined to exist:

(i) A review of the policies, practices and procedures shall be conducted, and, if appropriate, the policies, practices and procedures used in the identification or placement are revised to ensure that the policies, practices and procedures comply with the requirements of the Individuals with Disabilities Education Improvement Act of 2004;

(ii) The county board of education shall be required to use the proper amount of federal funds to provide early intervening services to students in the county board of education, particularly, but not exclusively, to students in those groups that were significantly overidentified; and

(iii) The county board of education is required to publicly report on the revision of policies, practices and procedures described in this subparagraph (i) of this paragraph;

(7) The necessary procedures are developed, including guidelines, forms and instruments to implement the state board of education policies, state and federal laws governing the education of students with exceptionalities;

(8) A practical method is developed and implemented to determine which students are currently receiving needed special education and related services;

(9) Teachers and administrators in all districts are fully informed about their responsibilities for implementing least restrictive environment requirements and are provided with technical assistance and training necessary to assist them in this effort;

(10) The requirement of a least restrictive environment is effectively implemented for students in private or public institutions, including, if necessary, making arrangements such as memoranda of agreements or special implementation procedures;

(11) Copies of applicable standards are disseminated to each private school and facility to which a county board of education has referred or placed a student with a disability;

(12) The implementation of all special education programs, including individualized education program and least restrictive environment requirements, for all eligible students with exceptionalities in the state, including students placed in residential institutions and private schools, incarcerated youth, and students with disabilities who are convicted as adults under state law and incarcerated in adult prisons is monitored through procedures such as written reports, on-site visits and parent questionnaires to assure the compliance with federal laws and regulations, state laws, policies, standards and regulations;

(13) If there is evidence that a county board of education makes placements that are inconsistent with least restrictive environment requirements, the West Virginia Department of Education shall conduct a review of the county board of education’s justification for its actions and assists in planning and implementing any necessary corrective actions;

(14) Data, including data disaggregated by race and ethnicity, shall be examined to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of students with disabilities. If discrepancies are occurring, a review of the county board of education’s policies, practices and procedures relating to the development and implementation of individualized education programs shall be conducted and, if appropriate, they may be revised to include the use of positive behavior interventions and supports, and procedural safeguards, to comply with the Individuals with Disabilities Education Improvement Act of 2004.

(15) Direct educational services are provided, including special education and related services for students with exceptionalities, in the state’s correctional institutions in accordance with written procedures developed to implement applicable state and federal laws and regulations;

(16) An opportunity is provided for those private schools and facilities to participate in the development and revision of state standards that apply to them in the provision of services to students with disabilities;

(17) Assistance is provided to county boards of education in the development and modification of educational programs of study to meet the needs of students with exceptionalities in early, middle, adolescent and adult education;

(18) Statewide planning for educational services for eligible students with exceptionalities is completed;

(19) The department participates in the development and provision of programs for the training of educational personnel related to special education issues and services;

(20) The department develops contacts and communications with:

(A) Other state and regional agencies, parent and professional organizations, and private agencies serving students with exceptionalities;

(B) Colleges and universities preparing personnel to work with students with exceptionalities; and

(21) Districts, parents and other agencies are informed of the content and implications of state and federal laws pertaining to the education of eligible students with exceptionalities;

(22) Each county board of education establishes, maintains and implements procedural safeguards that meet the requirements of the Individuals with Disabilities Education Improvement Act of 2004;

(23) Methods for the provision of services are prescribed as follows:

(A) An interagency agreement or other mechanism for interagency coordination is in effect between each non-educational public agency and the West Virginia Department of Education that are needed to ensure that free appropriate public education is provided, including the provision of the these services during the pendency of any interagency dispute referred to below, which agreement or mechanism shall include the following:

(i) An identification of, or a method for defining, the financial responsibility of each agency, including the state Medicaid agency and other public insurers of students with exceptionalities, for providing any services that are also considered special education or related services;

(ii) The conditions, terms, and procedures under which a county board of education shall be reimbursed by other agencies;

(iii) Procedures for resolving interagency disputes from other agencies or otherwise implement the provisions of the agreement or mechanism; and

(iv) Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of any services that are also considered special education;

(B) If any public agency other than an educational agency is otherwise obligated under federal or state law, or is assigned responsibility under state policy or pursuant to an interagency agreement, to provide or pay for any services that are also considered special education or related services that are necessary for ensuring free appropriate public education to students with disabilities within the state, the public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement;

(C) Ensure that a noneducational public agency described in paragraph (B) of this subsection may not disqualify an eligible service for Medicaid reimbursement on the grounds that the service is provided in a school context;

(D) Ensure that if a public agency other than an educational agency fails to provide or pay for the special education and related services described in paragraph (B) of this subsection, the county board of education or the state agency responsible for developing the student's individualized education program shall provide or pay for these services to the student in a timely manner;

(E) Ensure that all federally-mandated requirements are met through:

(i) State statute or rule;

(ii) Signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or

(iii) Other appropriate written methods as determined by the secretary of the department of education or by his or her designee; and

(F) Document that the requirements of this subdivision;

(24) The state performance plan for special education is developed, reviewed and revised, including performance goals and indicators, and progress is reported annually, including the progress of students with disabilities on statewide assessments, as required by the United States Department of Education;

(25) Valid and reliable data and information needed to report annually to the United States Department of Education are collected, including data for the state performance plan, annual performance report and report required by Section 618 of the Individuals with Disabilities Education Improvement Act of 2004;

(26) Districts are given reasonable notice and an opportunity for a hearing under 34 CFR §76.401(d) prior to the state making a final determination that a county board of education is not eligible for assistance under Part B of the Individuals with Disabilities Education Improvement Act of 2004;

(27) The state’s funding mechanism does not result in placements that violate the least restrictive environment requirements and does not distribute funds based on the students’ placements that would result in the failure to provide a student with a disability free appropriate public education according to the student’s unique needs described on the individualized education program;

(28) State and county board of education personnel are prohibited from requiring parents to obtain a prescription for controlled substances as a condition of attending school, receiving an evaluation or receiving services;

(29) State and district-wide assessments, to the extent possible, are developed and administered using universal design principles; and

(30) Developing, annually reviewing and amending as necessary, a state plan for high cost and high acuity funds in accordance with 34 CFR § 300.704(c) and section five, article twenty of this chapter in consultation with local educational agency representatives, to include a definition of children with high acuity needs.

(c) The school districts, including the West Virginia Schools for the Deaf and Blind and schools under the supervision of the West Virginia Department of Education Office of Institutional Education Programs, have the responsibility for implementing the requirements of the Individuals with Disabilities Education Improvement Act of 2004 and section two, article twenty of this chapter, and ensuring a free appropriate public education for students with exceptionalities. The school districts shall ensure that:

(1) Data that are maintained, collected and reported to the West Virginia Department of Education regarding special education students and personnel are accurate;

(2) Information related to parentally-placed private school students is maintained and provided to the West Virginia Department of Education including:

(A) The number of students evaluated;

(B) The number of students determined to be student with a disability; and

(3) The compliance with the regulations of agencies, organizations, or individuals who provide contractual special education and/or related services is monitored;

(4) Other agencies, organizations, or individuals are informed of the State and federal requirements pertaining to the education of students with exceptionalities;

(5) Ongoing program evaluations are conducted to improve the effectiveness of services provided to eligible students with exceptionalities; and

(6) Personally identifiable student data are collected, maintained and disclosed only in accordance with state and federal confidentiality requirements.

§18-20A-902. State performance plan

(a) The department of education shall develop and execute a plan, to be known as the state performance plan, to measure progress annually on performance goals and indicators related to participation and results on statewide assessments, graduation rates, drop-out rates, disproportionality and suspension rates for students with disabilities. To the maximum extent possible, the state performance plan goals for students with disabilities shall be consistent with the goals and standards established by the state for all students. In the preparation and execution of the plan, priority shall be given to monitoring and review of the following:

(1) The provision of a free appropriate public education in the least restrictive environment, which includes graduation rates, dropout rates, participation and performance in statewide assessment, suspension rates, parent involvement, child find and placement in the least restrictive environment;

(2) Disproportionality, which includes appropriate identification of racial/ethnic groups as students with disabilities; and

(3) General supervision, which includes effective transition from early intervention to public school programs, effective secondary transition and post school outcomes, correction of noncompliance with federal requirements and effectiveness of the monitoring and dispute resolution systems.

The department of education shall collect, review and analyze data annually to determine whether the state and each county board of education have met the established targets on each of the indicators identified by the department. Data shall be collected through a dedicated statewide computer network with an integrated record system for all student, personnel and financial information, a system of compliance procedures through which districts submit their self-assessment data, and web-based data systems for collection of the dispute resolution procedures described in part XI of this article.

Results of the analysis of state performance plan indicators shall be reported by the department in an annual performance report, which shall be provided in written and electronic format to the Legislature and published on the West Virginia Department of Education website.

(b) The county board of education shall, on an annual basis:

(1) Use data-based decision-making procedures and a local steering committee to review and analyze district-level data to determine if the county board of education is making progress toward the state’s performance goals and indicators and district self-assessment improvement plans;

(2) Develop, implement, and revise county board of education improvement plans as necessary to make progress toward performance goals and indicators, and submit these plans and progress reports as required to the department of education; and

(3) Correct any noncompliance on state performance plan indicators within one year of notification by the West Virginia Department of Education.

(c) The West Virginia Department of Education shall monitor districts’ implementation of the requirements of federal law and this policy and shall ensure, when a district’s noncompliance is identified, that it is corrected as soon as possible, and in no case later than one year after notification of the noncompliance. The county board of education shall be notified of the noncompliance in writing.

Upon notification in writing of a noncompliance, the county board of education shall develop and implement such corrective actions as are required to correct the noncompliance as soon as possible, and in no case later than one year from the date of notification. The county board of education will provide documentation to the department sufficient to verify the noncompliance has been corrected as soon as possible and within timelines set by department to ensure timely review and approval of the documentation.

(d) The department of education is required to collect and report statewide and district-wide data on the assessment of students with disabilities, including the number of students with disabilities participating in regular assessments and the number of those students who were provided accommodations, the number of students participating in alternate assessments, and the performance results of students with disabilities, if doing so is statistically sound and does not disclose results identifiable to individual students.

Whenever the department of education reports information to the public on the assessment of students without disabilities, it shall include the information stated above, as well as aggregated data that includes the performance of students with disabilities together with all other students and disaggregated data on the performance of students with disabilities.

The county board of education has the duty to include all students in statewide and district-wide assessments, with or without accommodations, if determined appropriate by the individualized education program team. The county board of education shall ensure that all students with disabilities participate in West Virginia Measures of Academic Progress (WVMAP), use data-based decision-making procedures to review and analyze district-level data to determine if the district is making progress in including all eligible students with disabilities in the statewide assessment program and in consistently improving the level of performance by students with disabilities, and develop, implement, and revise district improvement plans as necessary to make progress.

(e) The West Virginia Department of Education shall collect and analyze discipline data, including data disaggregated by race and ethnicity, from school districts to determine whether significant discrepancies are occurring in the rate of long-term suspensions and expulsions of students with disabilities among districts in the state and as compared to such rates for students without disabilities within the district.

On an annual basis, the county board of education shall:

(1) Ensure the suspension and expulsion data that it collects and reports to the department are accurate;

(2) Use data-based decision-making procedures to review and analyze district-level discipline data to determine if significant discrepancies are occurring between the long-term suspension and expulsion rates for students with and without disabilities; and

(3) Develop, implement and revise district improvement plans, and when found to have a significant discrepancy, review and revise policies, procedures and practices as necessary to ensure that they are in compliance with the Individuals with Disabilities Education Improvement Act of 2004 in relation to the development and implementation of individualized education programs, the use of positive behavioral interventions and supports, and procedural safeguards.

(f) The department shall make an annual report on the proportion of students identified as needing special education based upon race and ethnicity, including the following information:

(1) Number and percentage of students in each particular racial or ethnic group who are identified as eligible for special education and weighted risk ratio indicating the chances of a student within the racial group being so identified;

(2) Percentage of students in each racial and ethnic group who are identified under particular categories of disability and weighted risk ratio indicating the chances of a student within the racial group being identified within particular categories; and

(3) Percentage of students in each racial and ethnic group who are placed in particular special education settings and weighted risk ratio indicating the chances of a student within the racial group being placed in the setting.

In the case of a determination of significant disproportionality, the department shall review the policies, procedures and practices used and require any county board of education identified to reserve the maximum amount allowed under law of federal special education funds to provide comprehensive coordinated early intervening services.

On an annual basis, the county board of education shall use data-based decision-making procedures to review and analyze district-level data on race to determine if significant disproportionality exists, and review and, if appropriate, revise the district improvement plan, policies, procedures and practices used in the identification or placement of students to prevent disproportionality based on race.

§18-20A-903. Duty to employ qualified personnel; special requirements for speech-language pathologists, school psychologists and sign support specialists; use of paraprofessionals, assistants and aides.

(a) The county board of education shall ensure that personnel working with students with disabilities are fully licensed or certificated and highly qualified, whether they contract with or are employed by the county board of education. The county board of education shall take measurable steps to recruit, hire and retain highly qualified personnel who meet department of education certification, licensure or other requirements for position assignments, including those for teachers, related service providers, paraprofessionals and assistants. Nothing in this article shall create a right of action on behalf of a student or class of students for failure to employ highly qualified personnel or shall prevent a parent from filing a state administrative complaint about staff qualifications.

The requirements for highly qualified personnel do not apply to any special educator contracted or employed by districts to provide services to privately placed students whether placed by the parents or an individualized education program team.

(b) Speech-language pathologists and speech-language pathology assistants shall complete as least twelve of their annual professional development hours in topics relating directly to their discipline, including augmentative and alternative communication, phonology, articulation, receptive or expressive language, swallowing, fluency, voice disorders, cognitive and social aspects of communication, hearing, assessment of students with speech-language disorders and other topics related to the practice of speech-language pathology. The department of education shall provide at least twelve hours of professional development training in these areas and shall provide registration information for these programs to all school districts.

The county board of education shall document the participation of speech-language pathologists in professional growth development and shall submit such documentation to the department.

(c) School psychologists shall complete as least twelve of their annual professional development hours in topics, areas and domains relating directly to their discipline, including data-based decision making and accountability, consultation and collaboration, interventions and instructional support to develop academic skills, interventions and mental health services to develop social and life skills, school-wide practices to promote learning, preventative and responsible services, family-school-community collaboration services, diversity in development and learning, research and program evaluation, and legal, ethical and professional practice.

The department of education shall provide at least twelve hours of professional development training in these areas and shall provide registration information for these programs to all school districts.

The county board of education shall document the participation of school psychologists in professional growth development and shall submit such documentation to the department.

(d) A county board of education shall pay the cost of certification renewal necessary to satisfy the requirements of the West Virginia Registry of Interpreters for any service person who is:

(1) Employed as an educational sign language interpreter I or II and is required to complete any testing, training or continuing education in order to renew or maintain certification at that level;

(2) Employed as an educational sign language interpreter I and is required to complete any testing, training or continuing education to advance to an educational sign language interpreter II; or

(3) Employed as a sign support specialist and is required to complete any testing, training or continuing education in order to advance to an educational sign language interpreter I or II.

(e) If a school district provides a program of professional development for any specialized personnel identified in this section, the program shall be submitted to the department of education for its review and approval.

(f) The county board of education may employ paraprofessionals, interveners, assistants, and aides who are appropriately trained and supervised to assist in the provision of special education and related services to students with disabilities if they meet standards established by the department of education.

Part X. Procedural Safeguards.

§18-20A-1001. Types of written notice; language requirements.

Under the provisions of this article, three different types of written notice may be required to be given to an affected party, either individually or in combination, according to the specific terms of the provision and procedure in question:

(1) The procedural safeguards notice;

(2) Prior written notice; and

(3) Notice of meetings.

All notices shall be written in the native language of the parent or adult student or other mode of communication used by the parent or adult student, unless it clearly is not feasible to do so, and shall be written in an easily understandable manner. If the native language or mode of communication of the parent or adult student is not a written language, the county board of education shall take steps to ensure that the notice is translated orally or by other means to the parent or adult student in his or her native language or other mode of communication and the parent or adult student understands the content of the notice. The county board of education shall maintain written evidence that these requirements have been met.

§18-20A-1002. Contents of the procedural safeguards notice; when required.

(a) To facilitate their informed participation, parents and adult students are informed of the extensive procedural safeguards through a written notice prepared by the department of education. The notice shall include a full explanation of the following procedural safeguards:

(1) Independent educational evaluation;

(2) Prior written notice;

(3) Parent or adult student consent;

(4) Access to educational records;

(5) Opportunity to resolve complaints through due process complaints or the state complaint process, including the time period in which to file a complaint, the opportunity for the agency to resolve the complaint and the difference between the due process and state complaint procedures, including the jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures;

(6) The availability of mediation;

(7) The student’s placement during pendency of decisions in due process hearings;

(8) Procedures for students who are subject to placement in an interim alternative educational setting;

(9) Requirements for unilateral placements by parents of students in private schools at public expense;

(10) Due process hearings, including requirements for disclosure of evaluation results and recommendations;

(11) Civil actions; and

(12) Attorneys’ fees.

(b) The county board of education shall provide the parent or adult student a procedural safeguards notice at least once per school year, that is, one copy between July 1 and June 30. In addition, the county board of education shall also provide the procedural safeguards notice to the parent or adult student in each of the following circumstances:

(1) Upon an initial referral or a parent or adult student request for evaluation;

(2) Upon the first occurrence of a filing of a due process complaint or state complaint alleging violations of Part B of the Individuals with Disabilities Education Improvement Act of 2004;

(3) With notice of a disciplinary removal resulting in a change of placement; and

(4) Upon request by the parent or adult student.

A parent or adult student may receive the procedural safeguards notice by electronic mail if the county board of education makes that option available.

§18-20A-1003. Prior written notice.

(a) “Prior written notice” refers to the act of informing a parent or adult student, in writing within a reasonable amount of time, before the county board of education proposes or refuses to initiate or change the student’s identification, the evaluation, educational placement, or provision of a free appropriate public education. This notice shall effect these two purposes:

(1) To provide the parent or adult student with enough information so that he or she is able to fully understand the county board of education’s proposed actions or refused actions and to make informed decisions, if necessary; and

(2) To provide a framework for data-based discussion and problem solving.

(b) When required to be given to a parent or adult student, prior written notice shall include the following:

(1) A description of the action proposed or refused by the county board of education;

(2) An explanation of why the county board of education proposes or refuses to take the action;

(3) A description of each evaluation procedure, assessment, record, or report the county board of education used as a basis for the proposed or refused action;

(4) A description of other options the individualized education program team considered and the reasons why those options were rejected;

(5) A description of other factors relevant to the district’s proposal or refusal;

(6) A statement that the parent or adult student has protection under the procedural safeguards, and if notice is not an initial referral for evaluation, a description of how to obtain a copy of the procedural safeguards notice; and

(7) Sources to contact in obtaining assistance in understanding their procedural safeguards notice.

(b) Prior written notice shall be provided to the parent or adult student five days prior to implementing the proposed action or within five days of the refusal. This requirement does not apply to notice of disciplinary removals, which shall be provided on the same day the decision to remove the student is made. If the county board of education and parent agree, prior written notice shall be provided and services may be initiated within a reasonable time, which may be fewer than five days.

§18-20A-1004. Notice of meetings.

To ensure that one or both of the parents of the student with an exceptionality are present at each meeting and are afforded the opportunity to participate in meetings, including eligibility committee and individualized education program meetings, the county board of education shall provide written notice of meetings by:

(1) Notifying the parents or adult student of the meeting at least eight days prior to the scheduled meeting date, to ensure that they will have the opportunity to attend; and

(2) Scheduling the meeting at a mutually agreed on time and place.

The written notice shall include the purpose, time, and location of the meeting, the persons who will be in attendance, and an explanation that, at the discretion of the county board of education or parent or adult student, other individuals who have knowledge or special expertise regarding the student as determined by the county board of education or the parent or adult student inviting the individual, may attend the meeting.

When scheduling an initial individualized education program team meeting for a child who was previously served in the WV Birth to Three program, the written notice shall indicate this purpose, and indicate that the county board of education will invite, at the parent’s request, the WV Birth to Three service coordinator or other representative to assist with the smooth transition of services.

If the purpose of the meeting includes the consideration of post-secondary goals and transition services for the student, at age sixteen, or younger if appropriate, the written notice shall also indicate this purpose, indicate that the county board of education will invite the student and identify any other agency that will be invited to send a representative. Representatives of other agencies may not be invited to attend an individualized education program team meeting without the written consent of the parent or parents.

§18-20A-1005. Parental participation

To ensure parental participation in the special education process, the county board of education shall afford the parents of a student with an exceptionality an opportunity to inspect and review all education records with respect to the identification, evaluation and educational placement of the student, and the provision of a free appropriate public education to the student.

Parents shall also be afforded an opportunity to participate in meetings with respect to the identification, evaluation and educational placement of the student, and the provision of a free appropriate public education to the student. The county board of education shall take all action is necessary to ensure that the parent understands the proceedings at a meeting including arranging for an interpreter for parents with deafness or whose native language is other than English.

The county board of education may conduct the eligibility committee or individualized education program team meeting without a parent or adult student in attendance only when the county board of education has documentation that reasonable measures have been taken to ensure parent or adult student participation. If unable to convince the parent or adult student that he or she should attend, the county board of education shall make a record of its attempts to arrange a mutually agreed upon time and place including, but not limited to, the following documentation:

(1) Detailed records of telephone calls made or attempted and the results of those calls;

(2) Copies of correspondence sent to the parent or adult student and any responses received; and

(3) Detailed records of visits made with the parent or adult student and the results of those visits.

If neither parent can attend, the county board of education shall use other methods to ensure parent or adult student participation, including individual or conference telephone calls.

The county board of education shall obtain written parental consent for the initial provision of special education services and provide the parent a copy of the individualized education program, at no cost to the parent.

§18-20A-1006. Informed consent

(a) “Informed consent” is written approval given by a parent or adult student who has been fully informed of and understands all information relevant to the activity for which consent is sought. The request for consent shall describes the activity for which consent is sought and lists the records, if any, that will be released and to whom. All information shall be provided in the native language or mode of communication of the parent or adult student. The parent or adult student shall be informed that the approval is voluntary and may be revoked at any time. Consent is indicated by the parent’s or adult student’s signature. If a parent or adult student revokes consent, the revocation is not retroactive and does not negate an action that has occurred after the consent was given and before the consent was revoked. If consent is revoked after the student has initially been provided special education and related services, the county board of education is not required to amend the student’s educational records to remove any references to the student’s receipt of special education and related services because of the revocation of consent.

(b) Informed written consent is required before:

(1) Conducting an initial evaluation or reevaluation to determine whether a student is eligible for special education when this involves more than a review of existing information. The county board of education need not obtain parental consent for a reevaluation if the county board of education can demonstrate and document that it made reasonable efforts to obtain consent and the parent has failed to respond;

(2) Initially providing special education and related services to a student with a disability. Parent consent for initial evaluation may not be construed as consent for the initial provision of special education and related services;

(3) Disclosing personally identifiable information from the student’s education records, unless provided as an exception under the Family Educational Rights and Privacy Act and Policy 4350 of the West Virginia Board of Education;

(4) Accessing public benefits or insurance or private insurance to pay for services listed in the individualized education program;

(5) An agency representative likely to pay for or provide transition services attends an individualized education program meeting; and

(6) Personally identifiable information is released between officials in the county board of education of residence and the county board of education in which the private school is located.

(1) When a review of existing data is part of an evaluation or a reevaluation;

(2) When tests are administered to both general and special education students in a grade or class and consent is not required for all students;

(3) When a teacher or related-service provider conducts observations, ongoing classroom evaluation, or criterion-referenced tests, as described in the individualized education program, to determine the student’s progress toward goals and benchmarks or objectives on the individualized education program;

(4) When disclosing personally identifiable information to persons authorized to have access under the Family Educational Rights and Privacy Act.

(c) If the parent refuses consent or the parent fails to respond to a request to provide consent for an initial evaluation, mediation or due process procedures may be used, if appropriate. The county board of education may not use the mediation or due process procedures if consent for the initial evaluation involves a student who has been parentally enrolled in a private school or is being home schooled.

If the parent refuses consent for or refuses to respond to a request for consent to initial provision of special education and related services after the county board of education has documented reasonable efforts to obtain consent, the county board of education may not use mediation or due process to obtain placement. In this situation, the county board of education is not considered in violation of the free appropriate public education requirement and is not required to convene an individualized education program team meeting or develop an individualized education program for the child for whom the parent refused consent.

The county board of education may not use a parent’s refusal to consent to one service or activity to deny the parent or student any other service, benefit or activity, except as required by this part.

(d) When a parent or adult student fails to respond to reasonable measures taken by the county board of education to obtain written consent to determine continued eligibility, the county board of education may proceed with the reevaluation. The county board of education shall make a record of its attempts to gain consent by documenting telephone calls made or attempted, correspondence sent, or visits made to the home or place of employment.

(e) When consent has been given for an evaluation, an individual assessment, the initial provision of special education and related services, or the disclosure of information, a parent or adult student may only revoke consent prior to the occurrence of the action. Revocation of consent shall be in writing. If at any time subsequent to the initial provision of special education and related services the parent or adult student revokes consent in writing for the continued provision of special education and related services, the county board of education may not continue to provide special education and related services, but shall provide prior written notice before ceasing provision of special education and related services. The county board of education is not considered in violation of the free appropriate public education requirement and shall not be required to convene an individualized education program team meeting or develop an individualized education program for the student for whom consent is revoked. Dispute resolution procedures may not be used to obtain agreement or a ruling that the services may be provided to the student.

§18-20A-1007. Right to independent educational evaluations; request for evaluation; consideration of results.

(a) An “independent educational evaluation” means one or more individual assessments, each completed by a qualified examiner who is not employed by the county board of education responsible for the education of the student in question.

(1) A parent or adult student has the right to obtain an independent educational evaluation at public expense if he or she disagrees with an evaluation obtained or conducted by the county board of education. Additional independent evaluations may not be provided at public expense.

(2) The parent or adult student has the right to an independent educational evaluation at his or her own expense at any time.

(3) If the independent educational evaluation meets the criteria outlined in section three hundred four of this article, eligibility committee or the individualized education program team shall consider the evaluation in its decision making process.

(4) The parent or adult student is not automatically entitled to have additional assessments beyond those determined necessary for an evaluation. However, if the parent or adult student is interested in additional or different assessments and the county board of education refuses to provide them, he or she may pursue additional assessments through a due process hearing request. In addition, the county board of education may initiate a due process hearing to determine if the evaluation it conducted is appropriate. If the final decision of a hearing officer, or a court of law’s decision on an appeal, is that the evaluation conducted by the county board of education was appropriate, the parent or adult student still has the right to an independent educational evaluation, but at his or her own expense.

(5) A hearing officer may order an independent educational evaluation at public expense if he or she determines that the evaluation conducted by the county board of education was not appropriate.

(b) Within five days of a parent or adult student’s written request for an independent educational evaluation at public expense, the county board of education may ask why he or she disagrees with the evaluation obtained by the county board of education, but the county board of education cannot require an explanation. Within ten school days of the written request for an independent educational evaluation, the county board of education shall give the parent or adult student information about where the evaluation may be obtained and the agency criteria applicable for an independent educational evaluation including the location for the evaluation, the required qualifications of the examiner, and the maximum allowable charges for specified evaluations based on reasonable and prevailing rates typically paid by the county board of education for similar evaluations, to eliminate unreasonably excessive fees, including travel costs for necessary services not available in the community.

Except for the criteria listed above, the county board of education may not impose other conditions or timelines if doing so would be inconsistent with the parent or adult student’s right to an independent educational evaluation. Upon request, a list of qualified examiners who can conduct an independent educational evaluation shall be provided.

A parent or adult student may request an opportunity to demonstrate that unique circumstances justify an independent educational evaluation that does not fall within the county board of education’s cost criteria. If an independent educational evaluation that falls outside the county board of education’s cost criteria is justified, that independent educational evaluation will be publicly funded.

(c) (1) If a parent or adult student requests an independent educational evaluation at public expense, the county board of education shall do one of the following within ten school days of written request:

(A) Agree, in writing, to pay for an independent educational evaluation at reasonable and prevailing rates, and provide the county board of education’s independent educational evaluation criteria and information about where an independent educational evaluation may be obtained;

(B) Offer, subject to the parents’ agreement, mediation by the department to try to resolve differences;

(2) If a parent or adult student asks the county board of education to pay for an independent educational evaluation that has already been obtained, the county board of education shall resolve the request through one of the following options:

(A) Pay for the independent educational evaluation; or

(B) Request West Virginia Department of Education mediation when parents agree to mediate: however, an attempt to resolve the request by mediation shall not preclude resolution by any of the other options within this subdivision; or

(C) Request a due process hearing within ten school days of the receipt of the evaluation report to show that the evaluation obtained by the parent or adult student did not meet the criteria for a publicly funded independent educational evaluation; or

(D) Request a due process hearing within ten school days of billing to demonstrate that the county board of education’s evaluation was appropriate. The county board of education does not have to pay for an independent educational evaluation if the hearing officer finds for the county board of education.

(d) If a parent or adult student obtains an independent educational evaluation and makes the evaluation available to the county board of education, the results shall be considered by the county board of education, if the independent educational evaluation meets the county board of education’s criteria, in any decision made with respect to the provision of free appropriate public education. The results may also be presented as evidence at a hearing regarding the student.

The results of an independent educational evaluation shall not be the sole basis for a student’s eligibility for disability services. The eligibility committee has the responsibility to use existing evaluation data and other information from a variety of sources, in addition to the independent educational evaluation, to determine whether a student has an exceptionality or continues to have a disability.

§18-20A-1008. Surrogate parents.

(a) A “surrogate parent” is an individual assigned by the county board of education to assume the rights and responsibilities of a parent under the Individuals with Disabilities Education Improvement Act of 2004. The surrogate parent may represent a student in all matters relating to the identification, evaluation, and educational placement of the student and the provision of free appropriate public education to the student.

(b) Any person who is aware that a student may need a surrogate parent may make a referral for a determination to the county board of education’s special education director or an appropriate county board of education administrator. The county board of education shall appoint a surrogate in any of the following circumstances:

(1) A parent cannot be identified;

(2) A parent cannot be found after reasonable efforts to locate the parent;

(3) The student is a ward of the state;

(4) The student is an unaccompanied homeless youth as defined in Section 725 (6) of the McKinney-Vento Homeless Assistance Act.

The county board of education shall make reasonable efforts to assign a surrogate within thirty days after it determines that the student needs a surrogate. If a state judge has appointed a surrogate to oversee the care of a student who is a ward of the state, the judge-appointed surrogate may make decisions regarding the student’s education, including special education, provided he or she meets the criteria for a district-appointed surrogate.

(c) The county board of education shall make a good faith effort and maintain records of attempts to locate a parent. The county board of education may not appoint a surrogate parent when the natural parent is available but chooses not to participate.

(d) A surrogate parent may represent the student in all matters relating to identification, evaluation, placement and the provision of a free appropriate public education. The county board of education shall ensure the person selected and appointed as a surrogate parent:

(1) Has knowledge and skills that ensure effective representation of the student;

(2) Has no personal or professional interest that conflicts with the interest of the student;

(3) Is not an employee of the West Virginia Department of Education, the county board of education, or any other agency that is involved in the education or care of the student.

A person who otherwise qualifies to be a surrogate parent shall not be deemed an employee of the county board of education or agency solely because he or she is paid to serve as a surrogate parent.

In the case of a student who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs and street outreach programs may be appointed as temporary surrogates without regard to the above requirements until a surrogate can be appointed that meets all of the requirements of this section.

§18-20A-1009. Adult students; transfer of special education rights at adulthood.

An “adult student” is a student who is at least eighteen years of age to whom special education rights have transferred under the Individuals with Disabilities Education Improvement Act of 2004 and West Virginia Code.

No later than the student’s seventeenth birthday, the individualized education program team shall discuss the transfer of special education rights to the student. Special education rights shall transfer from the parent to the adult student when the student turns eighteen years of age unless a court has appointed a legal guardian to represent the educational interests of the student. Beginning no later than the seventeenth birthday, the individualized education program shall include a statement that the student has been informed of the rights that will transfer at age eighteen.

When the student’s special education rights transfer at age eighteen, the parent and student shall be notified that rights have transferred. The individualized education program shall contain a statement that the student has been informed of the special education rights that have transferred to him or her.

The right to receive written notice is always retained by both the parent and adult student. The parent will continue to receive copies of any notices, including those listed in Section 1 of this chapter. While a parent has the right to receive notices, only the adult student has the right to make decisions regarding his or her educational program.

§18-20A-1010. Confidentiality and Access to Records

The county board of education shall collect, use, and maintain information about a student In order to make appropriate decisions concerning special education and the provision of free appropriate public education, the county board of education has a duty to collect, use, and maintain relevant information about a student. The county board of education has the duty to safeguard the information so collected and to ensure that it is only used in conformity with the requirements and protections provided in the Individuals with Disabilities Education Improvement Act of 2004 and Family Educational Rights and Privacy Act. The county board of education shall provide training in these privacy requirements and procedures for all school personnel with responsibilities for educational records.

Part XI. Dispute Resolution

§18-20A-1100. Processes for resolution of disputes; role of department.

When a county board of education is unable to resolve a disagreement between parents of a student or an adult student and the county board relating to the implementation of state and federal special education laws and regulations regarding the identification, evaluation or educational placement of a student or the provision of a free appropriate public education, the West Virginia Department of Education may seek to resolve the dispute using any of the processes outlined in this part, singly or in combination.

§18-20A-1101. Facilitated individualized education program team meeting.

(a) A “Facilitated IEP team meeting” or “Facilitated IEP” is a voluntary early dispute resolution option utilizing an impartial facilitator to guide the individualized education program process and to assist members of the individualized education program team to communicate effectively. An “IEP Facilitator” is a person who provides assistance to the individualized education program team. The IEP Facilitator shall be an impartial third party, not a member of the individualized education program team, and have no stake in decisions made by the team.

(b) A county board of education, parent or adult student may request a Facilitated IEP by submitting a written request to the West Virginia Department of Education. The request shall contain an original signature of the person making the request. The Facilitated IEP process requires that both sides to the dispute agree to this process and the department shall not schedule a Facilitated IEP Team Meeting without the consent of both parties. A request for a Facilitated IEP Team Meeting shall be made at least two weeks prior to the intended or proposed meeting date.

1. The Facilitated IEP shall be voluntary and may only proceed with the consent of both parties to the dispute;

2. The Facilitated IEP shall not be used to deny or delay a parent or adult student’s right to a hearing on the issue or to deny any other rights afforded under Part B of the Act;

3. The Facilitated IEP shall be conducted by a qualified and impartial facilitator who is trained in facilitation techniques;

4. IEP Facilitators shall assigned from a list of qualified facilitators on a rotational basis and if a facilitator to be assigned according to the rotation schedule is not available during the timeframe for the individualized education program team meeting, the next available facilitator on the rotation schedule shall be assigned;

5. The Facilitated IEP process is free to the parties;

6. The Facilitated IEP Team meetings shall be scheduled in a timely manner and adhere to all required timelines.

(d) The IEP Facilitator shall be qualified and trained in effective facilitation techniques, verified by the West Virginia Department of Education as having met the requirements for qualified facilitators, and be enrolled on the list of qualified individuals maintained by the department.

(e) The IEP Facilitator may not:

Be an employee of the West Virginia Department of Education or an employee of the county that is involved in the care and education of the student;

Have a personal or professional interest that conflicts with the facilitator’s objectivity; or

Have a student enrolled in the county involved in the Facilitated IEP.

§18-20A-1102. State complaint; procedures for resolution of complaint.

(a) A “formal state complaint” is a charge made by a parent, adult student or other interested party that special education laws or regulations are not being followed by a county board of education or other public agency.

(b) An individual or organization may file a formal state complaint with the West Virginia Department of Education. The complaint shall be in writing and contain the following information:

(1) A statement that a public agency has violated a requirement of federal or state statutes, federal regulations, or any rule or policy of the West Virginia Department of Education relating to students with disabilities or exceptionalities, with citations to the statute, regulation, rule or policy at issue;

(2) The facts on which the statement is based;

(3) The signature and contact information for the complainant;

(4) The relief requested or proposed by the complaining party for resolution of the problem to the extent known and available to the party at the time the complaint is filed; and

(5) If alleging violations against a specific student:

(A) The name and address of the residence of the student, and if the student is alleged or believed to be homeless, the available contact information for the student;

(B) The name of the school the student is attending; and

(c) No complaint shall be accepted if it alleges a violation that occurred more than one year prior to the date that the complaint is received.

(d) The party filing the complaint shall forward a copy of the complaint to the county board of education serving the student at the same time the party files the complaint with the West Virginia Department of Education.

(e) Upon receipt of a formal state complaint, the West Virginia Department of Education may take any of the following actions, singly or in combination:

(1) Carry out an independent on-site investigation if the West Virginia Department of Education determines the investigation to be necessary based upon the nature of the allegations, review of information submitted by the parent or adult student and the county board of education, and consideration of information obtained through telephone interviews;

(2) Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint; and

(3) Provide the county board of education with the opportunity to respond to the complaint, including at a minimum, a proposal to resolve the complaint; and an opportunity for the county board of education and the parent or adult student to voluntarily engage in mediation and/or early resolution.

(4) Review all relevant information and make an independent determination as to whether the public agency is violating state or federal special education laws or regulations.

(f) After review of all of the information received and collected in relation to the allegations of the complaint, the West Virginia Department of Education shall, within sixty days of receipt of the complaint, issue a written decision to the county board of education and the complaining party that addresses each allegation in the complaint and contains:

(1) Findings of facts and conclusions;

(2) The reasons for the department’s decision upon each claim or allegation in the complaint; and

(3) Procedures for effective implementation of the department’s decisions, if needed, including:

(A) Technical assistance activities;

(B) Negotiations; and

(C) Corrective actions, including timelines for completion of corrective activities, to achieve compliance, which timelines will only be extended if requested by the county board of education within five days of the board’s receipt of the decision and based upon exceptional circumstances.

The department may only exceed or extend the sixty-day time limit for a determination if exceptional circumstances exist with respect to a particular complaint or if the parent and the county board involved agree to extend the time to pursue other measures, such as mediation, to resolve the dispute.

(g) If a written state complaint is received that is also the subject of a due process complaint as provided in section one thousand one hundred four of this article, or contains multiple issues of which one or more are part of the due process complaint, the department shall set aside any part of the state complaint that is being addressed in the due process complaint until the conclusion of the hearing. Any issue that is not a part of the due process action shall be resolved following the established state complaint procedures and timelines. For issues that are addressed in the due process hearing, the hearing officer’s decision is binding on those issues and the West Virginia Department of Education shall inform the complainant to that effect. Any remaining issues not addressed in the due process hearing decision shall be investigated upon receipt of the hearing decision by the department in accordance with the established state complaint procedures and timelines.

If an issue raised in a state complaint filed under this section has previously been decided in a due process hearing involving the same parties, the due process decision is binding on that issue and the department shall inform the complainant that the state complaint process cannot be used to overrule the due process decision.

A state complaint alleging a failure of a county board of education to implement a due process hearing decision shall be investigated and resolved by the department utilizing the state complaint procedures described in this section.

(h) Any party to a formal state complaint may request early resolution to a complaint investigation by contacting the other party and participating in a local conference if both parties voluntarily agree to utilize the early resolution option. If early resolution is reached on any or all allegations within fifteen days of being notified of the receipt of the state complaint, the county board of education need not submit its written response to the allegations to the West Virginia Department of Education, but the parties shall inform the department of their actions and the relevant portions state complaint shall be considered resolved. Allegations not resolved shall be investigated and determined as provided in this section.

(i) The West Virginia Department of Education may promulgate procedural rules, pursuant to the provisions of article three-b, chapter twenty-nine-a of this code to specify procedures for responding to or investigating complaints under this section.

§18-20A-1103. Mediation.

(a) The term “mediation’ means an informal, non-adversarial, confidential and voluntary process in which an impartial third party, the mediator, provides an opportunity to the parties involved in a dispute to resolve their differences and create a mutually satisfactory solution. Mediation may take place at any time in the dispute resolution process regardless of the filing of a due process complaint or a formal state complaint or both. Information about the mediation option shall be provided by the department when a formal state complaint is filed for the first time, when a due process complaint is received, and upon request of a party who has identified a dispute that may not be resolved informally.

(b) A party to a dispute, relating to the implementation of state and federal special education laws and regulations regarding the identification, evaluation or educational placement of a student or the provision of a free appropriate public education, may request mediation by submitting a written request to the county board of education or to the department and the request shall contain an original signature of the requesting party or the party’s legal representative. The mediation process may only be utilized if both parties agree to mediation.

(c) If the parties resolve the dispute through the mediation process, the parties shall, with the assistance of the mediator, prepare and execute a legally binding agreement that sets forth the terms of the resolution. The agreement shall also contain:

(1) A statement that all discussions that occurred during the mediation process will remain confidential and not be used as evidence in any subsequent due process hearing or civil proceedings; and

(2) The signatures of both the parent of the student or of the adult student and the representative of the county board of education who has the authority to bind the board.

(d) If mediation fails to produce an agreement, or if either party requests termination of the mediation process, the mediator shall issue a statement to the parties and the West Virginia Department of Education that the process has been terminated.

(e) The mediation process shall conform to the following criteria:

1. The process is voluntary and is agreed to by both parties;

2. The mediation process or the option to use the mediation process shall not be used to deny or delay a parent or adult student’s right to a hearing on the issue, or to deny any other rights afforded under Part B of the Individuals with Disabilities Education Improvement Act of 2004;

3. The mediation shall be conducted by a qualified and impartial mediator who is trained in effective mediation techniques;

4. Mediators shall be assigned from the list of qualified mediators on a rotating basis;

5. The mediation process shall be free to the parties;

6. Parties to the mediation shall be informed of the confidential nature of the discussions that occur during mediation and that these discussions may not be used as evidence in any subsequent due process hearing or civil proceeding arising from that dispute;

7. Parties to the mediation may be required to sign a confidentiality agreement prior to commencement of the mediation;

8. Mediation sessions shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties in the dispute.

(f) All mediators shall be qualified and trained in effective mediation techniques, as well as in the requirements of the Individuals with Disabilities Education Improvement Act of 2004 and Policy 2419 of the West Virginia State Board of Education. No mediator may be an employee of the West Virginia Department of Education or an employee of the county that is involved in the care and education of the student and no mediator may have a personal or professional interest that conflicts with the person’s objectivity, including, but not limited to, representing boards of education or parents against boards of education and having a student enrolled in the county schools involved in the dispute. A person who otherwise qualifies as a mediator is not considered an employee of the West Virginia Department of Education or an employee of the county board of education solely because he or she is paid by the West Virginia Department of Education to serve as a mediator.

(g) For parents and schools that choose not to use the mediation process, a county board of education may establish procedures to offer parents or adult students an opportunity to meet at a convenient time and location with a disinterested party who is under contract with an appropriate alternative dispute resolution entity, or a parent and training information center, or community parent resource center; and who may explain the benefits of, and encourage the use of the mediation process.

§18-20A-1104. Due process complaints

(a) When a parent of a student or an adult student due has reason to believe that a student has been denied rights related to the proposal or refusal to initiate or change the identification, evaluation, educational placement of, or the provision of a free appropriate public education for, a public school student and demands a formal hearing of the dispute, the parent or adult student may file a due process complaint with the West Virginia Department of Education. The due process complaint procedure is not available for students placed in a private school by the parent for issues regarding the provision of services under the student’s services plan; however, due process procedures do apply to child find, evaluation and reevaluation issues. However, a parent who has placed their child in a private school where free appropriate public education is an issue, a unilateral placement, may file a due process complaint.

(b) A parent, adult student, county board of education or an attorney representing a party may file a due process complaint by contacting the district superintendent or the West Virginia Department of Education. The complaint shall be in writing and shall be mailed or hand delivered to the other party and to the coordinator responsible for due process complaints at the West Virginia Department of Education.

(c) No due process complaint may be accepted if it is filed more than two years from the date the complaining party knew or should have known of the disputed decision or alleged action that forms the basis for the complaint. The two-year time limit may be tolled if the parent or adult student was prevented from filing a complaint due to specific misrepresentations by the county board of education that it had resolved the problem forming the basis of the due process complaint or due to the county board of education’s withholding of information that the board was required to provide to the parent or the student.

(d) In a proceeding upon a due process complaint, the burden of proof will be on the party seeking relief in accordance with the decision in Shafter v. Weast, 546 U.S. 49, 126 S. Ct. 528, 163L. Ed.2d 387 (2005).

(e) A due process complaint shall be made in writing and include the following information:

(1) The student’s name, address of the residence of the student (or available contact information in the case of a homeless student) and the school the student is attending;

(2) A specific description of the problem relating to the proposed or refused initiation or change, including the facts relevant to the determination of the issue;

(3) The relief requested by the party or a description of the proposed resolution of the issue; and

(4) The signature of the party or a legal representative of the party requesting the due process hearing.

(f) The party receiving a due process complaint shall, within ten days of receiving the due process complaint notice, send to the other party a response that specifically addresses the issues raised in the due process complaint notice except that if the party receiving the due process hearing complaint notice is a county board of education that has not sent a prior written notice pursuant to the provisions of part X of this article, to the parent with regard to the subject matter contained in the due process complaint, the county board of education shall within ten days of receiving the due process complaint, send to the parent or adult student a response that includes:

(1) An explanation of why the district proposed or refused to take the action raised in the due process complaint;

(2) A description of other options the individualized education program team considered and the reasons why those options were rejected;

(3) A description of each evaluation procedure, assessment, record, or report that the district used as a basis for the proposed or refused action; and

(4) A description of other factors relevant to the district’s proposal or refusal.

Providing the parent or adult student with PWN does not preclude the district from asserting that the parent or adult student’s due process complaint was insufficient, where appropriate.

(g) If the party receiving the due process complaint believes that the complaint insufficient and fails to meet the requirements of subsection (e) of this section, the party shall notify the hearing officer and the other party of the insufficiency within fifteen days of receipt of the due process complaint. A county board of education may assert that a complaint is insufficient, even if that board has provided the parent or student with notice of a proposed change as provided in section one thousand three of this article. If the party receiving the due process complaint fails to allege the insufficiency of the complaint within the fifteen day period, the complaint shall be deemed sufficient as to form and contents.

Within five days of receiving notice of a claim that the complaint is insufficient, the hearing shall make a determination of sufficiency based solely upon the content of the complaint and the notice of the objecting party. The hearing officer shall notify the parties forthwith of the officer’s determination in writing. The parties may not have a hearing on a due process complaint nor participate in an early resolution session if the due process complaint is deemed in sufficient. A party may only amend a due process complaint if the other party consents in writing to the change and is given the opportunity to resolve the due process issues through the resolution process described below or if the hearing officer grants permission to amend the due process complaint no later than five days before the due process hearing begins. If a party files an amended due process complaint, the time periods for a resolution meeting and resolution period shall restart from the filling of the amended complaint.

(h) The parties shall have a thirty day period in which to attempt to resolve the issues raised in the due process complaint. Within fifteen days of receiving a due process complaint from the parent as the party and prior to initiating a due process hearing, the county board of education shall convene a meeting with the complaining party to discuss his or her due process complaint and the facts that form the basis for the complaint in order to provide the county board with an opportunity to resolve the dispute. The resolution meeting need not be held if both parties agree in writing to waive the meeting or both parties agree to participate in mediation.

If the county board of education fails to hold the resolution meeting within fifteen days of receiving notice of a due process complaint or fails to participate in the resolution meeting, the parent or adult student may seek the intervention of a hearing officer to enforce the due process hearing timelines. Where the district is unable to obtain the participation of the opposing party in the resolution meeting after reasonable efforts have been made and documented, the county board of education may at the end of the thirty day resolution period request that a hearing officer dismiss the complaint.

If the county board of education has not resolved the due process complaint to the satisfaction of the opposing party within thirty days of the receipt of the complaint, the due process hearing may proceed.

The hearing office may make adjustments to shorten or extend the thirty day resolution period under any of the following circumstances:

(1) Both parties agree in writing to waive the resolution meeting;

(2) After either the mediation or resolution meeting starts, but before the end of the thirty-day period, the parties agree in writing that no agreement is possible; or

(3) If both parties agree in writing to continue the mediation at the end of the thirty-day resolution period, but later, the parent or county board withdraws from the mediation process.

At the conclusion of the thirty day resolution period or the day after any of the three foregoing events occurs, a forty-five day period for the due process hearing and decision shall begin.

(i) In the implementation of due process complaint system, the West Virginia Department of Education shall:

(1) Provide assistance in alternative means for submitting due process complaints in instances where parents are unable to submit written requests;

(2) Develop a model form to assist parents and students in filing a due process complaint;

(3) Maintain a list of attorneys, including a statement of their qualifications, trained to serve as hearing officers and provide this information to any person regardless of whether the person has filed or received a complaint;

(4) Inform the parties of the availability of mediation when a due process complaint is initiated or the parties request the information;

(5) Provide information regarding any free or low-cost legal, and other relevant services in the area, to the parent or adult student if the parent or adult student requests the information or when the parent or adult student or district files a due process complaint;

(6) Ensure that all required timelines for due process complaint resolution process and due process hearings are met; and

(7) Transmit findings and decisions from due process hearings, after deleting any personally identifiable information, to the West Virginia Advisory Council for the Education of Exceptional Children and make those findings and decisions available to the public.

(j) In order to qualify as a due process hearing officer, a person shall have the following, minimum qualifications:

(1) A law degree;

(2) Admission to the West Virginia State Bar;

(3) The knowledge of, and the ability to understand the Individuals with Disabilities Education Improvement Act of 2004, federal regulations relating to the Act, West Virginia law regarding the education of exceptional children, including Policy 2419 of the West Virginia State Board of Education, and legal interpretations regarding special education law, regulations and state policy by federal and state courts;

(4) The knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice;

(5) The knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice; and

(6) Specific competency in due process, special education law, effective writing and speaking, decision-making and related areas, as evidenced through application, interview, and competency-based training.

Due process hearing officers may not be a person who is an employee of the West Virginia Department of Education or the district that is involved in the education or care of the student; a person with a personal or professional interest that conflicts with the person’s objectivity in the hearing; or a lawyer who represents boards of education or parents in actions against boards of education.

(k) An otherwise qualified due process hearing officer shall be ineligible to begin hearing officer training or to serve as a hearing officer during the pendency of any action in which he or she represents boards of education or parents in actions against boards of education and for one year following the conclusion of this representation. A due process hearing officer shall not be deemed an employee of the West Virginia Department of Education solely because he or she is paid by the Department to serve as a hearing officer.

(l) Upon receipt of a written request for a due process complaint, the West Virginia Department of Education shall select a hearing officer by:

(1) Using a rotational selection process from the list of qualified hearing officers;

(2) Making an initial determination whether the hearing officer has a personal or professional interest which would conflict with objectivity in the hearing; and

(3) Selecting a new hearing officer if conflict is determined or the hearing officer is unavailable to conduct the hearing within timelines.

Any party to the complaint may submit a challenge to remove a hearing officer for cause. This challenge shall be submitted in writing to the hearing officer with a copy to be provided to every other party in the proceeding.

(m) The party requesting a due process hearing may not raise issues at the due process hearing that were not raised within the due process complaint unless the other party expressly agrees otherwise.

(n) Each party to a hearing shall have the right to:

(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to students with exceptionalities; however, this provision does not supersede or contravene any state law relating to legal representation by persons who are not attorneys licensed or otherwise authorized to practice law in this state;

(2) Present evidence and confront, cross-examine, and compel the attendance of witnesses and compel the production of relevant documents;

(3) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing;

(4) Obtain a transcript or verbatim record of the hearing; and

(5) Receive written, or at the option of the parent or adult student, electronic findings of fact and decisions.

(o) Parents or adult students involved in hearings shall the right to:

(1) Have the student who is the subject of the hearing present;

(2) Open the hearing to the public;

(3) Have the record of the hearing and the findings of fact and decisions provided at no cost to the parent or adult student;

(4) Be provided with interpreters for the deaf or interpreters fluent in the primary language of the home as needed at public expense at all stages of the due process procedures;

(5) Have the hearing conducted at a time and place that is reasonably convenient; and

(6) File a due process complaint on an issue separate from a due process complaint already filed.

(p) During the pendency of any administrative or judicial proceeding regarding a due process complaint except complaints based upon disciplinary matters, the student involved in the complaint shall remain in the educational placement established at the time of the filing of the complaint, unless the parties to the proceeding agree otherwise. If the complaint involves an application for initial admission to public school, the student, with the consent of the parent, shall be placed in the public school until the completion of all the proceedings.

If a complaint involves initial services for a child transitioning from services available under Part C of the Individuals with Disabilities Education Improvement Act of 2004 to Part B services and the child is no longer eligible for Part C services because he or she has turned three years of age, the county board of education shall not be required to provide the Part C services that the child had previously been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of services, the county board of education shall provide those services that are not in dispute between the parent and the county board.

If the decision of a hearing officer in a due process hearing agrees with the parent or adult student that a change of placement is appropriate, that placement shall be treated as an agreement between the district and the parent or adult student.

(q) Within forty-five days after the end of the resolution period specified subsection (h) of this section, the hearing officer shall issue a final decision following an administrative hearing on the allegations of the complaint. At the request of either party the hearing officer may grant specific extensions of time beyond this time limit. Each hearing and every proceeding involving oral arguments shall be conducted at a time and place that is reasonably convenient to the parent or student involved. The hearing officer shall mail a copy of his or her decision to each of the parties.

(r) An expedited due process hearing shall be used solely for disciplinary issues and may be requested with the West Virginia Department of Education when the parent or adult student with a disability disagrees with a decision regarding a manifestation determination or with any decision regarding placement for disciplinary reasons, or the county board of education believes that maintaining the current placement of the student is substantially likely to result in injury to the student or others.

In an expedited hearing, the due process procedures previously described in this chapter shall be followed, subject to the following exceptions:

(1) A resolution session meeting shall occur within seven days of the date of the receipt of the due process complaint by the West Virginia Department of Education unless mutually waived by both parties in writing;

(2) The hearing shall, unless the matter has been resolved to the satisfaction of both parties, proceed within fifteen days or receipt of the due process complaint;

(3) Deadlines for disclosure of evidence and evaluations and recommendations based on those evaluations shall not be less than five business days prior to the hearing;

(4) The hearing shall occur within twenty school days of the date the hearing is requested and shall result in a determination within ten school days after the hearing with no extensions permitted; and

(5) The student shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of forty-five days, whichever comes first, unless the parent or adult student and school personnel agree otherwise.

If in making a determination upon a complaint involving an appeal of a disciplinary determination the hearing officer determines that maintaining the current placement of the student is substantially likely to result in injury to the student or others, the hearing officer may return the student to the placement from which the student was removed or order a change in placement of a student with a disability to an appropriate interim alternative educational setting for not more than forty-five days.

(s) In holding the hearing upon a due process complaint, the hearing officer shall preside at the hearing, conduct the proceedings in a fair and impartial manner, and take steps to ensure that the hearing will be conducted and completed in an efficient manner. Hearing officers shall have the power to issue subpoenas requiring the attendance of witnesses and the production of books, papers, and physical or other evidence. Any person served with a subpoena pursuant to this section may object and ask the hearing officer in writing to quash or modify the subpoena as illegally or improvidently issued. The hearing officer shall immediately issue a decision on that validity of the subpoena. Any person served with a subpoena pursuant to this section shall have the right to petition the circuit court for the county in which the hearing is to be held for an order to quash any subpoena issued pursuant to this section. The department may, in similar fashion, petition the circuit court for an order of enforcement of a subpoena issued by the hearing officer. Nothing in this section shall prohibit the hearing officer from refusing to issue subpoenas which are requested for purposes of harassment, abuse of process, delay or which are obviously directed to persons who have no direct evidence in the matter to be heard.

(t) In matters regarding a procedural violation, the hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies have impeded the student’s right to a free appropriate public education, significantly impeded a parent’s or an adult student’s opportunity to participate in the decision-making process; or caused a deprivation of an educational benefit.

A hearing officer may order a district to comply with procedural requirements regardless of whether a district’s failure resulted in a denial of a free appropriate public education. A hearing officer’s determination of whether the student received a free appropriate public education shall be made on substantive grounds.

(u) The decision of the hearing officer upon a due process complaint is final and binding upon the parties unless a party to the hearing petitions a state circuit court for judicial review of the decision pursuant to section four, article five, of chapter twenty-nine-a of this code or appeals the decision through a civil action in a United States district court. Any party aggrieved by the findings and decisions made in the hearing has the right to bring a civil action with respect to the due process hearing complaint in the district court of the United States for the district where the student resides, without regard to the amount in controversy, within 90 days of the issuance of the hearing officer’s written decision.

(v) Nothing in this part shall restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other federal laws protecting the rights of students with disabilities.

NOTE: The purpose of this bill is to establish in the West Virginia Code procedures relating to implementation of the federal Individuals with Disabilities Education Improvement Act of 2004 and to update the procedures and interpretations that have been implemented by the State Board of Education.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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