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WEST virginia legislature
2024 regular session
Introduced
House Bill 5262
By Delegates Ellington, Statler, Toney, Mazzocchi, Hornby, W. Clark, Thorne, Foggin, Smith, Longanacre and Jennings
[Introduced January 29, 2024; Referred to the Committee on Education]
A BILL to amend and reenact §18-5-18b of the Code of West Virginia, 1931, as amended; to amend and reenact §18-20-1c of said code; to amend said code by adding thereto a new section, designated §18-20-12; to amend and reenact §18A-1-1 of said code; to amend said code by adding thereto a new article, designated §18A-2A-1, §18A-2A-2, §18A-2A-3, and §18A-2A-4; and to amend and reenact §18A-5-1 of said code; all relating generally to the creation of a Teachers Bill of Rights Educational Doctrine; defining the duties of counselors; defining data to be provided; defining the special education student to instructor ratio, a waiver process, and compensation given to a teacher when the ratio is exceeded; providing for supplemental duty calendar provisions; prohibiting sanctions in certain instances; providing resources, including liability insurance, for classroom teachers; providing for teacher quality assistance; and clarifying the process for the removal of students.
Be it enacted by the Legislature of West Virginia:
(a) A school counselor means a professional educator school counselor who holds a valid school counselor's certificate in accordance with §18A-1-1(d) (2) of this code.
(b) Each county board shall provide counseling services for each pupil enrolled in the public schools of the county.
(c) The school counselor shall work with individual pupils and groups of pupils in providing developmental, preventive and remedial guidance and counseling programs to meet academic, social, emotional, and physical needs; including programs to identify and address the problem of potential school dropouts. The school counselor also may provide consultant services for parents, teachers, and administrators and may use outside referral services, when appropriate, if no additional cost is incurred by the county board.
(d) The state board may adopt rules consistent with the provisions of this section that define the role of a school counselor based on the "National Standards for School Counseling Programs" of the American School Counselor Association. A school counselor is authorized to perform such services as are not inconsistent with the provisions of the rule as adopted by the state board. To the extent that any funds are made available for this purpose, county boards shall provide training for counselors and administrators to implement the rule as adopted by the state board.
(e) Each county board shall develop a comprehensive drop-out prevention program utilizing the expertise of school counselors and any other appropriate resources available.
(f) School counselors shall be full-time professional personnel, shall spend at least 80 percent of work time in a direct counseling relationship with pupils, and shall devote no more than 20 percent of the work day workday to administrative activities: Provided, That such activities are counselor related directly related to their counseling duties: Provide further, That school counselors may not perform the following duties:
(1) Build the master schedule;
(2) Administer cognitive, aptitude, and achievement testing programs; Provided, That school counselors may administer make up tests and any tests that are required for virtual students, should no other person be available to administer the test.
(3) Routinely sign excuses for students who are tardy or absent;
(4) Perform disciplinary actions or assign discipline consequences;
(5) Provide more than 8 sessions of counseling in schools to address psychological disorders; Provided, That students who have experienced an emergency situation such as, but not limited to, CPS investigation, death, abuse, or home removal may be addressed regardless of how many sessions have previously been utilized.
(6) Cover classes when teachers are absent or to create teacher planning time;
(7) The counselor may have access but may not maintain student records;
(8) Compute grade-point averages;
(9) Supervise classrooms or common areas;
(10) May access but not keep clerical records;
(11) Coordinate schoolwide plans including:
(A) Individual Education Plans;
(B) 504 Plans;
(C) Student Study Teams;
(D) Response to Intervention Plans;
(E) Multi-Tiered System of Support; and
(F) May access attendance records but may not oversee School Attendance Review Boards.
(g) Nothing in this section prohibits a county board from exceeding the provisions of this section, or requires any specific level of funding by the Legislature.
(a) The regular general education classroom teacher is entitled to the following when placing a student with exceptional needs, into an integrated classroom when the student's individualized education program requires an adjustment in either the curriculum, instruction, or service to be provided by the regular general education classroom teacher:
(1) Training provided pursuant to the integrated classroom program and additional individualized training, pursuant to the rules developed by the State Board of Education, if requested by the regular general education classroom teacher to prepare the teacher to meet the exceptional needs of individual students. Whenever possible, the training shall be provided prior to the placement. Where prior training is not possible, the training shall be commenced no later than ten days following the placement of the student into the regular general education classroom. Unavoidable delays in the provision of training may not result in the exclusion of a special needs student from any class if the training cannot be provided in ten days;
(2) A signed copy of the individualized education program for the special education student prior to the placement of the student into the regular general education classroom. The receiving and referring teachers shall participate in the development of that student's individualized education program and shall also sign the individualized education program as developed. In all cases the teacher shall receive a copy of the individualized education program for the special education student prior to or at the time of the placement of the student into the regular general education classroom. Any teacher disagreeing with the individualized education program committee's recommendation shall file a written explanation outlining his or her disagreement or recommendation;
(3) Participation by referring teachers in all eligibility committees and participation by referring and receiving teachers in all individualized education program committees which involve possible placement of an exceptional student in an integrated classroom;
(4) Opportunity to reconvene the committee responsible for the individualized education program of the student with special needs exceptionalities assigned to the regular general education classroom teacher. The meeting shall include all persons involved in a student's individualized education program and shall be held within 21 days of the time the request is made; and
(5) Assistance from persons trained or certified to deal with a student's exceptional needs whenever assistance is part of the student's individualized education program as necessary to promote accomplishment of the program's goals and objectives: Provided, That aides in the area of special education cannot be reassigned to more than one school without the employee's consent; and
(b) Except In addition to the teachers already required to participate in the development of a student's individualized education program and sign it as provided in subdivision (2) of this section, all other teachers in whose class or program a student with exceptional needs shall:
(1) Participate in the meeting to develop the student's individualized education program, or read and sign a copy of the student's individualized education program plan acknowledging that he or she has read and understands it; and .
(2) Make accommodations and modifications for the student, if needed or identified, to help the student succeed in the class or program: Provided, That the general education teacher shall not be responsible for accommodation logs. All accommodations of the students shall be discussed before placement and it is the responsibility of the special education instructor to monitor progress.
(3) Data to support this decision shall be included in the Individualized Education Plan and an agreement among the general education teacher and special education teacher for services shall be accepted.
(4) Should the general education teacher provide data after 45 days, showing that the student is not in the least restrictive environment for academic growth, the data shall be used to support the student in whatever way is necessary, including, but not limited to, increasing the amount of minutes for the special education environment. The general education teacher, special education teacher, and principal shall be in attendance in this meeting. The general education teacher, special education teacher, and principal shall agree upon this placement; Provided, should the general education teacher, special education teacher, and principal disagree upon placement it shall be the responsibility of the local county boards special education administrator to attend a second meeting reviewing the IEP and creating a plan that all can agree upon.
The parent has final authority, according to federal procedure, to decline services or suggestions, given in the meeting.
(c) This requirement includes, but is not limited to, teachers of music, musical education, art, driver education, health, foreign language, and other instruction offered.
(d) If the teacher provides a series of documentation within a 45-day grading period that shows that the student is not in their least restrictive environment, to the point that his or her placement gravely affects that student's academic progress, the teacher may begin due process. The teacher may not be penalized in any way for advocating for his or her student through due process, and the teacher may work with the family or guardian of the student to recommend local advocates, share documentation and information, inform the family of his or her due process rights, and may call for an IEP meeting to review the information gathered from documentation and address the concerns to best adjust the IEP, as necessary, to best address the student.
(a) Self-contained and resource classrooms, as well as any special education environment, shall not have a student/instructor ratio over the current limit provided for in the Individuals with Disabilities Education Act 2004 and State Board Policy 2419. A two-week waiver may be signed with the understanding that the local county board is responsible to remediate the situation while compensating the teacher with overage pay provided by the county per county funds. This waiver shall be good for two weeks to allow the district time to find an additional classroom assistant teacher pursuant to §18-5-18a(b) of this code. Should the district be unable to find an additional classroom assistant teacher, the district, upon the agreement of the teacher, may submit a waiver to the state board of education. This waiver shall have the teachers signature acknowledging that although they are over the limit, they recognize that this is a dire situation, and that they are entitled per compensation per student per county funds.
(b) The county may not submit a waiver to exceed the current limit of students set forth in Individuals with Disabilities Education Act 2004 and Policy 2419 without the written consent of the special education instructor. If the instructor chooses to sign the waiver to exceed the limit, that instructor shall be entitled to the full amount of compensation as provided per county.
(c) The county may not allow more than three students over the limit, even with the additional pay for the teacher.
The definitions contained in §18-1-1 of this code apply to this chapter. In addition, the following words used in this chapter and in any proceedings pursuant to this chapter have the meanings ascribed to them unless the context clearly indicates a different meaning:
(a) "School personnel" means all personnel employed by a county board whether employed on a regular full-time basis, an hourly basis or otherwise. "School personnel" is comprised of two categories: Professional personnel and service personnel;
(b) "Professional person" or "professional personnel" means those persons or employees who meet the certification requirements of the state, licensing requirements of the state, or both, and includes a professional educator and other professional employee;
(c) "Professional educator" has the same meaning as "teacher" as defined in section one, article one, chapter eighteen of this code. Professional educators are classified as follows:
(1) "Classroom teacher" means a professional educator who has a direct instructional or counseling relationship with students and who spends the majority of his or her time in this capacity;
(2) "Principal" means a professional educator who functions as an agent of the county board and has responsibility for the supervision, management and control of a school or schools within the guidelines established by the county board. The principal's major area of responsibility is the general supervision of all the schools and all school activities involving students, teachers and other school personnel;
(3) "Supervisor" means a professional educator who is responsible for working primarily in the field with professional and other personnel in instructional and other school improvement. This category includes other appropriate titles or positions with duties that fit within this definition; and
(4) "Central office administrator" means a superintendent, associate superintendent, assistant superintendent and other professional educators who are charged with administering and supervising the whole or some assigned part of the total program of the countywide school system. This category includes other appropriate titles or positions with duties that fit within this definition;
(d) "Other professional employee" means a person from another profession who is properly licensed and who is employed to serve the public schools. This definition includes:
(1) a A registered professional nurse, licensed by the West Virginia Board of Examiners for Registered Professional Nurses, who is employed by a county board and has completed either a two-year (64 semester hours) or a three-year (96 semester hours) nursing program;
(2) A certified school counselor who holds a master's degree in school counseling from an accredited university and certification through the state board of education.
(e) "Service person" or "service personnel", whether singular or plural, means a nonteaching school employee who is not included in the meaning of "teacher" as defined in §18-1-1 of this code and who serves the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and aides. Any reference to "service employee" or "service employees" in this chapter or chapter 18 of this code means service person or service personnel as defined in this section;
(f) "Principals Academy" or "academy" means the academy created pursuant to §18A-3a-2b of this code;
(g) "Center for Professional Development" means the center created pursuant to §18A-3a-1 of this code;
(h) (g) "Job-sharing arrangement" means a formal, written agreement voluntarily entered into by a county board with two or more of its employees who wish to divide between them the duties and responsibilities of one authorized full-time position;
(i) (h) "Prospective employable professional person", whether singular or plural, means a certified professional educator who:
(1) Has been recruited on a reserve list of a county board;
(2) Has been recruited at a job fair or as a result of contact made at a job fair;
(3) Has not obtained regular employee status through the job posting process provided in §18A-4-7a of this code; and
(4) Has obtained a baccalaureate degree from an accredited institution of higher education within the past year;
(j) (i)"Dangerous student" means a student who is substantially likely to cause serious bodily injury to himself, herself or another individual within that student's educational environment, which may include any alternative education environment, as evidenced by a pattern or series of violent behavior exhibited by the student, and documented in writing by the school, with the documentation provided to the student and parent or guardian at the time of any offense;
(k) (j) "Alternative education" means an authorized departure from the regular school program designed to provide educational and social development for students whose disruptive behavior places them at risk of not succeeding in the traditional school structures and in adult life without positive interventions; and
(l) (k)"Long-term substitute" means a substitute employee who fills a vacant position:
That the county superintendent expects to extend for at least thirty consecutive days, and is either:
(A) Listed in the job posting as a long-term substitute position of over thirty days; or
(B) Listed in a job posting as a regular, full-time position and:
(i) Is not filled by a regular, full-time employee; and
(ii) Is filled by a substitute employee.
For the purposes of §5-16-2 of this code, long-term substitute does not include a retired employee hired to fill the vacant position.
(a) In this section, "supplemental duty" means a duty other than a duty assigned under an employee's contract that is generally expected to be performed during an instructional day and which may be governed by an agreement, other than the employee's contract, between the district and the employee.
(b) Not later than the 15th day before the first instructional day of each school year, the County Board professional staff of a school district shall adopt and provide to each classroom teacher, full-time counselor, and full-time librarian employed by the district a calendar that specifies the days each employee is expected to work for that school year, including the days on which the employee is expected to perform supplemental duties for more than 30 minutes outside of the contracted day, and except for days on which the employee may be required to spend time on an unanticipated duty outside of the contracted day to comply with a state or federal law.
No sanction may be imposed against a teacher who relinquishes a position under a probationary contract and leaves the employment of the district after the 45th day before the first day of instruction for the upcoming school year in violation of this code and without the consent of the County Board professional staff under this code if the teacher ’s failure to comply with the code was due to:
(1) A serious illness or health condition of the teacher or a close family member of the teacher;
(2) The teacher ’s relocation was done because the teacher’s spouse or a partner who resides with the teacher changes employers; or
(3) A significant change in the needs of the teacher’s family in a manner that requires the teacher to:
(A) Relocate; or
(B) Forego employment during a period of required employment under the teacher’s contract; or
(C) The teacher’s reasonable belief that the teacher had written permission from the school district ’s administration to resign.
(a) From funds available for the purpose, the local education agency shall contract with a third party to provide the following services for a classroom teacher employed under a probationary, continuing, or term contract:
(1) Assistance in understanding the teacher’s rights, duties, and benefits; and
(2) Liability insurance to protect a teacher against liability to a third party based on conduct that the teacher allegedly engaged in during the course of the teacher’s duties.
(b) A school district may not interfere with a classroom teacher’s access to services provided under this section.
(c) A contract entered into by the local education agency to provide services under subsection (a) must prohibit the entity with which the agency contracts from using funds received under the contract to engage in:
(1) Conduct that a state agency using appropriated money is prohibited from engaging in; and
(2) Political activities or advocate for issues regarding public schools, including for County Board professional staff of school districts or school districts.
(d) This section may not be interpreted to interfere with a classroom teacher’s or other school district employee’s exercise of a right protected by the First Amendment to the United States Constitution.
(a) From funds appropriated or otherwise available for the purpose, the local education agency shall develop training for and provide technical assistance to school districts and open-enrollment charter schools regarding:
(1) Strategic compensation, staffing, and scheduling efforts that improve professional growth, teacher leadership opportunities, and staff retention;
(2) Programs that encourage high school students or other members of the community in the area served by the district to become teachers, including available teacher apprenticeship programs; and
(3) Programs or strategies that school leaders may use to establish clear and attainable behavior expectations while proactively supporting students.
(b) From funds appropriated or otherwise available, the local education agency may provide grants to school districts and open-enrollment charter schools to implement initiatives developed under this section.
(a) The teacher shall stand in the place of the parent(s), guardian(s), or custodian(s) in exercising authority over the school and has control of all students enrolled in the school from the time they reach the school until they have returned to their respective homes, except where transportation of students is provided, the driver in charge of the school bus or other mode of transportation shall exercise such authority and control over the students while they are in transit to and from the school.
(b) Subject to the rules of the state Board of Education, the teacher shall exclude from the school any student known to have, or who is suspected of having, any infectious disease, or any student who has been exposed to any infectious disease and shall immediately notify the proper health officer or medical inspector of the exclusion. Any student so excluded may not be readmitted to the school until he or she has complied with all the requirements of the rules governing those cases or has presented a certificate of health signed by the medical inspector or other proper health officer.
(c) The teacher or bus driver, may exclude from his or her classroom or school bus any student who is guilty of disorderly conduct; who in any manner interferes with an orderly educational process; who behaves in a manner that obstructs the teaching or learning process of others in the classroom; who threatens, abuses or otherwise intimidates or attempts to intimidate a school employee or a student; who willfully disobeys a school employee; or who uses abusive or profane language directed at a school employee. Any student excluded shall be placed under the control of the principal of the school or a designee. The excluded student may be admitted to the classroom or school bus only when the principal, or a designee, provides written certification to the teacher that the student may be readmitted and specifies the specific type of disciplinary action, if any, that was taken. If the principal finds that disciplinary action is warranted, he or she shall provide written and, if possible, telephonic notice of the action to the parent(s), guardian(s), or custodian(s). When a student is excluded from a classroom or a school bus two times in one semester, and after exhausting all reasonable methods of classroom discipline provided in the school discipline plan, the student may be readmitted to the classroom or the school bus only after the principal, teacher and, if possible, the parent(s), guardian(s), or custodian(s) of the student have held a conference to discuss the student's disruptive behavior patterns, and the teacher and the principal agree on a course of discipline for the student and inform the parent(s), guardian(s), or custodian(s) of the course of action. Thereafter, if the student's disruptive behavior persists, upon the teacher's request, the principal may, to the extent feasible, transfer the student to another setting. The Legislature finds that isolating students or placing them in alternative learning centers may be the best setting for chronically disruptive students. The county board shall create more alternative learning centers or expand its capacity for alternative placements, subject to funding, to correct these students' behaviors so they can return to a regular classroom without engaging in further disruptive behavior.
(d) When a grade six through 12 teacher, excluding an elementary school teacher, determines that the behavior of the student is disorderly conduct, is interfering with an orderly educational process, or obstructs the teaching or learning process of others in the classroom:
(1) The student may be excluded from that teacher's classroom and if excluded may not re-enter that teacher's classroom for at least the remainder of the instructional day;
(2) If the student is excluded pursuant to subdivision (1) of this subsection;
(A) The principal shall communicate with the teacher within 24 hours of the student being excluded from the teacher's classroom about the exclusion;
(B) The teacher has 24 hours to create an electronic record and place the report of this action into the West Virginia Education Information System (WVEIS), without any repercussion to the teacher; and
(C) If the student is removed from a classroom a total of three times in one month for one or more of the behaviors set forth in this subsection, the student shall receive as determined by the principal an in-school suspension, an out-of-school suspension, or may be considered for placement in an alternative learning center if one is available within the school district.
(e) A teacher may remove a student in grades pre-k through 5 only under the following circumstances:
(1) Through documentation by the teacher that the student’s behavior is repeatedly interfering with the teacher’s instruction and classmates' ability to learn. If the teacher determines that the student has consistently shown unruly, disruptive, or abusive behavior and affects his or her classmates' abilities to learn or if the student shows violent and aggressive behaviors, causing or intending to cause physical harm, to the teacher or the students in the classroom setting.
(2) The student may not be returned to that teacher’s classroom without the teacher’s consent unless the discipline committee, established by each individual school, determines that such placement is the best or only alternative available. If the student was removed from the teacher’s class due to any physically harming behaviors or the intent to physically harm, the student may not be returned to the teacher’s class without the teacher’s consent and the teacher may not be coerced to consent.
(3) Not later than the third day of class after the day on which a student is removed from class by the teacher under this section, or by the school principal or other appropriate administrator under this section, the school discipline team shall schedule a conference including the teacher who requested removal of the student, parent or the guardian of the student, and principal. The student may not be returned to the regular classroom pending the conference. Following the conference, and whether or not each requested person is in attendance after valid attempts to require the persons attendance, the school discipline team shall take consideration of the factors under this section and shall order the placement of the student for a period consistent with the schoolwide discipline policy.
(4) Before ordering the suspension, expulsions, removal to a disciplinary alternative education program, or placement in another classroom, the school discipline team shall consider whether the student acted in self-defense, the intent or lack of intent at the time the student engaged in the conduct, the students disciplinary history, and whether the student has a disability that substantially impairs the students capacity to appreciate the wrongfulness of the students conduct regardless of whether the decision of the behavior coordinator concerns a mandatory or discretionary action.
(e) (f) The Legislature finds that suspension from school is not appropriate solely for a student's failure to attend class. Therefore, a student may not be suspended from school solely for not attending class. Other methods of discipline may be used for the student which may include, but are not limited to, detention, extra class time, or alternative class settings.
(f) (g) Corporal punishment of any student by a school employee is prohibited.
(g) (h) Each county board is solely responsible for the administration of proper discipline in the public schools of the county and shall adopt policies consistent with the provisions of this section to govern disciplinary actions. These policies shall encourage the use of alternatives to discipline practices, provide for the training of school personnel in alternatives to discipline practices, and provide for encouraging the involvement of parent(s), guardian(s) or custodian(s) in the maintenance of school discipline. To promote a teaching and learning environment free from substantial classroom disturbances, each county board shall ensure that each school implements a tier system policy, with teacher input, to provide a framework for student behaviors and punishments. The policy shall be clear and concise with specific guidelines and examples. The principal shall support the teacher in the discipline of the students if proper cause and documentation is provided following the schoolwide discipline policy. The teacher may not be reprimanded if their actions are legal and within the structure of the county board's policy for student behavior and punishment. The county board policies shall also include an appeal procedure whereby a teacher may appeal to the county superintendent if a school principal refuses to allow the exclusion of a student from the classroom or if a teacher believes the school principal has prematurely ended the exclusion of a student from the classroom. The county boards shall provide for the immediate incorporation and implementation in schools of a preventive discipline program which may include the responsible student program and a student involvement program, which may include the peer mediation program, devised by the West Virginia Board of Education. Each county board may modify those programs to meet the particular needs of the county. The county boards shall provide in-service training for teachers and principals relating to assertive discipline procedures and conflict resolution. The county boards also may establish cooperatives with private entities to provide middle educational programs, which may include programs focusing on developing individual coping skills, conflict resolution, anger control, self-esteem issues, stress management and decision making for students, and any other program related to preventive discipline. Each teacher, professional personnel, and transportation department shall receive a copy of this statute in addition to the local policy relating to the statute.
(h) (i) For the purpose of this section:
(1) "Student" includes any child, youth or adult who is enrolled in any instructional program or activity conducted under board authorization and within the facilities of, or in connection with, any program under public school direction: Provided, That, in the case of adults, the student–teacher relationship shall terminate when the student leaves the school or other place of instruction or activity;
(2) "Teacher" means all professional educators as defined in §18A-1-1 of this code and includes the driver of a school bus or other mode of transportation; and
(3) "Principal" means the principal, assistant principal, vice principal or the administrative head of the school, or a professional personnel designee of the principal or the administrative head of the school.
(i) Teachers shall exercise other authority and perform other duties prescribed for them by law or by the rules of the state board not inconsistent with the provisions of this chapter and chapter 18 of this code.
NOTE: The purpose of this bill is to establish the creation of a Teachers Bill of Rights. The bill defines the duties of counselors. The bill defines data to be provided. The bill defines the special education student to instructor ratio, a waiver process, and compensation given to a teacher when the ratio is exceeded. The bill provides for supplemental duty calendar provisions. The bill prohibits sanctions in certain instances. The bill provides resources, including liability insurance, for classroom teachers. The bill provides for teacher quality assistance. Finally, the bill clarifies the process for the removal of students.
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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