WEST virginia legislature
2023 regular session
Senate Bill 274
By Senator Grady
[Introduced January 18, 2023; referred
to the Committee on Education; and then to the Committee on Finance]
A BILL to amend and reenact §18-2E-10 of the Code of West Virginia, 1931, as amended; to amend and reenact §18-5-18a of said code; to amend and reenact §18-9A-5 of said code; and to amend said code by adding thereto a new section, designated §18A-5-9; all relating to early childhood education in grades pre-kindergarten through three; establishing the Third Grade Success Act; revising Transformative System of Support for Early Literacy to also include numeracy; revising findings; revising inclusions in West Virginia Board of Education rules required to effectuate Transformative System of Support for Early Literacy and Numeracy section; specifying data to be used to inform the classroom teacher’s recommendation on grade level retention; updating deadlines for West Virginia Board of Education reports to the Legislative Oversight Commission on Education Accountability; modifying provisions pertaining to funding for Transformative System of Support for Early Literacy and Numeracy section; requiring retention in the third grade in certain circumstances; specifying exceptions to third grade retention requirement; adding maximum teacher-pupil ratio for pre-kindergarten; adding maximum early childhood classroom assistant teacher-pupil ratio for pre-kindergarten through grade three; phasing in early childhood classroom assistant teacher requirement for grades one through three; removing requirement for survey of districts on class overcrowding and report to the Legislative Oversight Commission on Education Accountability a tailored plan for reducing class overcrowding; phasing in increased ratios of service personnel per 1,000 students for the purpose of determining the basic foundation allowance for service personnel; requiring early childhood classroom assistant teacher to stand in the place of the parent or guardian and exercise such authority and control over students as is required of a teachers within certain specified limitations; prohibiting an early childhood assistant teacher from being required to perform noninstructional duties for an amount of time which exceeds that required under that assistant teacher’s contract of employment or that required of other early childhood classroom assistant teachers in the same school; providing exception; and requiring in-service training for early childhood classroom assistant teachers and classroom teachers in grades pre-kindergarten through three.
Be it enacted by the Legislature of West Virginia:
(a) The Legislature finds that:
(1) In the early learning years, ensuring that each student masters the content and skills needed for mastery at the next grade level is critically important for student success;
(2) Students who do not demonstrate grade-level proficiency in reading by the end of third grade become increasingly less likely to succeed at each successive grade level and often drop out of school prior to graduation;
(3) State board policy requires every school to establish a process for ensuring the developmental and academic progress of all students. This process is to be coordinated by a school student assistance team that reviews student developmental and academic needs that have persisted despite being addressed through instruction, multi-tiered system of support for intervention, and as applicable, supports for personalized learning. Ensuring the developmental and academic success of all students requires every school to implement, in an equitable manner, programs during and after the instructional day at the appropriate instructional levels that contribute to the success of students; and
(4) To ensure that all students read and perform mathematics proficiently by the end of third grade, a statewide comprehensive approach to early literacy and numeracy is required. This approach shall focus on intensive supports during the early learning years which include schools and engaged communities mobilized to remove barriers, expand opportunities, and assist parents in fulfilling their roles and responsibilities to serve as full partners in the success of their children.
(b) The state board shall, in accordance with the provisions of article three-b, chapter twenty-nine-a §29A-3B-1 et seq. of this code, promulgate legislative rules as necessary to effectuate the provisions of this section. The rules shall provide for at least the following:
(1) Development of a statewide comprehensive, systemic approach to close the reading and mathematics achievement gap gaps by third grade, which targets school readiness, the attendance gap, science of reading instruction (phonics, phonemic awareness, vocabulary, fluency, and comprehension), summer learning loss, the use of screeners and/or benchmark assessments in English language arts and mathematics for students in grades K – 3, the use of an early learning reporting system for students in pre-k programs, and a system of support for students exhibiting a substantial reading or mathematics deficiency; transformative intervention framework for student and learning supports;
(2) Ensuring all West Virginia children have access to high-quality early learning experiences that focus on healthy learners as part of the school readiness model, resulting in increased populations of children on target for healthy development prior to entering first grade;
(3) Closing the attendance gap to certify West Virginia children attend school regularly and limit chronic absenteeism in the early grades;
(4) Provide assistance to county boards with the training and implementation of the science of reading training for all K – 5 educators;
(5) (4) Assisting county boards in establishing and operating targeted, sustained extended day and extended year reading and mathematics programs to ensure grade level proficiency and battle summer learning loss;
(6) Establishing an approved list of screeners and/or benchmark assessments in English language arts and mathematics for students in grades K – 3 for the purpose of identifying students with a significant reading and/or mathematics deficiency. The screener and/or benchmark assessments shall be given in the first thirty (30) days of the school year and repeated at mid-year and at the end of the school year to determine student progression in reading and mathematics in kindergarten through third grade.
(7) Maintaining an early learning reporting system to gauge the extent to which students in pre-K programs are progressing toward proficiency in English language arts and mathematics standards.
(8) A kindergarten or first, second, or third-grade student identified with a deficiency in reading and/or mathematics must be provided interventions in reading and/or mathematics through a multi-tiered system of support until the student demonstrates grade level proficiency in reading and/or mathematics as identified by an approved screener, benchmark assessment, or the third grade summative assessment.
(5) (9) Maximizing family engagement to result in the development of a culture of literacy and numeracy from birth through third grade which shall at least include:
(A) Providing parents or guardians with regular updates to inform them of their child’s progress toward proficiency in reading and mathematics;
(B) Ensuring parents or guardians are informed of and have access to resources which they may utilize to improve their child’s literacy and numeracy skills; and
(C) Ensuring the parent or guardian is informed of the importance of their child being able to demonstrate grade level reading and mathematics skills by the end of the third grade and the measures that will be employed pursuant to this section to improve the reading and mathematics skills of children who are not meeting the standards; and
(D) The parent or guardian or any student in kindergarten through grade three who exhibits a deficiency in reading or mathematics at any time during the school year must be notified in writing no later than 15 days after the identification of the deficiency, and the written notification must include the following:
(i) That their student has been identified as having a deficiency in reading and/or mathematics
(ii) A description of the proposed research-based reading and/or mathematics interventions and/or supplemental instructional services and supports that will be provided to the child to address the identified area(s) of deficiency;
(iii) Strategies for the parent or guardian to use at home to help their child succeed in reading and/or mathematics; and
(iv) That if the child’s reading deficiency is not corrected by the end of grade three, the child may not be promoted to grade four unless an exemption is met.
(6) (10) Supporting high-quality schools and a workforce prepared to address early literacy and numeracy by the provision of professional development for administrators, kindergarten, first, second, third, fourth, and fifth grade teachers including but not limited to the following: identification of interventions, and implementation of a system of intervention for children not reaching grade level proficiency
(A) The approved benchmark assessment and/or screener tools to ensure teachers have the knowledge and skill to administer the assessment/screener, analyze the data to inform instruction and identify students exhibiting substantial deficiencies in reading or mathematics;
(B) Comprehensive training on the science of reading and numeracy instruction to ensure all teachers have the knowledge and skill to teach all students to read and perform mathematics at grade level;
(C) Training and materials to inform classroom teachers of the characteristics of dyslexia and dyscalculia in students, components of benchmarks and screeners that may indicate dyslexia or dyscalculia, and strategies for instruction; and
(D) Job-embedded, on-site teacher training on evidence-based reading and mathematics instruction and data-driven decision making that provides immediate feedback for improving instruction.
(7) (11) Ensuring the employment of qualified teachers and service personnel in accordance with the provisions of section thirty-nine, article five of this chapter and section seven-c, article four, chapter eighteen-a §18-5-39 and §18A-4-7c of this code to provide instruction to students enrolled in early literacy and numeracy support programs including but not limited to, ensuring that educator preparation programs prepare candidates seeking licensure for elementary education with training and instruction to:
(A) Include instruction in state adopted grade-level content standards, foundational reading and mathematics skills, and how to implement reading instruction using high-quality instructional materials;
(B) Provide effective instruction and intervention for students with reading and math deficiencies, including students with characteristics of dyslexia or dyscalculia; and
(C) Understand and use student data to make instructional decisions.
(8) (12) Creating a formula or grant-based program for the distribution of funds appropriated specifically for the purposes of this section or otherwise available for the support of a targeted, multi-tiered system of support intervention comprehensive system of support for early literacy and numeracy;
(9) (13) Providing support for transportation and healthy foods for students required to attend after-school and extended year early literacy and numeracy instructional support programs and supervision at the school that accommodates the typical work schedules of parents; and
(10) (14) Receiving from county boards any applications and annual reports required by rule of the state board.
(c) A student in grades kindergarten through grade three who is recommended by the student assistance team or the student's classroom teacher for additional assistance in one or more of the key standards of English Language Arts including reading, speaking and listening, writing or language may shall be required to attend an extended year early literacy and numeracy instructional support program as a condition for promotion if:
(1) The student has been provided additional academic assistance help through interventions offered during the school day in-school or after-school in early literacy and numeracy instructional support program and, prior to the end of the school year, the student assistance team or the student's classroom teacher recommends that further additional academic help is needed for the student to be successful at the next grade level; and
(2) The county board has established an early literacy and numeracy instructional support program during the extended year for the student's grade level.
(d) County boards shall provide high-quality educational facilities, equipment, and services to support early literacy and numeracy instructional support programs established pursuant to this section. Extended year programs may be provided at a central location for kindergarten through third graders who qualify for the program.
(e) This section may not be construed to prohibit a classroom teacher from recommending the grade level retention of a student in any of the grades pre-kindergarten through grade three based upon the student's lack of mastery of the subject matter and preparation for the subject matter at the next grade level. Early learning reporting system, benchmark, and/or screener data shall be used to inform the classroom teacher’s recommendation.
(f) This section may not be construed to affect the individualized education plans of exceptional students.
(g) This section may not be construed to limit the authority of the county board to establish an extended year program in accordance with section thirty-nine, article five of this chapter §18-5-39 of this code. County boards may not charge tuition for enrollment in early literacy and numeracy instructional support programs established pursuant to this section.
(h) Each county board shall prepare to implement the provisions of this section and the provisions of the state board rule required by subsection (b) of this section. The preparations shall at least include planning, ensuring The county board shall establish a process for ensuring the developmental and academic progress of all students through the auspices of student assistance teams as currently required by state board policy and performing perform a needs assessment to determine the potential capacity requirements for the system of support for early learners.
(i) The state board shall provide a report describing the proposed implementation of the transformative system of support for early literacy and numeracy to the Legislative Oversight Commission on Education Accountability on or before July 1, 2014 July 1, 2023.
(j) The state board shall provide a comprehensive report regarding the status of the transformative system of support for literacy and numeracy to the Legislative Oversight Commission on Education Accountability, the Joint Committee on Government and Finance, and the Governor on or before November 1, 2014 November 1, 2023, and annually on or before November 1 on each year thereafter. The report shall address, at a minimum, the progress of the program throughout the state, its effect on student achievement and the sources of the funding both available to and used by the program.
(k) The provisions of this section are subject to the availability of funds from legislative appropriation or other sources specifically designated for the purposes of this section. If a county board determines that adequate funds are not available for full implementation of a transformative system of support for early literacy in the county, the county board may implement its program in phases by first establishing early literacy instructional support programs in the early readiness grades (Kindergarten), then the primary grades (Grades 1-2), and then establishing an early literacy instructional support program for the third grade once Legislative appropriations to the State Board of Education – State Department of Education Elementary Literacy and Numeracy Program shall be used for the implementation of the provisions of this section along with other funds available for providing a high-quality education.
(l) Effective for the school year beginning July 1, 2026, and thereafter, a public school student who generally demonstrates a minimal understanding of, and ability to apply, grade level English language arts knowledge, skills, and abilities, or both, as indicated on the West Virginia General Summative Assessment relative to the West Virginia College and Career Readiness Standards at the end of third grade shall upon the recommendation of the teacher and the student assistance team be retained in the third grade for the ensuing school year subject to the following exceptions:
(1) A student with disabilities whose Individual Education Plan indicates participation in the statewide alternate summative assessment,
(2) A student identified as an English language learner who has had less than three years instruction in English as a second language;
(3) A student with disabilities who participates in the statewide summative assessment, has an Individual Education Plan or section 504 plan that reflects that the student has received intensive intervention for more than two years and still demonstrates a deficiency or who was previously retained in any of the grades kindergarten through grade three;
(4) A student who is in the process of a special education referral or evaluation for placement in special education, has been diagnosed as having a significant impairment, including dyslexia or dyscalculia or is a child with a disability if the student’s individualized education program team and student’s parent or guardian agree that promotion is appropriate based on the student’s Individualized Education Plan;
(5) A student who has received intensive intervention for two or more years, still demonstrates a deficiency and who was previously retained in any of the grades kindergarten through grade three for a total of two years: Provided, That the student shall continue to receive intensive intervention in grade four;
(6) A student who demonstrates an acceptable level of performance on an alternative standardized assessment approved by the State Board;
(7) A student who attends an extended year learning program following the third grade and has attained proficiency; and
(8) A student whose parent or guardian has requested a good cause exemption within the time period established by the county board and the superintendent, or his or her designee, determines that the good cause exemption is in the best interests of the child: Provided, That a good cause exemption may not prohibit the grade level retention of a student by a classroom teacher based upon the student's lack of mastery of the subject matter and preparation for the subject matter at the next grade level.
(a) County boards of education shall provide sufficient personnel, equipment, and facilities as will ensure that each first through sixth grade classroom, or classrooms having two or more grades that include one or more of the first pre-kindergarten through sixth grades shall not have more than 25 pupils for each teacher of the grade or grades and shall not have more than 20 pupils for each kindergarten teacher per session as follows, unless the state superintendent has excepted a specific classroom upon application therefor by a county board as provided in this section:
(1) For pre-kindergarten, not more than 20 pupils for each teacher and one early childhood classroom assistant teacher;
(3) For first, second, and third grades, not more than 25 pupils for each teacher and one early childhood classroom assistant teacher in classrooms with more than 12 pupils: Provided, That the early childhood classroom assistant teacher requirement for classrooms with more than 12 pupils shall not be effective until July 1, 2023 for first grade classrooms, July 1, 2024 for second grade classrooms, and July 1, 2025 for third grade classrooms; and
(5) For grades four, five and six, not more than 25 pupils for each teacher.
(b) County school boards may not maintain a greater number of classrooms having two or more grades that include one or more of the grade levels referred to in this section than were in existence in said county as of January 1, 1983.
(c) The state superintendent is authorized, consistent with sound educational policy, to:
(1) Permit on a statewide basis, in grades four through six, more than 25 pupils per teacher in a classroom for the purposes of instruction in physical education; and
(2) Permit more than 20 pupils per teacher in a specific kindergarten classroom and 25 pupils per teacher in a specific classroom in grades four through six during a school year in the event of extraordinary circumstances as determined by the state superintendent after application by a county board of education.
(d) The state board shall establish guidelines for the exceptions authorized in this section, but in no event shall the superintendent except classrooms having more than three pupils above the pupil-teacher ratio as set forth in this section.
(e) The requirement for approval of an exception to exceed the 20 pupils per kindergarten teacher per session limit or the 25 pupils per teacher limit in grades one four through six is waived in schools where the schoolwide pupil-teacher ratio is 25 or less in grades one four through six: Provided, That a teacher shall not have more than three pupils above the teacher/pupil ratio as set forth in this section. Any kindergarten teacher who has more than 20 pupils per session and any classroom teacher of grades one four through six who has more than 25 pupils, shall be paid additional compensation based on the affected classroom teacher’s average daily salary divided by 20 for kindergarten teachers, or 25 for teachers of grades one four through six, for every day times the number of additional pupils enrolled up to the maximum pupils permitted in the teacher’s classroom. All such additional compensation shall be paid from county funds exclusively.
Notwithstanding any other provision of this section to the contrary, commencing with the school year beginning on July 1, 1994 July 1, 1996, a teacher in grades one, two, or three or classrooms having two or more such grade levels, shall not have more than two pupils above the teacher/pupil ratio as set forth in this section: Provided, That commencing with the school year beginning on July 1, 1995, such teacher shall not have more than one pupil above the teacher/pupil ratio as set forth in this section: Provided, however, That commencing with the school year beginning on July 1, 1996, such teacher shall not have any pupils above the teacher/pupil ratio as set forth in this section.
(f) No provision of this section is intended to limit the number of pupils per teacher in a classroom for the purpose of instruction in choral, band, or orchestra music.
(g) Each school principal shall assign students equitably among the classroom teachers, taking into consideration reasonable differences due to subject areas and/or grade levels.
(h) The state board shall collect from each county board of education information on class size and the number of pupils per teacher for all classes in grades seven through 12. The state board shall report such information to the Legislative Oversight Commission on Education Accountability before January 1, of each year.
(i) The West Virginia Department of Education shall survey districts to determine those grade levels, content areas, and geographic locations where class overcrowding is impeding student achievement and report to the Legislature by July 1, 2020 a tailored plan for reducing class overcrowding in such areas.
The study shall include, but is not limited to, an examination of the following issues:
(1) The effect on student learning of limits on the number of pupils per teacher in a classroom in elementary classes and in a middle and high school format in which students have different teachers for different subject matter instruction;
(2) The effect on the equity among teachers in a middle school in which the number of pupils per teacher in a classroom is limited for some teachers and not for others, including the additional pay for certain teachers in whose classrooms the limits are exceeded; and
(3) The effect limits on the number of pupils per teacher in a classroom have on the ability of school systems to offer elective courses in secondary school
(a) The basic foundation allowance to the county for service personnel shall be the amount of money required to pay the annual state minimum salaries in accordance with the provisions of article four, chapter eighteen-a of this code, to such service personnel employed, subject to the following:
(1) A county shall receive an allowance for state aid eligible service personnel positions per 1,000 students in net enrollment, as follows:
(A) For each high-density county, forty-three and ninety-seven one hundredths 43.97 service personnel per 1,000 students in net enrollment: Provided, That this ratio of service personnel per 1,000 students in net enrollment shall increase to 47.39 beginning July 1, 2023, 50.65 beginning July 1, 2024, and 53.79 beginning July 1, 2025;
(B) For each medium-density county, forty-four and fifty-three one hundredths 44.53 service personnel per 1,000 students in net enrollment: Provided, That this ratio of service personnel per 1,000 students in net enrollment shall increase to 47.95 beginning July 1, 2023, 51.21 beginning July 1, 2024, and 54.35 beginning July 1, 2025;
(C) For each low-density county, forty-five and one tenth 45.10 service personnel per 1,000 students in net enrollment: Provided, That this ratio of service personnel per 1,000 students in net enrollment shall increase to 48.52 beginning July 1, 2023, 51.78 beginning July 1, 2024, and 54.92 beginning July 1, 2025;
(D) For each sparse-density county, forty-five and sixty-eight one hundredths 45.68 service personnel per 1,000 students in net enrollment: Provided, That this ratio of service personnel per 1,000 students in net enrollment shall increase to 49.10 beginning July 1, 2023, 52.36 beginning July 1, 2024, and 55.50 beginning July 1, 2025; and
(E) For any service personnel positions, or fraction thereof, determined for a county pursuant to subdivision (1) of this subsection that exceed the number employed, the county’s allowance for these positions shall be determined using the average state funded minimum salary of service personnel for the county;
(2) The number of and the allowance for personnel paid in part by state and county funds shall be prorated; and
(3) Where two or more counties join together in support of a vocational or comprehensive high school or any other program or service, the service personnel for the school or program may be prorated among the participating counties on the basis of each one’s enrollment therein and that the personnel shall be considered within the above-stated limit.
(a) Within the limitations provided in this section, an early childhood classroom assistant teacher shall stand in the place of the parent or guardian and shall exercise such authority and control over students as is required of a teacher as provided in section one of this article. The principal shall enumerate the instances in which the authority shall be exercised by an early childhood classroom assistant teacher when requested by the principal, assistant principal, or professional employee to whom the assistant teacher is assigned.
(b) The authority provided for in subsection (a) of this section does not extend to suspending or expelling any student, participating in the administration of corporal punishment or performing instructional duties as a teacher or substitute teacher.
(c) An early childhood classroom assistant teacher may not be required by the operation of this section to perform noninstructional duties for an amount of time which exceeds that required under the assistant teacher’s contract of employment or that required of other early childhood classroom assistant teachers in the same school unless the assignment of the duties is mutually agreed upon by the assistant teacher and the county superintendent, or the superintendent’s designated representative, subject to county board approval.
(1) The terms and conditions of the agreement shall be in writing, signed by both parties, and may include additional benefits.
(2) The agreement shall be uniform as to early childhood classroom assistant teachers assigned similar duties for similar amounts of time within the same school.
(d) The county board shall provide in-service training for early childhood classroom assistant teachers specifically related to literacy, numeracy, and their responsibilities and appropriate measures for exercising authority and control over students as required under this section.
(e) The county board shall provide in-service training for classroom teachers in grades pre-k through three to help the classroom teachers gain a strong understanding of how to best utilize the early childhood classroom assistant teachers during classroom instruction and during other periods of the day.
NOTE: The purpose of this bill is to provide early childhood classroom assistant teachers and systems of support to help students achieve grade level literacy and numeracy by end of third grade. The bill replaces a transformative intervention framework with multi-tiered system of support addressing both reading and mathematics. It includes the use of screening and/or benchmark assessments approved by the State Board to be administered three times throughout the school year. The bill specifies the services to be provided to students who exhibit substantial deficiencies on the screening and /or benchmark assessment and the information and notice to the parent or guardian. It requires professional development for the teachers and the training and instruction be provided by education preparation programs that prepare candidates seeking licensure for elementary education. The bill requires the retention in third grade of public-school students who demonstrate minimal grade level understanding and ability in English language arts upon recommendation of teacher and student assistance team, with exceptions. Students starting in the fourth grade who score below proficient in English language arts or mathematics on general summative assessment will continue to be provided intervention until they are grade level proficient.
Finally, the bill phases in a requirement for an early childhood classroom assistant teacher in first, second, and third grade classrooms that have more than 12 pupils. Note that requirements currently exist in State Board Policy 2510 for pre-kindergarten and kindergarten classrooms with more than 10 pupils to have an early childhood classroom assistant teacher and these provisions would be added to the statute in this bill. The school aid formula allowance for service personnel is amended to phase in an increase in the number of state funded positions per 1,000 students in net enrollment to provide state funding for the added positions. A new section of code is added which requires early childhood classroom assistant teachers to exercise authority and control over students such as required of a teacher, but only in instances enumerated by the principal and excluding suspensions, expulsions, and performing instructional duties as a teacher.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.