ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.

§18-20-1. Establishment of special programs and teaching services for exceptional children; modified diploma graduation.

(a) In accordance with the following provisions, county boards of education throughout the state shall establish and maintain for all exceptional children between five and twenty-one years of age special educational programs, including, but not limited to, special schools or classes, regular classroom programs, home-teaching or visiting-teacher services for any type or classification as the state board shall approve. Special educational programs shall continue to be provided to those children who are at least twenty-one years of age and enrolled in the above-mentioned special education program prior to September 1, 1991, until they reach twenty-three years of age. Provisions shall be made for educating exceptional children (including the handicapped and the gifted) who differ from the average or normal in physical, mental or emotional characteristics, or in communicative or intellectual deviation characteristics, or in both communicative and intellectual deviation characteristics, to the extent that they cannot be educated safely or profitably in the regular classes of the public schools or to the extent that they need special educational provisions within the regular classroom in order to educate them in accordance with their capacities, limitations and needs: Provided, That for the school year beginning on July 1, 1990, provisions shall be made for educating exceptional children, including the handicapped, the gifted in grades one through eight, the pupils enrolled on July 1, 1989, in the gifted program in grades nine through twelve and the exceptional gifted in grades nine through twelve. The term "exceptional gifted" means those students in grades nine through twelve identified as gifted and at least one of the following: Behavior disorder, specific learning disabilities, psychological adjustment disorder, underachieving or economically disadvantaged. Exceptional gifted children shall be referred for identification pursuant to recommendation by a school psychologist, school counselor, principal, teacher, parent or by self-referral, at which time the placement process, including development of an individualized education program, and attendant due-process rights, shall commence. Exceptional gifted children, for purposes of calculating adjusted enrollment pursuant to section two, article nine-a of this chapter, shall not exceed one percent of net enrollment in grades nine through twelve. Nothing herein shall be construed to limit the number of students identified as exceptional gifted and who receive appropriate services. Each county board of education is mandated to provide gifted education to its students according to guidelines promulgated by the state board and consistent with the provisions of this chapter. Upon the recommendation of a principal, counselor, teacher and parent, a student who does not meet the gifted eligibility criteria may participate in any school program deemed appropriate for the student provided that classroom space is available. In addition, county boards of education may establish and maintain other educational services for exceptional children as the State Superintendent of Schools may approve.

(b) County boards of education shall establish and maintain these special educational programs, including, but not limited to, special schools classes, regular class programs, home-teaching and visiting-teacher services. The special education programs shall include home-teaching or visiting-teacher services for children who are homebound due to injury or who for any other reason as certified by a licensed physician are homebound for a period that has lasted or will last more than three weeks. The state board shall adopt rules to advance and accomplish this program and to assure that all exceptional children in the state, including children in mental health facilities, residential institutions and private schools, will receive an education in accordance with the mandates of state and federal laws: Provided, That commencing with the school year beginning on July 1, 1991, all exceptional children in the state in foster care and correctional facilities will receive an education in accordance with the mandates of state and federal laws.

(c) Each county board of education shall adopt a policy that allows a student with disabilities whose individualized education program provides for a modified diploma to participate in the graduation ceremony of his or her same grade classmates if requested in writing by his or her parent or legal guardian. The county board shall also permit the student to continue receiving his or her special education services after the graduation ceremony. The county board may not terminate, deny or declare the student ineligible for post-graduation ceremony special education services due to his or her participation in the graduation ceremony.

§18-20-1a. Preschool programs for severely disabled children; rules and regulations.

(a) During the school year beginning on July 1, 1985, each county board of education shall develop a coordinated service delivery plan in accordance with standards for preschool programs for severely disabled children to be developed by the State Board of Education and begin services where plans are already developed.

(b) Only in any year in which funds are made available by legislative appropriation, and only to the extent of such funding, each county board of education shall establish and maintain a special educational program, including, but not limited to, special classes and home-teaching and visiting-teacher services for all severely disabled children between the ages of three and five according to the following schedule:

(1) By the school year beginning on July 1, 1986, and thereafter, for severely disabled children who are age four before September 1, 1986;

(2) By the school year beginning on July 1, 1987, and thereafter, for severely disabled children who are age three before September 1, 1987.

As used in this section, the term "severely disabled children" means those children who fall in any one of the following categories as defined or to be defined in the State Board of Education standards for the education of exceptional children: Severe behavioral disorders, severely speech and language impaired, deaf-blind, deafness or hearing difficulties, autistic, physically handicapped, disabled profoundly intellectually disabled, trainable intellectually disabled or visually impaired.

Before August 1, 1985, the State Board of Education shall adopt rules and regulations to advance and accomplish this program and to assure that an appropriate educational program is available to all such children in the state, including children in mental health facilities, residential institutions and private schools.

This section does not prevent county boards of education from providing special education programs, including, but not limited to, special schools, classes, regular class programs and home-teaching or visiting-teacher services for severely disabled preschool children prior to such times as are required by this section. In addition, county boards of education may provide these services to preschool exceptional children in disability categories other than those listed above.

§18-20-1b. Preschool programs for handicapped children; rules and regulations.

(a) During the school year beginning on July 1, 1991, each county board of education shall develop a coordinated service delivery plan in accordance with standards for preschool programs for handicapped children to be developed by the State Board of Education and begin services where plans are already developed.

(b) Each county board of education shall establish and maintain special education programs, including, but not limited to, special classes, regular classes and home-teaching and visiting-teacher services for all handicapped children ages three through five, inclusive.

As used in this section, the term "handicapped children" means those children who fall in any one of the following categories as defined or to be defined in the State Board of Education standards for the education of exceptional children: Severe behavioral disorders, communication disordered, deaf-blind, developmentally delayed, deaf or hard of hearing, other health impaired including autism, physically handicapped, mentally impaired or visually impaired.

Before August 1, 1991, the State Board of Education shall adopt rules to advance and accomplish this program and to assure that an appropriate educational program is available to all such children in the state, including children in mental health facilities, residential institutions, foster care, correctional facilities and private schools.

This section does not prevent county boards of education from providing special education programs, including, but not limited to, special schools or classes, regular class programs and home-teaching or visiting-teacher services for severely handicapped preschool children prior to such times as are required by this section.

§18-20-1c. Integrated classrooms serving students with exceptional needs; and requirements as to the assistance, training and information to be provided to the affected classroom teacher.

(a) The regular classroom teacher is entitled to the following when placing a student with exceptional needs into an integrated classroom when the student's individualized education program requires an adjustment in either the curriculum, instruction or service to be provided by the regular classroom teacher:

(1) Training provided pursuant to the integrated classroom program and additional individualized training, pursuant to the rules developed by the State Board of Education, if requested by the regular classroom teacher to prepare the teacher to meet the exceptional needs of individual students. Whenever possible, the training shall be provided prior to the placement. Where prior training is not possible, the training shall be commenced no later than ten days following the placement of the student into the regular classroom. Unavoidable delays in the provision of training may not result in the exclusion of a special needs student from any class if the training cannot be provided in ten days;

(2) A signed copy of the individualized education program for the special education student prior to the placement of the student into the regular classroom. The receiving and referring teachers shall participate in the development of that student's individualized education program and shall also sign the individualized education program as developed. In all cases the teacher shall receive a copy of the individualized education program for the special education student prior to or at the time of the placement of the student into the regular classroom. Any teacher disagreeing with the individualized education program committee's recommendation shall file a written explanation outlining his or her disagreement or recommendation;

(3) Participation by referring teachers in all eligibility committees and participation by referring and receiving teachers in all individualized education program committees which involve possible placement of an exceptional student in an integrated classroom;

(4) Opportunity to reconvene the committee responsible for the individualized education program of the student with special needs assigned to the regular classroom teacher. The meeting shall include all persons involved in a student's individualized education program and shall be held within twenty-one days of the time the request is made; and

(5) Assistance from persons trained or certified to deal with a student's exceptional needs whenever assistance is part of the student's individualized education program as necessary to promote accomplishment of the program's goals and objectives: Provided, That aides in the area of special education cannot be reassigned to more than one school without the employee's consent.

(b) Except teachers already required to participate in the development of a student's individualized education program and sign it as provided in subdivision (2) of this section, all other teachers in whose class or program a student with exceptional needs is enrolled shall:

(1) Participate in the meeting to develop the student's individualized education program, or read and sign a copy of the student's individualized education program plan acknowledging that he or she has read and understands it; and

(2) Make accommodations and modifications for the student, if needed or identified, to help the student succeed in the class or program.

This requirement includes, but is not limited to, teachers of music, musical education, art, driver education and other instruction offered.

§18-20-1d. Adoption of a state model for individualized education program.

The state board shall adopt a basic model for individualized education programs to be used by all special education teachers throughout the public schools of the state when preparing individualized education programs for students with exceptional needs.

The model shall comply with, but may not exceed, all state laws and federal laws, policies, rules, and regulations relating to providing education services to students with exceptional needs and shall include instructions for adapting the model to specific exceptionalities.

No professional educator may be required to prepare or implement an individualized education program which exceeds the requirements of federal and state laws, policies, rules or regulations.

§18-20-2. Providing suitable educational facilities, equipment and services.

(a) Each county board shall provide suitable educational facilities, special equipment and special services that are necessary. Special services include provisions and procedures for finding and enumerating exceptional children of each type, diagnosis by appropriate specialists who will certify the child's need and eligibility for special education and make recommendations for treatment and prosthesis as may alleviate the disability, special teaching by qualified and specially trained teachers, transportation, lunches and remedial therapeutic services. Qualifications of teachers and therapists shall be in accordance with standards prescribed or approved by the state board.

(b) A county board may provide for educating resident exceptional children by contracting with other counties or other educational agencies which maintain special education facilities. Fiscal matters shall follow policies approved by the state board.

(c) The county board shall provide a four-clock-hour program of training for any teacher aide employed to assist teachers in providing services to exceptional children under this article prior to the assignment. The program shall consist of training in areas specifically related to the education of exceptional children, pursuant to rules of the state board. The training shall occur during normal working hours and an opportunity to be trained shall be provided to a service person prior to filling a vacancy in accordance with the provisions of section eight-b, article four, chapter eighteen-a of this code.

(d) The county board annually shall make available during normal working hours to all regularly employed teachers' aides twelve hours of training that satisfies the continuing education requirements for the aides regarding:

(1) Providing services to children who have displayed violent behavior or have demonstrated the potential for violent behavior; and

(2) Providing services to children diagnosed as autistic or with autism spectrum disorder. This training shall be structured to permit the employee to qualify as an autism mentor after a minimum of four years of training. The county board shall:

(A) Notify in writing all teachers' aides of the location, date and time when training will be offered for qualification as an autism mentor; and

(B) Reimburse any regularly employed or substitute teacher's aide who elects to attend this training for one half of the cost of the tuition.

(e) For any student whose individualized education plan (IEP) or education plan established pursuant to Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794, requires the services of a sign support specialist or an educational sign language interpreter I or II:

(1) Any educational sign language interpreter I or II assigned to assist that student is a related service provider member of the education team who participates in IEP meetings and works with the team to implement the IEP;

(2) A sign support specialist may be assigned to a student with an exceptionality other than deaf or hard of hearing if it is determined that the student needs signs to support his or her expressive communication; and

(3) A sign support specialist may be assigned to a student who is deaf or hard of hearing in lieu of an interpreter only if an educational sign language interpreter I or II is unavailable, and the sign support specialist is executing a professional development plan while actively seeking certification as an educational sign language interpreter I or II. After two years the sign support specialist may remain in the assignment only if an educational sign language interpreter I or II remains unavailable, and with an approved waiver by the West Virginia Department of Education. An employee in this situation is entitled to full payment of the costs of certification acquisition or renewal pursuant to the certification renewal provisions of section four, article two, chapter eighteen-a of this code.

(f) Every teacher of a student for whom a school or county board of education prepares a plan of accommodation pursuant to Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794, shall receive specific instruction from the school regarding the contents and requirements of the plan and, if the plan is prepared in writing, the teacher shall receive a copy of the written plan and every update thereto and the teacher shall sign an acknowledgment of receipt of each plan and update.

§18-20-3. County reports.

Each county shall, after having received from the faculty Senates in its schools the strategic plans mandated by subsection (13), section five, article five-a of this chapter, develop a county strategic plan to manage the integration of special needs students into the regular classroom and submit said strategic plan to the State Superintendent of Schools prior to October 1, 1995.

Counties maintaining special schools, classes, regular class programs, integrated classroom strategic plans and training related to integrated education, basic and specialized health care procedures including the administration of medications, home-teaching or visiting services and receiving or requesting reimbursement from state appropriated funds shall file with the State Superintendent of Schools on forms supplied by his office, applications, annual reports and such other reports as he may require.

§18-20-4. Examination and report by medical or other specialists.

Each child prior to enrolling in a special education program shall be examined by an appropriate medical specialist, psychologist or educational specialist (reading specialist, speech and language clinician, or other specialists as required by the state Board of Education for specific areas of exceptionality) who shall report to the county superintendent of schools. The specialists' report shall carry recommendation for eligibility and placement in regular school or in the special education facility, indicate the nature and extent of disability, and advise with reference to treatment and prosthesis for alleviating the child's disability.

No educationally exceptional child shall be excluded from attending public or other suitable schools.

§18-20-5. Powers and duties of state superintendent.

(a) The State Superintendent of Schools shall organize, promote, administer and be responsible for:

(1) Stimulating and assisting county boards of education in establishing, organizing and maintaining special schools, classes, regular class programs, home-teaching and visiting-teacher services for exceptional children.

(2) Cooperating with all other public and private agencies engaged in relieving, caring for, curing, educating and rehabilitating exceptional children, and in helping coordinate the services of such agencies.

(3) (A) Preparing the necessary rules, policies, and formulas for distribution of available appropriated funds, reporting forms and procedures necessary to define minimum standards in providing suitable facilities for education of exceptional children and ensuring the employment, certification and approval of qualified teachers and therapists subject to approval by the State Board of Education: Provided, That no state rule, policy or standard under this article or any county board rule, policy or standard governing special education may exceed the requirements of federal law or regulation.

(B) A separate appropriation shall be made to the Department of Education to be disbursed to county boards and public charter schools authorized pursuant to §18-5G-1 et seq. of this code to assist them with serving exceptional children with high cost/high acuity special needs that exceed the capacity of county to provide with funds available. Each county board and public charter school shall apply to the state superintendent to receive this funding in a manner set forth by the state superintendent that assesses and takes into account varying acuity levels of the exceptional students. Any remaining funds at the end of a fiscal year from the appropriation shall be carried over to the next fiscal year. When possible, federal funds shall be disbursed to county boards and public charter schools for this purpose before any of the state appropriation is disbursed. The state board shall promulgate a rule in accordance with the provisions of §29A-3B-1 et seq. of this code that implements the provisions of this subdivision relating to disbursing the funds to the county boards and public charter schools. The rule at least shall include a definition for "children with high acuity needs".

(4) Receiving from county boards and public charter schools, their applications, annual reports and claims for reimbursement from such moneys as are appropriated by the Legislature, auditing such claims, and preparing vouchers to reimburse said counties the amounts reimbursable to them.

(5) Assuring that all exceptional children in the state, including children in mental health facilities, residential institutions, private schools and correctional facilities as provided in §18-2-13f of this code receive an education in accordance with state and federal laws: Provided, That the state superintendent shall also assure that adults in correctional facilities and regional jails receive an education to the extent funds are provided therefor.

(6) Performing other duties and assuming other responsibilities in connection with this program as needed.

(b) Nothing contained in this section shall be construed to prevent any county board of education from establishing and maintaining special schools, classes, regular class programs, home-teaching or visiting-teacher services for exceptional children out of funds available from local revenue.

§18-20-6. Advisory council for the education of exceptional children.

There shall be an advisory council for the education of exceptional children which shall advise and consult with the state Board of Education on matters pertinent thereto. The advisory council shall be composed of twelve members appointed by the state superintendent of free schools, four of which shall be parents of exceptional children utilizing or eligible for the services of the special educational programs established hereunder. Other members of the advisory council shall include at least one handicapped individual, teacher of exceptional children, state education official, local education official, and an administrator of programs for exceptional children. No more than two officers and employees of the state may be eligible for appointment to the advisory council. Members shall be appointed for terms of three years except for initial terms which may be for one, two or three years. Each year the terms of office of one third of the advisory council shall expire. The members of the advisory council shall be citizens and residents of this state, who by reason of their training, education or experience are qualified to carry out the functions of the advisory council under this article.

The first term of office for the newly appointed members shall begin June 30, 1978.

At its first meeting, to be held the second Wednesday in July, 1978, the advisory council shall elect a chairman from among its members, who shall preside over its meetings until the second Wednesday in July of the next year. Thereafter, the advisory council shall elect a chairman on the second Wednesday in May of each year.

All members shall be eligible for reappointment. A member shall, unless sooner removed, continue to serve until his term expires and his successor has been appointed and has qualified. A vacancy caused by the death, resignation or removal of a member prior to the expiration of his term shall be filled only for the remainder of such term.

For the purpose of carrying out its functions under this article, six members of the advisory council shall constitute a quorum. The advisory council shall meet at least four times each year at least two of which shall be held at a building in the State Capitol complex and at a time designated by the chairman. Additional meetings may be held when called by the chairman or when requested by six members of the advisory council.

The time and place of all meetings and agenda items must be publicly announced and available to the public upon request at least ten days prior to the meeting, and meetings must be open to the public. Official minutes must be kept of all council meetings and shall be made available to the public upon request.

Members of the council shall not receive any compensation for their services on the council, but shall be reimbursed any actual expenses incurred by them in carrying out their duties from funds appropriated to the Department of Education.

The council shall:

(a) Consult with the state Board of Education concerning and comment publicly upon any rules and regulations formulated by such board regarding the education of handicapped children;

(b) Consult with and advise the state board and superintendent and the Legislature concerning any problems presented to the council including unmet needs within the state in the education of handicapped children;

(c) Hold public meetings at such times and places as the advisory council deems appropriate;

(d) Periodically review and comment publicly upon the state plan for special programs and make any recommendations it may have concerning changes it may deem proper. By July 1, of each year, the advisory council shall submit an annual report of its activities and suggestions to the state Board of Education and the superintendent, and shall make such report available to the public.

§18-20-7. Exceptional children program compliance review teams.

The state board shall establish exceptional children program compliance review teams to conduct random unannounced on-site reviews of such programs at least every four years in each county for the purpose of reviewing identification procedures, complying with any or all applicable laws and policies, delivering services, verifying enrollment and attendance reports, recommending changes, and fulfilling such other duties as may be established by the state board.

Each review team unit shall consist of five members including one member of an exceptional children advocacy group who is not an employee of any county or state government agency, one teacher of exceptional children in the specific category or categories to be reviewed, one person certified to interpret psycho-educational assessments, one school finance official and one financial Auditor who shall not be an employee of any county board, all appointed by the state superintendent.

§18-20-8. Interagency plan for exceptional children; advisory council.

(a) The state departments of health, human services and education shall enter into a collaborative agreement for the purpose of developing a statewide plan of coordinating comprehensive, multidisciplinary interagency programs providing appropriate early intervention services to all developmentally delayed and at-risk children, ages birth through five years, and their families to be phased in by the school year 1990-99.

This comprehensive, coordinated statewide plan shall include, at a minimum:

(1) Specification of the population to be served;

(2) The development of regulations and procedural safeguards;

(3) The development of procedures for administration, supervision and monitoring;

(4) The identification and coordination of all available resources; and

(5) The development of formal interagency agreements that define the financial responsibility of each agency and all additional components necessary to ensure meaningful cooperation and coordination.

(b) To assist in the development of such a plan, an advisory council consisting of twelve members shall be created. The departments of health, human services and education shall each appoint four members, and each shall include in such appointments one parent of an exceptional child under the age of six; one public or private provider of early intervention services for developmentally delayed and at-risk children; one individual involved in the education training of personnel who work with preschool handicapped; and one other person.

The functions of the council shall include the following:

(1) Meet at least quarterly;

(2) Solicit information and opinions from concerned agencies, groups and individuals; and

(3) Advise and assist the departments of health, human services and education in the development of the statewide plan herein required.

Following the submission of the advisory council’s first annual report, the joint committee on education is authorized and empowered to disband the council or alter its functions as it deems advisable.

The members of the council may be reimbursed for actual and necessary expenses incurred in the performance of their official duties in accordance with state law from appropriations to the departments of health, human services and education or available federal funds.

§18-20-9. Gifted education caseload review.

Notwithstanding any other provision of this code to the contrary, the teacher-student ratio for gifted, honors, and advanced placement education in grades nine through twelve shall be the same as regular classroom education and not as required for special education of exceptional children: Provided, That this shall not apply to education of exceptional gifted, as defined in section one, article twenty of this chapter. The state board shall review class sizes and enrollment percentages of students in gifted, exceptional gifted, honors, and advanced placement programs in grades nine through twelve and report its findings to the standing education committees of the Senate and House of Delegates by January 10, 1991.

§18-20-10. Dyslexia and dyscalculia defined.

(a) The Legislature finds as follows:

(1) Reading difficulties are the most common cause of academic failure and underachievement;

(2) There are many students who demonstrate significant weaknesses with reading, writing and mathematics that are influenced by specific learning disabilities, including dyslexia, dyscalculia, and related learning difficulties. Of those who are referred to special education services in public schools, the majority are referred because of problems with language, reading, writing, or a combination of each;

(3) Teaching reading effectively, especially to students experiencing difficulty, requires considerable knowledge and skill. Informed and effective classroom instruction, especially in the early grades, can prevent and relieve the severity of language difficulties, and significantly improve literacy development;

(4) For those students with specific learning disabilities, including dyslexia and dyscalculia, who need specialized instruction, competent intervention can lessen the impact of the disorder and help the student overcome the most debilitating symptoms;

(5) While programs for specific learning disabilities, including dyslexia and dyscalculia, that certify or support teachers, clinicians or specialists differ in their preparation methodologies, teaching approaches and organizational purposes, they should ascribe to a common set of professional standards for the benefit of the students they serve. Compliance with such standards can assure the public that individuals who serve students with specific learning disabilities in public schools are prepared to implement scientifically based and clinically proven practices;

(6) The International Dyslexia Association (IDA) offers widely-adopted and consistent standards to guide the preparation, certification, and professional development for teachers of reading and related literacy skills in classroom, remedial and clinical settings; and

(7) The basis of ascribing to common standards to benefit students with specific learning disabilities, including dyslexia and dyscalculia, requires recognizing common characteristics of the disabilities. The Legislature finds that the definitions of dyslexia and dyscalculia prescribed by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR) are the appropriate measures for recognizing characteristics of dyslexia and dyscalculia in students.

(b) The Legislature recognizes the following regarding dyslexia and dyscalculia:

(1) Dyslexia and dyscalculia are conditions that may be considered under the specific learning disability category, and their definitions are consistent with IDEA and state board policy. State board policy provides that "specific learning disability" means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia;

(2) Dyslexia is an alternative term used to refer to a pattern of learning difficulties characterized by problems with accurate or fluent word recognition, poor decoding, and poor spelling abilities. If dyslexia is used to specify this particular pattern of difficulties, it is important also to specify any additional difficulties that are present, such as difficulties with reading comprehension or math reasoning; and

(3) Dyscalculia is an alternative term used to refer to a pattern of learning difficulties characterized by problems processing numerical information, learning arithmetic facts, and performing accurate or fluent calculations. If dyscalculia is used to specify this particular pattern of mathematic difficulties, it is important also to specify any additional difficulties that are present, such as difficulties with math reasoning or word reasoning accuracy.

(c) The state board shall:

(1) Develop a list of appropriate screeners, early assessments, and professional development that address and ensure that all students receive the necessary and appropriate screenings, evaluations, and early assessments for specific learning disabilities, including dyslexia and dyscalculia which contain information related to the following:

(A) Appropriate literacy and numeracy screening tools for identifying students who are at risk for academic difficulty in reading and/or math, including dyslexia and dyscalculia, and who require tiered intervention;

(B) Appropriate diagnostic assessment components that can be used to help identify and diagnose;

(C) Appropriate evidence-based instruction and intervention strategies for students who are at risk for academic difficulty in reading and/or mathematics, including students who exhibit possible indicators of risk for dyslexia and/or dyscalculia;

(D) Appropriate accommodations for students who exhibit possible indicators of risk for, or who have been diagnosed with, dyslexia, dyscalculia, and/or other specific learning disabilities;

(E) Connecting a multi-tiered system of support framework to specific learning disability identification; and

(F) The use of the terms “dyslexia” and “dyscalculia” in Individualized Education Programs, and in evaluation reports by professionals qualified to render these diagnoses; and

(2) Explore options to assist any LEA with acquiring approved literacy and/or numeracy screening tools: Provided, That the local educational agency is unable to acquire its own literacy and/or numeracy screening tools that are consistent with state educational agency recommendations;

(3) Adopt and make publicly available guidelines for including dyslexia diagnostic evaluation components in comprehensive assessments for special education and related services. These guidelines shall:

(A) Recommend at least one person on each multidisciplinary evaluation team be knowledgeable about dyslexia and be able to recognize when a dyslexia diagnostic component should be requested in the evaluation process;

(B) Recommend that a diagnosis of dyslexia be given when the data from the comprehensive evaluation components indicate such a diagnosis is appropriate;

(C) Include recommendations for how to document a dyslexia diagnosis in an IEP; and

(D) Include that a Section 504 Plan be considered if a student has a dyslexia diagnosis but does not qualify for special education services;

(4) Adopt and make publicly available a list of approved diagnostic assessment components that can be used to help identify and diagnose dyslexia during comprehensive multidisciplinary evaluations;

(5) Adopt and make publicly available guidelines and a list of resources for dyslexia intervention practices that are evidence-based, including practices consistent with the Science of Reading and Structured Literacy, that are explicit, direct, sequential, systematic, and multisensory;

(6) Adopt and make publicly available a list of recommended accommodations and instructional practices to be used with students who exhibit signs of dyslexia or have been diagnosed with dyslexia. These shall reflect contemporary research and guidelines of the Science of Reading related to dyslexia. These recommendations shall include, but are not limited to, structured literacy approaches that are explicit, direct, sequential, systematic, and multisensory;

(7) Adopt and make publicly available a list of available professional development resources that support evidence-based intervention for struggling readers, including the Science of Reading and Structured Literacy. This list shall be made publicly available and include resources endorsed or espoused by technical assistance centers, research organizations, and professional associations that support the Science of Reading and Structured Literacy regarding dyslexia, including the International Dyslexia Association; and

(8) Develop and make publicly available informational materials related to dyslexia for parents and guardians that include information about the multidisciplinary evaluation process, updated regularly.

(d) The local education agency shall:

(1) Develop a system for parents and guardians to annually receive digital and print informational materials related to dyslexia;

(2) Ensure at least one educator at each school is trained to administer, score, and interpret the data from the literacy screening instrument or instruments, and to recognize signs of dyslexia;

(3) Notify parents of the results of these literacy screeners while emphasizing that not all students who perform poorly on these screening instruments have dyslexia. Also, not all students with dyslexia will perform poorly on the screeners;

(4) Provide evidence-based reading intervention to students who exhibit academic risk in future reading performance, including indicators of dyslexia;

(5) Conduct comprehensive assessments to determine eligibility for special education services when a child does not respond or only minimally responds to intervention strategies and/or when there is a suspected disability of dyslexia. If a determination is made through the evaluation process that a student needs assessed for dyslexia, provide assessment and diagnosis as necessary per West Virginia Department of Education guidelines;

(6) Employ appropriate accommodations and instructional practices recommended by the West Virginia Department of Education based upon the students’ needs. When those needs are related to dyslexia, these accommodations and instructional techniques or strategies shall also meet the West Virginia Department of Education-approved guidelines for dyslexia accommodations and instructional practices;

(7) Require all elementary educators, special educators, reading interventionists or specialists, and other personnel determined appropriate by the local education agency to receive professional development on the possible signs of dyslexia and the related classroom accommodations and instructional practices approved by the West Virginia Department of Education;

(8) Administer a literacy screening instrument or instruments to students in grades 3-5 who transfer from a local education agency where literacy screening instruments were not administered. If the literacy screening instrument indicates a deficit in reading, the school will provide intervention according to current policy. If a student does not respond or only minimally responds to intervention, a referral for multidisciplinary evaluation shall be made; and

(9) Require all appropriate personnel, as determined by the local education agency, to annually receive professional development relating to the possible indicators for dyslexia and dyscalculia, accommodations and modifications in the classroom environment, proper instructional practices for educating students who exhibit possible indicators of risk for, or who have been, diagnosed with dyslexia, dyscalculia, and/or other specific learning disabilities. Local education agencies may create more than one module to satisfy the requirements of this subdivision.

(e) The state board shall promulgate a rule pursuant to §29A-3B-1 et seq. of this code to implement this section. In addition to other provisions to implement this section, the rule shall at least include the following:

(1) If a student is reading substantially below grade level according to formal and/or informal assessments, including benchmark assessments, and has never been evaluated for special education, a request may be made by a school, parent, or teacher for the administration of an age- or grade-appropriate West Virginia Department of Education-approved literacy screening instrument or instruments. These points of data may be used to either start intervention and progress monitoring per West Virginia Department of Education guidance, or make a referral for a special education evaluation;

(2) Acknowledgement that each local education agency may have one certified Literacy and Numeracy Specialist in each local education agency, or another appropriate professional designated by relevant local education agency leadership, to be appropriately trained, or be seeking appropriate training, in intervention, accommodations, and instructional strategies for students with dyslexia or a related disorder. The trained individual(s) shall serve as an advisor and trainer for dyslexia and related disorders for the local education agency. The reading specialist(s) or other designated professional(s) shall have an understanding of the definition of dyslexia and a working knowledge of:

(A) Techniques to help a student on the continuum of skills with dyslexia;

(B) Dyslexia characteristics that may manifest at different ages and levels;

(C) The basic foundation of the keys to reading, including multisensory, explicit, systematic, and structured literacy instruction; and

(D) Appropriate interventions, accommodations, and assistive technology supports for students with dyslexia.

(f) Legislative Oversight Commission on Education Accountability (LOCEA):

(1) The final draft of the state board’s literacy and numeracy rule shall be submitted to the Legislative Oversight Commission on Education Accountability (LOCEA) by August 1, 2023.

(2) The following shall be submitted to the Legislative Oversight Commission on Education

Accountability (LOCEA) annually:

(A) Disaggregated data concerning literacy and numeracy patterns statewide;

(B) Statewide interventions implemented; and

(C) The statewide professional development plan.

(3) Progress monitoring regarding K-2 screening and 3-8 formative assessments shall be presented to the Legislative Oversight Commission on Education Accountability (LOCEA) after data is collected for the beginning, middle, and end of the school year.

§18-20-11. Video cameras required in certain special education classrooms.

(a) A county board of education shall ensure placement of video cameras in self-contained classrooms and audio recording devices in the restrooms of self-contained classrooms as defined in state board policy.

(b) As used in this section:

(1) "Incident" means a raised suspicion by a teacher, aide, parent, or guardian of a child, of bullying, abuse, or neglect of a child or of harm to an employee of a public school by:

(A) An employee of a public school or school district; or

(B) Another student;

(2) "Self-contained classroom" means a classroom at a public school in which a majority of the students in regular attendance are provided special education instruction and as further defined in state board policy; and

(3) "Special education" means the same as defined in §18-20-1 et seq. of this code.

(c) (1) A county board of education shall provide a video camera to a public school for each self-contained classroom that is a part of that school which shall be used in every self-contained classroom.

(2) Prior to August 1, 2023, a county board of education shall provide an audio recording device to a public school to be used in the restroom of each self-contained classroom that is a part of that school. If the public school is not able to receive the audio recording device by August 1, 2023, the public school may apply to the state Department of Education for a waiver to extend that date to August 1, 2024.

(3) The principal of the school or other school administrator whom the principal assigns as a designee shall be the custodian of the video camera and audio recording device, all recordings generated by the video camera and audio recording device, and access to those recordings pursuant to this section.

(d)(1) Every public school that receives a video camera under this section shall operate and maintain the video camera in every self-contained classroom that is part of that school.

(2) Every public school that receives an audio recording device under this section shall operate and maintain the audio recording device in every restroom that is a part of a self-contained classroom that is part of that school: Provided, That each restroom of a self-contained classroom shall have posted on its door a notice that states: "Pursuant to state law, this restroom is equipped with an audio recording device for the protection of the students."

  (3) If there is an interruption in the operation of the video camera or audio recording device for any reason, a written explanation should be submitted to the school principal and the county board explaining the reason and length for which there was no recording. The explanation shall be maintained at the county board office for at least one year.

(e)(1) A video camera placed in a self-contained classroom shall be capable of:

(A) Monitoring all areas of the self-contained classroom, including, without limitation, a room attached to the self-contained classroom and used for other purposes; and

(B) Recording audio from all areas of the self-contained classroom, including, without limitation, a room attached to the self-contained classroom and used for other purposes.

(2) A video camera placed in a self-contained classroom shall not monitor a restroom or any other area in the self-contained classroom where a student changes his or her clothes except, for incidental monitoring of a minor portion of a restroom or other area where a student changes his or her clothes because of the layout of the self-contained classroom.

(3) An audio recording device shall be placed in the restroom of the self-contained classroom and notice provided pursuant to §18-20-11(d)(2) of this code.

(4) A video camera or audio recording device required by this section is not required to be in operation during the time in which students are not present in the self-contained classroom.

(f) Before a public school initially places a video camera in a self-contained classroom or an audio recording device in the restroom of a self-contained classroom pursuant to this section, the county board of education shall provide written notice of the placement to:

(1) The parent or legal guardian of a student who is assigned to the self-contained classroom: Provided, That the parent or guardian be allowed the opportunity to opt out of the bathroom audio monitoring for their student. An Individual Education Plan or 504 plan shall outline the opt out and an alternative arrangement for the student or parent needs and requested accommodation; and

 (2) The school employee(s) who is assigned to work with one or more students in the self-contained classroom.

(g)(1) Except as provided in subdivision (2) of this subsection, a public school shall retain video and audio recorded pursuant to this section for at least three months after the date of the recording, subject to the following:

(A) If the minimum three-month period overlaps the summer break occurring between the last day of one instructional term and the first day of the next instructional term, the minimum three-month period shall be extended by the number of days occurring between the two instructional terms;

(B) For any school-based camera system or audio device recording device that is installed or replaced after April 1, 2022, the public school shall retain video recorded from a camera or audio device recording for at least 365 days after the date the video or audio was recorded and no extension of this time period during the summer break is required.

(2) If a person requests to review a recording under subsection (k) or subsection (l) of this section, the public school shall retain the recording from the date of the request until:

(A) The earlier of the person reviewing the recording or 60 days after the person who requested the video or audio recording was notified by the public school that the video or audio recording is available; and

(B) Any investigation and any administrative or legal proceedings that result from the recording have been completed, including, without limitation, the exhaustion of all appeals.

(3) In no event may the recording be deleted or otherwise made unretrievable before the time period set forth in subdivision (1) of this subsection elapses.

(h) This section does not:

(1) Waive any immunity from liability of a public school district or employee of a public school district;

(2) Create any liability for a cause of action against a public school or school district or employee of a public school or school district; or

(3) Require the principal or other designated school administrator to review the recording absent an authorized request pursuant to this code section or suspicion of an incident except as otherwise provided in subsection (j) of this section.

(i) A public school or school district shall not use video or audio recorded under this section for:

(1) Teacher evaluations; or

(2) Any purpose other than the promotion and protection of the health, wellbeing, and safety of students receiving special education and related services in a self-contained classroom or restroom of a self-contained classroom.

(j) Except as provided under subsections (k) and (l) of this section, a recording made under this section is confidential and shall not be released or reviewed by anyone except the school principal, other school administration designee, or county designee if the school principal or other school administration designee is unable to review the video or audio recording pursuant to this subsection. The school principal, other school administration designee, or county designee shall review no less than 15 minutes of the video and no less than 15 minutes of audio of each self-contained classroom and restroom at the school no less than every 90 days. The state board shall include in its rule authorized by this section requirements for documentation of compliance with the video and audio reviewing requirements of this subsection.

(k) Within seven days of receiving a request, a public school or school district shall allow review of a recording by:

(1) A public school or school district employee who is involved in an alleged incident that is documented by the recording and has been reported to the public school or school district;

(2) A parent or legal guardian of a student who is involved in an alleged incident that is documented by the recording and has been reported to the public school or school district; or

(3) An employee of a public school or school district as part of an investigation into an alleged incident that is documented by the recording and has been reported to the public school or school district.

(l) Within seven days of receiving a request, a public school or school district shall allow review of a recording by and comply with all subsequent requests for review or release of the recording by:

(1) A law-enforcement officer or employee of the Department of Human Services, as part of an investigation into an alleged incident that is documented by the recording and has been reported to the agency: Provided, That if a release of the recording is requested pursuant to this subdivision, the agency receiving a copy of the recording shall maintain strict confidentiality of the recording and not further release the recording without authorization from the public school district through its superintendent; or

(2) A judge, counsel, or other legal entity that is charged with deciding or representing either the school board, students, or employees in any matters related to legal issues arising from an incident: Provided, That the recording may only be released pursuant to an appropriate protective order or under seal.

(m) If an incident is discovered while initially reviewing a recording that requires a report to be made under §49-2-803 of this code, that report shall be made by the reviewer pursuant to that section within 24 hours of viewing the incident.

(n) When a recording is under review as part of the investigation of an alleged incident, and the recording reveals a student violating a disciplinary code or rule of the school, which violation is not related to the alleged incident for which the review is occurring, and which violation is not already the subject of a disciplinary action against the student, the student is not subject to disciplinary action by the school for such unrelated violation unless it reveals a separate incident as described in §18-20-11(b)(1) of this code.

(o) It is not a violation of subsection (j) of this section if a contractor or other employee of a public school or school district incidentally reviews a recording under this section if the contractor or employee of a public school or school district is performing job duties related to the:

(1) Installation, operation, or maintenance of video or audio equipment; or

(2) Retention of video or audio recordings.

(p) This section applies solely to cameras and audio recording devices installed pursuant to this code section and does not limit the access of a student’s parent or legal guardian to a recording reviewable under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. §1232g, or any other law.

(q) A public school or school district shall:

(1) Take necessary precautions to conceal the identity of a student who appears in a video recording but is not involved in the alleged incident documented by the video recording for which the public school allows viewing under subsection (j) of this section, including, without limitation, blurring the face of the uninvolved student; and

(2) Provide procedures to protect the confidentiality of student records contained in a recording in accordance with the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. §1232g, or any other law.

(r) (1) Any aggrieved person may appeal to the State Board of Education an action by a public school or school district that the person believes to be in violation of this section.

(2) The state board shall grant a hearing on an appeal under this subsection within 45 days of receiving the appeal.

(s) (1) A public school or school district may use funds distributed from the Safe Schools Fund created in §18-5-48 of this code or any other available funds to meet the requirements of this section.

(2) A public school or school district may accept gifts, grants, or donations to meet the requirements of this section.

(t) The state board may promulgate a rule in accordance with §29A-3B-1 et seq. of this code to clarify the requirements of this section and address any unforeseen issues that might arise relating to the implementation of the requirements of this section.