WEST VIRGINIA LEGISLATURE
2021 REGULAR SESSION
Introduced FISCAL
Senate Bill 90 NOTE
BY SENATORS RUCKER, SWOPE, KARNES, AND AZINGER
[Introduced February 10, 2021; referred to the Committee on Education; and then to the Committee on Finance]
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1 A BILL to amend and reenact §18-8-1 of the Code of West Virginia, 1931, as amended; to amend
2 said code by adding thereto a new section, designated §18-9A-10a; and to amend said
3 code by adding thereto a new article, designated §18-31-1, §18-31-2, §18-31-3, §18-31-
4 4, §18-31-5, §18-31-6, §18-31-7, §18-31-8, and §18-31-9, all relating to the Education
5 Savings Account Act; creating compulsory school attendance exemption for education
6 savings account (ESA) students; requiring the Department of Education to annually make
7 a projection of the amount required to fund ESAs and make a request for an appropriation
8 in that amount; requiring the Legislature to appropriate the amount requested; requiring
9 the Department of Education to pay to the West Virginia State Treasurer’s Office the
10 amount appropriated; requiring the total amount of funds annually deposited in an ESA to
11 be 90 percent of the prior year’s statewide average net state aid allotted per pupil based
12 on net enrollment adjusted for state aid purposes; providing authority for the state board
13 of education to promulgate emergency rules and propose rules for legislative approval;
14 limiting use of ESA funds to certain qualifying expenses; allowing a parent to apply to the
15 Treasurer to establish an ESA for an eligible student; establishing household income limit
16 as a condition of qualifying for the ESA program; setting forth conditions under which the
17 Treasurer is required to approve applications; requiring the Treasurer to annually renew a
18 student’s ESA after making certain verifications; setting forth certain duties, obligations,
19 and authority of the Treasurer; providing authority for the Treasurer to promulgate
20 emergency rules and propose rules for legislative approval; creating a Parent Review
21 Committee to assist the Treasurer in determining whether questionable expenditures meet
22 the requirements to be considered qualifying expenses, to provide recommendations to
23 the Treasurer about how to implement, administer, and improve the ESA program, and for
24 other purposes; setting forth eligibility requirements for service providers; requiring
25 provision to an education service provider that has enrolled an ESA student with a
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26 complete copy of the student’s school records, while complying with the Family
27 Educational Rights and Privacy Act of 1974; and addressing legal proceedings.
Be it enacted by the Legislature of West Virginia:
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-1. Compulsory school attendance; exemptions.
1 (a) Exemption from the requirements of compulsory public school attendance established
2 in §18-8-1a of this code shall be made on behalf of any child for the causes or conditions set forth
3 in this section. Each cause or condition set forth in this section is subject to confirmation by the
4 attendance authority of the county. A child who is exempt from compulsory school attendance
5 under this section is not subject to prosecution under §18-8-2 of this code, nor is such a child a
6 status offender as defined by §49-1-202 of this code.
7 (b) A child is exempt from the compulsory school attendance requirement set forth in §18-
8 8-1a of this code if the requirements of this subsection, relating to instruction in a private, parochial
9 or other approved school, are met. The instruction shall be in a school approved by the county
10 board and for a time equal to the instructional term set forth in §18-5-45 of this code. In all private,
11 parochial or other schools approved pursuant to this subsection, it is the duty of the principal or
12 other person in control, upon the request of the county superintendent, to furnish to the county
13 board such information and records as may be required with respect to attendance, instruction
14 and progress of students enrolled.
15 (c) A child is exempt from the compulsory school attendance requirement set forth in §18-
16 8-1a of this code if the requirements of either subdivision (1) or subdivision (2) of this subsection,
17 both relating to home instruction, are met.
18 (1) The instruction shall be in the home of the child or children or at some other place
19 approved by the county board and for a time equal to the instructional term set forth in §18-5-45
20 of this code. If the request for home instruction is denied by the county board, good and
21 reasonable justification for the denial shall be furnished in writing to the applicant by the county
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22 board. The instruction shall be conducted by a person or persons who, in the judgment of the
23 county superintendent and county board, are qualified to give instruction in subjects required to
24 be taught in public elementary schools in the state. The person or persons providing the
25 instruction, upon request of the county superintendent, shall furnish to the county board
26 information and records as may be required periodically with respect to attendance, instruction
27 and progress of students receiving the instruction. The state board shall develop guidelines for
28 the home schooling of special education students including alternative assessment measures to
29 assure that satisfactory academic progress is achieved.
30 (2) The child meets the requirements set forth in this subdivision: Provided, That the
31 county superintendent may, after a showing of probable cause, seek from the circuit court of the
32 county an order denying home instruction of the child. The order may be granted upon a showing
33 of clear and convincing evidence that the child will suffer neglect in his or her education or that
34 there are other compelling reasons to deny home instruction.
35 (A) Upon commencing home instruction under this section the parent of a child receiving
36 home instruction shall present to the county superintendent or county board a notice of intent to
37 provide home instruction that includes the name, address, and age of any child of compulsory
38 school age to be instructed and assurance that the child shall receive instruction in reading,
39 language, mathematics, science and social studies and that the child shall be assessed annually
40 in accordance with this subdivision. The person providing home instruction shall notify the county
41 superintendent upon termination of home instruction for a child who is of compulsory attendance
42 age. Upon establishing residence in a new county, the person providing home instruction shall
43 notify the previous county superintendent and submit a new notice of intent to the superintendent
44 of the new county of residence: Provided, That if a child is enrolled in a public school, notice of
45 intent to provide home instruction shall be given on or before the date home instruction is to begin.
46 (B) The person or persons providing home instruction shall submit satisfactory evidence
47 of a high school diploma or equivalent, or a post-secondary degree or certificate from a regionally
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48 accredited institution or from an institution of higher education that has been authorized to confer
49 a post-secondary degree or certificate in West Virginia by the West Virginia Council for
50 Community and Technical College Education or by the West Virginia Higher Education Policy
51 Commission.
52 (C) Annually, the person or persons providing home instruction shall obtain an academic
53 assessment of the child for the previous school year in one of the following ways:
54 (i) The child receiving home instruction takes a nationally normed standardized
55 achievement test published or normed not more than 10 years from the date of administration
56 and administered under the conditions as set forth by the published instructions of the selected
57 test and by a person qualified in accordance with the test’s published guidelines in the subjects
58 of reading, language, mathematics, science and social studies. The child is considered to have
59 made acceptable progress when the mean of the child’s test results in the required subject areas
60 for any single year is within or above the fourth stanine or, if below the fourth stanine, shows
61 improvement from the previous year’s results;
62 (ii) The child participates in the testing program currently in use in the state’s public
63 schools. The test shall be administered to the child at a public school in the county of residence.
64 Determination of acceptable progress shall be based on current guidelines of the state testing
65 program;
66 (iii) A portfolio of samples of the child’s work is reviewed by a certified teacher who
67 determines whether the child’s academic progress for the year is in accordance with the child’s
68 abilities. The teacher shall provide a written narrative about the child’s progress in the areas of
69 reading, language, mathematics, science and social studies and shall note any areas which, in
70 the professional opinion of the reviewer, show need for improvement or remediation. If the
71 narrative indicates that the child’s academic progress for the year is in accordance with the child’s
72 abilities, the child is considered to have made acceptable progress; or
73 (iv) The child completes an alternative academic assessment of proficiency that is
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74 mutually agreed upon by the parent or legal guardian and the county superintendent.
75 (D) A parent or legal guardian shall maintain copies of each student’s academic
76 assessment for three years. When the annual assessment fails to show acceptable progress, the
77 person or persons providing home instruction shall initiate a remedial program to foster
78 acceptable progress. The county board upon request shall notify the parents or legal guardian of
79 the child, in writing, of the services available to assist in the assessment of the child’s eligibility
80 for special education services. Identification of a disability does not preclude the continuation of
81 home schooling. In the event that the child does not achieve acceptable progress for a second
82 consecutive year, the person or persons providing instruction shall submit to the county
83 superintendent additional evidence that appropriate instruction is being provided.
84 (E) The parent or legal guardian shall submit to the county superintendent the results of
85 the academic assessment of the child at grade levels three, five, eight and 11, as applicable, by
86 June 30 of the year in which the assessment was administered.
87 (3) This subdivision applies to both home instruction exemptions set forth in subdivisions
88 (1) and (2) of this subsection. The county superintendent or a designee shall offer such
89 assistance, including textbooks, other teaching materials and available resources, all subject to
90 availability, as may assist the person or persons providing home instruction. Any child receiving
91 home instruction may upon approval of the county board exercise the option to attend any class
92 offered by the county board as the person or persons providing home instruction may consider
93 appropriate subject to normal registration and attendance requirements.
94 (d) A child is exempt from the compulsory school attendance requirement set forth in §18-
95 8-1a of this code if the requirements of this subsection, relating to physical or mental incapacity,
96 are met. Physical or mental incapacity consists of incapacity for school attendance and the
97 performance of school work. In all cases of prolonged absence from school due to incapacity of
98 the child to attend, the written statement of a licensed physician or authorized school nurse is
99 required. Incapacity shall be narrowly defined and in any case the provisions of this article may
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100 not allow for the exclusion of the mentally, physically, emotionally or behaviorally handicapped
101 child otherwise entitled to a free appropriate education.
102 (e) A child is exempt from the compulsory school attendance requirement set forth in §18-
103 8-1a of this code if conditions rendering school attendance impossible or hazardous to the life,
104 health or safety of the child exist.
105 (f) A child is exempt from the compulsory school attendance requirement set forth in §18-
106 8-1a of this code upon regular graduation from a standard senior high school or alternate
107 secondary program completion as determined by the state board.
108 (g) A child is exempt from the compulsory school attendance requirement set forth in §18-
109 8-1a of this code if the child is granted a work permit pursuant to the subsection. After due
110 investigation the county superintendent may grant work permits to youths under the termination
111 age designated in §18-8-1a of this code, subject to state and federal labor laws and regulations.
112 A work permit may not be granted on behalf of any youth who has not completed the eighth grade
113 of school.
114 (h) A child is exempt from the compulsory school attendance requirement set forth in §18-
115 8-1a of this code if a serious illness or death in the immediate family of the child has occurred. It
116 is expected that the county attendance director will ascertain the facts in all cases of such
117 absences about which information is inadequate and report the facts to the county superintendent.
118 (i) A child is exempt from the compulsory school attendance requirement set forth in §18-
119 8-1a of this code if the requirements of this subsection, relating to destitution in the home, are
120 met. Exemption based on a condition of extreme destitution in the home may be granted only
121 upon the written recommendation of the county attendance director to the county superintendent
122 following careful investigation of the case. A copy of the report confirming the condition and school
123 exemption shall be placed with the county director of public assistance. This enactment
124 contemplates every reasonable effort that may properly be taken on the part of both school and
125 public assistance authorities for the relief of home conditions officially recognized as being so
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126 destitute as to deprive children of the privilege of school attendance. Exemption for this cause is
127 not allowed when the destitution is relieved through public or private means.
128 (j) A child is exempt from the compulsory school attendance requirement set forth in §18-
129 8-1a of this code if the requirements of this subsection, relating to church ordinances and
130 observances of regular church ordinances, are met. The county board may approve exemption
131 for religious instruction upon written request of the person having legal or actual charge of a child
132 or children. This exemption is subject to the rules prescribed by the county superintendent and
133 approved by the county board.
134 (k) A child is exempt from the compulsory school attendance requirement set forth in §18-
135 8-1a of this code if the requirements of this subsection, relating to alternative private, parochial,
136 church or religious school instruction, are met. Exemption shall be made for any child attending
137 any private school, parochial school, church school, school operated by a religious order or other
138 nonpublic school which elects to comply with the provisions of §18-28-1 et seq. of this code.
139 (l) Completion of the eighth grade does not exempt any child under the termination age
140 designated in §18-8-1a of this code from the compulsory attendance provision of this article.
141 (m) A child is exempt from the compulsory school attendance requirements set forth in
142 §18-8-1a of this code if the parent, as defined in §18-31-2 of this code, of the child has applied to
143 the Treasurer to establish an education savings account pursuant to §18-31-1 et seq. of this code,
144 the Treasurer has approved the application, the education savings account remains open, and
145 payments continue to be made into the education savings account.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-10a. Allowance for education savings accounts.
1 (a) The Department of Education annually shall make a projection of the amount required
2 to fund education savings accounts pursuant to §18-31-1 et seq. of this code, and shall request
3 an appropriation for that amount. The Legislature shall appropriate the amount requested by the
4 Department of Education pursuant to this subsection, and the Department of Education shall pay
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