Bill Text: WV SB568 | 2024 | Regular Session | Comm Sub
Bill Title: Creating multi-tiered system for school absenteeism
Spectrum: Moderate Partisan Bill (Republican 14-2)
Status: (Passed) 2024-04-23 - Chapter 105, Acts, Regular Session, 2024 [SB568 Detail]
Download: West_Virginia-2024-SB568-Comm_Sub.html
WEST virginia legislature
2024 regular session
Committee Substitute
for
Committee Substitute
for
Senate Bill 568
By Senators Taylor, Azinger, Boley, Deeds, Grady, Hamilton, Hunt, Jeffries, Maynard, Oliverio, Phillips, Roberts, Smith, Stuart, Swope, and Nelson
[Originating in the Committee on the Judiciary; reported February 23, 2024]
A BILL to amend and reenact §18-8-2 and §18-8-4 of the Code of West Virginia, 1931, as amended; and to amend and reenact §49-4-702 of said code, all relating to student absences; amending criminal penalties imposed for failing to attend school without good cause; defining terms; requiring the State Board to implement a System of Support Plan to encourage and promote compulsory school attendance with implementation to be ensured by the county attendance director; requiring the school to make periodic meaningful contact with parents, guardians, or custodians of children who fail to attend school; removing requirement for attendance director and assistant directors to prepare a report for submission by the county superintendent to the State Superintendent of Schools on school attendance; referring to existing school personnel reporting requirement applicable in certain cases pertaining to child neglect; and making referral for the development of a diversion program in truancy offense matters discretionary.
Be it enacted by the Legislature of West Virginia:
Chapter 18. Education.
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-2. Offenses; penalties; cost of prosecution; jurisdiction.
(a) Any person parent, guardian, or custodian who, after receiving due notice, shall fail fails to cause a child or children under eighteen 18 years of age in that person's legal or actual charge to attend school in violation of this article or without just cause, shall be is guilty of a misdemeanor and, shall, upon conviction of a first offense, be fined not less than fifty $50 nor more than $100 together with the costs of prosecution, or required to accompany the child to school and remain through the school day for so long as the magistrate or judge may determine is appropriate. The magistrate or circuit court judge, upon conviction and pronouncing sentence, may delay the sentence for a period of sixty 60 school days provided the child is in attendance everyday every day during said sixty60-day period. Following the sixty60-day period, if saidthe child was present at school for every school day, the delayed sentence may be suspended and dismissed and not enacted. Upon conviction of a second offense, a fine may be imposed of not less than $50 nor more than $100 together with the costs of prosecution and the person may be required to accompany the child to school and remain throughout the school day until such time as the magistrate or judge may determine is appropriate or confined in jail not less than five nor more than twenty 20 days. Every day a child is out of school contrary to this article shall constitutes a separate offense. Magistrates shall have concurrent jurisdiction with circuit courts for the trial of offenses arising under this section.
(b) Any person eighteen18 years of age or older who is enrolled in school who, after receiving due notice, fails to attend school in violation of this article or without just cause, shall be is guilty of a misdemeanor and, shall, upon conviction of a first offense, be fined not less than $50 nor more than $100 together with the costs of prosecution and required to attend school and remain throughout the school day. The magistrate or circuit court judge, upon conviction and pronouncing sentence, may delay the imposition of a fine for a period of sixty 60 school days provided the person is in attendance every day during said sixty60-day period. Following the sixty60-day period, if saidthe student was present at school everyday every day, the delayed sentence may be suspended and not enacted dismissed. Upon conviction of a second offense, a fine may be imposed of not less than $50 nor more than $100 together with the costs of prosecution and the person may be required to go to school and remain throughout the school day until such time as the person graduates or withdraws from school or confined in jail not less than five nor more than twenty 20 days. Every day a student is out of school contrary to this article shall constitutes a separate offense. Magistrates shall have concurrent jurisdiction with circuit courts for the trial of offenses arising under this section.
(c) Upon conviction of a third offense, any person eighteen 18 years of age or older who is enrolled in school shall be withdrawn from school during the remainder of that school year. Enrollment of that person in school during the next school year or years thereafter shall be is conditional upon all absences being excused as defined in law, state board policy and county board of education policy. More than one unexcused absence of such a student shall be grounds for the director of attendance to authorize the school to withdraw the person for the remainder of the school year. Magistrates shall have concurrent jurisdiction with circuit courts for the trial of offenses arising under this section.
(d) Jurisdiction to enforce compulsory school attendance laws lies in the county in which a student resides and in the county where the school at which the student is enrolled is located. When the county of residence and enrollment are different, an action to enforce compulsory school attendance may be brought in either county and the magistrates and circuit courts of either county have concurrent jurisdiction for the trial of offenses arising under this section.
§18-8-4. Duties of attendance director and assistant directors; complaints, warrants and hearings.
(3a) For the purposes of this article, the following definitions apply:
(A1) “Excused absence” includes means:
(iA) A medical or dental appointment with written excuse from physician or dentist;
(iiB) Personal illness or injury of the student accompanied by a timely written excuse from the student’s parent, guardian, or custodian: Provided: That the total absences under this section combined with absences permitted under subdivision (C) of this subsection do not exceed more than 10 per school year unless supported by a physician’s note: Provided however: That a medically documented chronic health condition or disability that adversely impacts in-person attendance approved by a county school board or the principal is not subject to this limitation, and that absences of students with disabilities shall be in accordance with the Individuals with Disabilities Education Improvement Act of 2004 and the federal and state regulations adopted in compliance therewith;
(iiiC) Personal illness or injury of the student’s parent, guardian, custodian, or family member: Provided, That the excuse must provide a reasonable explanation for why the student’s absence was necessary and caused by the illness or injury in the family, and the total absences under this section in combination with section (1)(B) may not exceed more than ten excuses per school year;
Medical or dental appointment with written excuse from physician or dentist;
(iv) Chronic medical condition or disability that impacts attendance;
(v) Participation in home or hospital instruction due to an illness or injury or other extraordinary circumstance that warrants home or hospital confinement;
(vi) Calamity, such as a fire or flood;
(viiD) Death in the family;
(viiiE) School-approved or county-approved curricular or extra-curricular activities;
(ixF) A Judicial judicial obligation or court appearance involving the student; and
(xG) A Military military requirement for students enlisted or enlisting in the military;.
(xi) Personal or academic circumstances approved by the principal; and
(xiiI) Such Any other situations as may be further determined by the county board: Provided, That absences of students with disabilities shall be in accordance with the Individuals with Disabilities Education Improvement Act of 2004 and the federal and state regulations adopted in compliance therewith; and
(2) “Meaningful contact” means two-way communication by the school administrator or other school designee and the student’s parent, guardian, or custodian to discuss the student’s attendance record in an effort to prevent subsequent truancy or other legal proceedings relating to compulsory school attendance, and to minimize additional absences. Methods of meaningful contact include, but are not limited to, phone calls, video conferencing, home visits, and the use of digital platforms.
(3) “System of Support Plan” (“SOS Plan”) refers to a plan to be developed by the State Board of Education designed to encourage students to attend school. It shall, at a minimum, require county attendance directors, principals, or other school designees to make periodic contact with the parent, guardian, or custodian of a student subject to compulsory school attendance to ascertain the reason or reasons for the student’s absence or absences and what measures the school may employ to assist the student in attending school and not incurring additional absences. It shall also impart upon the student’s parents, guardians, and custodians the importance of the student’s attendance and the seriousness of failing to do so.
(B4) “Unexcused absence” means any absence not specifically included in the definition of “excused absence”; and.
(ab) The county attendance director and the his or her assistants shall diligently promote regular school attendance. The director and assistants shall:
(1) Ascertain the reasons for unexcused absences from school of students of compulsory school age and students who remain enrolled beyond the compulsory school age as defined under section one-a of this article;
(2) Take such steps as are, in their discretion, best calculated to encourage the attendance of students and to impart upon the parents and guardians the importance of attendance and the seriousness of failing to do so;
(2) Ensure the implementation of the SOS Plan as developed by the State Board, including encouraging the attendance of students and imparting upon the parents, guardians, and custodians the important of attendance and the seriousness of failing to do so.
(3) For the purposes of this article, the following definitions apply:
(A) “Excused absence” includes:
(i) Personal illness or injury of the student;
(ii) Personal illness or injury of the student’s parent, guardian, custodian, or family member: Provided, That the excuse must provide a reasonable explanation for why the student’s absence was necessary and caused by the illness or injury in the family;
(iii) Medical or dental appointment with written excuse from physician or dentist;
(iv) Chronic medical condition or disability that impacts attendance;
(v) Participation in home or hospital instruction due to an illness or injury or other extraordinary circumstance that warrants home or hospital confinement;
(vi) Calamity, such as a fire or flood;
(vii) Death in the family;
(viii) School-approved or county-approved curricular or extra-curricular activities;
(ix) Judicial obligation or court appearance involving the student;
(x) Military requirement for students enlisted or enlisting in the military;
(xi) Personal or academic circumstances approved by the principal; and
(xii) Such other situations as may be further determined by the county board: Provided, That absences of students with disabilities shall be in accordance with the Individuals with Disabilities Education Improvement Act of 2004 and the federal and state regulations adopted in compliance therewith; and
(B) “Unexcused absence” means any absence not specifically included in the definition of “excused absence”; and
(4c) All documentation relating to absences shall be provided to the school no later than three instructional days after the first day the student returns to school. In the event documentation is not provided to the school within three instructional days after the first day the student returns to school, the absences are unexcused.
(bd) In the case of three total unexcused absences of a student during a school year, the attendance director, his or her assistant, or the principal shall make meaningful contact with the parent, guardian, or custodian of the student to ascertain the reasons for the unexcused absences and what measures the school may employ to assist the student in attending and not incurring any additional unexcused absences.
(df) In the case of 10 total unexcused absences of a student during a school year, the attendance director or assistant may make a complaint against the parent, guardian, or custodian before a magistrate of the county. If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the accused has committed it, a summons or a warrant for the arrest of the accused shall issue to any officer authorized by law to serve the summons or to arrest persons charged with offenses against the state. More than one parent, guardian, or custodian may be charged in a complaint. Initial service of a summons or warrant issued pursuant to the provisions of this section shall be attempted within ten 10 calendar days of receipt of the summons or warrant and subsequent attempts at service shall continue until the summons or warrant is executed or until the end of the school term during which the complaint is made, whichever is later.
(eg) The magistrate court clerk, or the clerk of the circuit court performing the duties of the magistrate court as authorized in §50-1-8 of this code, shall assign the case to a magistrate within 10 days of execution of the summons or warrant. The hearing shall be held within 20 days of the assignment to the magistrate, subject to lawful continuance. The magistrate shall provide to the accused at least 10 days’ advance notice of the date, time and place of the hearing.
(fh) When any doubt exists as to the age of a student absent from school, the attendance director and his or her assistants have authority to may require a properly attested birth certificate or an affidavit from the parent, guardian, or custodian of the student, stating the age of the student. In the performance of his or her duties, the county attendance director and his or her assistants have authority to take without warrant any student absent from school in violation of the provisions of this article and to place the student in the school in which he or she is or should be enrolled.
(gi) The county attendance director and his or her assistants shall devote such as much time as is required by section three of this article to the duties of attendance director in accordance with this section during the instructional term and at such any other times as the duties of an attendance director are required. All attendance directors and assistants hired for more than 200 days may be assigned other duties determined by the superintendent during the period in excess of 200 days. The county attendance director is responsible under direction of the county superintendent for efficiently administering school attendance in the county.
(hj) In addition to those duties directly relating to the administration of attendance, the county attendance director and his or her assistant directors also shall perform the following duties:
(1) Assist in directing the taking of the school census to see that it is taken at the time and in the manner provided by law;
(2) Confer with principals and teachers on the comparison of the school census and enrollment for the detection of possible nonenrollees;
(3) Cooperate with existing state and federal agencies charged with enforcing child labor laws;
(4) Prepare a report for submission by the county superintendent to the State Superintendent of Schools on school attendance, at such times and in such detail as may be required. The state board shall promulgate a legislative rule pursuant to §29A-3B-1 et seq. of this code that set forth student absences that are excluded for accountability purposes. The absences that are excluded by rule shall include, but are not limited to, excused student absences, students not in attendance due to disciplinary measures and absent students for whom the attendance director has pursued judicial remedies to compel attendance to the extent of his or her authority. The attendance director shall file with the county superintendent and county board at the close of each month a report showing activities of the school attendance office and the status of attendance in the county at the time;
(54) Promote attendance in the county by compiling data for schools and by furnishing suggestions and recommendations for publication through school bulletins and the press, or in such any manner as directed by the county superintendent may direct;
(65) Participate in school teachers’ conferences with parents and students;
(76) Assist in such any other ways as directed by the county superintendent may direct for improving school attendance;
(87) Make home visits of students who have excessive unexcused absences, as provided in subsection- (a) of this section, or if requested by the chief administrator, principal, or assistant principal; and
(98) Serve as the liaison for homeless children and youth.
Chapter 49. Child Welfare.
Article 4. Court Actions.
§49-4-702. Prepetition diversion to informal resolution; mandatory prepetition diversion program for status offenses and misdemeanor offenses; prepetition review team.
(a) Before a juvenile petition is formally filed with the court, the court may refer the matter to a case worker, probation officer or truancy diversion specialist for preliminary inquiry to determine whether the matter can be resolved informally without the formal filing of a petition with the court.
(b)(1) If the matter is for a truancy offense, the prosecutor shall may refer the matter to a state department worker, probation officer, or truancy diversion specialist who shall develop a diversion program pursuant to subsection (d) of this section. If the prosecutor does not refer the matter to a state department worker, probation officer, or truancy diversion specialist pursuant to this subdivision, he or she may proceed to file a petition with the court.
(2) If the matter is for a status offense other than truancy, the prosecutor shall refer the juvenile to a case worker or probation officer who shall develop a diversion program pursuant to subsection (d) of this section.
(3) The prosecutor is not required to refer the juvenile for development of a diversion program pursuant to subdivision (1) or (2) of this subsection and may proceed to file a petition with the court if he or she determines:
(A) The juvenile has a prior adjudication for a status or delinquency offense; or
(B) There exists a significant and likely risk of harm to the juvenile, a family member, or the public.
(c) If the matter is for a nonviolent misdemeanor offense, the prosecutor shall determine whether the case can be resolved informally through a diversion program without the filing of a petition. If the prosecutor determines that a diversion program is appropriate, it he or she shall refer the matter to a case worker or probation officer who shall develop a diversion program pursuant to subsection (d) of this section.
(d)(1) When developing a diversion program, the case worker, probation officer, or truancy diversion specialist shall:
(A) Conduct an assessment of the juvenile to develop a diversion agreement;
(B) Create a diversion agreement;
(C) Obtain consent from the juvenile and his or her parent, guardian, or custodian to the terms of the diversion agreement;
(D) Refer the juvenile and, if necessary, his or her parent, guardian, or custodian to services in the community pursuant to the diversion agreement.
(2) A diversion agreement may include:
(A) Referral to community services as defined in section two hundred six, article one of this chapter§49-1-206 of this code for the juvenile to address the assessed need;
(B) Referral to services for the parent, guardian, or custodian of the juvenile;
(C) Referral to one or more community work service programs for the juvenile;
(D) A requirement that the juvenile regularly attend school;
(E) Community-based sanctions to address noncompliance; or
(F) Any other efforts which may reasonably benefit the community, the juvenile, and his or her parent, guardian, or custodian.
(3) When a referral to a service provider occurs, the service provider shall make reasonable efforts to contact the juvenile and his or her parent, custodian, or guardian within seventy-two 72 hours of the referral.
(4) Upon request by the case worker, probation officer, or truancy diversion specialist, the court may enter reasonable and relevant orders to the parent, custodian, or guardian of the juvenile who have consented to the diversion agreement as is necessary and proper to carry out the agreement.
(5) If the juvenile and his or her parent, custodian, or guardian do not consent to the terms of the diversion agreement created by the case worker, probation officer, or truancy diversion specialist, the petition may be filed with the court.
(6) Referral to a prepetition diversion program shall toll the statute of limitations for status and delinquency offenses.
(7) Probation officers may be authorized by the court to participate in a diversion program.
(e) The case worker, probation officer, or truancy diversion specialist shall monitor the juvenile's compliance with any diversion agreement.
(1) If the juvenile successfully completes the terms of the diversion agreement, a petition shall not be filed with the court and no further action shall be taken.
(2) If the juvenile is unsuccessful in or noncompliant with the diversion agreement, the diversion agreement shall be referred to a prepetition review team convened by the case worker, probation officer or the truancy diversion specialist: Provided, That if a new delinquency offense occurs, a petition may be filed with the court.
(f)(1) The prepetition review team may be a subset of a multidisciplinary team established pursuant to section four hundred six, article four of this chapter §49-4-406 of this code.
(2) The prepetition review team may consist of:
(A) A case worker knowledgeable about community services available and authorized to facilitate access to services;
(B) A service provider;
(C) A school superintendent or his or her designee; or
(D) Any other person, agency representative, member of the juvenile's family, or a custodian or guardian who may assist in providing recommendations on community services for the particular needs of the juvenile and his or her family.
(3) The prepetition review team shall review the diversion agreement and the service referrals completed and determine whether other appropriate services are available to address the needs of the juvenile and his or her family.
(4) The prepetition review shall occur within fourteen 14 days of referral from the state department worker, probation officer, or truancy diversion specialist.
(5) After the prepetition review, the prepetition review team may:
(A) Refer a modified diversion agreement back to the case worker, probation officer or truancy diversion specialist;
(B) Advise the case worker, probation officer or truancy diversion specialist to file a petition with the court; or
(C) Advise the case worker to open an investigation for child abuse or neglect.
(g) The requirements of this section are not mandatory until July 1, 2016 July 1, 2024: Provided, That nothing in this section prohibits a judicial circuit from continuing to operate a truancy or other juvenile treatment program that existed as of January 1, 2015 2023: Provided, however, That any judicial circuit desiring to create a diversion program after the effective date of this section and prior to July 1, 2016, may only do so pursuant to this section.
