Attendance law issues

1. Attendance law issues THE NEVERENDING SAGA Sherri D. Goodman, WVDE Staff Attorney

2. Excuses Written by Parents • Dear School: Please excuse John from being absent on Jan. 28, 29, 30, 31, 32, and also 33. • Please excuse Sara for being absent. She was sick and I had her shot. • I'm sorry Tyler can't go to school today because his hormones are raging. • Please excuse Casey from school. It was Take Your Daughter to work day. I don't have a job, so I made her stay home and do housework.

3. TOP TWO EXCUSES • Please excuse Ryan's absents he has smoked too much weed over the last few days and is extremely tired. • Al was not in school yesterday because he was didn't feel like going.

4. NEW IMMUNIZATION GUIDELINES • DHHR INTERPRETATIVE RULE, 64 CSR 95 “IMMUNIZATION REQUIREMENTS AND RECOMMENDATIONS FOR NEW SCHOOL ENTERERS” • DEFINITION OF “NEW SCHOOL ENTERER” • “Any child entering a school building housing kindergarten through twelfth grade students to attend classes or programs or to participate in extracurricular activities taking place in the school building and includes children entering for pre-school programs as well as all students in grades kindergarten through twelfth grade” and students transferring from out-of-state.

5. DIFFERENCE FROM W Va CODE § 16-3-4: • Adds vaccines for mumps, varicella (chicken pox) and hepatitis B. • Window for completing the series after first dose varies with the vaccine • DTaP/DTP – eight months • Polio – 90 days • MMR – 30 days • Varicella – 90 days < 13 yrs.; 30 days =>13 yrs. • Hepatitis B – four months

6. BUT WAIT. . .THERE’S MORE! • PRE-K IMMUNIZATION GUIDELINES CONTAIN ADDITIONAL VACCINES THAT ARE NOT REFERENCED IN THE INTERPRETIVE RULES: PREVNAR (PCV); HEPATITIS A AND ROTAVIRUS

7. POLICY 2525: • 8.6. All children entering an approved participating WV Pre-k classroom must have age appropriate immunizations upon enrollment as defined by the American Academy of Pediatrics and recommended by WVDHHR, located at http://www.wvdhhr.org/immunizations/pdf/Pre-K_Vacc_Chart_final.pdf. A Superintendent’s Interpretation related to immunizations can be reviewed at http://wvde.state.wv.us/interpretations/view/8/227/interpretation.html.Children that are not fully immunized, may be enrolled providing a plan has been developed to assure full immunization, but may not enter WV Pre-k classrooms until they have received the first series of required immunizations.

8. HOW THIS IMPACTS PRIOR SUPERINTENDENT INTERPRETATIONS • 10/01/2002; 03/01/2004; 07/28/2005: • No longer flat 90 days to complete series • Still cannot be admitted into the general student population without first dose, UNLESS transferring from another West Virginia school; in that case, may at least temporarily presume immunization and rely upon telephonic or written confirmation. • Prior to the initial received dosage, the student still should be enrolled and placed in the least restrictive appropriate environment to deliver their education. This could mean instructing them in their home until the immunization requirements are met.

9. Students in foster care may still be enrolled and enter the public schools in West Virginia without immunization records in hand, excepting those entering school for the first time. • Attendance directors are still required to assist in obtaining immunization records. • Suggest WVSIS • County Health Department • Enforcement suggestions still the same • contacting the county health department, pursuant to West Virginia Code § 16-3-4; • contacting county magistrates for guidance in addressing the procedure for penalties of §16-3-4.

10. What if a student is entering public school for the first time after being home schooled or left public school because parents would not get vaccinations the first time? • New immunization standards apply. • What if a student left public school, went out-of-state or was home-schooled and now returns to WV public school? • Old immunization standards should apply.

11. PROOF OF GUARDIANSHIP • White v. Linkinogger, 176 W. Va. 410, 344 S.E.2d 633 (1986): • The compulsory school attendance law provides that enforcement and prosecution may be sought against any person who has a child “in his legal or actual charge....” West Virginia Code § 18-8-2 (1984 Replacement Vol.). Conversely, as long as the school receives acknowledgement from the person in “actual charge” of the child that such person is assuming responsibility, temporarily or otherwise, for the housing, care and supervision of the child, the school's responsibility is fulfilled. Beyond that, any legal custody questions are for the child welfare agencies and the courts.

12. BIRTH CERTIFICATE REQUIREMENT • 18-2-5c: a) No pupil shall be admitted for the first time to any public school in this state unless the person enrolling the pupil presents a copy of the pupil's original birth record certified by the state registrar of vital statistics confirming the pupil's identity, age, and state file number of the original birth record. If a certified copy of the pupil's birth record cannot be obtained, the person so enrolling the pupil shall submit an affidavit explaining the inability to produce a certified copy of the birth record: Provided, That if any person submitting such affidavit is in U.S. military service and is in transit due to military orders, a three-week extension shall be granted to such person for providing the birth records.(b) Upon the failure of any person enrolling a pupil to furnish a certified copy of the pupil's birth record in conformance with subsection (a) above, the principal of the school in which the pupil is being enrolled or his designee shall immediately notify the local law-enforcement agency. The notice to the local law-enforcement agency shall include copies of the submitted proof of the pupil's identity and age and the affidavit explaining the inability to produce a certified copy of the birth record.(c) Within fourteen days after enrolling a transferred pupil, the principal of the school in which the pupil has been enrolled or his designee shall request that the principal or his designee of the school in which the pupil was previously enrolled transfer a certified copy of the pupil's birth record.(d) Principals and their designees shall be immune from any civil or criminal liability in connection with any notice to a local law-enforcement agency of a pupil lacking a birth certificate or failure to give such notice as required by this section

13. PROCEDURE WHEN THERE IS NO CERTIFIED BIRTH CERTIFICATE FOR FIRST TIME ENROLLMENT: • Require parent to submit affidavit • Report to local law enforcement • If refusal to submit affidavit and refuse to obtain certificate? • Under Linkenogger, I would suggest that child not be unenrolled or there be a refusal to enroll. • I do not think that a court will be sympathetic with denying a child an education due to lack of paperwork where there is no risk of harming other students (as is the case about vaccination documentation).

14. INTER-COUNTY TRANSFERS • Superintendent’s Interpretation 03/28/08: • Receiving county needs to consider transfer request and make a conditional determination. State Superintendent needs positions of both counties before conducting a hearing on appeal. • Parents need to be informed in writing of their appellate right and the 30 day deadline. • Duration of the transfer if no appeal: unless county policy has specific conditions, transfer is indefinite unless the county can show good cause, such as a population increase. • If the State Superintendent grants an appeal, Policy 7212 remains in effect unless the parents make application prior to January 1 of preceding school year. • Unusual circumstances may cause State Superintendent to waive this requirement.

15. CONSIDERATIONS FOR SENDING COUNTIES • WHETHER STUDENT HAS PRIOR ATTENDANCE AT RECEIVING SCHOOL THROUGH LEGITIMATE MEANS • WHETHER A SIBLING ATTENDS • WHETHER THERE IS A MEDICAL CONDITION • LENGTH OF BUS RIDE IN SENDING COUNTY EXCEEDS STATE BOARD RECOMMENDED TIMES • CONVENIENCE TO WORK OR CHILD CARE NOT GENERALLY CONSIDERED

16. CONSIDERATIONS FOR A RECEIVING COUNTY • PUPIL-TEACHER RATIO • SPECIAL SERVICES AT PARTICULAR SCHOOL • DISCIPLINARY RECORD

17. WHAT HAPPENS WHEN RECEIVING COUNTY ACCEPTS TRANSFER STUDENT WITHOUT VERIFYING APPROVAL OF SENDING COUNTY OR APPEAL TO SUPERINTENDENT? • 18-5-16(b)(3)(D): If a student is transferred on either a full-time or a part-time basis without the agreement of both boards by official action as reflected in the minutes of their respective meetings and if the student's parent or guardian fails to appeal or loses the appeal under the process established in subdivision (3) of this subsection, the student shall be counted only in the net enrollment of the county in which the student resides. • It is extremely risky to rely upon any representations made by the parents as to a county’s decision or the status of an appeal.

18. MAY A RECEIVING COUNTY WITHDRAW ITS ACCEPTANCE OF A STUDENT RATHER THAN FOLLOW ITS DISCIPLINARY PROCEDURES AND SUSPEND OR EXPELL A STUDENT AND PROVIDE ALTERNATIVE EDUCATION?

19. ATTENDANCE POLICY CHANGES EFFECTIVE 05/12/2008 • 4.5. Awaiting Foster Care Placement - Any child or youth who: 1) is in the custody of the West Virginia Department of Health and Human Resources, 2) has been placed in out-of-home care, and 3) is not in a permanent placement.  This includes, but is not limited to, children and youth in family foster care, kinship care, emergency shelter care or in a facility used to provide treatment services.

20. 4.11. Homeless Children and Youths - as defined in the McKinney-Vento Act means individuals who lack a fixed, regular, and adequate nighttime residence and includes: • 4.11.1. children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement; • 4.11.2. children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings; • 4.11.3. children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and • 4.11.4. migratory children who qualify as homeless because the children or youth are living in circumstances as described in the above descriptions.

21. PRE-K ATTENDANCE ISSUES • “Truancy” • The State Board of Education’s Policy 2525 provides the following on attendance: • §126-28-5. Attendance. • 5.1. Enrollment in an approved participating WV Pre-k program is voluntary; however, once the child is enrolled, attendance must follow W.Va. Code §18-8-1, et seq., which allows the program administrator (i.e. principal, director, executive director), teacher and parent/guardian to disenroll the child if they concur that requiring further attendance for that school year is not in the best interest of the child. Once a child is disenrolled, re-enrollment is not guaranteed. • 5.2. Each county must establish and implement procedures to ensure that the parent/guardian and other family members, as appropriate, understand about the availability of services, the attendance policy and the benefits of childhood education. • 5.3. Each county must include in its county collaborative plan a provision for working with families whose children are chronically absent and/or tardy that does not penalize the family for acting in the best interest of the child.

22. Although the early education statute itself, 18-5-44, states that 18-8-1 is applicable once a child is enrolled, practically speaking a magistrate will not be particularly sympathetic, since the program is voluntary at this point. • A policy that automatically disenrolls a child after so many absences sounds like it would violate the State Board’s policy that the county should work with families whose children are chronically absent.  The thinking is that if attendance is poor, the child won’t receive the benefits of high quality early education and may be setting a pattern for kindergarten and beyond. • A county’s collaborative could outline steps to take in this situation.  If none of the efforts at intervention work, a policy could provide for the program administer, teacher and parent/guardian meet to determine whether it is in the bests interests of the child to agree to disenroll the child.  If the parents understood that by statute, the compulsory attendance criminal statute applies, they may agree to disenroll.  But that needs to be a last step in the process.

23. OTHER QUESTIONS POSED BY ATTENDANCE DIRECTORS • FOREIGN EXCHANGE STUDENTS • No requirement that counties accept Foreign Exchange Students; should be a county decision; • State Board had made the following recommendations:[See 10/29/2005 memo] • West Virginia schools participate exclusively with exchange agencies that are listed with the non-profit accreditation agency, Council on Standards for International Educational Travel (CSIET). CSIET monitors exchange agency practices and produce an annual list of approved agencies. http://www.csiet.org/mc/page.do?sitePageId=750

24. West Virginia schools collaborate with the sState’s Department of Health and Human Resources (DHHR) to provide opportunities for training/disseminating information regarding potential issues of concern that foreign exchange students may encounter. • Foreign exchange students should have an enrollment entry code of “EF” on their WVEIS student information. The student’s bilingual field (used for LEP data) should not be activated. • What about once a foreign exchange student shows up on your doorstep?

25. WHEN MUST A COUNTY REPORT A STUDENT AS A WITHDRAWAL? • DROPOUT DATE IS THE SCHOOL DAY AFTER THE STUDENT’S LAST DAY OF ATTENDANCE; POLICY 4110 ¶4.7 • ALTHOUGH A SCHOOL MAY HAVE INTERVENTION STRATEGIES TO EMPLOY, IF A STUDENT HAS FORMALLY DROPPED OUT, COUNTY CANNOT KEEP HIM/HER AS ENROLLED ON WVEIS

26. ATTENDANCE ON FINAL EXAM DAYS REVISITED • There is no Superintendent’s interpretation on this specific issue. • The question remains whether the school can count the day as a day of instruction if it has told some of its students to stay home.