WSR 08-09-071

PERMANENT RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[ Filed April 16, 2008, 11:38 a.m. , effective May 17, 2008 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The purpose of the proposed rule changes is to be in compliance with RCW and to effectively educate English language learners (ELLs).

Citation of Existing Rules Affected by this Order: Amending chapter 392-160 WAC.

Statutory Authority for Adoption: RCW 28A.180.010.

Adopted under notice filed as WSR 07-23-061 on November 16, 2007.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 9 [0], Amended [9], Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended X [9], Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: February 26, 2008.

Dr. Terry Bergeson

Superintendent of

Public Instruction

OTS-9742.6


AMENDATORY SECTION(Amending Order 84-41, filed 10/2/84)

WAC 392-160-010   School district board of directors duties.   Consistent with the provisions of this chapter, every school district board of directors:

(1) Shall make available to each eligible student a transitional bilingual ((instruction)) instructional program or, if the use of two languages is not practicable as provided in WAC 392-160-040, an alternative instructional program;

(2) Shall communicate, whenever feasible, with parents of students in the bilingual program, or alternative instruction program in a language they can understand; and

(3) Shall provide ((in-service)) whenever feasible professional development training for administrators, teachers, counselors, and other staff ((who are involved in the district's transitional bilingual program, including alternative instructional programs,)) on bilingual program models, and/or district's alternative instructional program, appropriate use of instructional strategies ((for students of culturally different backgrounds and use of curriculum materials and program models)) and assessment results, and curriculum and instructional materials for use with culturally and linguistically diverse students.

[Statutory Authority: RCW 28A.58.808. 84-20-083 (Order 84-41), 392-160-010, filed 10/2/84. Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-010, filed 6/13/84. Statutory Authority: RCW 28A.58.804. 81-15-089 (Order 81-4), 392-160-010, filed 7/22/81. Statutory Authority: RCW 28A.58.808. 80-07-039 (Order 80-21), 392-160-010, filed 6/17/80.]


AMENDATORY SECTION(Amending Order 12, filed 8/12/91, effective 9/12/91)

WAC 392-160-015   Identification of eligible students.   (1) District procedures -- Identification of primary language required: Every school district board of directors shall adopt written procedures governing the identification of each student's primary language and the determination of which students with a primary language other than English are eligible students. Such procedures shall include:

(a) ((Provisions for the identification of a student's primary language pursuant to an interview with or a written questionnaire directed to)) A home language survey, completed by the student and the student's parent(s) or guardian(s), ((or a combination of interviews and written questionnaires)) which identifies the student's primary language as other than English; and

(b) Provisions for testing students ((as provided for in this section, WAC 392-160-020, and 392-160-035)) on the state-approved Washington language proficiency placement test.

(2) Deadline for determining eligibility of newly enrolled students: The primary language and eligibility of each newly enrolled student shall be established no later than the ((twentieth)) tenth school day after the date upon which the student commences attendance at a particular school district. Provided that no eligible student shall be required to participate in a transitional bilingual instructional program or an alternative instructional program, if the parent/guardian chooses to opt the student out of program services.

(3) ((Newly enrolled students who speak little or no English -- Determination of eligibility: The eligibility of a newly enrolled student whose eligibility is reasonably apparent by reason of:

(a) The student's ability to communicate reasonably well in his or her non-English primary language; and

(b) The student's inability to communicate in English to any practical extent as determined by an interview with the student by appropriate school district staff. No other approved test need be administered if the professional judgment of the school personnel is that the student is eligible as defined in WAC 392-160-005(3).

(4) All other newly enrolled students -- Determination of eligibility: The eligibility of all newly enrolled students:

(a) Who have a primary language other than English; and

(b) Whose eligibility is not reasonably apparent by reason of the standards established by subsection (3) shall be determined pursuant to WAC 392-160-020.

(5))) Annual reassessment of all (eligible) students is required: Each school year each school in which an eligible student is enrolled shall conduct an evaluation of the overall academic progress and English language development of the student. This evaluation must include but not be limited to the administration of a standardized test in reading, writing, listening and ((language arts)) speaking in English as set forth in WAC 392-160-035.

[Statutory Authority: Chapter 28A.180 RCW. 91-17-008 (Order 12), 392-160-015, filed 8/12/91, effective 9/12/91. Statutory Authority: RCW 28A.58.808. 84-20-083 (Order 84-41), 392-160-015, filed 10/2/84. Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-015, filed 6/13/84. Statutory Authority: RCW 28A.58.804. 81-15-089 (Order 81-4), 392-160-015, filed 7/22/81. Statutory Authority: RCW 28A.58.808. 80-07-039 (Order 80-21), 392-160-015, filed 6/17/80.]


AMENDATORY SECTION(Amending Order 84-41, filed 10/2/84)

WAC 392-160-026   District application.   Each school district that seeks an allocation of state funds for a transitional bilingual instruction program or alternative instructional program shall submit a program approval application to the superintendent of public instruction no later than August 1 of each year: Provided, That in the case of extenuating circumstances or in the case of a change in circumstances such as the unexpected enrollment of eligible students the superintendent of public instruction may allow the belated submission of an application or the submission of a modification to a previously approved application. The application shall apply to programs to be conducted during the ensuing school year and shall provide data and information in accordance with instructions and forms now or hereafter established and published by the superintendent of public instruction in bulletins distributed to school districts.

[Statutory Authority: RCW 28A.58.808. 84-20-083 (Order 84-41), 392-160-026, filed 10/2/84. Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-026, filed 6/13/84.]


AMENDATORY SECTION(Amending Order 84-17, filed 6/13/84)

WAC 392-160-027   Board approval.   The district's ((annual application)) transitional bilingual instructional program or alternative instructional program shall be approved by formal action of the district's board of directors.

[Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-027, filed 6/13/84.]


AMENDATORY SECTION(Amending Order 84-41, filed 10/2/84)

WAC 392-160-028   Content of district application.   The district's annual application shall contain the following:

(1) The estimated number of eligible students to be served ((during the current school year and the estimated number to be served)) in the next school year ((for each non-English primary language spoken));

(2) A description of the ((approved tests to be used in the next school year to determine student eligibility)) bilingual instructional program and/or alternative instructional program to be implemented the next school year;

(3) ((The estimated number of students who will be enrolled during the next school year in a program funded pursuant to this chapter in excess of three school years (i.e., 540 school days or portions thereof). The numbers of such students shall be identified by the non-English primary language spoken and the type of program to be provided (i.e., bilingual or alternative instructional program);

(4) The number of students who have been enrolled in a program funded pursuant to this chapter in excess of three school years who are currently served identified by the non-English primary language spoken by each student and the type of program provided each student;

(5) A description of the bilingual instruction and alternative instructional programs planned for the next school year; and

(6) A description of the in-service training program that is planned for the next school year.)) A description of the research-based professional development activities plan targeted toward second language acquisition for the next school year as provided for in this section and WAC 392-160-010; and

(4) A description of the district's plan for continuous improvement and evaluation of its program to serve English language learners.

[Statutory Authority: RCW 28A.58.808. 84-20-083 (Order 84-41), 392-160-028, filed 10/2/84. Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-028, filed 6/13/84.]


AMENDATORY SECTION(Amending Order 84-17, filed 6/13/84)

WAC 392-160-029   Program approval.   Program approval by the superintendent of public instruction shall be as follows:

(1) Each application that is submitted as required by and pursuant to this chapter shall be approved: Provided, that approval of an application may be withheld in whole or part in the event the superintendent of public instruction deems it necessary to ascertain the completeness and accuracy of the application((.));

(2) Each school district shall be notified of program approval ((or disapproval, in whole or part)) status, within thirty days after the date of receipt of the application by the superintendent of public instruction((.)); and

(3) Each application that is returned to a school district with approval withheld in whole or part shall be accompanied by an explanation of the reasons ((therefor)) therefore and a statement of the corrective action necessary for approval.

[Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-029, filed 6/13/84.]


AMENDATORY SECTION(Amending Order 84-41, filed 10/2/84)

WAC 392-160-035   ((Three-year limitation -- Testing -- ))Program exit requirements -- Testing.   (1) No student shall continue to be entitled to a transitional bilingual instructional program or alternative instructional program after the student has received instruction in a transitional bilingual instructional program or alternative instructional program conducted pursuant to this chapter within any one or more school districts for a period of three consecutive school years (i.e., 540 school days or portions thereof): ((Provided, That each such student who is unable to demonstrate an improvement in English language skills that is sufficient to overcome the student's learning impairment (i.e., unable to score above the 35th percentile on an approved test) shall continue to be entitled to an approved bilingual instruction or alternative instructional program)) Unless the student has not yet met exit criteria on Washington language proficiency test as established by the office of superintendent of public instruction.

(2) The approved test for measurement of improvement in English language skills for purposes of exit from the transitional bilingual instructional program or alternative instructional programs shall be ((any nationally normed standardized achievement test normally administered by a school district to its students)) the Washington language proficiency test.

(3) No student shall be ((entitled to continued enrollment in a transitional bilingual)) eligible for continued funding in the transitional bilingual instructional program or alternative program ((once the student has scored above the 35th percentile on the reading and language arts portions of a nationally normed standardized test appropriate for the student's age and grade level)) upon meeting or exceeding the state standards as measured by the WLPT. As provided for in this section and WAC 392-160-015, the parent/guardian retains the option to refuse program services for the eligible student.

[Statutory Authority: RCW 28A.58.808. 84-20-083 (Order 84-41), 392-160-035, filed 10/2/84. Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-035, filed 6/13/84. Statutory Authority: RCW 28A.58.804. 81-15-089 (Order 81-4), 392-160-035, filed 7/22/81. Statutory Authority: RCW 28A.58.808. 80-07-039 (Order 80-21), 392-160-035, filed 6/17/80.]


AMENDATORY SECTION(Amending Order 12, filed 8/12/91, effective 9/12/91)

WAC 392-160-040   Alternative instructional program.   School districts under one or more of the following conditions may elect to provide an alternative instructional program:

(1) Necessary instructional materials in the student's primary language are unavailable and the district has made reasonable efforts to obtain necessary materials without success;

(2) The capacity of the district's bilingual ((instruction)) instructional program is temporarily exceeded by an unexpected increase in the enrollment of eligible students;

(3) Bilingual instruction cannot be provided ((affected)) to students without substantially impairing their basic education ((program)) because of their distribution throughout many grade levels or schools, or both; or

(4) Teachers who are trained in bilingual education methods and sufficiently skilled in the non-English primary language(s) are unavailable, and the district has made reasonable attempts to obtain the services of such teachers.

[Statutory Authority: Chapter 28A.180 RCW. 91-17-008 (Order 12), 392-160-040, filed 8/12/91, effective 9/12/91. Statutory Authority: RCW 28A.58.808. 84-20-083 (Order 84-41), 392-160-040, filed 10/2/84. Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-040, filed 6/13/84. Statutory Authority: RCW 28A.58.804. 81-15-089 (Order 81-4), 392-160-040, filed 7/22/81. Statutory Authority: RCW 28A.58.808. 80-07-039 (Order 80-21), 392-160-040, filed 6/17/80.]


AMENDATORY SECTION(Amending Order 84-41, filed 10/2/84)

WAC 392-160-045   ((Handicapped students -- No)) Students with disabilities -- Conditions for transitional bilingual entitlement.   ((Notwithstanding any other provision of this chapter to the contrary, any eligible student whose English language skill deficiency is caused primarily by one or more of the handicapping conditions defined in chapter 392-171 WAC, as now or hereafter amended, shall not be eligible for the entitlement established pursuant to this chapter.)) (1) Students identified as being eligible for both the state transitional bilingual instructional program (TBIP) and special education program will participate in the TBIP to the same degree and consideration given to every other child in the TBIP.

(2) The district, in consultation with the student's IEP team shall determine whether the child's disability is the determinant factor for the child's English language skill deficiency.

(3) If it is determined that the child's disability is the determinant factor for the English language skill deficiency, the child shall not be eligible for the TBIP.

(4) If it is determined that the child's disability is not the determinant factor for the English language skill deficiency, the child shall be eligible for the TBIP.

(5) If it cannot be determined whether or not the child's disability is the determinant factor for the child's English language skill deficiency, the child shall be eligible for TBIP and the special education program. The child's district, in consultation with the student's IEP team shall assess annually whether or not the child's disability is the determinant factor for the child's English language skill deficiency. If the district and IEP team determine that the child's disability is the determinant factor for the child's English language skill deficiency then the child shall not be eligible for the TBIP.

(6) A child who is participating in both the TBIP and the special education program under this chapter shall be subject to all conditions of participation provided in this chapter.

[Statutory Authority: RCW 28A.58.808. 84-20-083 (Order 84-41), 392-160-045, filed 10/2/84. Statutory Authority: RCW 28A.58.804. 81-15-089 (Order 81-4), 392-160-045, filed 7/22/81. Statutory Authority: RCW 28A.58.808. 80-07-039 (Order 80-21), 392-160-045, filed 6/17/80.]

Washington State Code Reviser's Office