WSR 97-01-012

PROPOSED RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[Filed December 6, 1996, 3:55 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 94-19-007.

Title of Rule: Transitional bilingual instruction program rules (or limited English proficiency student program rules).

Purpose: To assure that limited English proficiency student programs enable students to achieve competency in English in compliance with state and federal laws.

Statutory Authority for Adoption: RCW 28A.180.060, [28A.180.]080, 28A.300.040(1), and Washington Constitution Article 3, Section 22.

Statute Being Implemented: Chapter 28A.180 RCW and 20 U.S.C. 1703(f).

Summary: WAC 392-160-004 is amended to reference state and federal statutory requirements respecting instructional programs for limited English proficiency students (hereafter referred to as "LEP students" and/or "LEP student programs").

WAC 392-160-005 is amended to list examples of permissible alternative LEP student instructional programs and services.

WAC 392-160-010 is amended to require notice of an LEP student's rights to services and to waive services and to recognize an LEP student's right to other special needs program services.

WAC 392-160-015 is amended to reorganize wording and to delete a provision respecting reassessment that is relocated to new section WAC 392-160-016.

New section WAC 392-160-016 relocates the reassessment provision deleted from WAC 392-160-015(5) and requires that the evaluation of LEP student academic progress be conducted the same year(s) evaluation(s) of regular education student progress is (are) conducted.

WAC 392-160-020 is amended to also recognize LAS/O and LAS R/W, IDEA proficiency tests and the Woodcock Munoz language survey as approved language proficiency tests and to require that grade 3-12 students who are fluent in oral English be assessed in English reading and writing comprehension.

WAC 392-160-029 is amended to condition the approval of LEP student program funding applications upon completeness, accuracy and program adequacy.

WAC 392-160-035 is amended to delete program exit provisions that are relocated to new section WAC 392-160-036 and expanded upon by new section WAC 392-160-037.

New section WAC 392-160-036 relocates the approved test provision that is deleted from WAC 392-160-035(2).

New section WAC 392-160-037 relocates the thirty-five percentile exit standard that is deleted from WAC 392-160-035(1); adds a second alternative reading, writing, speaking and academic proficiency exit standard; and adds requirements that students who have exited from an LEP student program be reviewed to determine whether they are succeeding in the regular program and, if a student is not succeeding due to a language barrier, that the student's deficiency be remedied.

WAC 392-160-040 is amended to require that alternative instructional LEP student programs be based upon sound educational theory; to recognize that alternative instructional programs are permissible for students who are advanced in their transition to English and best served by individual monitoring; and to require the submission of an alternative instructional program implementation plan to SPI.

New section WAC 392-160-050 recognizes that LEP students may be segregated as necessary to address their educational needs and requires that their physical facilities be comparable to those provided non-LEP students.

New section WAC 392-160-060 requires that LEP students also be provided access to gifted programs if they can meaningfully participate in both the LEP student program and a gifted program and also be provided access to necessary special education services.

New section WAC 392-160-070 establishes certification, training and/or experience, and language skill requirements for LEP student teachers and/or classified staff and criteria for granting exceptions to the requirements.

New section WAC 392-160-080 requires that state basic education funding generated by LEP students be used in support of their instruction to the greatest extent practicable.

New section WAC 392-160-090 limits state reimbursement to expenditures included in a district's approved LEP program budget and limits state reimbursement for indirect costs to ten percent.

New section WAC 392-160-091 requires that districts with two hundred or more eligible LEP students evaluate the effectiveness of their programs at least every three years using relevant indicators.

WAC 392-160-045 is repealed.

Reasons Supporting Proposal: To update chapter 392-160 WAC in order to strengthen limited English proficiency student programs, and assure that the rules comport with legal requirements.

Name of Agency Personnel Responsible for Drafting: Robert E. Patterson, AG, Olympia, (360) 664-2540; Implementation: Helen Valdez, Superintendent of Public Instruction, Olympia, (360) 753-2573; and Enforcement: John Pearson, Superintendent of Public Instruction, Olympia, (360) 753-1545.

Name of Proponent: Superintendent of Public Instruction, governmental.

Rule is necessary because of federal law, 20 U.S.C. 1703(f).

Explanation of Rule, its Purpose, and Anticipated Effects: See Summary above. The anticipated effect of the changes is stronger or more effective limited English proficiency student programs.

Proposal Changes the Following Existing Rules: See Summary above.

No small business economic impact statement has been prepared under chapter 19.85 RCW.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.

Hearing Location: Wanamaker Conference Room, 2nd Floor, Old Capitol Building, 600 South Washington Street, Olympia, WA 98504-7200, on January 28, 1997, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Jim Rich by January 13, 1997, TDD (360) 664-3631, or (360) 753-6733.

Submit Written Comments to: Rules Coordinator, Legal Services, P.O. Box 47200, Olympia, WA 98504-7200, FAX (360) 753-4201, by January 27, 1997.

Date of Intended Adoption: January 29, 1997.

December 6, 1996

Judith A. Billings

Superintendent of

Public Instruction

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

WAC 392-160-004 Purpose. The purpose of this chapter is to ((set forth policies and procedures for the implementation of a transitional bilingual instructional program)) implement and assure compliance with the state Transitional Bilingual Instruction Act (chapter 28A.180 RCW) and the requirement of the federal Equal Educational Opportunity Act that appropriate action be taken to overcome language barriers that impede equal participation by students in instructional programs (20 U.S.C. 1703(f)).

[Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-004, filed 6/13/84.]

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

WAC 392-160-005 Definitions. As used in this chapter:

(1) "Transitional bilingual instruction" means a system of instruction which:

(a) Uses two languages, one of which is English, as a means of instruction to build upon and expand language skills to enable a student to achieve competency in English;

(b) Introduces concepts and information in the primary language of a student and reinforces them in the English language; and

(c) Tests students in the subject matter in English (or in a student's native language, when appropriate).

(2) "Primary language" means the language most often used by a student (not necessarily by parents, guardians, or others) for communication in the student's place of residence.

(3) "Eligible student" means any student who meets the following two conditions:

(a) The primary language of the student must be other than English; and

(b) The student's English skills must be sufficiently deficient or absent to impair learning.

(4) "Alternative instructional program and/or services" means a program of instruction ((which may include English as a second language and)) that is designed to enable the student to achieve competency in English. Such programs and services may include:

(a) English as a Second Language (ESL), Sheltered English, ESL content classes;

(b) Cognitive Academic Language Learning Approach (CALLA);

(c) ESL tutoring (in limited circumstances, appropriate for a few advanced students in the school district);

(d) Instruction by mainstream teachers trained in ESL strategies, second language acquisition, multicultural awareness; and

(e) Individual monitoring where students who are advanced in their transition to English are provided individual assistance, counseling, and guidance and are assigned to regular education staff trained in ESL strategies, second language acquisition, and multicultural awareness to complete the individual's transition to English. Such individual monitoring may be the only instruction a transitional bilingual student receives.

[Statutory Authority: RCW 28A.58.808. 84-20-083 (Order 84-41), 392-160-005, filed 10/2/84. Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-005, filed 6/13/84. Statutory Authority: RCW 28A.58.808. 80-07-039 (Order 80-21), 392-160-005, filed 6/17/80.]

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 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 in a language they can understand; ((and))

(3) Shall notify the parents or guardians of limited English proficient students of students' rights to transitional bilingual or alternative instructional program services and of the right to waive such services;

(4) Shall offer to make available the services of other special needs programs for which the student qualifies; and

(5) Shall provide in-service training for teachers, counselors, and other staff who are involved in the district's transitional bilingual program, including alternative instructional programs, on appropriate instructional strategies for students of culturally different backgrounds and use of curriculum materials and program models.

[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 the student and the student's parent(s) or guardian(s), or a combination of interviews and written questionnaires; and

(b) Provisions for testing students as provided for in this section, WAC 392-160-020, and 392-160-035.

(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 school day after the date upon which the student commences attendance at a particular school district.

(3) ((Newly enrolled students who speak little or no English--Determination of eligibility: The eligibility of a newly enrolled student whose)) No approved test need be administered if, in the professional judgment of school personnel, the students' 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)) other 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 students required: Each school year each school in which an eligible student is enrolled shall conduct an evaluation of the overall academic progress of the student. This evaluation must include but not be limited to the administration of a standardized test in reading and language arts 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.]

NEW SECTION

WAC 392-160-016 Reassessment required. Each year that the district conducts an overall academic evaluation of regular education students, the school district shall conduct an evaluation of the overall academic progress of each eligible student. This evaluation must include, but not be limited to, the administration of a standardized test in reading and language arts as set forth in WAC 392-160-036.

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

WAC 392-160-020 Approved tests for determining initial eligibility--English proficiency scores. (1) Approved English proficiency tests: The following tests are approved for the purpose of annually determining the English proficiency of newly enrolled students (other than those who speak little or no English) whose primary language is other than English:

(a) Language assessment scales (((LAS)) - oral, and reading and writing LAS/O and LAS R/W; and Pre-LAS);

(b) Basic inventory of natural language (BINL);

(c) Bilingual syntax measure (BSM); ((and))

(d) Secondary level English proficiency test (SLEP). (To be used only at 8-12 level);

(e) IDEA proficiency tests (IPT); and

(f) Woodcock Munoz language survey.

(2) Scores which establish an English skills deficiency: In the event a student scores within the appropriate range provided by the test maker to establish such English skill deficiency, the student's English skills shall be deemed sufficiently deficient or absent to impair learning

(3) The superintendent of public instruction may approve a school district request for use of a test other than those approved for use in this section when such request is supported by evidence that:

(a) The approved tests for use identified in this section are either unsuitable, inappropriate, or impractical for use by the school district;

(b) The scores that establish English skills deficiency for the requested test correspond with the scores that establish English skills deficiency for approved tests identified in this section; and

(c) The skills being measured by the requested test correspond to the skills measured by the approved tests identified in this section.

(4) Students in grades three through twelve who are fluent in oral English, as determined by the above test(s), must be assessed in English reading and writing comprehension.

[Statutory Authority: Chapter 28A.180 RCW. 91-17-008 (Order 12), 392-160-020, filed 8/12/91, effective 9/12/91. Statutory Authority: RCW 28A.58.808. 84-20-083 (Order 84-41), 392-160-020, filed 10/2/84. Statutory Authority: RCW 28A.58.800 through 28A.58.810. 84-13-027 (Order 84-17), 392-160-020, filed 6/13/84. Statutory Authority: RCW 28A.58.808. 80-07-039 (Order 80-21), 392-160-020, filed 6/17/80.]

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)) will 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)) reviewed for completeness and accuracy of the application and for adequacy of the program.

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

(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 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)). (((1))) No student shall continue to be entitled to a transitional bilingual or alternative instructional program after the student has received instruction in a transitional bilingual or alternative instructional program conducted pursuant to this chapter within any one or more school districts for a period of three 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)) satisfy the program exit requirements of WAC 392-160-037) shall continue to be entitled to an approved bilingual instruction or alternative instructional program.

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

(3) No student shall be entitled to continued enrollment in a transitional bilingual 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.))

[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.]

NEW SECTION

WAC 392-160-036 Testing. The approved test for measurement of improvement in English language skills for purposes of exit from transitional bilingual or alternative instructional programs shall be any nationally normed standardized achievement test normally administered by a school district to its students.

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NEW SECTION

WAC 392-160-037 Program exit requirements. (1) No student shall be entitled to continued enrollment in a transitional bilingual or alternative program once the student:

(a) 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; and/or

(b) Has become English proficient in reading, writing, speaking and comprehending and academically able to participate in the district's regular education program without the use of simplified English materials.

(2) The district shall have in place a plan for the annual review of exited students' academic progress to ensure that each exited student is able to succeed in the districts' regular academic program. At a minimum, the exited students will be reviewed annually for two consecutive years. If an exited student is not succeeding academically, the district must determine if the student's lack of success is due to language barrier. If the student's lack of success is due mainly to language barrier, the district must take appropriate steps to remedy the deficiency.

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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 nonexclusive conditions may elect to provide an alternative instructional program: Provided, That such alternative instructional program is based on sound educational theory and:

(1) Necessary instructional materials are unavailable and the district has made reasonable efforts to obtain necessary materials without success;

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

(3) Bilingual instruction cannot be provided affected 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.

(5) Individual students are advanced in their transition to English and individual students are best served by an individual monitoring, as described in WAC 392-160-005; and

(6) School districts that elect to provide an alternative instructional program must submit a program implementation plan as part of its application under WAC 392-160-026.

[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.]

NEW SECTION

WAC 392-162-050 Segregation and comparable facilities. (1) Limited English proficient students may be segregated from their nonlimited English proficient peers only to the degree necessary to achieve the goals of the districts' transitional bilingual or alternative instructional program.

(2) Physical facilities for transitional bilingual or alternative instructional programs must be comparable to those provided to nonlimited English proficient students.

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NEW SECTION

WAC 392-160-060 Access to specialized programs. (1) Generally, limited English proficient students shall have access to specialized programs offered by a district and may not be excluded therefrom unless educationally justified by the needs of the student or by the specialized nature of the program.

(2) Gifted/highly capable. If a district has a process for locating and identifying gifted/highly capable students, it must also locate and identify limited English proficient, gifted/highly capable students who could meaningfully participate in the program. Such students may be excluded from program participation only if the time for the highly capable program would unduly hinder the students' participation in a transitional bilingual or alternative instructional program or the highly capable program itself requires proficiency in English language skills for meaningful participation.

(3) Special education. If a district has a process for locating and identifying handicapped students, it must also locate and identify limited English proficient, handicapped students who could benefit from the program. Alternative language services and special education services shall be provided to students who need them.

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NEW SECTION

WAC 392-160-070 Staff qualifications and training. All employees of a school district who provide transitional bilingual or alternative instruction and/or services shall be qualified, as follows:

(1) All employees shall hold such credentials, certificates or permits as are now or hereafter required by the state board of education for the particular position of employment and shall meet such supplemental standards as may be established by the school district of employment. Supplemental standards established by a district may exceed, but not be less than, those established by this section.

(2) In addition to the requirement of subsection (1) of this section, all teachers shall possess "substantial professional training" and/or "successful prior experience" and support personnel shall meet standards established under the educational staff associate rules of the state board of education, as now or hereafter amended.

(a) "Successful prior professional experience" as used in this section shall mean at least three full school years of satisfactory employment as demonstrated by a record of adequate performance reviews in an approved transitional bilingual or alternative instructional program within the five-year period immediately preceding the school year of employment in a position supported in whole or part by excess cost apportionment funds.

(b) "Substantial professional training" as used in this section shall mean and be evidenced by either an appropriate bilingual or English as a second language endorsement or recommended placement upon the teaching certificate of an employee issued by the superintendent of public instruction or completion of teacher education program designed to prepare teachers of students with limited English proficiency offered by an institution approved by the state board of education for teacher certification purposes.

(c) Certificated staff who are assigned to teach in a transitional bilingual education classroom shall possess proficiency in speaking, reading and writing both languages.

(3) Classified staff shall present evidence of either formal and/or adequate in-service training or successful experience working with limited English proficient students, and shall work under the direct supervision of certificated staff. Classified staff who provide native language assistance shall possess the appropriate level of skill in speaking, reading and writing both languages.

(4) The assignment of personnel shall be consistent with training and experience appropriate to the grade level (preschool, elementary, secondary) and type of program in which teaching will be performed. District reorganization, reductions in force, and reassignments shall be made in a manner consistent with the requirements of this section.

(5) The superintendent of public instruction or his or her designee may grant an exception to compliance with any of the staff qualifications imposed by this section which are above and beyond certification requirements imposed by the state board of education for one year at a time and only upon the request of a school district and the provision of satisfactory assurances by the district that noncompliance:

(a) Is unavoidable;

(b) Will be addressed pursuant to a realistic plan for training and/or otherwise obtaining qualified certificated and classified staff; and

(c) Will not likely result in a significant reduction in the quality of the district's transitional bilingual or alternative instructional program.

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NEW SECTION

WAC 392-160-080 Coordination and maximization of use of funds. School districts shall coordinate the use of funds from federal, state, and local sources in serving students who are limited English proficient, and make efficient use of these resources in the delivery of services to such students.

School districts shall use state basic education funds generated by limited English proficient students, to the greatest extent practicable, in the instruction of those students.

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NEW SECTION

WAC 392-160-090 Allowable expenditures. Only allowed expenditures shall be reimbursed by the superintendent of public instruction. Allowed expenditures shall include direct and indirect expenditures included on the approved program budget: Provided, That beginning with expenditures for the 1996-97 school year, the allowed indirect expenditure rate shall not exceed ten percent.

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NEW SECTION

WAC 392-160-091 Program evaluation. Each school district with two hundred or more students identified as eligible for the state transitional bilingual program, shall evaluate its program at least every three years to determine that it is effective in teaching students English and providing the students with equivalent access to the school district's core curriculum. School districts shall use student grades and achievement test scores in its program evaluation. School districts may use drop out rates, participation in extra curricular activities, student/teacher/parent surveys, etc. If a school district's program is not effective in teaching students English and providing them access to the district core curriculum, the school district shall modify its program to make it effective.

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REPEALER

The following section of the Washington Administrative Code is repealed: