WSR 07-10-131

PROPOSED RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[ Filed May 2, 2007, 11:46 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-13-050.

Title of Rule and Other Identifying Information: Chapter 392-160 WAC, Special service program/transitional bilingual.

Hearing Location(s): Brouillet Conference Room, Office of Superintendent of Public Instruction, 600 South Washington Street, Olympia, WA 98504-7200, on June 12, 2007, at 1:30 - 5:00 p.m.

Date of Intended Adoption: June 13, 2007.

Submit Written Comments to: Alfonso Anaya, P.O. Box 47200, Olympia, WA 98504-7200, e-mail Alfonso.Anaya@k12.wa.us, fax (360) 664-2605, by June 11, 2007.

Assistance for Persons with Disabilities: Contact Phouang Hamilton by June 11, 2007, TTY (360) 664-3631 or (360) 725-6152.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposed rule changes is to be in compliance with RCW and to effectively educate English language learners (ELLs).

Reasons Supporting Proposal: Clarification of the contents of the law as it applies to current practices, including the bilingual entrance and exit criteria.

Statutory Authority for Adoption: RCW 28A.180.060.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: [Superintendent of public instruction], governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Alfonso Anaya, office of superintendent of public instruction, (360) 725-6146.

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

A cost-benefit analysis is not required under RCW 34.05.328.

May 2, 2007

Terry Bergeson

Superintendent of

Public Instruction

OTS-9742.1


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)) 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 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)) A home language survey, 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)) tenth 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 eligibility is reasonably apparent by reason of)) is determined by:

(a) The student's ((ability to communicate reasonably well in his or her non-English primary language)) first language is a language other than English; 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))) approved state placement test.

(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 students 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 12, filed 8/12/91, effective 9/12/91)

WAC 392-160-020   State 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 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).

(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.)) Washington language proficiency placement test (WLPT).

[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 84-41, 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 shall submit a program approval application to the superintendent of public instruction no later than ((August 1)) the end of June 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 by no later than October 31.

[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 number of eligible and/or estimated number of 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 professional development activities plan for the next school year; and

(4) A description of the district's plan to build capacity 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)) Application 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)) preliminary application 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 preliminary application that is returned to a school district ((with approval withheld)) as disapproved 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; and

(4) Each approved preliminary application shall be submitted for final approval, by no later than October 31, following 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), 392-160-029, 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 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)) the student has not met established exit criteria on WLPT) 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 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 (reading/writing/listening/speaking).

(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)) they have met or exceeded the state standards as measured by the WLPT.

[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. Factors to be considered for students under these circumstances are as follows:

(a) Degree to which the disability is a primary contributor of barriers of English proficiency gains;

(b) The administration of the approved state language proficiency assessment; and

(c) Every three years a child can be assessed with an intellectual capacity on the state's approved annual academic assessment. The student's placement on each of these three continuums will determine the nature of the instruction and the education placement.

(2) Notwithstanding any other provisions of this chapter to the contrary, any eligible student whose disability under chapter 392-172A WAC is the primary barrier to the student's English language acquisition shall not be eligible for the entitlement established pursuant to 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