Title of Regulation: 8VAC20-730. Regulations Governing the Collection and Reporting of Truancy-Related Data and Student Attendance Policies (amending 8VAC20-730-10, 8VAC20-730-20, 8VAC20-730-30).

Statutory Authority: §§ 22.1-16 and 22.1-258 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: March 3, 2021.

Effective Date: March 18, 2021.

Agency Contact: Maribel Saimre, Director, Office of Student Services, Department of Education, 101 North 14th Street, Richmond, VA 23219, telephone (804) 225-2818, or email maribel.saimre@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia allows that the "Board of Education may adopt bylaws for its own government and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of this title." Section 22.1-269 of the Code of Virginia "authorizes and requires the Board of Education to enforce Virginia's compulsory school attendance statutes."

Purpose: It is the primary goal of these amendments to align regulation with § 22.1-258 of the Code of Virginia. Students who attend school regularly beginning in kindergarten are more likely to succeed academically. Academic achievement, especially in math, is affected by attendance. Moreover, student nonattendance affects standardized test scores, graduation rates, and dropout rates. The amendments put in place an early identification and intervention process that provides school division personnel additional time to address barriers that disengage a student from school, thus improving school attendance.

Rationale for Using Fast-Track Rulemaking Process: In 2018, the Virginia General Assembly amended § 22.1-258 of the Code of Virginia relating to the appointment of attendance officers, notification when a pupil fails to report to school, attendance plan, conference, and court proceedings. The Virginia Department of Education proposes to use the fast-track rulemaking process as the amendments to 8VAC20-730 align the chapter with the Code of Virginia and therefore are deemed to be noncontroversial.

Substance: The substantive changes conform with § 22.1-258 of the Code of Virginia and reflect feedback from school division personnel across the Commonwealth, including expanding the number of days a parent has to respond to a school division's request for information to make decisions on excused versus unexcused absences from three days to five days. Additionally, changes to the regulation reflect a need to remove specific data element specifications and indicate that data will be collected reflective of § 22.1-258 of the Code of Virginia and definitions within 8VAC20-730. Data specifications regarding the collection of unexcused absences will be outlined in a manner prescribed by the Virginia Department of Education.

Issues: The proposed amendments pose no disadvantage to the public or the Commonwealth. The proposed amendments will serve to collect daily attendance data and nonattendance data and guide an early identification and intervention process that provides school division personnel additional time to thoughtfully and purposefully remove barriers that disengage a student from school, thus improving school attendance.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Chapters 713 and 753 of the 2018 Acts of Assembly (legislation) amended § 22.1-258 of the Code of Virginia, relating to a pupil's unexcused absences and conferences concerning those absences. In response, the Board of Education (Board) proposes several amendments to 8 VAC 20-730, Regulations Governing Unexcused Absences and Truancy, to match the legislation. Additionally, the Board proposes to: 1) expand the number of days a parent has to provide an excuse for an absence from three days to five days, and 2) remove specific data collection requirements from the regulation.

Background. Prior to the legislation, § 22.1-258 indicated that: 1) an attendance conference is to be scheduled if the pupil has accrued six unexcused absences from school, and 2) the conference is to be held no later than 15 school days after the sixth absence. The legislation amended § 22.1- 258 so the attendance conference is to be scheduled after the seventh unexcused absence, and the conference is to be held no later than 10 school days after the seventh absence. The current regulation reflects the pre-legislation rules. The Board proposes to amend the regulation to match the requirements in the current Code of Virginia.

§ 22.1-258 indicates that the school principal or his designee schedule the conference with the pupil, his parent, and school personnel. The legislation added that the conference is to be held "regardless of whether his parent approves of the conference." To reflect this addition, the Board proposes to add to the regulation:

The principal or principal's designee shall make reasonable efforts to contact the student's parent or parents to attend the attendance conference either in person or via communication technology. If the principal or principal's designee, after reasonable efforts have been made, is unable to contact the student's parent or parents, the conference shall be held regardless of whether the student's parent approves of the conference.

Additionally, the current regulation defines "attendance conference" as including parent(s) and the student. The Board proposes to amend the definition so that it may include the parent(s) and student.

Estimated Benefits and Costs. The current regulation defines "unexcused absence" as: "...an absence where (i) the student misses his scheduled instructional school day in its entirety and (ii) no indication has been received by school personnel within three days of the absence that the student's parent is aware and supports the absence, or the parent provides a reason for the absence that is unacceptable to the school administration.

The Board proposes to give the parent five days to notify school staff that he or she is aware and supports the absence. Given busy schedules, this is a reasonable accommodation and would be beneficial for parents and students, without producing an apparent cost for schools.

The current regulation also specifies the following data reporting requirements:

Excused and unexcused absences shall be counted for each individual student and shall be reported to the Virginia Department of Education as follows:

1. All excused and unexcused absences as defined in this chapter for each individual student shall be collected.

2. For each student with five unexcused absences, whether an attendance plan was developed, and if not, the reason.

3. For each student with six unexcused absences, whether an attendance conference was scheduled, and if not, the reason.

4. For each student with six unexcused absences, whether an attendance conference was actually held, and if not, the reason.

5. For each student with seven unexcused absences, whether a court referral was made or if proceedings against the parent or parents were initiated and, if not, the reason.

These data reporting requirements do not match post-legislation § 22.1-258. For example, the statutory requirement for scheduling an attendance conference is now after seven unexcused absences, not six. When there is a conflict between statutory requirements and regulatory requirements, the statute prevails. According to the Department of Education, their Office of Education Information Management has sent guidance to the school divisions to collect and report data so that it matches post-legislation § 22.1-258.

The Board proposes to repeal the language on data collection requirements and instead state that "Data shall be reported to the Virginia Department of Education pursuant to the Code of Virginia § 22.1-258 and 8VAC20-730-20." The Office of Education Information Management would continue to send guidance to the school divisions on how the data is to be collected and sent. This proposal would be beneficial in that the regulation would no longer present misleading information concerning the data to be collected and reported.

Businesses and Other Entities Affected. The proposed amendments affect the 132 local school divisions. No school division is disproportionately affected. The proposed amendments do not appear to impose costs.

Localities¹ Affected². The proposed amendments affect all Virginia localities. No locality is particularly affected. The proposed amendments do not appear to introduce costs for local governments. Accordingly, no additional funds would be required.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments do not appear to substantively affect the use and value of private property. The proposed amendments do not affect real estate development costs.

Adverse Effect on Small Businesses³. The proposed amendments do not appear to adversely affect small businesses.

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¹"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

²§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

³Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis completed by the Department of Planning and Budget.

Summary:

The amendments (i) increase the number of days a parent has to provide an excuse for an absence from three days to five days; (ii) remove the specific data collection requirements and state that data will be collected based on § 22.1-258 of the Code of Virginia; and (iii) update the requirements for the post-absence conference to align with statute.

8VAC20-730-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Attendance conference" means a face-to-face meeting, or an interaction that is conducted through the use of communication technology, at a minimum, scheduled with the student, parent, and school personnel after the sixth unexcused seventh unexcused absence. The attendance conference shall be held no later than 10 school days after the 10th unexcused absence among school staff,. The attendance conference is held by a multi-disciplinary team and may include the parents, and student. The conference may include community representatives to participate in resolving issues related to nonattendance and revisions to the current attendance plan if necessary.

"Attendance plan" means a plan developed jointly by a school representative, such as a school principal or his the principal's designee or attendance officer; parent; and student to resolve the student's nonattendance and engage the student in regular school attendance. The plan shall identify reasons for nonattendance and academic, social, emotional, and familial barriers that impede daily attendance along with positive strategies to address such reasons and impedances impediments and support regular attendance. This plan may include school-based activities or suggested referrals to community supports, or both.

"Court referral" means filing a complaint to with the Juvenile and Domestic Relations Court after the student's seventh unexcused absence multi-disciplinary team has held an attendance conference and attempted interventions to address the student's continued nonattendance. Documentation of interventions regarding the student's unexcused absences, such as copies of the attendance plan and documentation of conference meetings, and compliance with § 22.1-258 of the Code of Virginia will be provided to the intake worker.

"Excused absence" means an absence of an entire assigned instructional school day with a reason acceptable to the school administration that is provided by the parent. If circumstances permit, the parent should provide the school administration with the reason for the nonattendance prior to the absence. Examples of an excused absence may include, but are not limited to, the following reasons: funeral, illness (including mental health and substance abuse illnesses), injury, legal obligations, medical procedures, suspensions, religious observances, and military obligation. Expelled and suspended Suspended students continue to remain under the provisions of compulsory school attendance as described in § 22.1-254 of the Code of Virginia. An absence from school attendance resulting from a suspension or expulsion may shall be considered excused recorded in compliance with 8VAC20-730-30 for the period of the suspension or expulsion.

"Instructional school day" means the length of a regularly scheduled school day for an individual student.

"Multi-disciplinary team" means a school-based conference team that may be convened to review student records and to participate in prevention, early intervention, and provision of support services to address unexcused absences, including school-based case management. These services should address academic, social, emotional, and familial issues in order to improve regular school attendance. Team members may include, but are not limited to, the following: an administrator, school counselor, social worker or psychologist, student assistance specialist, special education and regular general education teacher, and attendance officer, and community representatives.

"Parent" means the parent or parents, guardian or guardians, legal custodian or legal custodians, or other person or persons having legal control or charge of the student.

"Truancy" means the act of accruing one or more unexcused absences.

"Unexcused absence" means an absence where (i) the student misses his scheduled instructional school day in its entirety and (ii) no indication has been received by school personnel within three five days of the absence that the student's parent is aware and supports the absence, or the parent provides a reason for the absence that is unacceptable to the school administration. The school administration may change an unexcused absence to an excused absence when it determines that the parent has provided an acceptable reason meeting criteria for the student's absence or there are extenuating circumstances.

8VAC20-730-20. Unexcused absences intervention process and responsibilities.

A. Each local school board shall provide guidance regarding what would constitute an excused absence in order to address when the explanation provided by the parent will be determined to be reasonable and acceptable.

B. Each local school board shall develop procedures to ensure that appropriate interventions will be implemented when a student engages in a pattern of absences less than a full day, the explanation for which, if it were a full-day absence, would not be deemed an excused absence.

C. The following intervention steps shall be implemented to respond to unexcused absences from school and to engage students in regular school attendance.

1. Whenever a student fails to report to school on a regularly scheduled school day and no information has been received by school personnel that the student's parent is aware of and supports the absence, or the parent provides a reason for the absence that is unacceptable to the school administration, the school principal or designee, attendance officer, or other school personnel or volunteer will notify the parent by phone or email or any other electronic means to obtain an explanation. The school staff shall record the student's absence for each day as "excused" or "unexcused." Early intervention with the student and parent or parents shall take place for repeated unexcused absences.

2. When a student has received five unexcused absences, the school principal or designee or the attendance officer shall make a reasonable effort to ensure that direct contact is made with the parent. The parent shall be contacted in a face-to-face conference, by telephone, or through the use of other communication devices. During the direct contact with the parent and the student (if appropriate), reasons for nonattendance shall be documented and the consequences of nonattendance explained. An attendance plan shall be made with the student and parent or parents to resolve the nonattendance issues. The student and parent may be referred to a school-based multi-disciplinary team for assistance implementing the attendance plan and case management.

3. The When the student accrues a seventh unexcused absence, the school principal or principal's designee or the attendance officer shall schedule a face-to-face attendance conference, or an interaction that is conducted through the use of communication technology, within 10 school days from the date of the student's sixth unexcused absence for the school year. The attendance conference must be held within 15 10 school days from the date of the sixth unexcused 10th unexcused absence. The principal or principal's designee shall make reasonable efforts to contact the student's parent or parents to attend the attendance conference either in person or via communication technology. If the principal or principal's designee, after reasonable efforts have been made, is unable to contact the student's parent, the conference shall be held regardless of whether the student's parent approves of the conference. The conference shall include the parent, student, principal or principal's designee and school personnel (which may be a representative or representatives from the multi-disciplinary team ) and may include community service providers.

4. The multi-disciplinary team shall monitor the student's attendance and, as necessary, meet again to address concerns and plan additional interventions if the student's attendance does not improve. If additional meetings are necessary, the principal or principal's designee shall make reasonable efforts to contact the student's parent or parents and schedule a face-to-face meeting, or an interaction that is conducted through the use of communication technology. If the principal or principal's designee, after reasonable efforts have been made, is unable to contact the student's parent, the conference shall be held regardless of whether the student's parent approves of the conference.

5. In circumstances in which the parent is intentionally noncompliant with compulsory attendance requirements or the student is resisting parental efforts to comply with compulsory attendance requirements, the school principal or principal's designee shall notify make a referral to the attendance officer or division superintendent of the student's seventh unexcused absence for the school year. The attendance officer shall schedule a conference with the student and the student's parent or parents within 10 days of receiving the referral. The division superintendent or designee attendance officer shall contact the Juvenile and Domestic Relations Court intake to may (i) file a complaint with the juvenile and domestic relations district court alleging the student is a child in need of supervision (CHINSup) as defined in § 16.1-228 of the Code of Virginia or to (ii) institute proceedings against the parent pursuant to § 18.2-371 or 22.1-262 of the Code of Virginia. In addition to written documentation of compliance the efforts to comply with the notice provisions of § 22.1-258 of the Code of Virginia, all records of intervention regarding the student's unexcused absences, such as copies of the conference meeting notes, attendance plan, and description of the supports offered or made available to the student shall be presented to the intake worker.

D. A record shall be maintained of each meeting that includes the attendance plan, the name of individuals in attendance at each conference meeting (including via telephone or electronic devices), the location and date of the conference, a summary of what occurred, and follow-up steps.

8VAC20-730-30. Data collection and reporting.

Data collection shall begin on the first day students attend for the school year. Each school division shall provide student level attendance data for each student that includes the number of unexcused absences in a manner prescribed by the Virginia Department of Education. A student's attendance is cumulative and begins on the first official day of the school year or the first day the student is officially enrolled. All nonattendance days are cumulative and begin with the first absence. For purposes of this data collection, truancy shall start with the first unexcused absence and will be cumulative. Data shall be reported to the Virginia Department of Education pursuant to § 22.1-258 of the Code of Virginia and 8VAC20-730-20.

Excused and unexcused absences shall be counted for each individual student and shall be reported to the Virginia Department of Education as follows:

1. All excused and unexcused absences as defined in this chapter for each individual student shall be collected.

2. For each student with five unexcused absences, whether an attendance plan was developed, and if not, the reason.

3. For each student with six unexcused absences, whether an attendance conference was scheduled, and if not, the reason.

4. For each student with six unexcused absences, whether an attendance conference was actually held, and if not, the reason.

5. For each student with seven unexcused absences, whether a court referral was made or if proceedings against the parent or parents were initiated and, if not, the reason.