SUPERINTENDENT INTERPRETATION
 
Interpretation's Date: June 4, 2003
by superintendent David Stewart
Section: V. Personnel
SubSection: C. Service Personnel

 

Interpretation

June 4, 2003

Honorable Jerry L. Mezzatesta
West Virginia House of Delegates
Building 1, Room 432M
1900 Kanawha Blvd., East
Charleston, WV 25305

Dear Delegate Mezzatesta:

I am in receipt of your request for clarification regarding paraprofessionals and the No Child Left Behind Act (hereinafter,? NCLB?). Because the term ?paraprofessional? is used in both NCLB and in the West Virginia Code, there has been some confusion regarding the interplay of these two distinctive sets of legal requirements. For your reference, I have enclosed copies of two previous memos I have issued on this topic, dated August 26, 2002 and August 28, 2002.

By way of clarification, NCLB uses the term ?paraprofessional? in a broad and general manner. Under NCLB, the broad term ?paraprofessional? refers to any school staff member who is not a teacher but who assists teachers in instructing students. The term does not apply to individuals working primarily as translators or solely on parental involvement activities or other non-instructional roles such as food service, cafeteria or playground supervision, personal care services, and non-instructional computer assistance. Under existing West Virginia law, this broad federal term is comprised of a number of specific subcategories, which include the class titles Aide I, Aide II, Aide III, Aide IV, and paraprofessional which are found in West Virginia Code ? 18A-4-8. The use of the broad federal term ?paraprofessional? in NCLB does not change or alter the definitions of class titles which are found in West Virginia Code ? 18A-4-8. Likewise, the federal term ?paraprofessional? is not restricted to those individuals who meet the West Virginia Board of Education requirements for a paraprofessional certificate as set forth in Policy 5202 at section 25.

NCLB provides that all ?paraprofessionals? hired after January 8, 2002, must have (1) completed two years of study at an institution of higher education, (2) obtained an associate?s (or higher) degree, or (3) be able to demonstrate, through a formal State or local academic assessment, knowledge of and the ability to assist in instructing reading, writing, and mathematics. Meeting any one of these standards will satisfy NCLB requirements.

The requirements of NCLB apply to all school staff members with instructional duties in any program supported by Title I funds. For a schoolwide Title I school, this means all such employees in the school with instructional duties without regard to the source of funding of the positions. All current employees who are considered ?paraprofessionals? under NCLB must meet these standards in four years.

It is the position of the West Virginia Department of Education that the current state competency exam for aides, developed pursuant to West Virginia Code ? 18A-4-8e, will satisfy the NCLB requirement of demonstrating ?knowledge of and the ability to assist in instructing reading, writing, and mathematics.?

Accordingly, counties should continue to seek employees with the West Virginia class title of aide and/or paraprofessional, on an as needed basis, pursuant to the standards set forth in the West Virginia Code and West Virginia Board of Education Policy 5202. However, in order to satisfy NCLB standards, each of these employees working in Title I funded positions or schoolwide Title I schools (i.e., any Aide I, II, III, IV or paraprofessional who assists teachers in instructing students) must also meet one of the NCLB requirements set forth above. Because aides will have already passed the aide competency exam, this should not present a problem. Likewise, because most West Virginia paraprofessionals licensed under the requirements of Policy 5202 were previously aides, they will also have met NCLB standards by having passed the aide competency exam. If a West Virginia paraprofessional licensed under Policy 5202 has not already passed the aide competency exam, the exam shall be made available if he or she desires to take it. Otherwise, a West Virginia paraprofessional licensed under Policy 5202 must meet the NCLB standards by completing either two years of college credit (48 hours) or by obtaining an associate?s degree.

In your request, you specifically asked the following questions:

1. Should aide positions be posted as paraprofessional even if paraprofessional duties are not needed?

No. A county should post positions according to the specific staffing needs of the county. As set forth above, any person employed in the West Virginia public schools as an Aide I, II, III, or IV who assists teachers in instructing students is considered to be a paraprofessional as that term is defined in NCLB. NCLB does not require that counties hire only those individuals who meet the qualifications for the subgroup of paraprofessionals defined in West Virginia Board of Education Policy 5202 at section 25.

2. If a current employee, who is filling a position which was originally posted as an aide position, becomes a paraprofessional, would he/she be given the increase in salary grade upon receiving this licensure?

Again, any person employed in the West Virginia Public Schools as an Aide I, II, III, or IV who assists teachers in instructing students is considered to be a paraprofessional as that term is defined in NCLB. However, if an aide (as defined by West Virginia Code ?18A-4-8) meets the requirements for a paraprofessional certificate as set forth in Policy 5202 and receives a paraprofessional certificate while employed as an aide, he or she is only entitled to be reclassified as a West Virginia paraprofessional for pay purposes if he or she can also show that he or she also performs the duties of a paraprofessional as set forth in West Virginia Code ?18A-4-8. See Veach v. Mineral County Board of Education, Docket No. 96-28-103 (September 30, 1996).

3. Would a county?s past practice regarding the upgrading of salary grades to an aide receiving licensure as a paraprofessional play any role in determining the correct practice for a county to follow?

Past county practice may be significant in this area. If a county has provided more generous upgrade privileges than those set forth in question number 2, above, then the county likely will be bound to follow those same procedures when dealing with all similarly situated employees.

4. Is a paraprofessional entitled to salary increments for college hours?

The provisions of West Virginia Code ?18A-4-8a pertaining to additional pay for college hours applies to all service personnel positions, including paraprofessionals.

5. Would it still be necessary for a paraprofessional to be designated as a supervisory aide?

Pursuant to the ruling of the Kanawha County Circuit Court in the case of Mary Sites and Juanita Murphy, Civil Action No. 97-AA-124, it would appear that West Virginia Code ?18A-5-8 provides for a level of supervision that is greater than that generally exercised by West Virginia paraprofessionals as defined in West Virginia Code ?18A-4-8(i)(65). Thus, if an aide or a West Virginia paraprofessional is needed to exercise the type of supervision defined in ?18A-5-8, then he or she should be so designated as provided in the statute.

6. In a school-wide Title I school, would a kindergarten aide funded by the county need to be a paraprofessional?

Yes. The requirements of NCLB apply to all school staff members with instructional duties in any program supported by Title I funds. For a schoolwide Title I school, this means all such employees in the school with instructional duties without regard to the source of funding of the positions.

7. How do the service personnel seniority laws play into the filling of these positions?
For example, a kindergarten aide position is posted. No paraprofessionals apply. Does the aide with the most seniority fill the position? In a second scenario, a kindergarten aide position is posted, an aide with 10 years seniority applies as well as a paraprofessional with one year or less seniority, who gets the position?

In that the provisions of NCLB regarding the federal definition of ?paraprofessional? do not create a new category of employment in West Virginia, and because all aides in West Virginia already have passed the aide competency exam, the traditional rules regarding the seniority and hiring of service personnel for aide positions will not be altered.

Hoping that I have been of service, I am,

Sincerely,

/s/

David Stewart
State Superintendent of Schools

DS/hld

Enclosures