(a) Establishment of attendance zones within counties. — The county board may establish attendance zones within the county to designate the schools within its district that resident students typically attend: Provided, That a county board may permit any eligible elementary, middle or high school resident student to apply for enrollment in any school with grade level capacity and existing programs and services currently outside any established attendance zone in which the student resides. Upon the written request of any parent or guardian, or person legally responsible for any resident student, the superintendent may grant a resident student’s transfer request from one school or program to another within the county so long as grade level capacity and the program and services exist at the time of the request. Counties with a critical need shortage policy may further review the request to determine if appropriate staffing is available in the requested grade, program, service, or content area. A superintendent may not transfer a resident student from one school to another within the county for reasons affecting the best interests of the schools without the consent of the student’s parent or legal guardian. Any aggrieved person may appeal a transfer or denial of transfer by the county superintendent to the county board. When making enrollment decisions, a county superintendent or county board may not distinguish between students on the basis of residential or potential disability status. A county superintendent or county board may determine if appropriate staff, resources, services and programs are in place to meet the disability needs of the student at the requested school. A decision of the county board may be appealed to the state superintendent of schools, whose decision shall be final.

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(b) Definitions. — For the purposes of this section, unless a different meaning clearly appears from the context:

(1) “Nonresident student” means a student who resides in this state and who is enrolled in or is seeking enrollment in a county school district other than the county school district in which the student resides.

(2) “Open enrollment” means a policy adopted and implemented by a county board to allow nonresident students to enroll in any school within the district. Open enrollment is distinct from a mutual agreement of two county boards regarding mass transfer of students, as contemplated in §18-5-13(f)(1)(C) of this code.

(c) Enrollment policies for nonresident students. — County boards shall establish and implement an open enrollment policy for nonresident students without charging tuition and without obtaining approval from the board of the county in which a student resides and transfers. This policy shall clearly establish an open enrollment process and enrollment application period for nonresident students to enroll in any school within the district. The process for enrollment application shall be clearly publicized to parents and the general public, including dates and timelines, and shall be made available on the board’s website. As part of the open enrollment policy, county boards shall also establish a process for nonresident students to enroll in any school within the district on a case-by-case basis at any time during the academic year so long as all other requirements are met including that the student has not previously transferred within the same school year. The open enrollment policy shall not discriminate against nonresident students on the basis of their residential address or any potential disability status. Enrollment policies are subject to the following:

(1) A county board may give enrollment preference to:

(A) Siblings of students already enrolled through the open enrollment policy;

(B) Secondary students who have completed 10th grade and, due to family relocation, become nonresident students, but express the desire to remain in a specific school to complete their education;

(C) Students who are children, grandchildren, or legal wards of employees;

(D) Students whose legal residences, though geographically within another county, are more proximate to a school within the receiving county, whether calculated by miles or transportation time;

(E) Students who reside in a portion of a county where topography, impassable roads, long bus rides, or other conditions prevent the practicable transportation of the student to a school within the county, and a school within a contiguous county is more easily accessible; and

(F) The county board to which the student wishes to be transferred may not refuse a transfer by virtue of the student transferring from a private, parochial, church, or religious school holding an exemption approved pursuant to §18-8-1(k) of this code: Provided, That nothing in this paragraph shall be construed to allow a county board to give an enrollment preference to a student transferring from a private, parochial, church, or religious school holding an exemption approved pursuant to §18-8-1(k) of this code.

(2) A county shall comply with all enrollment requirements for children who are in foster care or who meet the definition of unaccompanied youth prescribed in the McKinney-Vento Homeless Assistance Act (42 U.S.C. § 11434a(6)).

(3) The county board for the county educating the nonresident student may provide an adequate means of transportation to nonresident students when students have complied with the procedure for obtaining authorization to attend school outside their county of residence, subject to the following:

(A) County boards of education are not required to uniformly provide nonresident student transportation, and may consider whether a nonresident student meets the eligibility criteria for free or reduced price lunch and milk established within the Richard B. Russell National School Lunch Act (42 U.S.C. § 1758); and

(B) The county board for the county educating the nonresident student shall provide transportation to and from the school of attendance, or to and from an agreed pickup point on a regular transportation route, or for the total miles traveled each day for the nonresident student to reach the school of enrollment if the nonresident student is a student with disabilities and has an individualized education program that specifies that transportation is necessary for fulfillment of the program.

(4) An application may only be denied by a county board of education due to lack of grade level capacity, lack of programs or services due to areas identified in the county board critical need policy, or the commission of Level 3 or Level 4 inappropriate behavior as defined by West Virginia Board of Education Policy 4373 in the last year. The denial shall be in writing, sent to the parent or guardian of the nonresident student and the West Virginia Department of Education within three business days of the decision, and include the reason and explanation for the denial and information on appealing the denial of the application. If a nonresident student fails to fill out or submit an open enrollment application correctly, a county board shall provide an explanation of ways in which the application may be corrected and submitted for necessary approval.

(d) Appeal. — The State Board of Education shall establish a process whereby a parent or guardian of a student may appeal to the State Superintendent the refusal of a county board to accept the transfer of the student. If during the appeal process, the State Superintendent discovers that the education and the welfare of the student could be enhanced, the State Superintendent may direct that the student may be permitted to attend a school in the receiving county.

(e) Net enrollment. — For purposes of net enrollment as defined in § 18-9A-2 of this code, whenever a student is transferred on a full-time basis from one school district to another district pursuant to the provisions of this section, the county to which the student is transferred shall include the student in its net enrollment, subject to the following:

(1) If a student transfers after the second month of any school year, the county to which the student transferred may issue, in the following fiscal year, an invoice to the county from which the student transferred for the amount, determined on a pro rata basis, that the county now responsible for educating the student otherwise would have received under the state basic foundation program established in § 18-9A-1 et seq. of this code had such student been included in the county’s prior year’s net enrollment;

(2) If a student in grades kindergarten through 12 transfers after the second month of any school year, the county to which the student transferred may issue, in the following fiscal year, an invoice to the county from which the student transferred for the amount the county now responsible for educating the student otherwise would have received under aid to exceptional students had such student been included in the county’s prior year’s child count enrollment;

(3) If a student in prekindergarten transfers after the child count of exceptional students is certified for any school year, the county to which the student transferred may issue, in the following fiscal year, an invoice to the county from which the student transferred for the amount the county now responsible for educating the student otherwise would have received under aid to exceptional students had such student been included in the county’s prior year’s child count enrollment; and

(4) The county from which the student transferred shall reimburse the county to which the student transferred for the amount of the invoice.

(f) Transfers between states. — Transfer of students from this state to another state shall be upon such terms, including payment of tuition, as shall be mutually agreed upon by the board of the receiving county and the authorities of the school or district from which the transfer is made.

(g) No parent, guardian, or person acting as parent or guardian is required to pay for the transfer of a student or for the tuition of the student after the transfer when the transfer is carried out under the terms of this section.

(h) Nothing in this section supersedes the eligibility requirements for participation in extra-curricular activities established by the Secondary School Activities Commission.

(i) Each county board shall report annually to the State Department of Education the number of resident and nonresident student transfers approved by the county board for the preceding school calendar year, as well as the number of resident and nonresident student transfer applications denied and the reasons for those denials. On or before June 30 of each year, the State Department of Education shall compile the information from the county boards and report the information to the Legislative Oversight Commission on Education Accountability. Information regarding the annual number of resident and nonresident student transfer approvals and denials shall also be made available on each county board’s website.