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Introduced Version Senate Bill 36 History

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SB36 INTR


Senate Bill No. 36

(By Senators Boley and Minear)

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[Introduced January 9, 2002; referred to the Committee

on Education; and the to the Committee on Finance.]

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A BILL to amend chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirty-three, relating to public education; requiring public schools to comply with certain provisions of federal law governing release and elicitation of certain information concerning students and their families; creating protections and safeguards for students and their families in connection with mental or comprehensive health care services or programs, including, but not limited to, genital examinations, birth control or abortion referral or both, or counseling, psychiatric or psychological treatment and experimental procedures; specifying rights of students and parents; specifying compliance procedures, remedies and criminal penalties; and providing effective date is on passage.

Be it enacted by the Legislature of West Virginia:
That chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article thirty-three, to read as follows:
ARTICLE 33. WEST VIRGINIA FAMILY EDUCATION RIGHTS AND PRIVACY ACT.
§18-33-1. Rights.

(a) In compliance with, but not limited to, 20 U.S.C. §1232h, all instructional materials, including teachers' manuals, films, tapes or other supplementary material which will be used in connection with any survey, analysis, evaluation, mental or comprehensive health care services or programs, including, but not limited to, genital examinations, birth control or abortion referral or both, counseling, psychiatric or psychological treatment or experimental procedure as part of any applicable program shall be available for inspection by the parents or guardians of the student.
(b) In compliance with, but not limited to, 20 U.S.C. §1232h, no student may be required, as part of any applicable program, to submit to mental or comprehensive health care services or programs, including, but not limited to, genital examinations, birth control or abortion referral or both, or counseling, psychiatric or psychological treatment or experimental procedures, or to submit to a survey, analysis, evaluation that reveals information concerning:
(1) Mental and psychological problems potentially embarrassing to the student or the student's family;
(2) Sex attitudes or beliefs;
(3) Sexual behavior;
(4) Illegal, antisocial, self-incriminating and demeaning behavior;
(5) Critical appraisals of other individuals with whom the student has or has had personal relationships;
(6) The disclosure of information protected by legally recognized privileged or analogous relationships, such as those of lawyers, medical personnel and ministers;
(7) Personal religious beliefs, cultural mores, moral code or political affiliations or beliefs;
(8) Personal values, attitudes, opinions or beliefs;
(9) Family members' values, attitudes, opinions or beliefs; or
(10) Income, other than required by law to determine eligibility for participation in a program or for receiving financial assistance under the program without the prior written informed consent of the student, if the student is an adult or emancipated minor, or in the case of an unemancipated minor, without the prior written informed consent of the parent.
(c) If a parent or legal guardian of a student requests the education records of the student, a public school shall comply with the provisions of 20 U.S.C. §1232g(a) and 34 C.F.R. Part 99.
(d) If a parent or legal guardian of a student reviews the education records of the student and requests an amendment or other change to the education records, a public school shall comply with the provisions of 20 U.S.C. §1232g(a) and 34 C.F.R. Part 99.
(e) Except as otherwise provided in 20 U.S.C. §1232g(b), no educational entity may release or allow access to any student record or any personal or private information relating to personally identifiable information on the student or family of the student to a person, agency or organization without the prior written informed consent of the parent or legal guardian of the student.
(f) A parent or guardian has the right to have the student of the parent or guardian excused from specific instruction which conflicts with personal religious beliefs, cultural mores or moral code of the parent or guardian, upon submission to the public school entity of a written request for excusal on the basis of the personal religious beliefs, cultural mores or moral code.
(g) A public school shall, at least annually, provide to each student who is at least eighteen years of age and to the parent or legal guardian of each student who is not at least eighteen years of age, written notice of his or her rights pursuant to this section.
(h) The provisions of this section:
(1) Are intended to ensure that each public school complies with the provisions of 20 U.S.C. §§1232g and 1232h;
(2) Shall, to the extent possible, be construed in a manner that is consistent with 20 U.S.C. §§1232g and 1232h, and the regulations adopted pursuant to those sections;
(3) Apply to a public school regardless of the source of funding; and
(4) Do not impair any right, obligation or prohibition established pursuant to chapter forty-nine of this code.
§18-33-2. Compliance procedures and remedies.
(a) The state board of education shall promulgate rules in accordance with the provisions of article three-b, chapter twenty-nine-a of this code, that are necessary to ensure that all public schools comply with the implementation and provisions of this section.
(b)(1) At the beginning of each new public school year, parents and guardians of students shall be given written information about their rights under this article, including the name, telephone number and address of the person in each public school district responsible for compliance.
(2) The compliance officer at each public school entity shall provide each professional school employee a copy of the parental and guardian rights under this article and a confidential list of names of the students that do not have prior written informed consent forms signed by their parents or guardians on file for participation in activities outlined in this article.
(3) Each public school entity shall designate one person to be responsible to parents and guardians of students to make sure that the rights of students, parents and guardians under this article are protected.
(4) Each public school entity shall adopt reasonable rules promulgated under this section.
(c) (1) The attorney general, any aggrieved student, parent or guardian of a student may seek an injunction against violation of this article from a court with appropriate jurisdiction.
(2) Upon the request of the governing body, superintendent or executive director of an educational entity, the attorney general shall furnish written legal advice concerning any matter or issue arising in connection with the exercise of the official powers or performance of the official duties of the educational entity under this article.
(A) The written advice, if given, shall be followed and, when followed, the recipient is not in any way liable for doing so, upon any official bond or otherwise.
(B) If the governing body of the educational entity disagrees with the legal advice rendered by the attorney general, the educational entity may seek a declaratory judgment in a court with appropriate jurisdiction. The legal advice of the attorney general is binding until the court issues a final order on the petition requesting the declaratory judgment.
(C) Any written legal advice given pursuant to this subsection is a public record. If the attorney general considers the legal advice to be of substantial importance to educational entities, parents, guardians and other persons throughout the state, the attorney general may publish the advice in the form of an official opinion.
(3) Nothing in this article eliminates or abrogates any other legal or equitable remedy which may be available to a student, parent or guardian of a student in connection with a violation of this article.
(d) Nothing in this article eliminates or weakens any of the following:
(1) A privacy protection, which is accorded by statute or rule, against the collection of information regarding a student and the student's family or against the release of the information to a party other than the student or a parent or guardian of the student; or
(2) A right, which is accorded by statute or rule, of a parent or guardian of a student to have or to have access to information regarding educational activities affecting the student. The legal authority of a parent or guardian of a student regarding the education or rearing of the student.
(e) When prior written informed consent is required under this article, the consent shall be manifested on a form or paper used solely for the purpose of obtaining consent and providing written notice which contains a reasonable description of:
(1) The mental or comprehensive health care service or program, including, but not limited to, genital examinations, birth control or abortion referral, or both, or counseling, psychiatric or psychological treatment, or experimental procedure for which informed consent is sought. This description shall include clear and conspicuous notice regarding any comprehensive health care service or program, including, but not limited to, genital examinations, birth control or abortion referral, or both, or counseling or any other activity which may involve:
(A) An examination of the genital area or the removal of undergarments; or
(B) Mental or emotional health screening, diagnosis, treatment, counseling or referral;
(2) The student record, which includes the educational record and medical record, and the purpose for which the student record is sought; and
(3) The entities or persons who will have access to the student record or provide the comprehensive health care service or program, including, but not limited to, genital examinations, birth control or abortion referral, or both, or counseling, psychiatric or psychological treatment, or experimental procedure in question if informed consent is granted.
(f) Unless the context otherwise requires, "education records" has the meaning ascribed to it in 20 U.S.C. §1232g(a)(4).
(g) In addition to the requirements of subsection (e) of this section, each form shall contain a statement encouraging the parent or guardian to seek additional information regarding the request for consent and shall provide the name and telephone number of a contact person designated by the public school entity for this purpose. This statement shall be at the end of the form directly above the place designated for the signature of the parent or guardian.
(h) Nothing in this article requires additional consent for each subsequent occasion during the public school year in which a health care service or program is provided to a student if it is clear from the consent form that the health care services specifically described on the form will be provided on a periodic basis. Informed consent may be revoked at any time. Under no circumstances does any informed consent extend beyond the public school term for which it is given.
§18-33-3. Penalties.
Any person violating the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, is subject to the same penalties provided in subsection (c), section nine, article two of this chapter, as if the person had violated section nine.



NOTE: The purpose of this bill is to require public schools to receive prior written informed consent from a parent or guardian, with limited exceptions as provided in this bill, for the provision of school mental or comprehensive health care services or programs, including, but not limited to, genital examinations, birth control or abortion referral, or both, or counseling, psychiatric or psychological treatment, or experimental procedures, to protect the privacy of students and their families against the inappropriate release and elicitation of certain information concerning students and their families, and to provide compliance procedures and remedies.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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