H. B. 4224


(By Delegate Gillespie)
[Introduced February 2, 1998; referred to the
Committee on Education.]




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 requiring that schools provide prior written informed consent to parents before giving students school psychiatric or psychological surveys, evaluations or other such services to protect the privacy of students and their families against the elicitation and inappropriate release of certain information; rights of students and parents; compliance procedures and remedies; penalties; and effective date upon 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 teacher's 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, 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 shall be required, as part of any applicable program, to submit to mental or comprehensive health care services or programs, psychiatric or psychological treatment or experimental procedures, or to submit to a survey, analysis, evaluation that reveals information concerning:
(1) Political affiliations;
(2) Mental and psychological problems potentially embarrassing to the student or his family;
(3) Sex attitudes or beliefs;
(4) Sexual behavior;
(5) Illegal, antisocial, self-incriminating and demeaning behavior;
(6) Critical appraisals of other individuals with whom the student has or has had personal relationships;
(7) The disclosure of information protected by legally recognized privileged or analogous relationships, such as those of lawyers, medical personnel and ministers;
(8) Religious or political affiliations or beliefs;
(9) Personal values, attitudes, opinions or beliefs;
(10) Family members' values, attitudes, opinions or beliefs;
(11) Income, other than required by law to determine eligibility for participation in a program or for receiving financial assistance under such 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. 2343g(a) and 34 C.F.R. Part 99.
(d) If a parent or legal guardian of a pupil review the education records of the student and request 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 shall 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 the religious beliefs of the parent or guardian, upon submission to the school entity of a written request for excusal on the basis of the religious belief.
(g) A public school shall, at least annually, provide to each pupil who is at least eighteen years of age, written notice of his rights pursuant 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) Must, 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 thereto;
(3) Apply to a public school regardless of the source of funding;
(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 will promulgate rules as are necessary to ensure that all public schools comply with the implementation and provisions of this section.
(b) School entity procedure for compliance:
(1) Disclosure of rights. -- At the beginning of each new 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 school district responsible for compliance.
(2) Compliance officers. -- Each 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.
(3) Local rules. -- Each school entity will adopt reasonable rules promulgated under this section.
(c) Remedies:
(1) Cause of action. -- 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) Legal advice. -- 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 shall not in any way be 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 will be 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 shall be a public record. If the attorney general deems the legal advice to be of substantial importance to educational entities, parents, guardians and other persons throughout the state, the attorney general may publish such advice in the form of an official opinion.
(d) No abrogation. -- Nothing in this article shall eliminate or abrogate 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.
(e) Preservation of existing acts:
Nothing in this article shall be construed to eliminate or weaken any of the following:
(1) A privacy protection, which is accorded by statute or regulation, against the collection of information regarding a student and the student's family or against the release of such information to a party other than the student or a parent or guardian of the student.
(2) A right, which is accorded by statute or regulation, 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.
(f) Requirements. -- When prior written informed consent is required under this article, the consent will 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, psychiatric or psychological treatment, or experimental procedure for which informed consent is sought. This description will include clear and conspicuous notice regarding any comprehensive health care service 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.
(3) The entities or persons who will have access to the student record or provide the comprehensive health care service or program, psychiatric or psychological treatment, or experimental procedure in question if informed consent is granted.
(g) Educational record. -- Unless the context otherwise requires, "education records" has the meaning ascribed to it in 20 U.S.C. 1232g(a)(4).
(h) Additional information. -- In addition to the requirements of subsection (e) of this section, each form will contain a statement encouraging the parent or guardian to seek additional information regarding the request for consent and will provide the name and telephone number of a contact person designated by the 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.
(i) Consent for periodic health care services. -- Nothing in this article shall require additional consent for each subsequent occasion during the school year in which a health care service 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 will any informed consent extend beyond the school term for which it is given.
§18-33-3. Penalties.
Any person violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not exceeding ten dollars for each violation, and each week during which there is a violation shall constitute a separate offense. If the person so convicted occupy a position in connection with the public schools, that person shall automatically be removed from such position and shall be ineligible for reappointment to that or a similar position for the period of one year.
§18-33-4. Effective date.
This article becomes effective upon passage.


NOTE: The purpose of this bill is to require that schools give prior written informed consent to parents before providing school psychiatric or psychological services to protect the privacy of students and their families against the elicitation and inappropriate release of certain information.

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