H. B. 4610
(By Delegates Gillespie, Harrison,
Henderson, Damron, Beach and Hall)
[Introduced February 27, 1998; referred to the
Committee on Education then the Judiciary.]
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,
psychiatric or psychological treatment, and experimental
procedures; rights of students and parents; compliance
procedures, remedies and penalties; effective date upon
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
(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
(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. 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 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.
(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
(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 public 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 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) 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) Public school entity procedure for compliance:
(1) Disclosure of rights. -- 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) Compliance officers. -- 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.
(3) Local rules. -- Each public school entity will adopt
reasonable rules promulgated under this section.
(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
(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.
(3) 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.
(d) 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.
(e) 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
(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
(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
(f) Educational record. -- Unless the context otherwise
requires, "education records" has the meaning ascribed to it in
20 U.S.C. 1232g(a)(4).
(g) 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 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) Consent for periodic health care services. -- Nothing in
this article shall require additional consent for each subsequent
occasion during the public 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 public school term for which it is
§18-33-3. Local government expenditures.
Notwithstanding any provision in this code to the contrary,
each local government shall pay any additional expenses related
to the provisions of this article from existing revenues of that
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 occupies 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.
§18-33-5. Effective date.
This article becomes effective upon passage.
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, 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.