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.