Senate Bill No. 122
(By Senators Boley and Harrison)
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[Introduced January 10, 2003; referred to the Committee on
Education; and then 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-one, 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; and specifying
compliance procedures, remedies and criminal penalties.
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-one, to read as
follows:
ARTICLE 31. WEST VIRGINIA FAMILY EDUCATION RIGHTS AND PRIVACY
ACT.
§18-31-1. 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.
§18-31-2. 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.
§18-31-3. 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.