H. B. 2869
(By Delegates Beane, Harrison, Modesitt,
Armstead, C. White, Miller and Anderson)
[Introduced February 23, 1999; 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 or
programs, including, but not limited to, 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 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, including, but
not limited to, birth control or abortion referral, or both, or
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, 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)
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)
Information provided.
-- 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
outlines in this article.
(3) 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.
(4) Local rules. -- Each public school entity shall 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 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) No abrogation. -- 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) Preservation of existing acts.
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) Requirements. -- 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, 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, 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, birth control or
abortion referral, or both, or counseling, psychiatric or
psychological treatment, or experimental procedure in question if
informed consent is granted.
(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 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) Consent for periodic health care services. -- 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 said
section nine.
§18-33-4. 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, including, but not limited to, 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.