WEST virginia legislature
2023 regular session
House Bill 3271
By Delegates Mazzocchi, Kimble, Holstein, Fast, Ellington, Longanacre, Horst, Walker, Statler, Keaton and Warner
[Originating in the Committee on the Judiciary; Reported on February 22, 2023]
A BILL to amend and reenact §18-20-11 of the Code of West Virginia, 1931, as amended, relating to increasing monitoring of special education classrooms; adding that an audio recording device be present in the restroom of a self-contained classroom; requiring that notice of audio recording device be placed on bathroom door; requiring county to monitor school audio recordings for at least 15 minutes every 90 days; and setting forth other review parameters for audio recordings.
Be it enacted by the Legislature of West Virginia:
(a) A county board of education shall ensure placement of video cameras in self-contained classrooms and audio recording devices in the restrooms of self-contained classrooms as defined in state board policy.
(b) As used in this section:
(1) "Incident" means a raised suspicion by a teacher, aide, parent, or guardian of a child, of bullying, abuse, or neglect of a child or of harm to an employee of a public school by:
(A) An employee of a public school or school district; or
(B) Another student;
(2) "Self-contained classroom" means a classroom at a public school in which a majority of the students in regular attendance are provided special education instruction and as further defined in state board policy; and
(3) "Special education" means the same as defined in §18-20-1 et seq. of this code.
(c) (1) A county board of education shall provide a video camera to a public school for each self-contained classroom that is a part of that school which shall be used in every self-contained classroom.
(2) Prior to August 1, 2023, a county board of education shall provide an audio recording device to a public school to be used in the restroom of each self-contained classroom that is a part of that school. If the public school is not able to receive the audio recording device by August 1, 2023, the public school may apply to the state Department of Education for a waiver to extend that date to August 1, 2024.
(3) The principal of the school or other school administrator whom the principal assigns as a designee shall be the custodian of the video camera and audio recording device, all recordings generated by the video camera and audio recording device, and access to those recordings pursuant to this section.
(d)(1) Every public school that receives a video camera under this section shall operate and maintain the video camera in every self-contained classroom that is part of that school.
(2) Every public school that receives an audio recording device under this section shall operate and maintain the audio recording device in every restroom that is a part of a self-contained classroom that is part of that school: Provided, That each restroom of a self-contained classroom shall have posted on its door a notice that states: "Pursuant to state law, this restroom is equipped with an audio recording device for the protection of the students."
(2) (3) If there is an interruption in the operation of the video camera or audio recording device for any reason, a written explanation should be submitted to the school principal and the county board explaining the reason and length for which there was no recording. The explanation shall be maintained at the county board office for at least one year.
(e)(1) A video camera placed in a self-contained classroom shall be capable of:
(A) Monitoring all areas of the self-contained classroom, including, without limitation, a room attached to the self-contained classroom and used for other purposes; and
(B) Recording audio from all areas of the self-contained classroom, including, without limitation, a room attached to the self-contained classroom and used for other purposes.
(2) A video camera placed in a self-contained classroom shall not monitor a restroom or any other area in the self-contained classroom where a student changes his or her clothes except, for incidental monitoring of a minor portion of a restroom or other area where a student changes his or her clothes because of the layout of the self-contained classroom.
(3) An audio recording device shall be placed in the restroom of the self-contained classroom and notice provided pursuant to §18-20-11(d)(2) of this code.
(3) (4) A video camera placed in a self-contained classroom or audio recording device required by this section is not required to be in operation during the time in which students are not present in the self-contained classroom.
(f) Before a public school initially places a video camera in a self-contained classroom or an audio recording device in the restroom of a self-contained classroom pursuant to this section, the public school county board of education shall provide written notice of the placement to:
(1) The parent or legal guardian of a student who is assigned to the self-contained classroom: Provided, That the parent or guardian be allowed the opportunity to opt out of the bathroom audio monitoring for their student. An Individual Education Plan or 504 plan shall outline the opt out and an alternative arrangement for the student or parent needs and requested accommodation;
(2) The county board; and
(3)(2) The school employee(s) who is assigned to work with one or more students in the self-contained classroom.
(g)(1) Except as provided in subdivision (2) of this subsection, a public school shall retain video and audio recorded from a camera placed under pursuant to this section for at least three months after the date the video was recorded of the recording, subject to the following:
(A) If the minimum three-month period overlaps the summer break occurring between the last day of one instructional term and the first day of the next instructional term, the minimum three-month period shall be extended by the number of days occurring between the two instructional terms;
(B) For any school-based camera system or audio device recording device that is installed or replaced after April 1, 2022, the public school shall retain video recorded from a camera or audio device recording for at least 365 days after the date the video or audio was recorded and no extension of this time period during the summer break is required.
(2) If a person requests to view review a recording under subsection (k) or subsection (l) of this section, the public school shall retain the recording from the date of the request until:
(A) The earlier of the person viewing reviewing the recording or 60 days after the person who requested the video or audio recording was notified by the public school that the video is ready to be viewed or audio recording is available; and
(B) Any investigation and any administrative or legal proceedings that result from the recording have been completed, including, without limitation, the exhaustion of all appeals.
(3) In no event may the recording be deleted or otherwise made unretrievable before the time period set forth in subdivision (1) of this subsection elapses.
(h) This section does not:
(1) Waive any immunity from liability of a public school district or employee of a public school district;
(2) Create any liability for a cause of action against a public school or school district or employee of a public school or school district; or
(3) Require the principal or other designated school administrator to view review the video recording absent an authorized request pursuant to this code section or suspicion of an incident except as otherwise provided in subsection (j) of this section.
(i) A public school or school district shall not use video or audio recorded under this section for:
(1) Teacher evaluations; or
(2) Any purpose other than the promotion and protection of the health, wellbeing, and safety of students receiving special education and related services in a self-contained classroom or restroom of a self-contained classroom.
(j) Except as provided under subsections (k) and (l) of this section, a video recording made under this section is confidential and shall not be released or viewed reviewed by anyone except the school principal, other school administration designee, or county designee if the school principal or other school administration designee is unable to view review the video or audio recording pursuant to this subsection. The school principal, other school administration designee, or county designee shall view review no less than 15 minutes of the video and no less than 15 minutes of audio of each self-contained classroom and restroom at the school no less than every 90 days. The state board shall include in its rule authorized by this section requirements for documentation of compliance with the video viewing and audio reviewing requirements of this subsection.
(k) Within seven days of receiving a request, a public school or school district shall allow viewing of a video review of a recording by:
(1) A public school or school district employee who is involved in an alleged incident that is documented by the video recording and has been reported to the public school or school district;
(2) A parent or legal guardian of a student who is involved in an alleged incident that is documented by the video recording and has been reported to the public school or school district; or
(3) An employee of a public school or school district as part of an investigation into an alleged incident that is documented by the video recording and has been reported to the public school or school district.
(l) Within seven days of receiving a request, a public school or school district shall allow viewing of a video review of a recording by and comply with all subsequent requests for viewing review or release of the video recording by:
(1) A law-enforcement officer or employee of the Department of Health and Human Resources, as part of an investigation into an alleged incident that is documented by the video recording and has been reported to the agency: Provided, That if a release of the video recording is requested pursuant to this subdivision, the agency receiving a copy of the video recording shall maintain strict confidentiality of the video recording and not further release the video recording without authorization from the public school district through its superintendent; or
(2) A judge, counsel, or other legal entity that is charged with deciding or representing either the school board, students, or employees in any matters related to legal issues arising from an incident: Provided, That the video recording may only be released pursuant to an appropriate protective order or under seal.
(m) If an incident is discovered while initially viewing camera footage reviewing a recording that requires a report to be made under §49-2-803 of this code, that report shall be made by the viewer reviewer pursuant to that section within 24 hours of viewing the incident.
(n) When a video recording is under review as part of the investigation of an alleged incident, and the video recording reveals a student violating a disciplinary code or rule of the school, which violation is not related to the alleged incident for which the review is occurring, and which violation is not already the subject of a disciplinary action against the student, the student is not subject to disciplinary action by the school for such unrelated violation unless it reveals a separate incident as described in §18-20-11(b)(1) of this code.
(o) It is not a violation of subsection (j) of this section if a contractor or other employee of a public school or school district incidentally views a video reviews a recording under this section if the contractor or employee of a public school or school district is performing job duties related to the:
(1) Installation, operation, or maintenance of video or audio equipment; or
(2) Retention of video or audio recordings.
(p) This section applies solely to cameras and audio recording devices installed pursuant to this code section and does not limit the access of a student’s parent or legal guardian to a video recording viewable reviewable under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. §1232g, or any other law.
(q) A public school or school district shall:
(1) Take necessary precautions to conceal the identity of a student who appears in a video recording but is not involved in the alleged incident documented by the video recording for which the public school allows viewing under subsection (j) of this section, including, without limitation, blurring the face of the uninvolved student; and
(2) Provide procedures to protect the confidentiality of student records contained in a video recording in accordance with the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. §1232g, or any other law.
(r) (1) Any aggrieved person may appeal to the State Board of Education an action by a public school or school district that the person believes to be in violation of this section.
(2) The state board shall grant a hearing on an appeal under this subsection within 45 days of receiving the appeal.
(s) (1) A public school or school district may use funds distributed from the Safe Schools Fund created in §18-5-48 of this code or any other available funds to meet the requirements of this section.
(2) A public school or school district may accept gifts, grants, or donations to meet the requirements of this section.
(t) The state board may promulgate a rule in accordance with §29A-3B-1 et seq. of this code to clarify the requirements of this section and address any unforeseen issues that might arise relating to the implementation of the requirements of this section.