managing the experience presented by: saundra k. schuster, j.d. partner, the ncherm group © 2013....

Managing The Experience

Presented by:Saundra K. Schuster, J.D.Partner, The NCHERM Group

www.ncherm.org

© 2013. All Rights Reserved.

http://www.ncherm.org/

General Risk Management PrinciplesGeneral Risk Management Principles

Understanding the Risks Unique to Study Abroad Programs

Understanding the Risks Unique to Study Abroad Programs

2© 2013 The NCHRM Group all rights reserved

HISTORY

© 2013 The NCHRM Group all rights reserved 3

NEW ENVIRONMENTS


RELIGION


ARCHITECTURE


CULTURE


ART


LANGUAGELANGUAGE


FOODFOOD


WAR

© 2013 The NCHRM Group all rights reserved

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ASSAULTS


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RAPE


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RIOTS


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CIVIL UNREST


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DEPRESSION


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KIDNAPPINGKIDNAPPING


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MEDICAL EMERGENCYMEDICAL EMERGENCY


INTRODUCTION

• The number of students who study abroad has steadily increased over the past two decades

• Many students are choosing to study in developing countries many of which are less politically stable and where health, safety and security conditions are different from those in the U.S. and Western Europe

• An increasing number of students are choosing to participate in short-term international trips

(Cited by William Hoye at the 27th Conference on Law & Higher Education)


• In addition to creating robust educational opportunities, institutions must address safety, security, health and behavioral issues that may be presented – all with legal implications

• Institutions are facing an increasing number of challenges in addressing these risks and liabilities

• Therefore, institutions must engage in a substantial amount of pre-planning, risk assessment, training and orientation for both faculty and students

• The reality is that risk management plays a larger role than ever before


• Admitted students should be emotionally mature• Comprehensive orientation for faculty and students includes

reading lists, information on living in the host country, and group discussions

• Faculty and residence directors are carefully selected and screened• The institution develops positive relations with host, good lines of

communication, and clear delineation of responsibilities• Creation of appropriate prior arrangements with local medical

facilities or medical personnel • Committed to engage in comprehensive risk management

assessment and mitigationProvided by the American Institute for Foreign Study Foundation

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Characteristics of a Strong Study Abroad Program

Characteristics of a Strong Study Abroad Program



General Risk Management Principles

Value of Risk Management

• Protect the lives and safety of students, faculty and staff members living, studying and working abroad

• Preserve institutional reputation• Protect institutional financial resources• Reduce potential legal liability by addressing potential

problems and creating the response protocol before they occur

• Identify and eliminate unnecessary risks• Manage inherent and acceptable risks• Preserve the financial and academic integrity of the program

Wm. Hoye & Rebecca Hovey, 42nd Annual NACUA Conference


Risk management is the process of identifying the potential and perceived risks and liabilities involved in international travel and study abroad programs.

It also includes monitoring the program and the activities and taking timely and effective corrective actions and proactive steps to minimize harm as well as liability. You need to:

Identify and focus on substantial risks Have clear procedures to handle risks Insure procedures are communicated Designate personnel to handle particular kinds

of issues24

What is Risk Management?What is Risk Management?


• Physical risks: such as illness, food poisoning, or injuries that may result from travel related accidents

• Reputation risks: those things that may result in negative publicity for your study abroad program, the institution, your faculty and/or the host country

• Emotional risks: those things that can cause a participant enrolled in your program to feel alienated or negatively impacted by others in the program or programmatic activities, or involve targeted bullying or harassment

• Financial risks : those things that negatively impact the fiscal stability of your study abroad program and/or other organizations financially supporting your event or schools with whom you collaborate

• Facilities risks: are those things which may be the result of or cause property damage

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Types of Risks to ConsiderTypes of Risks to Consider


Liability is the legal responsibility to another, enforceable by civil remedy or criminal punishment . Liability begins with a duty. A duty is created by:

A legal obligation that is owed or due to another created by law

An obligation to take some action to prevent harm to another based on the relationship of the parties

If the college breaches their dutyAND

If the institution’s failure to uphold the duty was the proximate cause of the injury , then the institution may be liable for damages

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Understanding LiabilityUnderstanding Liability


• Finally, we need to be cognizant of “foreseeability” because the degree to which a harm or danger related to the duty we assumed was foreseeable by the institution can greatly impact the level of the institution’s duty to protect, as well as if the institution’s failure to act on foreseeable harm created the proximate cause of the harm

• If injured when participating in an activity or academic assignment as a part of their study abroad experience, a student may allege negligence for the institution’s failure to provide adequate warnings

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ForeseeabilityForeseeability


Legally institutions are not insurers of a student’s safety. Courts generally will not impose a duty on

institutions to protect adult students from the consequences of their own behavior. But that will be

measured by the extent to which we establish a “special relationship” that creates a heightened duty of care.

STILL…institutions have a normal duty of care from preventing foreseeable harm

our challenge is what constitutes reasonable care and what is foreseeable?!

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RememberRemember


Understanding The Risks


Negligence for a personal injury Alcohol or drug related claims Student discipline issues Breach of contract Sexual violence Mental health issues FERPA

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Common Liability ChallengesCommon Liability Challenges


• Unsafe property/conditions• Known, foreseeable harm• Reckless or endangering behavior• Illegal behavior• Failure to follow policies/procedures• Failure to enforce rules• Harassment or Discrimination

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General Risks PresentedGeneral Risks Presented


Risks Unique to Study Abroad

• Inconsistency of pre-program planning and training

• Unclear leadership expectations or established protocol

• Limited institutional infrastructure in host country

• Unfamiliarity with local customs and culture

• Challenges of language fluency• Understanding local laws

• Political demonstrations or civil unrest

• Risks of exposure to disease• Lack of access to quality

medical care• Challenges of travel

– Poor roads– Inadequate mapping or

directions– Inadequate mass transit


Proactive Risk Management


• Assess all educational programs and prevention efforts to assure they are having demonstrable effect, review reports from prior trips

• Conduct background checks on all staff, check discipline records and state sex offender registry for all students

• Centralize the coordination of study abroad programs • Create a central plan for the delivery of orientation information to ensure

consistency of message• Provide training for all faculty and staff as well as students• Make the case that investing in prevention is a retention and student success

issue as well as a risk management and liability issue• Consider creating a Crisis Management Team that could be convened in case

of a crisis situation• Ensure there are clear lines of authority when in host country

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General Strategic PreventionGeneral Strategic Prevention


• First Step: Understand the threat potential of an activity or event and the risks associated with that threat profile– Document your information

• Second Step: Understand which of the risks are addressable by the institution – Determine if you will eliminate or try to manage high risk activities

– Will you need to screen participants for participation?

• Third Step: Address the risks by activity modification, insurance, training and Release Forms

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How Does The Institution Accomplish This?

How Does The Institution Accomplish This?


Policies should incorporate all campus policies, applicable U.S. laws, and relevant laws of the host country

Policies and the implementation should be consistent and fair Policies should clearly state institution’s standards and that

violation of those standards will result in disciplinary action, including removal from program. Specifically identify sanctions.

Institution should have specific response protocol for certain incidents (i.e. alcohol violations, theft, sex harassment or assault)

Identify who has institutional authority to oversee and implement the policies while in host country

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Identify Relevant Policies and Laws Identify Relevant Policies and Laws


Orientation topics: Mode of travel and appropriate training and supervision of

travel based expectationso Provide guidance regarding rental vehicles and local taxis

Institution’s Code of Conduct, U.S. laws and application abroado Identify to whom a student should report harassment, abuse or assault

Relevant laws of host country(s)o Host country laws regarding drugs and alcoholo Note that the U.S. Constitution and due process does not apply outside

the country (other than in addressing behavior administratively)o The institution will not pay for a student’s legal costs that are incurred

out of the countryo Local officials cannot represent an American citizen traveling abroad

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Orientation for Study Abroad ProgramOrientation for Study Abroad Program


Discussions about culture of host country and home cultureo If staying with families discuss importance of compliance with local cultureo Discuss how host families were certified to be hosts

Required immunizations Identify any host country cautions regarding food, water, locations Determine if there are any allergies or medical conditions that the

Program Director should be aware Risk management and waiver and release form

o Must discuss in detail On-site medical services in-country Create emergency contact lists Encourage students to put ICE in cell phones

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Orientation for Study Abroad Program (con’t)

Orientation for Study Abroad Program (con’t)


• Consider conducting or hiring a host country representative to conduct a risk assessment of the site to be used by your institution, for both living and study– Check fire and safety codes (smoke detectors, fire alarms,

security systems, building codes, emergency exits)– Check for dangerous conditions that cannot be adequately

mitigated and determine appropriate action• Establish procedures for responding to reports of defects or

dangers in the physical environment• Ensure adequate insurance coverage for all facilities to be used

as a part of the program

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Managing Physical RisksManaging Physical Risks


• Provide training for faculty and staff on the application of the institution’s Code of Student Conduct and sexual & gender misconduct standards, discuss behavioral expectations, mandatory responses and consequences and how to address when abroad. – Incorporate this training with the students

• Develop a protocol for assessing students with disabilities and institutional ability to provide appropriate accommodations– Partner with the Disability Services Office

• Engage in training for faculty and staff on mental health and behavioral risk assessment and response

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Addressing Behavioral RisksAddressing Behavioral Risks


Always enter into a written agreement with programs that your schools sends students but does not sponsoro Include Indemnification provisions

o Your institution should not be responsible for liabilities outside the control of the institution, or the result of negligence or omissions of program sponsor

o Require the program sponsor to name your institution as an additional insured

o Identify forum clause for any litigation that arises related to the program or a identify a specific dispute resolution clause

Where possible, identify in all promo materials that the home campus does not own, operate or sponsor the program

Engage in due diligence when contracting with a third party provider

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Agreements With Sponsoring Organizations

Agreements With Sponsoring Organizations


• Provide students and faculty access to world-wide travel insurance and medical assistance coverage

• Carefully select and train faculty on risk management, laws and rules, general safety information

• Conduct mandatory training and orientation on all relevant institutional policies, local laws, customs and behavioral expectations with program participants

• Insure all required inoculations, medical information and emergency contact information has been provided

• Be aware of privacy and confidentiality issues• Create and utilize checklists• Always check with U.S. State Department prior to traveling

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Mitigating RisksSome General Considerations

Mitigating RisksSome General Considerations


• Create specific, well-developed, assumption of risk forms– Understand your state laws related to contracts of adhesion

(“take it or leave it”)– Provide specific language exempting the institution from

liability for good faith decisions– Identify known circumstances where medical care may either

be unavailable or not consistent with U.S. standards– State that the notice of known dangers and waiver does not

create a “special relationship” between the institution and the student

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Mitigating RisksWaiver & Release Forms

Mitigating RisksWaiver & Release Forms


• Identify known risks in host country and foreign travel• Reserve the institution’s right to change the program for

reasonable cause including the itinerary, travel arrangements or accommodations. State the institution will not be responsible for any resulting losses or expenses

• State the institution’s right, in its sole discretion, to expel from the program any student whose behavior impedes or obstructs the program (this should also apply to faculty in their contract)

• Certify the student has obtained appropriate inoculations and purchased recommended insurance

• Release the institution from responsibility for all damages resulting from these risks

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Elements of a Waiver & Release FormElements of a Waiver & Release Form


• Program leader should have emergency contact information, first aid kit and medical treatment forms available at all times

• Never leave an ill or injured participant behind without a faculty or staff member to assist in medical care

• Communicate immediately with home campus and family if a participant is ill or injured

• Have a plan in case a faculty member needs to be recalled• Have an emergency action plan addressing protocol for responding

to accidents or illness or death of a participant• Always discuss emergency communication or location meeting

plan in case of emergency in host country• Plan for an emergency exit strategy

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Responding To On-Site Issues In Host Country

Responding To On-Site Issues In Host Country


• Review all travel documents are in order – Passports, visas, documentation of immunizations

• Ensure all travel arrangements are covered• Review all housing arrangements• Review health and safety issues

– Accessing medical care in host country– Medical waivers and releases– All insurance is up to date

• Review communication information with family and emergency contacts

• Provide students with a laminated wallet card with emergency contact information

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The Day Prior to DepartureThe Day Prior to Departure


• Provide for appropriate re-entry services• After an accident or injury occurs examine the circumstances

and document in detail. Include recommendations for program modification to prevent likelihood of it re-occurring

• Consider creating a discussion group to process the student’s study abroad experience

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Important Follow-upImportant Follow-up


• Safety Abroad First-Educational Travel Information Clearinghouse Project www.globaled.us/safeti/

• National Association of International Educatorswww.nafsa.org/secussa

• U.S. Dept. of State Travel Warnings and Consular Information www.travel.state.gov/travel_warnings.html

• Center for Disease Control www.cdc.gov/travel/index.htm

ResourcesResources


http://www.globaled.us/safeti/

http://www.nafsa.org/secussa

http://www.travel.state.gov/travel_warnings.html

http://www.cdc.gov/travel/index.htm

For more information, please contact:

[email protected]

THANK YOU!THANK YOU!


mailto:[email protected]

http://www.NCHERM.org/

managing the experience presented by: saundra k. schuster, j.d. partner, the ncherm group © 2013....

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