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Show Jumping And Steeplechase: Is Your Campus Horseback Riding Program Kentucky Derby Worthy?

[April 21, 2015] The nation’s attention will be turning to Kentucky, Maryland and New York for the triple crown horse races later this spring. While hoping that you may have the next National Velvet in the stables, we encourage independent schools to be aware of and effectively minimize their exposure to the potential risks that may arise from offering horseback riding programs.

Currently, all states, except California, Maryland, Nevada, and New York, have statutes that provide some level of protection from personal injury liability for an organization that offers equine activities. State laws vary quite a bit, however, in requiring specific wording for a release form, time periods for retaining such forms, and posting of warning signs in the stable and corral. For example, in Pennsylvania, signs indicating that riders assume the risks associated with the activity must be two feet by three feet in size. In Massachusetts, such signs must be in black letters, with each letter to be a minimum of one inch in height—we were not kidding when we said the laws are specific! Therefore, it is important that schools be aware of state laws and craft signage and permission and release forms to maximize their enforceability.

Furthermore, even a well-drafted release may not deter an injured student and the student’s family from filing suit against a school, so it is extremely important that schools take all appropriate measures to prevent injuries while students participate in high-risk activities, including horseback riding, through establishing and implementing appropriate risk management strategies. Has your school considered implementing baseline testing protocols to help prevent and manage concussions? Does your school have policies and procedures in place to make sure saddles and helmets are appropriately (and safely) fitted to horse and rider?

In an effort to minimize an independent school’s exposure to potential legal risks associated with riding programs, we recommend that schools take the following measures:

  • Carefully evaluate applicable laws related to equine activities in the school’s home state;
  • Implement appropriate athletic policies and risk management plans related to equine activities;
  • Carefully draft signage, permission, medical treatment authorization and release forms;
  • Ensure that all riding team trip forms are consistent with state-specific best practices; and
  • Educate students, parents, athletic trainers, instructors and coaches regarding the school’s policies and procedures pertaining to equine activities.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about this information or equine activity-related issues in general.

 

Positive Peer Pressure? Faculty Compensation Surveys Merit Scrutiny

[April 7, 2015]  Educational institutions, both secondary and higher ed, routinely survey peer institutions in order to ascertain the details of faculty and other employee compensation. In some cases, the data enables institutions to pay similar amounts as their peers; in others, the data enables institutions to pay more than market value. In both contexts, the purpose is to attract and retain excellent educators: a noble goal. However, before participating in (or relying upon data from) a compensation survey, educational institutions ought to consider the reality that some of these compensation survey methods may unwittingly violate antitrust laws.

Antitrust laws prohibit “anti-competitive” business practices – meaning joint conduct that unreasonably restrains competition. While not a per se violation, the exchange of information about compensation and benefits among employers is subject to antitrust scrutiny. Notably, compensation surveys that promote competition generally comply with antitrust laws.

At first blush, distinguishing the surveys that promote, rather than quash, competition may seem like a daunting task. The U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”), the agencies tasked with enforcing federal antitrust laws, have identified three criteria that, if present, will generally protect employers under the umbrella of an antitrust “safety zone.” These are: “(1) the survey is managed by a third party; (2) the information provided by survey participants is based on data more than three months old; and (3) there are at least five providers reporting data upon which each disseminated statistic is based, no individual provider’s data represents more than 25% of a weighted basis of that statistic, and any information disseminated is sufficiently aggregated such that it would not allow recipients to identify the prices paid by any particular provider.”

Of course, this is not a fool-proof method; a survey that meets this test may still violate antitrust laws. However, the DOJ and FTC have represented that, absent extraordinary circumstances, they will not challenge an employer that participates in a survey satisfying the safety zone criteria. Thus, the safety zone provides a useful framework to help schools navigate this complex area.

If an educational institution decides to conduct or utilize a survey sharing compensation information, the following tips may help minimize the risk of violating antitrust laws:

      • Survey participants should not be identifiable, whether directly or indirectly.
      • Prospective wages and benefits information should not be collected.
      • Avoid including advice on how to use or interpret data. The more raw the data, the less likely it will be to raise antitrust concerns.
      • Prohibit or avoid improper discussions about the survey. For instance, consider including a written disclaimer or an agreement that prohibits discussions that violate antitrust laws.
      • In setting future compensation or benefits, the survey should be used as only one factor of many. This decision-making process should be carefully documented.
      • Avoid conducting surveys too often, as the frequent collection of data could support an improper motive.

If you have any questions about best practices and legal compliance for conducting or participating in a compensation survey, please do not hesitate to contact a member of the Firm’s Education Practice Group.

Calling The Shots: Best Practices For Independent Schools Responding To Vaccine Concerns

[March 3, 2015]  Vaccines (and whether to vaccinate teachers and children) are hot topics of debate across the nation. The recent measles outbreak linked to Disneyland has intensified this discussion and caused a groundswell of anxiety on independent school campuses. We recommend that schools take this opportunity to implement a comprehensive Immunization And Communicable Disease policy to reflect a school’s desired practices and applicable governing laws regarding vaccination requirements and non-immunized students on campus. This will ensure that schools have the flexibility they need to respond to communicable illnesses, while also protecting the interests of students, parents, employees, and other community members.

Legal Requirements And Duties

As a preliminary matter, we advise schools to become familiar with applicable law and to determine whether their policies and practices are in compliance with legal mandates and best practices. Every state requires schoolchildren to be vaccinated against certain diseases unless they fall within an exemption based on medical reasons, religious beliefs, and/or personal or philosophical beliefs. However, the intricacies of the laws – including the required vaccines, the types of exemptions recognized, and the documentation required for proof of immunization and exemption – vary significantly from state to state.

In Massachusetts, for example, schools may not admit an unimmunized student unless that individual has satisfied the criteria for a medical or religious exemption or the individual is homeless. Massachusetts also requires schools to keep a complete and up-to-date immunization record (or the required exemption documentation) on file for every enrolled student. Other states, such as Connecticut, also require schools to annually fill out a form disclosing student immunization information to the Department of Public Health.

Once a school has identified applicable laws, we recommend conducting an internal audit to confirm that the school’s immunization policies and practices are in compliance. A school should also confirm that any information on file (and/or provided to state agencies in accordance with applicable laws) is accurate.

Disclosing Immunization Information

Schools may receive requests from parents, teachers, or other individuals to provide information about student immunization rates on campus. Whether exemption rates may be tracked and/or disclosed depends upon applicable laws. Some states, such as Colorado, require schools to track exemption rates and to report this information to students’ parents directly. Other states, by contrast, only permit disclosure to designated state agencies. Connecticut requires schools to annually report student immunization information but defines this information as confidential. In Massachusetts, schools are permitted – but not legally required – to disclose student immunization rates to the Department of Health, which, in turn, makes this information publically available. In some states, disclosure to parents, teachers, or other individuals may violate students’ privacy rights.

Hence, understanding when a school should disclose information, and to whom it may disclose it, is an important component of managing legal risks in this area. Addressing this as part of a comprehensive policy will not only help the school avoid unauthorized disclosure of confidential information, but will also reassure parents who may be concerned about children’s privacy and even deter individuals from asking for immunization information.

Policies For Exclusion Of Non-Immunized Students

Perhaps the most contentious issue that schools will confront is whether a non-immunized student will be excluded from campus, and if so, under what circumstances. Some independent schools have sought to prohibit any non-immunized student from enrolling, regardless of whether the individual meets the state’s exemption criteria. This approach could create potential legal claims, such as discrimination or breach of contract. Moreover, this approach may seem too Draconian.

Accordingly, we recommend implementing a policy that reserves the school’s right to exclude any student who has a communicable illness, has been exposed to an infected person, or is susceptible on account of non-immunization, in the event of a vaccine-preventable or any other communicable disease incident. The goal with such a policy is to provide the school with a wide degree of latitude in responding to situations on campus that affect members of its community. Equally important, the policy will provide parents with notice of the school’s right to act.

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An Immunization And Communicable Disease policy can effectively address all of these issues to ensure that the interests of the school, its students, and its employees are well protected. A well-crafted policy will withstand the future unknown: whether it is measles, Ebola, or any other number of communicable diseases making the headlines, a school can rely upon this policy to adequately and effectively respond.

Finally, another component to an effective risk management strategy is to provide the school with grounds to manage or exclude staff and faculty when the threat of a communicable disease arises. As such, this may be an opportune time to visit the employee handbook’s communicable illness provision to determine if it is in sync with the school’s goals and best practices.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for complying with state vaccine legislation and/or managing non-immunized students on campus, or if you would like our assistance in drafting an Immunization And Communicable Disease policy.

Hazing Reporting Deadline In Massachusetts

[October 24, 2014] Halloween-inspired tricks may not be the only pre-occupation for independent schools at the end of October. With November 1st fast approaching, schools should review the Massachusetts anti-hazing law to determine if they are required to comply with its distribution and reporting requirements.

Massachusetts legislators have placed the Commonwealth at the forefront of the national movement to mitigate against bullying and hazing in schools. The Massachusetts anti-hazing law (Massachusetts General Laws C. 269, §§ 17-19) broadly defines hazing as “any conduct or method of initiation into any student organization, whether on public or private property, which willfully or recklessly endangers the physical or mental health of any student or other person.” The law requires “institutions of secondary education” to annually distribute a summary of the anti-hazing law to students who are members of any student group or organization (including athletic teams), athletic coaches, and activity sponsors. These recipients must acknowledge, in writing, that they have received notice of the law. Additionally, the secondary school must file a report with the Department of Elementary and Secondary Education (DESE) describing the school’s anti-hazing policies.

While the law is clear on procedure, the anti-hazing regulations do not clearly define a “secondary school.” Only schools deemed “secondary schools” must comply with the distribution and reporting requirements of the anti-hazing law. While schools educating students in grades 9-12 meet the definition of “secondary schools,” DESE often considers K-9 schools to be “secondary schools” even if the majority of students are below traditional “secondary school” age.

We therefore recommend that independent schools educating students in grades 9-12 (even if most of the student body is of lower and middle school age) follow the law’s distribution and reporting requirements. To achieve compliance, we recommend that schools accomplish the distribution requirement in the following manner:

  • Include an anti-hazing policy in the student handbook;
  • Attach the full text of the anti-hazing law in an appendix to the handbook;
  • Use a handbook acknowledgment page indicating receipt of the handbook; and
  • Distribute an anti-hazing policy acknowledgment form to all relevant students and staff for signature.

The anti-hazing law further requires that covered schools file an annual report with DESE attesting to the school having distributed the law, obtained acknowledgments that it has done so, and that it has a disciplinary policy in place that addresses hazing. While this report should be filed on or before October 1 of each year, DESE will not notify the Attorney General of any school required to report that failed to do so, until November 1; thus, schools still have time to comply with the law if they have not already done so. Any school unsure of its status under the anti-hazing law or unclear about the reporting requirements should promptly seek advice of counsel.

If you have questions about best practices for complying with the Massachusetts anti-hazing law, please do not hesitate to contact a member of the Firm’s Education Practice Group.

Graduating To Public Transportation

[October 14, 2014]  So a third grader wants to take the subway to school?  Or a 6th grader wants to take the commuter rail?  When is independent travel on public transportation okay?

By offering incentives like free services and reduced rates, cities across the nation are encouraging students to use public transportation as a means to travel to and from school.  The shift from school bus to local bus, however, raises new challenges for independent schools.  The threshold issue is the appropriate age for a student to travel on public transportation unaccompanied by an adult.

Little legal guidance exists on this particular issue.  There are few federal, state or municipal laws establishing a minimum age at which a child may travel on public transportation alone.  And only a few transit carriers – primarily those that offer interstate travel – have adopted rules regulating minor travel requirements.

In the absence of rules or regulations, independent schools should consider implementing best practices by adopting policies and protocols that address independent student travel requests.

Students’ safety is, of course, a paramount concern for independent schools.  In light of the myriad risks associated with unaccompanied minor travel, a school may want to deny all parental requests for permission for unaccompanied travel.  However, whether for medical, financial, personal or other reasons, the reality is that families may have to rely on students taking public transportation to and from school alone.  Thus, an absolute ban may be too restrictive.

If a school chooses to approve parents’ requests for unaccompanied travel, we recommend that the school adopt protocols and guidelines.  For example, a school may want to impose a minimum age or grade requirement.  Yet, the maturity of the student may be more relevant than biological age or grade.  Indeed, delays and cancellations are often associated with public transportation.  The ability of a student to handle unexpected situations will be critical to safe and reliable travel.  Therefore, adopting a policy that considers parents’ requests on a case-by-case basis by weighing various factors, such as maturity, may be an appropriate way to manage the various interests at stake.

Notably, a child without proper parental care or supervision may raise concerns of neglect.  We recommend that a school take into account the state-specific definition of neglect when evaluating all parental requests for unaccompanied student travel.  In sum, the policy should balance the parent’s request against the risks associated with the child’s safety.

As a best practice, we strongly encourage all schools (that permit students to travel unaccompanied to and from school) to obtain written authorization and a release of liability from legal guardians via a Transportation Permission Form.  Written authorization should be required even in a one-time situation.  The release might include language that the parent’s permission for the child to travel unaccompanied is based upon the parent’s personal belief that the child has the maturity and self-confidence to respond appropriately to any challenges that the child may encounter during the travel.  We recommend that the Transportation Permission Form specify the modes of transportation permitted, and be signed by both legal guardians.

In addition, we recommend that schools educate parents to follow these protocols:

  • Require the student to sit as close as possible to the bus operator or in the first rail car where the railcar operator’s cab is located;
  • Confirm that the student feels comfortable traveling alone and is familiar with the route;
  • Verify that the student understands where to wait for the bus/train, the protocol for boarding and exiting the bus/train, and pedestrian safety; and
  • Establish a plan for what to do in the event that the student misses the stop and in the case of an emergency.

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It might not occur to a school to develop an unaccompanied minor travel policy until an issue arises.  However, a well-thought out policy and carefully-drafted protocols will diminish the risks associated with students traveling alone to and from school.

Please feel free to contact a member of the Firm’s Education Practice Group if you have any questions about any state-specific or municipal-specific requirements, and best practices for unaccompanied minor travel request release forms, policies and practices.