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Emergency Medical Response: What’s Your Plan?

[March 18, 2014] Envision this scary scenario: the school community is gathered around the field for the season-ending lacrosse game between rivals, when an 11th grader collapses on the field, in need of emergency treatment.  If there is no medical professional on-site, are members of the faculty or administration prepared to rush in and respond appropriately? Should they?

Many states have so-called “good Samaritan” laws on their books which exempt lay people from liability for good faith attempts at cardiopulmonary resuscitation (CPR) and other methods (defibrillation) to save a person’s life.  Nonetheless, independent schools will want to ensure that their own policies around the rendering of emergency medical care—for example, in student, employee, and athletic handbooks—reflect applicable state law and best practices.  For example, at the end of February, the Massachusetts legislature amended the Commonwealth’s good Samaritan law to broaden its applicability, so that anyone other than paid medical or emergency responders, may avoid liability for their acts and omissions (absent gross negligence or willful misconduct) when attempting to save a life.

Specifically, Massachusetts S. Bill 1993, which will take effect May 21, 2014, extends liability protection in civil suit for damages to any person, who in good faith and not for a fee, attempts to render medical care. The law had previously excluded protection for persons “whose usual and regular duties” included the provision of emergency medical care—meaning physicians, off-duty firefighters and police officers, and other persons trained in CPR, automatic external defibrillators (AEDs), or basic cardiac life support. Now, however, in Massachusetts, anyone may make a good faith response to an individual in need of medical attention without fear of liability.

Massachusetts follows other states, such as New Jersey and North Carolina, that had already passed similar “good Samaritan” laws granting immunity from civil liability for the use of AEDs in good faith during an emergency.  In fact, New Jersey not only provides immunity to the individuals rendering emergency care by use of AEDs, but also extends this protection to the person or entity providing or maintaining the equipment, the person or entity who provided training in CPR and use of the defibrillator, and the prescribing licensed physician.

Recognizing the importance of early medical response and appreciating the additional protection this amendment affords, independent schools may want to develop or update existing policies for emergency medical responses during school events. These policies may include establishing a response team, installing AEDs on campus with maps illustrating their locations, or implementing AED, CPR, and first aid training for employees and coaching staff.

Please do not hesitate to contact us if you have any questions about this information or need our assistance regarding emergency response protocols or other school crisis readiness policies and practices.

The President’s Challenge: Stop Sexual Assaults

[January 23, 2014] The White House report released yesterday (“Rape and Sexual Assault- A Renewed Call To Action“) is a stern reminder that all educational institutions — not just colleges, universities and other federally-funded institutions that must comply with Title IX — have a moral, if not legal, obligation to take all reasonable measures to reduce sexual violence and misconduct at their institutions.

The data and numbers highlighted in the report are noteworthy.

  • Nearly 1 in 5 women (22 million) have been raped in their lifetime.
  • Almost 1.6 million men have been raped in their lifetime.
  • Nearly half of female survivors were raped before they were 18.
  • 1 in 5 women was sexually assaulted while in college.
  • Assaults in college appear to be fueled by alcohol and drugs, often occurring at parties.
  • Most victims know their perpetrator.
  • 12% of high school girls report having been forced to have sex.

The costs of sexual misconduct are significant. They include not only the potentially irreparable damage to millions of young victims and survivors, but also potentially staggering litigation costs (which are not limited to attorneys’ fees), and damage to an educational institution’s reputation.

The President’s announcement and the Vice President’s leading role demonstrate the White Houses’s commitment to this issue. Thus, among other things, the White House has stepped up federal compliance and enforcement efforts. Colleges and universities have been well-advised to take notice. But rededication of efforts is now in order.

Accordingly, independent schools should now take note. We strongly encourage our secondary schools to act to reduce the risk of sexual misconduct on their campuses and to prepare their students to act appropriately when they get to college.

With this in mind, colleges, universities, and independent schools should:

  • Focus violence prevention education on perpetrators, survivors and bystanders. This should include getting men more involved, by educating the potential perpetrators, and by seeking the commitment and support of bystanders.
  • Educate (require attendance at preventive education programs) for faculty, other employees, and all students, providing information about the institution’s policies, practices and resources regarding sexual assaults and sexual misconduct. This will generally be tailored to the audience members’ ages and each institution’s campus and culture. For example, we are currently providing boundary training (‘Shades Of Grey And Blurred Lines’) at many schools.
  • In addition, schools may want to address these issues directly (bluntly) with applicants, to set an appropriate tone early on and discourage applicants who might be inclined to engage in misconduct.
  • Explore various ways to engage students, looking for whatever may generate their greatest involvement.
  • Understand your institution’s culture, and take appropriate action to redefine it if necessary. (Examine, and learn from, your institution’s past.)
  • Update policies and practices for responding to allegations of sexual misconduct and violence. This should include a review of disciplinary consequences.
  • Properly educate school officials responsible for responding to complaints. This will include education on a range of issues, including training for investigators and adjudicators involved in handling complaints of sexual assault (something that we have been doing for our clients recently, as well).
  • Consider whether the institution is properly organized (e.g., should HR be a separate department, as was recommended for Penn State by the Freeh Report); does it have the necessary resources to effectively administer and enforce the institution’s policies and protocols?
  • Provide survivors with appropriate resources and remedies to continue their education.
  • Address the need for fairness to the accused throughout the institution’s policies, protocols, and training, including the potential for false accusations.
  • Develop and maintain strong relationships with local law enforcement.

In short, institutions should update policies, practices and protocols, implementing best practices for preventing and responding to sexual misconduct, sexual assault, and rape.

The value of these measures may be obvious to those who have closely followed the stories at institutions in the headlines, from Penn State to Horace Mann, from Amherst to Deerfield. The challenge is not knowing what to do, in general. The challenge is in deciding to do it and tailoring these measures to your institution.

We are able and willing to assist.

Sara Goldsmith Schwartz, William E. Hannum III and the Education Team at Schwartz Hannum PC

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An article written by William E. Hannum III entitled “The Right Thing To Do: Preparing For And Responding To Allegations Of Sexual Abuse At Independent Schools” may provide additional, helpful guidance.

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William E. Hannum III is speaking on this topic at the Policy Institute, at independent schools and universities from Virginia to California, Indiana and Missouri.  Please join him! For more information, please click here.

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For a copy of the White House report, please click here.

Shades Of Grey And Blurred Lines

[January 9, 2014]  My phone rings almost every day with a question about boundaries.  Given today’s complex legal landscape, this is not surprising.

Educators at independent schools play a special role in the lives of students, well beyond just that of caring teacher: mentor, coach, disciplinarian, and friend.  It is in a teacher’s role as the latter that lines may be blurred and boundaries need to be enforced.  It may be obvious to most that intimate relations between teachers and students is a bad idea on many fronts–legally, morally, and ethically–however, in the independent school world, where many interactions happen outside of the classroom, let alone in cyberspace, it is important to revisit the complex definitions of what is appropriate and in the best interests of students.  Of course, the concept of boundaries in the independent school world transcends the teacher/student context, and often includes teacher/parent, teacher/alumni, student/student and any number of other pairings in which positive, close connections can quickly turn into an uncomfortable and negative experience that expands beyond appropriate boundaries.

In response to the current climate and the frequent inquiries from school leaders, the Firm has developed many iterations of an interactive workshop to encourage dialogue and exploration of these issues, including defining the boundaries and addressing the legal and ethical ramifications of inappropriate boundary crossing. Using real world scenarios from the Firm’s counseling experience and beyond, in addition to referencing the School’s employee and student handbooks for applicable policies, our workshop guides educators through the “grey areas” of mentoring and caring for students on the right side of the legal and moral divide. Our workshop can also be tailored for Board retreats.

E-Rate Funding: A Trigger For Compliance With Other Federal Laws?

[January 6, 2014]  Recently, the Federal Communications Commission (FCC) announced a new round of  E-rate Rulemaking, and invited feedback on how to ensure that schools and libraries have affordable access to 21st century broadband in order to support digital learning, maximize the cost-effectiveness of E-rate funds and streamline the administration of the E-rate program.

In response, independent schools have been inquiring as to whether participation in the E-rate program will trigger a school’s obligation to comply with a variety of federal laws to which schools would otherwise not be subject.  While the benefits offered by the E-rate program are attractive, we encourage each school to affirmatively establish whether such participation will trigger broader compliance obligations.

Section 504 of the Rehabilitation Act (Section 504) (requiring accommodation for students with disabilities) and Title IX of the Education Amendments of 1972 (Title IX) (prohibiting discrimination on the basis of sex) do not specifically address whether E-rate funding is considered federal financial assistance.  However, a Pennsylvania federal district court decision has held that receipt of an E-rate grant rendered a school in receipt of federal financial aid; therefore, the school could be sued for violations of Section 504 or Title IX.  In reaching this decision, the court relied on the U.S. Supreme Court’s characterization of the E-rate program as a form of “federal assistance” intended to help the public gain access to the Internet.

Though this case stems from Pennsylvania, and is thus not directly binding authority in other jurisdictions, it is noteworthy that there is common law legal analysis addressing the applicability of Section 504 and Title IX to schools that receive E-rate funds.  At this time, it is not clear whether that holding will be followed by other jurisdictions.

Accordingly, we recommend that each school carefully assess the value of E-rate funding relative to the potential for new legal compliance obligations that such funding may trigger, as the school decides whether to participate, or continue to participate, in the E-rate program.

Please do not hesitate to contact us if you have any questions about this information or need our assistance regarding issues related to E-rate funding.

“Our House Is A Very, Very Fine House” … Best Practices With Homestays

[December 11, 2013]  Are you ready to host international students in local families’ homes?  We are seeing a noteworthy increase in the number and variety of homestay programs offered by our independent schools.  One reason for this surge is the substantial increase in international students enrolling in independent schools in the United States.  Approximately 50,000 high school students come to the U.S. from abroad each year, about half of them from China.  The inclusion of foreign students through homestay programs can bring welcome diversity to the student body and enhance the school’s funding through tuition and advancement, as many students from abroad are able to pay full tuition.

In addition, student exchange programs remain popular and often involve local homestays.  For instance, when international students spend time in the United States, their visits constitute a “homestay” from a risk management perspective.

Independent schools involved in homestay programs are well-advised to ensure that they have appropriate procedures, authorization forms, handbooks and contracts in place for managing the enrollment of international students, as well as their short-term homestay visits, in order to mitigate the risks associated with educating students whose natural parents live outside of the U.S.

We recommend the following components of a comprehensive homestay compliance package:

  • A special enrollment contract, which is the school’s opportunity to establish a contractual relationship with the international students and their natural families.
  • A “conduct guide,” outlining in detail the conduct expectations for international students and their host families.
  • A host family “application kit,” including:  (a) host family application; (b) host family site inspection sheet; (c) interview questions for prospective host families; and (d) host family authorization for background clearances.
  • A host family contract, so that host families acknowledge and agree to abide by conduct standards in their interactions with the student and the school.
  • A host family authorization form, permitting host families to arrange for medical care and grant permission for school trips, sports participation, and the like.
  • A host family handbook, describing provisions that target the unique issues that may confront the hosts of homestay international students.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about homestay best practices, contracts, authorization forms or handbooks.