Managing The Experience Presented by: Saundra K. Schuster, J.D. Partner, The NCHERM Group www.ncherm.org © 2013. All Rights Reserved.

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 27 th Conference on Law & Higher Education) © 2013 The NCHRM Group all rights reserved 19

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 © 2013 The NCHRM Group all rights reserved 20

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 mitigation Provided by the American Institute for Foreign Study Foundation 21 Characteristics of a Strong Study Abroad Program © 2013 The NCHRM Group all rights reserved

22 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, 42 nd Annual NACUA Conference © 2013 The NCHRM Group all rights reserved 23

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 issues 24 What is Risk Management? © 2013 The NCHRM Group all rights reserved

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 25 Types of Risks to Consider © 2013 The NCHRM Group all rights reserved

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 duty  AND If the institution’s failure to uphold the duty was the proximate cause of the injury, then the institution may be liable for damages 26 Understanding Liability © 2013 The NCHRM Group all rights reserved

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 27 Foreseeability © 2013 The NCHRM Group all rights reserved

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?! 28 Remember © 2013 The NCHRM Group all rights reserved

 Negligence for a personal injury  Alcohol or drug related claims  Student discipline issues  Breach of contract  Sexual violence  Mental health issues  FERPA 30 Common Liability Challenges © 2013 The NCHRM Group all rights reserved

Unsafe property/conditions Known, foreseeable harm Reckless or endangering behavior Illegal behavior Failure to follow policies/procedures Failure to enforce rules Harassment or Discrimination 31 General Risks Presented © 2013 The NCHRM Group all rights reserved

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 © 2013 The NCHRM Group all rights reserved 32

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 34 General Strategic Prevention © 2013 The NCHRM Group all rights reserved

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 35 How Does The Institution Accomplish This? © 2013 The NCHRM Group all rights reserved

 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 36 Identify Relevant Policies and Laws © 2013 The NCHRM Group all rights reserved

Orientation topics:  Mode of travel and appropriate training and supervision of travel based expectations o Provide guidance regarding rental vehicles and local taxis  Institution’s Code of Conduct, U.S. laws and application abroad o Identify to whom a student should report harassment, abuse or assault  Relevant laws of host country(s) o Host country laws regarding drugs and alcohol o 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 country o Local officials cannot represent an American citizen traveling abroad 37 Orientation for Study Abroad Program © 2013 The NCHRM Group all rights reserved

 Discussions about culture of host country and home culture o If staying with families discuss importance of compliance with local culture o 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 38 Orientation for Study Abroad Program (con’t) © 2013 The NCHRM Group all rights reserved

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 39 Managing Physical Risks © 2013 The NCHRM Group all rights reserved

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 40 Addressing Behavioral Risks © 2013 The NCHRM Group all rights reserved

 Always enter into a written agreement with programs that your schools sends students but does not sponsor o 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 41 Agreements With Sponsoring Organizations © 2013 The NCHRM Group all rights reserved

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 42 Mitigating Risks Some General Considerations Mitigating Risks Some General Considerations © 2013 The NCHRM Group all rights reserved

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 43 Mitigating Risks Waiver & Release Forms Mitigating Risks Waiver & Release Forms © 2013 The NCHRM Group all rights reserved

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 44 Elements of a Waiver & Release Form © 2013 The NCHRM Group all rights reserved

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 45 Responding To On-Site Issues In Host Country Responding To On-Site Issues In Host Country © 2013 The NCHRM Group all rights reserved

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 46 The Day Prior to Departure © 2013 The NCHRM Group all rights reserved

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 47 Important Follow-up © 2013 The NCHRM Group all rights reserved

Safety Abroad First-Educational Travel Information Clearinghouse Project www.globaled.us/safeti/www.globaled.us/safeti/ National Association of International Educators www.nafsa.org/secussa U.S. Dept. of State Travel Warnings and Consular Information www.travel.state.gov/travel_warnings.html www.travel.state.gov/travel_warnings.html Center for Disease Control www.cdc.gov/travel/index.htmwww.cdc.gov/travel/index.htm Resources © 2013 The NCHRM Group all rights reserved 48

Managing The Experience Presented by: Saundra K. Schuster, J.D. Partner, The NCHERM Group www.ncherm.org © 2013. All Rights Reserved.

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Managing The Experience Presented by: Saundra K. Schuster, J.D. Partner, The NCHERM Group www.ncherm.org © 2013. All Rights Reserved.

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