international travel risk management debra wilson, nais
TRANSCRIPT
International Travel Risk Management
Debra Wilson, NAIS
Be sure to write . . .
202 973 9716
What do I do?
Who is your legal counsel?
As a general rule…
Where are we going?
Brief overview and context
Tick bite case
Rhythm of a lawsuit
Hypothetical
Global Education/The 40k View
• Why Are We Doing Global Education?
• Education Mission meets Realities of Global Economy
• Desired Student• Know how to investigate the world, weigh
perspectives, communicate ideas, take action, and apply expertise in order to prosper in a global, multi-cultural world and workforce.
• 21st Century Competencies (Asia Society 2013)• Cognitive Competencies (academics, critical thinking,
creativity)
• Interpersonal Competencies
• Intrapersonal Competencies (learning to learn, intrinsic motivation, grit)
Global Education/The 40k View
Global Education/The 40k View
• NAIS’s Global Initiatives
• International mindedness• An independent school differentiator:
mission and value-add
• Assess the effectiveness, help teachers
• Best practices, best in class
• Global independent school community
• International student experience• Assess the experience
• Develop and eval enculturation training
Global Education/The 40k View
Global Education/The 40k View
• Data and Trends: NAIS Global Education Survey 2014
• Student Participation in Global Programs• 87% upper school
• 53% middle school
• 35% lower school
• Assessment and Impact of Global Programs• Very few use any measurements, e.g., GEBG,
Global Empathy Scale, World Savvy Challenge, Alejo Language and Culture Simulator, Graduation Performance System
• Impact perceptions include increased awareness of issues, beliefs, values; increase in travel programmes; increase support school mission; attract teachers
Data and Trends: NAIS Survey 2014
• Typical Global Offerings• 89% world languages
• 76% trips
• 65% service learning
• 59% exchanges
• 57% international students
• Global diploma, global centre, IB under 15%
• Global Partners and Students• Global education partnerships with China, France,
Spain, South Africa, and Germany most popular
• Students mostly from China, South Korea, Germany, Canada, and Mexico
Data and Trends: NAIS Survey 2014
• Recruitment International Students• 54% Travel to other countries
• 54% Use school representatives
• 43% Use agents
• 24% Use social media
• 23% Use admission fairs
• How Global Education Is Used• 58% Student recruitment
• 72% Marketing
How the law fits together
Federal– Constitution– Legislation– Regulations– Case Law – admin and federal courts
State – Same – May raise the floor on federal law
School policies and procedures
Ideally…
“schools are not insurers of safety *** for they cannot reasonably be expected to continuously supervise and control all movements and activities of students *** [and] are not to be held liable for every thoughtless or careless act by which one pupil might injure another.”
Tick Bite Case
Why is everyone talking about this case?
What happened?
What did the court say?
What does this mean for you?
What are the next steps? Focus…– Common complaints – sexual misconduct,
death and severe injury– Initial risk – looking for big impact areas
Main Liability
Negligence… what does that mean?– Duty to act (exercise such care as a parent of
ordinary prudence would in comparable circumstances)
– Breach of the duty– Harm– Caused by failure to perform duty and the
failure was a “proximate cause” to that duty (“but for” test).
Standards
What are the standards?– UE / NAIS Survey and Summit– GEBG Standards– Incident database– School Policies and Practices
Defenses
So then what?
Defenses:– Assumption of risk– Not reasonably foreseeable– Waivers, Releases– Third party vendors / partners– Third party intervention
Expanding program Three years ago your board decided to require
that all students participate in one international trip before graduation. Next year’s senior class is the first one that must meet the requirement. Because of this demand, the number of trips has tripled in the last two years. The financial aid budget has been meeting that demand, but no other additional staff or budget has been added. This year you have three new trips going that have all been added in the last four months – one to Costa Rica, one to Peru, and one to China. Two of the trips are being led by new teachers, both in their mid-20s. The Costa Rica and Peru trips both employ homestays.
How do you manage quick and large expansions of your programs?– Need to give yourself time and staff
(experienced)
How do you oversee these new programs?– Centralized approval and oversight
What does this mean to your current programs, those outside and inside the country?– Funding: break even or get ahead, cannot
skimp here.
What about chaperones?
Staff – many schools require staff to be with schools for a time. Transition from assistant to lead chaperone. Staff for the skills you need.
Specific training (safety)
Parents / Family Members – Harder to oversee. Training needed. Some schools now paying to ensure higher quality of engagement.
Program Oversight
While riding in 15 passenger chartered vans through the mountains of Peru, one van breaks down and (a mile later), the other breaks down as well. There is no cell phone reception in the area. The 20 students, two teachers, and two van drivers start to walk the remaining 10 miles. One student starts to suffer a severe asthma attack on the way. One teacher stays with the student while the other teacher continues on with the remaining students and van drivers. It is dusk when someone can finally go for the teacher and student left behind. Who goes? Can you find them? Will they still be there? What should have happened on the front-end?
Can you spare a leader?
What about the students?
Common Question: Can We Screen?– Set out requirements ahead of time– Harder when mandatory– Be aware of accessibility issues– Many schools require patterns of good
behavior and safe behavior– Many have application processes
Student criteria for participation
Medical Information
Pre-trip disclosures
Reasonably necessary
Kept confidential by those who need to know
Students and staff
GEBG Draft Standard
All staff and participants exchange appropriate medical information prior to the start of the activity, and appropriate personnel review the information. Additional individual medical and health concerns for international travel are specifically addressed. The information is properly managed and secured.
Good idea to be very clear about limitations in this area from the get-go. Advisor input, school counselor input, etc. Manage the expectations of the participants and parents from the beginning.
What about the vans? – Tracking international transportation rules,
regs, and norms can be difficult– What about when the transportation is clearly
at odds with US standards?
What about oversight on this trip?
Students?
Pre-Trip Prep
Pre-trip safety check – ideally go and see what the circumstances of the trip will be. Other pre-trip might fill in. (Lodestone, etc.)
Pre-trip emergency scenarios for every piece of the trip – admin moments.
Training for staff – emergency training, wilderness, etc.
This trip…
What about the remoteness of this trip and the Costa Rica trip?
Training for staff?
GEBG – Wilderness training (various levels depending on situation).
Remember to staff for the skills that you need.
GEBG Draft Standards
The program staff has conducted risk analysis and management for countries and locales visited and for all program activities. (note on checking official sites)
The program has a written emergency action plan designed specifically for the country and locales being visited that addresses steps to be taken in the field and/or during initial response.
The organization has a designated and functioning risk management committee.
Crisis Plan for Trips
Crisis Prep
For school leaders, trip leaders, parents, and students (might be pretty involved depending on trip). Scenarios.
Briefing students daily of particular risks of days
Phone trees
Plan of all official resources for every step of trip (embassies, hospitals, police, etc.)
Trip notebook and guide on various crisis situations. Trip specific risks and resources, all key school information, insurance information, student forms and health information, and other protocols. Michigan State manual as a basis
Insurance
Insurance is an important part of crisis prep.
Schools and trip leaders should understand the insurance the school has as well as the resources available to them through the insurance
Travel insurance for all participants, particularly medical and the ability to evacuate if needed, is a good idea. Especially in remote countries / areas
Insurance types
Sneaking out
Finally, everyone on the Peru trip is safely with their respective host families. This is not the case in Costa Rica. Two of the girls who were staying with a long time host family have snuck out at night, meeting two local boys in town. As it turns out, this local host family has not had similar aged kids for a while, the host is actually a 72 year old widow and this was not difficult for the girls to do. What steps will your chaperones take?
Host Families
What do you know about your host families?
How do you vet?
Do you update your information?
Do you check on your students?
Has a school representative been to the houses?
Do they understand what is expected?
What do your home families know?
Vetting of Host Families & Others
28% did background checks of some kind
References from partner schools or local NGO
Pre-visit to host families
During longer stays – visiting students in homes
More than one student
List or other documentation of expectations
Study the purpose of the host family stay and determine worth relative to risk
Note on UE claims study 40% of sexual misconduct claims host family
GEBG Draft Standard
The program has written expectations for the host family which are communicated prior homestay placement.
Host families are responsible for the physical and emotional well being of their homestay guests.
They should be oriented to the program's mission and expectations prior to accepting their responsibilities.
All homes must be inspected for health and safety provisions by program staff or partner organizations to ensure that they have adequate health and safety standards for the local region and students basic health and well being are provided for.
Breaking the Rules
If students get caught breaking the rules, what happens?
Do they know what will happen?
Do the parents know what will happen?
What did you do on the front-end?
What steps do you take in this scenario?
Pre-Trip Orientation (89% of schools)
Topics of Orientation
Orientation and documentation is the time to lay it out all out there.
Another place to manage the expectations on food, housing, conditions, risks, school policies, etc.
GEBG Draft Standard
Prior to the trip's start or prior to enrolling in the program: – Stakeholders informed of, acknowledge, and
assume risks of trips– Names and qualifications of trip leaders– Other risks– Appropriate agreements for allocating risk
Upon return, it seems that one of the girls had been sexually active with one of the boys in town. The father is a local plaintiff’s attorney and is claiming this was rape and that the school was negligent and let this happen. Is he right?
Negligence Claim
Duty?
Breach?
Harm?
Breach proximate cause of injury (“but for” the breach by the defendant – would the harm have happened?)
Note – depending on state, variations – negligent supervision, negligent training, etc.
Is a teacher individually liable? Just the school?
“…schools are under a duty to adequately supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision, they are not insurers of safety of their students for they cannot be reasonably expected to continuously supervise and control all of the students’ movements and activities.”
Plaintiff - Negligence– Breach of duty? Supervise, training
What about defense?– Assumption of risk on behalf of plaintiff?
Often can’t make this argument when compelled to attend – “Inherent compulsion”
Did defendants do anything to increase the risk?
Would more supervision have helped here? What facts would help or hurt?
“… plaintiff must show that the school had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury and the that third party acts could reasonably have been anticipated.”
What if this happened after the teachers knew she was sneaking out?
Releases and Waivers
Releases and waivers go hand-in-hand with orientation and documentation laying out risks of the trip and behavior expectations.
Parent Waiver / Release of Liability
Releases
Voluntarily, intelligently, and with full knowledge of the consequences. Mandatory programs can undermine enforceability (alternatives to requirement?)
Four to six part test: – Does not adversely affect public interest– Exculpated party not under legal duty to
perform– Not a public utility or common carrier– Contract does not grow out of unequal
bargaining power or otherwise unconscionable (this is important for informed consent).
So should you ditch releases?– Make sure they are readable (font).– Make sure they are reasonable and clearly
stated– Be clear in the risks in writing and in
orientations / training. – Don’t require immediate signatures– Arbitration– General deterrent effect– Over 18?
Student Behavior
Students, as minors, have limited ability to enter into agreements.
However, they can agree to behaviors and their parents can acknowledge the same, in addition to the releases.
Can also acknowledge assumption of risk on trips.
You can take reasonable measures and present reasonable supervision, and things can still go wrong.
Can get parent to sign as well.
Student Form (acknowledging risk)
Moving, vendor based trips
The China trip is a different kettle of fish altogether. There are 30 high school students going with two chaperones – your Chinese history teacher and his adult daughter. Once in China they met up with the tour operators, two adults who you have never met but who likely work for the government. The trip is largely in cities, but also includes some rural areas.
What do you do for preparation?
Vendors
Enforceable agreements
Indemnification clause
Adequately insured
Safe trip guides – training, reviews, go on a trip if you can
Clarity around deliverables and expectations
Emergency planning – particularly when providing transportation.
Third Party Vendor Contracts
GEBG Draft Standards
Steps are taken to assess the subcontractor’s competencies prior to the trip or activity start
Vetting of a third-party provider should include: qualifications of guides/activity leaders, third-party provider insurance, history, incident record, equipment used and inspections.
Assess the subcontractor’s performance, specifically as the performance relates to risk management.
The organization keeps appropriate files on persons or groups that are subcontracted to provide services.
What about unique travel locales?
Moving trips require updates for students
Risks of the day
Expectations of meet-ups, potential issues, hotels, etc.
Onsite Orientations
The trip is now in Shanghai and headed to Beijing, by overnight train tomorrow. Before the group left there was a rumor that the President of the People’s Republic of China was gravely ill. Word has just reached you back at the school that he has died. You have not heard from your trip leader for two days and people say that there is a lock on electronic communications from the country.
What happens on your end? What will your trip leader do?
Communication Plans
Every trip should have consistent communication plans and strategies with those on the trip and for contact with school
Think about adding one for students
Back-up plans, and then back-ups to the back-ups
What check-in systems do you maintain while traveling?
Once in Beijing, the group has checked into their hotel and with the school. There is a local curfew and mourning flags are hung. The chaperone reports that he feels that all is well. Several students make friends with local Chinese kids. The students invite the Chinese kids to the hotel and the Chinese kids are intercepted by several individuals who take them away in black cars. Several of the trip students are locked in their rooms by the floor matrons without explanation. In the meantime, a couple of students sneak out of their rooms after the city curfew and steal a few mourning flags as souvenirs.
The press meets the group back at school where the students proudly unwrap the flags.
Has anything gone particularly “wrong” on this trip?
Does the school have any liability?
What would have happened if the students had been caught?
What will the post-trip evaluations look like?
What does the PR look like?
What would it have looked like in 1984?
Post-Trip Student Eval
Post Trip Evaluations
Students, chaperones, and parents
Particularly right, particularly wrong
Places for improvement
Was the trip worth it?
Reporting out to school community?
What else?
Questions…
Resources
– Center for Curriculum Redesign
– UE / NAIS Survey and Summit Publication (including checklist)