Youth Services Litigation Blog : Georgia Youth-Serving Organization Lawyer & Attorney : Debbie Ausburn Law Firm : Youth Camps, Day Care, Social Services

My presentation at the American Camping Association Southeastern Region conference was about good ways to avoid, or at least lessen the chances of, lawsuits.  Although I focused youth camps, and the ACA standards, my suggestions also might be helpful to other groups.

I've posted a QuickTime version of the presentation that you can download here.  To view it, you will need QuickTime, which you can get for free from here. 

If you have any questions, disagreements, or suggestions, definitely let me know.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I'm teaching a session this week at the American Camping Association Southeastern Conference.  If you're there, look me up and say hello.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A teenager in Texas died last month from swine flu.  What struck me about this particular report is that he also had an MRSA infection at the time.   Last year, a report in Pediatrics magazine noted a five-fold increase in flu deaths where a child also had MRSA.  Given the prevalence of MRSA in many communities, youth-serving organizations need to be as alert to the symptoms of MRSA as to flu symptoms.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The CDC has issued an updated bulletin for early childhood programs on how to respond to an outbreak of the H1N1 virus.  At the head of the list is vaccinations, both ordinary flu and H1N1 (when available) for staff.  Next, the CDC recommends having staff and children stay home for at least 3-5 days after exhibiting flu symptoms.  The CDC also recommends frequent health checks, separating staff and children who exhibit flu symptoms, and renewed attention to environmental cleanliness and handwashing.

The most difficult recommendation to follow is likely to be having staff stay home for at least 3-5 days, or longer if the flu symptoms persist.   Few schools or child care centers have extra staff sitting around, and finding substitutes on short notice for sick staff members will be a constant challenge.  Groups will have to find creative solutions this flu season, whether banding together to share a pool of on-call, trained substitute teachers, or just hiring an extra staff person or two in anticipation of the inevitable illnesses over the next few months.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Speaking of bullying, DeKalb County has issued a report of its investigation into the suicide of 11-year-old Jaheem Herrera.  His mother filed suit last spring, arguing that the child killed himself because of bullying at school.  The school system hired a respected retired judge to investigate the situation.

One controversial aspect of the judge's findings is the possibility that the child's suicide was related to domestic violence that he witnessed.  Apparently, his mother's boyfriend has a documented history of abuse toward his mother.  The mother's attorney called the abuse a "non-issue," and said that it had no bearing on the case.

It is possible that the abuse had nothing to do with the child's suicide, but it certainly is an issue.  The mental health research is overwhelming that children who witness domestic violence experience higher rates of depression, anxiety, and aggression that children who do not.  See also here, here, and here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Department of Justice has issued a report about bullying in schools.  It is part of the COPS series, so is geared toward school resource officers, but has some good information for administrators as well.  Some of the research that it cites suggests that a principal's involvement in addressing the problem contributes to fewer incidents. It also recommends such common-sense strategies as increasing supervision in "hot spot" areas, and perhaps even redesigning the environment.

I disagree with one strategy, which is "developing a comprehensive reporting system to track bullying and the interventions used with specific bullies and victims."  It is a good idea in theory, but, if not done effectively, will just provide ammunition for an opposing attorney in a lawsuit.  Like any school policy, do not create the policy unless you are going to follow and enforce it.  The only thing worse than no policy is a well-written policy that no one follows.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There are some very good new resources for dealing with swine flu.  The CDC has published a new website for child care providers.  The Department of Health and Human Services and the CDC have combined to create a checklist for day care centers and preschools.   The American Academy of Pediatrics has a similar publication.

Although these resources are geared toward child care centers, every youth-serving organization should review them.  They offer good advice and common-sense suggestions that will help you continue your program while protecting your clients.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The latest problem that day care centers, schools, and camps need to know about is swine flu.  The illness is spreading, and may become our next epidemic.  Like so many illnesses, children are at high risk.  There is no effective vaccine, and only limited treatment options.

You can take some common-sense precautions to hep protect your clients:

*  Enforce rigorous hand-washing protocols.

* If children are sneezing and coughing, anyone who comes into contact with them must wash their hands before touching anyone or anything else.

* Children who exhibit flu-like symptoms should be isolated from the general population and sent home with parents as soon as possible.

* Check with your local or state health department to learn what specific precautions authorities are recommending for your area.

* Monitor the CDC website for updated recommendations

* Watch websites related to your industry, such as the American Camping Association's summary of  precautions.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Justice Department has filed suit under the Americans with Disabilities Act (ADA) against an RV park owner, alleging discrimination against an HIV-positive child.  As youth organizations gear up for summer activities, administrators need to follow o the requirements of the ADA.

Any child who has a disability, or is perceived as having a disability, cannot be excluded from camping activities unless accommodating them (1) would cause an undue burden on the camp, (2) would change the fundamental nature of the program, or (3) would place other campers at risk.   As is always true with things drafted by lawyers, that summary has multiple caveats, explanations, and specific definitions, and each camp should consult a knowledgeable attorney about individual issues.  For an excellent summary of the ADA as it applies to camping programs, see this article at the American Camping Association website.  

If you need to find another camp that can better deal with a particular child's disabilities, the American Camping Association has a search feature, and Very Special Camps has an online directory.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A Nashville school district has fired three employees after discovering that a middle school teacher was hired despite an outstanding criminal warrant for child molestation.  This story illustrates the pitfalls of relying too heavily on routine criminal background checks.  The accused teacher, Ronald Boykin, had no criminal conviction, but had been wanted for two years in another city in the state.

According to news reports, the district fired the employees for lax hiring practices.   Apparently Boykin actually noted on his application that he was under criminal investigation, although it is not clear whether he specified what was being investigated.  The district employes also failed to re-check his application when he transferred from a support position to being a teacher.

The first line of defense in any youth-serving organization is a thorough application  interview.  One of the best resources on screening employees, including how to conduct an interview, is the CDC's publication about policies and procedures.  It is free, and available for download here.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I spent part of last week at the American Camping Association Convention, learning about current standards in the camping industry.  One of the hot topics was the recent Virginia Graeme Baker Pool and Spa Safety Act.  The law, passed in December, requires retrofitted safety features for public pools, and "public" has a broad definition.  Many camps and other pool owners have been unable to find drain covers and other safety features that comply with the law, so have been forced to close their pools.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In this earlier post about injury waivers no longer being valid in Florida, I listed some reasons to continue to use injury waivers.  Michael Wetzel posted an intriguing comment:

I recommend "participation agreements" which employ a mediation then arbitration (med/arb) clause instead of release language. Courts will enforce the agreements, making parties use ADR, which saves time and expense and provides greater predictability in outcome. Insurance companies should be notified and allowed to participate, but the settlements/awards are covered by the "duty to pay" policy language.

I am an enthusiastic supporter of mediation, even though I joke that a successful mediation takes all the fun out of being a trial lawyer.  I have had more mixed results with arbitration.  Just because someone is an arbitrator does not mean that they have any more knowledge or expertise about a particular subject than anyone else.  Sometimes you get a great arbitrator who does have specialized knowledge.  Sometimes you have only narrowed your pool of uninformed factfinders to a single person.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A court has dismissed all criminal charges stemming from a teenager's death in a "boot camp" program.  The 15-year-old died from an untreated staph infection.  I missed earlier reports about this case, including this one giving some unverified details of the the child's death.  If the allegations are true, it seems that someone should have at least checked his temperature.  I am sympathetic to the difficulty in determining whether a child "feels bad," but fevers are hard to fake. 

I have not seen any reports showing that any of the staff had the intent necessary for a criminal conviction.  The civil case that remains, however, will have a lot of jury appeal.

MRSA (methicillin-resistant staphylococcus aureus) is quickly becoming a common, almost epidemic, occurrence in youth camps, schools, and day care centers.  We are long past the time when caregivers could claim that it is an unusual disease that never would have occurred to anyone as a possibility.  MRSA is too dangerous a disease to leave untreated.  The CDC, for example, has found a fivefold increase in deaths where a child had both the flu and MRSA.

Every organization that cares for children needs to be familiar with the symptoms of MRSA, and the CDC's website about controlling its spread.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Supreme Court's ruled last week that  a student who has been sexually harassed can sue the school and individual administrators under 42 U.S.C. § 1983.  There has been plenty of legal analysis of the decision, so I decided to blog about the underlying problem of child-on-child abuse.

That particular case started when a kindergarten child told her parents that other children were coercing her into exposing herself on the school bus.  The parents were not satisfied with the school's response, and eventually sued.  This case is rare only in that it made it all the way to the Supreme Court.  Child-on-child abuse in youth organizations actually is more common than abuse by adults. The problem for supervisors is knowing how to respond.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

An excellent post on Outdoor Ed Community has some information that you should pass on to everyone in your organization who might ever need to perform CPR.  It discusses recent research in "agonal breathing," or gasping and moaning sounds in people who don't have a pulse.

The important take-away for us is that these breathing sounds are not adequate breathing, and no one should stop or delay CPR thinking that the person is breathing on his or her own.

The American Heart Association has more information about agonal breathing here and here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Florida ADR Law blog has an interesting post about a recent decision by the Florida Supreme Court, which held that liability waivers that parents sign for their children to participate in commercial activities are not enforceable.   The court reasoned that the right to  recover for injuries is personal to children, and that parents do not have the authority to waive that right before a child sustains injuries. The court cited a long of list of other states that follow the same rule.

The court's ruling is sure to be controversial on several fronts.  

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

A school principal in St. Louise has been convicted of a misdemeanor for failing to report possible abuse.  Mr. Sirna was investigating the claims, and believed that he needed to have more information before calling police.  The prosecutor, jury, and judge disagreed.

I am sympathetic to the desire to investigate claims in-house, and am skeptical about the wisdom of the "call first, investigate later" motto.  Even though I have worked as a prosecutor and social worker, I am not convinced that child protection workers or even police investigators can investigate a claim better than an experienced school principal.  But the law is what it is, and most mandated reporter statutes do not leave much leeway for internal investigations before reporting a child's claims.  Don't put your career on the line -- call first and investigate later.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Another study confirms conventional wisdom -- to get kids to eat more whole grains, sneak them into their diet.  A team at the University of Minnesota found that when school lunch rooms gradually added healthier flour to their breads, the kids did not notice the difference.  The students only started throwing the bread away when the percentage of whole grain flour reached 70 percent.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A man under indictment for child abuse has sued both the parents of the alleged victim and the day camp where he worked.  He claims that the camp injured his reputation by sending 1500 emails to parents, notifying them of the charges against him.  A spokesman for the camp said that he had spoken to parents of children who had come in contact with the counselor, and sent an email to the rest of the parents in response to rumors.  

He said, "It was an e-mail that went out to our clientele and it stated very clearly that it was an accusation. There was no added information."

If the email was as limited as the spokesman claims, I cannot see any basis for the suit.  I often counsel clients in similar situations to notify parents sooner rather than later.  The camp's primary obligation is to its campers, and parents, particularly those whose children might have had contact with the accused counselor, have a right to know about any accusations.  The notification, of course, needs to be limited to the simple facts that an allegation has been made, that the counselor has been suspended or otherwise isolated from contact with the camp's children, and that the camp is cooperating with authorities.  Any editorializing or speculation definitely will get you into trouble.

Even if the camp ultimately prevails in this suit, defending it will take a lot of energy and money. Let's hope it has a good liability policy that covers this sort of claim.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The CDC says in a new report  that food allergies in children rose by 18% from 1997 to 2007.  It lists the most common allergies, and notes that children under 5 are more likely to have allergies than older children.  (Hat tip: Child Safety Blog)

The report also says that 4 out of every 100 children has a food allergy, a fact that every organization serving food to children needs to take into account.  The USDA has several helpful fact sheets  with suggestions for accommodating food allergies in camps, day care centers, and schools.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A day care worker in Texas was arrested after admitting to biting a child to teach him, she said, not to bite other children.   Naturally, the parents are "seeking legal representation." 

An earlier report of the incident includes a statement from the day care director.   Most lawyers advise their clients not to talk to the media, because statements you make can be used against you if the matter ends up in court.  The catch is that it always hurts the center's reputation when the only words a reporter can quote are "No comment."

I recommend that youth-serving organizations respond to media inquiries with four statements: (1) always, always, always express concern for the child, who is, after all, your primary responsibility; (2) identify any steps you have taken that can be made public (i.e., suspended the worker pending investigation); (3) always make clear that you are cooperating with authorities; and (4) explain that you cannot comment further about an ongoing investigation.

Resist the temptation to explain everything you know to a reporter.  Too much explanation will come back to haunt you.  You do need to establish your concern for the children in your program, but any more details need to wait until you have all of the facts.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A few weeks ago, I spoke at the Georgia Association of Young Children (GAYC) annual conference, and in late September, I spoke at the conference for the Southeastern Section of the American Camping Association.  I thoroughly enjoyed both conferences.  It always is good to re-connect with old friends, and to remember why I enjoy so much working with people who work with kids.  

My topic in both seminars was how to implement the recent CDC guidelines on "Preventing Child Sexual Abuse in Youth-Serving Organizations" (PDF available here).   I helped edit the final report (finding my name on the acknowledgements page was pretty cool), and was impressed with how much work went into the project.  Given the CDC's stature, these guidelines are likely to become an important standard in the field.  The CDC imprimatur also means that the guidelines are likely to show up in lawsuits. Plenty of directors will find themselves answering a lawyer's question, "Did YOU implement the CDC's recommendation on page 4?" 

I hope to be at the ACA's National Conference in February.  If you're there, be sure to look me up and introduce yourself.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This recent story from New Jersey illustrates a growing problem for schools, day care centers, and other organizations where children gather.  Methicillin-resistant staphylococcus areus (MRSA) infections are becoming more common, and more resistant to traditional antibiotic treatments.   We are seeing more lawsuits involving MRSA, usually based on claims that a child contracted it because the center (a) allowed infected children or staff members to continue attending the facility, or (b) failed to adequately disinfect common areas.

Some of the lawsuits are based on misconceptions, such as a belief that anyone suffering from MRSA should be quarantined.  The Centers for Disease Control has a very helpful webpage outlining what schools and other organizations can do to prevent and/or respond to MRSA.  Many state and local health departments also have pages on their websites.

Because the infection is becoming so common, be sure that you are taking precautions recommended by the health departments in your area.  Educate yourself about the initial symptoms, and what your licensing agency requires as far as reporting cases to health authorities and/or notifying other parents.

• Email This
• Print
• Comments
• Trackbacks
• Share Link