EFFECTIVE RISK MANAGEMENT FOR STUDENTS WITH AND WITHOUT DISABILITIES: THE INTERSECTION OF RISK, THREATS AND CRISES ON COLLEGE AND UNIVERSITY CAMPUSES Anne Lundquist and Allan Shackelford New York State Disability Services Council Spring Meeting June 16, 2009 About the Presenters Anne Lundquist is the Dean of Students at Wells College in Aurora, NY, the fourth private liberal arts college where she has served as dean. She has written and presented on a wide range of higher education topics, including presentations at the First Year Experience Conference, NASPA, the National University Security Workshop and the NASPA/Stetson Student Affairs Law and Policy Conference. In her teaching career, she was an associate professor of English and also taught Women‘s Studies. Lundquist & Shackelford About the Presenters In 2002, when Anne became the Dean for Campus Life at Guilford College, she negotiated the involuntary withdrawal process for students with psychological disabilities that was approved by the OCR and established the standard for conducting ―individualized‖ threat assessments. Lundquist & Shackelford About the Presenters As an attorney, counselor and/or consultant, Allan Shackelford has advised institutions of higher education for almost thirty years on various issues, including student affairs, tenure, disability accommodations, governance, accreditation and risk management. He has presented at the annual meetings of the American Council on Education, NASPA and the National University Security Workshop. Allan began writing about higher education issues over twenty-five years ago and authors a regular column, ―Of Counsel,‖ for Campus Legal Advisor and a quarterly column for Disability Compliance for Higher Education. Lundquist & Shackelford About the Presenters Following the Virginia Tech tragedy, the National Association of College and University Attorneys assembled and published a comprehensive compendium outlining current thinking about relevant legal issues and trends and detailing best practices for identifying, anticipating and responding to risk management issues in higher education. An article that Allan had written, ―Conduct a Risk-Management Assessment Before Tragedy Strikes Your Campus,‖ was one of twenty-five law review or journal articles selected for inclusion in this publication. (Student Risk Management in Higher Education: A Legal Compendium, 2007, NACUA) Lundquist & Shackelford About the Presenters Anne and Allan are the co-authors of The Student Affairs Handbook: Translating Legal Principles into Effective Policies (March 2007, LRP Publications). In this book, the authors address current risk management and liability issues involving students in higher education. The book focuses less on theory and more on the realities of student affairs administration. It also emphasizes the crucial need for a deliberative, strategic, collaborative and systemic organizational management approach for institutions of higher education. Lundquist & Shackelford Your Expectations for the Day? Learning Objectives Participants will: • Gain a better understanding of disabilities issues within the context of institutional risk management • Learn new strategies for responding to students with psychological and mental health issues and disabilities • Learn techniques for effective policy development • Gain insights regarding institutional crisis management • Share strategies for ―educating‖ and working effectively with faculty members Lundquist & Shackelford Legal Liability: Historical Overview Lundquist & Shackelford Higher Education is a Unique Industry Colleges and universities have been described as ―ivory towers surrounded by reality.‖ Historically, higher education has largely been viewed as a self-created, self-perpetuating, insular, isolated and self-regulating world. Lundquist & Shackelford Higher Education Was a Protected Industry Traditionally, colleges faced few legal requirements and the world of higher education remained above the fray of the law and lawyers. Courts and legislatures deferred to the decisions of academia. Anthony v. Syracuse (1928) upheld the University‘s dismissal of a student because she was not a ―typical Syracuse girl.‖ Lundquist & Shackelford It Is an Industry That Has Been in Transition for Many Years With the rise in student numbers and the increased diversity of students attending institutions of higher education after World War II, the legal landscape began to shift and the outside world started to intrude onto campuses. The 1960s brought great societal changes and saw the federal government begin to enact specific legislation affecting colleges and universities. Lundquist & Shackelford That Transition Has Brought More Legal and Business Challenges The proliferation of federal statutes and implementing regulations, coupled with the rise of aggressive consumerism toward the end of the 1990s, has led to an increased risk of private legal claims against institutions of higher education -- and their administrators -- by individuals or groups of students. Higher education is now treated like any other business by judges, juries and creative plaintiffs’ attorneys. Lundquist & Shackelford Today‘s Legal Landscape Administrators, staff and faculty must be familiar with the proliferation of legal requirements and, beyond that, must translate them into best practices on their campuses to ensure the welfare, safety and education of their students, as well as to protect the integrity and reputation of their institutions. Lundquist & Shackelford Changing Legal Environment Shifts Institution‘s Relationship With Students In Loco Parentis Era: Family based tort immunities used to protect institution from lawsuits regarding discipline, regulation and punishment of students. College and universities acted as surrogate parents. Civil Rights Era: Students acquired the privilege to exercise their constitutional rights on campus and seek protection from the courts. Institutions were directed to treat students as adults. Lundquist & Shackelford Changing Legal Environment Shifts Institution‘s Relationship With Students Bystander Era: Courts began to approach lawsuits involving students and institutions using the legal analytical tools of ―duty‖ and ―no duty.‖ The deciding philosophy in a number of cases was the belief that students are responsible for themselves. Duty Era: Institutions of higher education and students have shared responsibility. More lawsuits and decisions focus on the philosophy that colleges and universities owe a duty to students and students owe a duty to themselves. Kim Novak, Arizona State University, based on Bickel and Lake, The Rights and Responsibilities of the Modern University: Who Assumes the Risk of College Life? Lundquist & Shackelford Recent Incidents and Tragedies in Higher Education Texas A&M MIT Ferrum Eastern Michigan Virginia Tech Duke Lundquist & Shackelford Types of Claims Tort litigation (negligence, personal injury, property damage, premises liability) Breach of contract Negligent supervision Misrepresentation and emotional distress Constitutional and contractual due process Failure to warn or protect against reasonably foreseeable harm Lundquist & Shackelford Essential Legal Principles Duty Foreseeable Danger Reasonable Care Lundquist & Shackelford Legal Duty Action Breach (Act or Inaction) Proximate cause Injury/damage Lundquist & Shackelford Legal Duty Courts moving from ―no duty‖ findings to assessment of ―reasonableness‖ and ―forseeability‖ for colleges and universities. Courts are focusing on ―the special relationship‖ between an institution and its students (thus owing students a duty to protect). Lundquist & Shackelford ―Changes in College Safety Law have brought changes in accountability.‖ ―Higher education law is moving, steadily, to consolidate around paradigms of reasonableness and forseeability--which focus much more on conduct, choices and information--and away from the concept of colleges‘ special status and their disengagement from students to avoid risk.‖ Peter Lake. ―Higher Education Called to Account‖. Chronicle. June 29, 2007. Lundquist & Shackelford Implications Colleges must provide reasonably safe environments for students by attending to forseeable dangers. Campus policies must work in tandem with regulations regarding the open areas of campus. Acting independently, no department is likely to solve the problem. Lundquist & Shackelford Implications Colleges may have to comply with the law of agency which means that the institution is assumed to have gathered and synthesized all information in a reasonable and efficient way. Colleges may become legally responsible if they create or enhance a risk or take charge of a person or situation. Lundquist & Shackelford NYSDSC PRE-CONFERENCE SURVEY RESULTS Survey Respondents Sent survey via e-mail to 250 members of NYS Disability Services Providers listserv 42 complete survey responses (16%) 68% public, 31% private Institutional Size % Respondents Less than 1000 3.3% 1000 – 2500 16.4% 2500 – 5000 41% 5000 – 10,000 14.8% Over 10,000 24.6% Lundquist & Shackelford Respondents Position Title Supervisor Title Director 52.8% Dean /VP of Student 29.7% Assistant/Associate 5.7% Affairs Director Academic VP or Dean 21.6% Coordinator/Manager 32.1% Associate Dean, Student 16.2% Counselor 9.4% Affairs Associate Dean, Academic 8.1% Affairs Director of Disability 24.3% 67.2% of respondents supervise others Services Lundquist & Shackelford Primary Job Functions Consult with faculty regarding accommodations 98% Arrange services for students with disabilities 95% Serve as an advocate for students with disabilities 92% Compile statistics and data 90% Update publications and brochures for disabilities services 90% Develop/write/review disabilities policies 88% Review and evaluate medical documentation 83% Purchase equipment for students with disabilities 78% Teach campus workshops regarding disabilities 73% Serve as liaison with vocational rehabilitation agencies 72% Ensure campus compliance with disabilities requirements 70% Lundquist & Shackelford Compliance Knowledge Responsibility ADA Title I 34% 9.8% ADA Title II 47.1% 34% ADA Title III 56.8% 50% Rehabilitation Act of 1973 52% 72% FERPA 76% 54% HIPAA 27.5% 15.6% OCR Regulations 44.9% 56% EEOC Regulations 21.5% 13.3% Department of Justice Regulations 24% 30% State and Local Laws and Ordinances 33.3% 27.1% Lundquist & Shackelford Effectiveness * Disability Disability Compliance with Policies Procedures Federal Disability Obligations 5 13.7% 20.0% 27.5% 4 62.7% 56.0% 45.1% 3 19.6% 20.0% 17.6% 2 2.0% 2.0% 5.9% 1 2.0% 2.0% 3.9% * 1 – lowest, 5 = highest Lundquist & Shackelford Most Concerned About Psychological/emotional/mental health disabilities and possible implications Compliance with laws and regulations Working with and educating faculty Training, budget and adequate staffing Lundquist & Shackelford What Keeps Respondents Up at Night Being sued/OCR investigations Indicators for a student who harms self or others not being ―recognized‖ by the institution Faculty members who ―don‘t get it‖ Lack of collaboration between various offices to serve needs of students with disabilities Not being included in institutional decision- making processes Inadequate/inappropriate policies and procedures Lundquist & Shackelford Student Veterans Only 18.8% of respondents reported having programs specifically designed to meet the needs of student veterans with disabilities. This is the one response that surprised us the most. Lundquist & Shackelford ―RISK‖ Risk Can Be... Physical : injuries from physical activities, accidents, intentional acts, death. Reputation: negative publicity for you and/or your colleagues, an activity and/or your college or university. Emotional : cause a student receiving your services to feel alienated or something negatively impacts the psychological well-being of a member or members of the campus community. Financial: adversely impact the fiscal stability of your functional area or the stability and viability of the entire institution. Facilities: property damage, lack of required equipment or materials. Lundquist & Shackelford Responses to Risk Avoid/ignore Transfer to a third party Reduce/mitigate/control the negative effects Accept some or all of the consequences Lundquist & Shackelford Risk Management Risk management is the ―art and science of anticipation.‖ While organizational management structures and leadership styles are not often perceived as risk management issues, ineffectiveness in these areas lies at the heart of almost every instance in which a senior leadership team ―got it wrong.‖ ―The President as Chief Risk Manager,‖ Lundquist & Shackelford, pending, 2009. Lundquist & Shackelford How We Have Come to Define ―Institutional Risk Management‖ The deliberative, strategic, systemic, holistic, integrated, proactive, ongoing process of identifying , anticipating, categorizing, assessing, and analyzing the institution’s exposure to internal and external risk factors to determine how best to avoid, transfer, mitigate, control, handle and/or respond to such exposures and related issues, activities and scenarios to safeguard and preserve the institution’s human, physical and intellectual assets and its mission, strategic objectives and reputation. ―The President as Chief Risk Manager,‖ Lundquist & Shackelford, pending, 2009 Lundquist & Shackelford Risk Management on Campus Must be based on genuine concern for student safety. Cannot be executed in isolation from comprehensive planning. Based on the principles of student empowerment. Acknowledges that some choices carry inherent risk. Injury and death can occur despite best planning efforts. Some activities are simply too unreasonably dangerous to continue. ―Private Law Continues to Come to Campus: Rights and Responsibilities Revisited.‖ Peter Lake. Lundquist & Shackelford Risk Management Intersections Policy Enforcement Education Lundquist & Shackelford Adapted from University of Nebraska‘s Campus Community Coalition Risk Management Is a Disability Services Issue There may be certain risks and potential threats inherent in the presence of a particular student on campus. The risks can relate to the nature of the student‘s disability or may arise as the result of an accommodation being requested or considered. The risks may be obvious or not. It is not only the best interests and legal rights of the particular student that must be considered and addressed, but also those of other students, the campus community and the institution itself. Lundquist & Shackelford Risk Management Is a Disability Services Issue An accommodation is not required if it or the student would pose a ―direct threat‖ or if the accommodation would fundamentally alter a program. Consult with others, as appropriate, in the fact-finding and decision-making process. ―Employ Risk-Management Perspective When Considering Reasonable Accommodations,‖ Allan Shackelford Lundquist & Shackelford A Case Study Virginia Tech – April 16, 2007 Violence on Campus Is Not New 16th century Scotland, students carried guns to school and staged a rebellion against school authorities. Bath, Michigan (1927), a local farmer opened fire at the school, killing nearly 40 students and teachers. Columbia University (1952) a disgruntled physics student opens fire on faculty and administrators. Swarthmore College (1955), a student who has formerly been hospitalized for psychotic episodes opened fire on his classmates. University of Texas (1966) student kills his wife and mother, then climbs the university tower and opens fire, killing 15 people and wounding 31 others. Stanford (1978) student who felt mistreated by his thesis advisor bludgeons the professor to death. Lundquist & Shackelford Violence on Campus Is Not New University of Iowa (1991) honor student, angry over a scholarship awarded to another student, shoots and kills the other student, two professors and two college administrators. Penn State (1996), a female student opens fire on College Avenue, killing one other student. University of Arkansas (2000) graduate student in comparative literature killed his Ph.D. advisor and then killed himself. Appalachian School of Law (2002) student kills 2 professors and a student. Fairfield University (2002) former student takes 22 students hostage in a classroom building. University of Arizona College of Nursing (2002) student kills one professor in her office and another in a classroom. Lundquist & Shackelford The Virginia Tech Tragedy – Facts and Circumstances ―Mass Shootings at Virginia Tech, April 16, 2007, Report of the Review Panel, August 2007.‖ ―No Right to Remain Silent, The Tragedy at Virginia Tech,‖ Lucinda Roy, former Chair of the Department of English. Media articles, especially investigative reports by reporters of the Richmond Times-Dispatch using FOIA requests. Lundquist & Shackelford Early Warning Signs The Report of the Review Panel lists ten separate episodes of threatening behavior by Seung-Hui Cho that were documented in Virginia Tech records prior to April 16, 2007. Most occurred during the 2005 fall semester. Throughout that semester, Cho‘s English professors communicated with Cho, the department chair, various administrators and university police about Cho‘s writings and behavior. Lundquist & Shackelford Early Warning Signs October 2005: Cho was removed from a class taught by poet Nikki Giovanni and tutored privately by Lucinda Roy, then Chair of the English Dept. Lucinda Roy gave a ―code word‖ to her assistant that she would use to alert her to summon the police if Roy believed she was in danger of harm. Lundquist & Shackelford Early Warning Signs November 2005: Female student reported annoying phone and in-person contact; second female student complained of IMs. November 30, 2005: Police requested a temporary detention order and Cho was evaluated at Cook Counseling Center. November and December 2005: Cho initiated contact with the Cook Counseling Center three separate times within 15 days and was ―triaged‖ (given a preliminary screening) each time. Lundquist & Shackelford Early Warning Signs? Dec. 13, 2005: A screener concluded that Cho was ―mentally ill and in need of hospitalization, and [presents] an eminent danger to self or others as a result of mental illness….‖ Dec. 14, 2005: Two others concluded that Cho did not present an imminent danger to himself. Dec. 14, 2005: A judge ordered Cho to obtain outpatient treatment. No one followed-up to ensure that he received this treatment. Lundquist & Shackelford The Virginia Tech Response All records of Cho being seen, evaluated and ―triaged‖ at the Cook Counseling Center were reportedly ―destroyed inadvertently.‖ E-mails show that professors in the English Department remained concerned about Cho‘s behavior during the 2006 spring and fall semesters. E-mails also show that these concerns were expressly brought to the attention of various administrators. Lundquist & Shackelford Among Those With Knowledge of Various Aspects of the Threat Vice President of Student Affairs Dean of Students An Associate Dean of Students Director of the Office of Judicial Affairs The VA Tech Police Department Residence Hall Director Resident Advisors The Virginia Tech Care Team The Dean of the College of Liberal Arts The Associate Dean of the College of Liberal Arts The Cook Counseling Center Lundquist & Shackelford The Law Was Misinterpreted In her prepared remarks to the Review Panel, the General Counsel of VA Tech indicates that she misconstrued FERPA and HIPAA as prohibiting the sharing and disclosure of medical and counseling records in the face of a known threat. Peter Lake pointedly disagreed: ―A lot of the information that you are hearing about privacy laws keeping people from talking is just dead wrong. Both HIPAA and FERPA have very broad exceptions for health and safety … privacy ends where safety begins.‖ ―Florida Panel Says Privacy Laws Do Not Protect Dangerous Students,‖ Martin Van Der Werf and ―Higher Education Called to Account, Colleges and the Law After Virginia Tech,‖ Peter Lake, 2007. Lundquist & Shackelford A Devastatingly Perfect Storm Virginia Tech followed the historic ―silos of power and silence‖ management model. Clearly, ―the right hand did not know what the left hand was doing.‖ On the morning of April 16, 2007, issues that had been repeatedly misinterpreted and mishandled relating to regulatory, informational security and operational risk came together. 32 innocent victims died and others received life- long, debilitating injuries. Lundquist & Shackelford The Legal Aftermath Because of the ―sovereign immunity‖ hurdle, in June 2008, 28 families of those killed and 18 injured survivors settled claims against the Commonwealth of VA for just over $11 Million. Subsequent to the settlement, numerous substantive factual discrepancies have been discovered between the report of the Review Panel and documents later produced by VA Tech. Lundquist & Shackelford The Legal Aftermath On April 16, 2009, the families of two students who were killed (and who had not entered into the settlement agreement) filed lawsuits against the State of Virginia, VA Tech and individual administrators and counselors. In the 64 page complaints, they assert claims based on an alleged failure to maintain a safe campus, negligence, gross negligence and deliberate indifference. Each seeks $ 10 Million in damages. One family has pledged to donate any money received to a scholarship fund they established in honor of their daughter in 2007. Lundquist & Shackelford Students with Psychiatric Disabilities Legal Duty and Ethical Responsibility Many of us ask if Virginia Tech will be liable for the deaths on their campus. Peter Lake (Stetson Law) cautions that this isn‘t the right question. Peter Lake. ―Higher Education Called to Account‖. Chronicle. June 29, 2007. Lundquist & Shackelford The Question Is... ―Will Higher Education in general be called to account legally for such events?‖ The answer is ―yes, and more frequently.‖ ―While we may not be held liable more frequently, we will now have to go to court, the legislatures, and Congress and explain why we did what we did--or did not do--more consistently and probingly than ever before.‖ Lundquist & Shackelford Mental Health on Campus Self-harming behaviors, including cutting and eating disorders, are on the rise. Student suicide is the second leading cause of death among college students. 2005 National Survey of Counseling Directors found: 90% had seen an increase of students with psychological problems, including clinical depression. 4 in 10 college students report they feel ―so depressed it‘s difficult to function.‖ 1 in 10 had ―seriously considered‖ suicide. - American College Health Association Lundquist & Shackelford Mental Health on Campus 95% of counseling center directors report that the number of students arriving on campus already taking psychiatric medication has increased. Average number of students hospitalized for psychological reasons has increased. Of 154 college student suicides, 85% had no contact with counseling services on campus. --Robert Gallagher, University of Pittsburgh, 2006. Lundquist & Shackelford Everyone Knows ―the Law‖ Section 504 of the Rehabilitation Act of 1973 The Americans with Disabilities Act The ADA Amendments Act of 2008 A ―disability‖ is a physical or mental impairment that substantially limits one or more major life activities. Student must make disability known and request accommodations. Must be ―otherwise qualified‖ and able to meet the academic and technical standards required. Duty to ―reasonably accommodate.‖ Lundquist & Shackelford But, the Devil Is in the Details What are the duties and/or responsibilities owed to a student who poses a risk of harm to her/himself or others? Do these duties and/or responsibilities increase when there is an announced or perceived threat of suicide or threat to others? For students who pose a risk of harm to self or others, and may have a psychological disability, what are the legal hurdles to remove them from campus or otherwise control the situation? Lundquist & Shackelford When There Is a Threat of Suicide, We Are Concerned for Our Students – and Ourselves Recent suicide cases have given rise to concerns by administrators about the institution's responsibility and role in preventing student suicide and self-harm. Can an administrator be held personally liable for a student‘s suicide? Not all students who engage in self-harming or threatening behavior have psychological disabilities. Lundquist & Shackelford The Issue Is Not Fully Settled, But ... The trend appears to be that institutions have no legal duty to prevent suicide and no legal duty that requires them to notify parents about such a threat. While a legal duty has not specifically attached for student suicide, best practices are beginning to emerge incorporating the expectation that administrators are to act ―reasonably.‖ Lundquist & Shackelford Mahoney v. Allegheny College (Pa. Common Pleas Dec. 2005) ―We believe that the ‗University‘ has a responsibility to adopt prevention programs and protocols regarding students[‗] self- inflicted injury and suicide that address risk management from a humanistic and therapeutic as compared to just a liability or risk avoiding perspective.‖ Lundquist & Shackelford Legal Caution: Nott v. George Washington University GWU student was suspended, forced to withdraw and banned from campus after checking himself into a University hospital for depression. GWU sent letter to him stating that he had violated the student conduct code by engaging in ―endangering behavior.‖ Lundquist & Shackelford Legal Caution: Hunter College Student sought treatment after suicide attempt. Removed from the residence halls. School policy: "A student who attempts suicide or in any way attempts to harm him or herself will be asked to take a leave of absence for at least one semester from the residence hall and will be evaluated by the school psychologist or his/her designated counselor prior to returning to the residence hall." Settled for $65,000. Lundquist & Shackelford Georgetown Reynold Urias contends he was joking about ―following in the footsteps‖ of the Virginia Tech gunman. Roommate reports the threat to counseling services. Asked to leave campus by administrators. Lundquist & Shackelford Response vs. Over-reaction Colleges are confused by the law and face the dilemma of under and over response. Students face the choice of seeking help/accommodation for their mental illness and jeopardizing their education. Lundquist & Shackelford Virginia Tech Task Force(s) Recommendations Address school culture and ―codes of silence.‖ Educate students about sharing information about those who pose a danger with those who can help. More education on early warning signs and intervention for those with mental illness. Greater information-sharing both on campus and with local authorities. Develop protocol for timely, effective and coordinated response to students in crisis. Increase resources for preventing mental health issues rather than just responding to critical incidents. Lundquist & Shackelford Implications College mental-health professionals have duties to warn other people about patients who pose a serious risk of violence. Privacy ends where safety begins. Legislative changes to HIPAA and FERPA Lundquist & Shackelford Involuntary Withdrawal is Permissible Re Bluffton and Re Marietta (OCR) Federal law does not prevent an institution from addressing the dangers posed by an individual who represents a ―direct threat‖, even if s/he is a person with a disability, as that person my no longer be qualified for a particular educational program. Lundquist & Shackelford Involuntary Withdrawal Protocols for Risk of Harm At their core: a primary desire to protect a student from self-harm and the campus from the negative effects of self-injurious behavior. Gary Pavela warns against establishing ―hair trigger‖ removal policies. What is legally permissible and what is ―the best decision‖ for the student and the institution may not always coincide. Lundquist & Shackelford Responding to Psychological Disabilities Best practices: develop policies and procedures based on guidance from the Office for Civil Rights (OCR). Always do what is ―RIGHT‖ for the student(s) involved, other students, their families and the institution. Treat each case individually. Distinguish ―risk assessment‖ from ―treatment.‖ Lundquist & Shackelford The OCR‘s Letter to Guilford College Said Do It Right Brief background facts. Required the College to reconstruct events and related decisions. OCR concluded that the College had failed to conduct a direct threat analysis appropriately - - its assessment had not been ―individualized‖ as required. Lundquist & Shackelford OCR Requirements for Guilford Review, revise, publish appropriately and implement ADA/Section 504 Policy and associated procedures. Provide faculty and staff training. Revise involuntary withdrawal protocols. Lundquist & Shackelford Individualized Assessment: One Size Does Not Fit All Functional limitations resulting from a particular disorder will vary from student to student. Surrounding circumstances of each situation will vary. Must apply decision-making on a case by case basis. Lundquist & Shackelford Individualized Assessment: Focus on Observable Behaviors Everyone on campus is an ―observer‖ Right and obligation to report behaviors People think they can ―tell‖ when someone has a mental illness Legal troubles begin when institutions cross the line between ―observation of behavior‖ and ―perception of mental illness.‖ Vicki Gotkin, ―From Diagnosis to Treatment: Addressing Legal Issues Related to Mental Illness on Your Campus‖ (2003). Lundquist & Shackelford Individualized Assessment: Credible Medical Evidence Should not be reviewed by the professors, but by the person at the institution charged with arranging for accommodations. Accommodations can be designed without disclosing the student‘s disability or diagnosis to the professor, however they do need to know the student‘s limitations. Be specific in your request for medical evidence and clear about who should provide it. Lundquist & Shackelford Individualized Assessment: Provide Notice Nott v. George Washington University Make every effort to meet in person or by phone with the student prior to making a decision. May need to go to them (home, hospital, therapist‘s office, etc.) Provide a reasonable period of time for decision-making. Utilize ―interim suspension‖ or ―interim leave‖ procedures when necessary. Lundquist & Shackelford Individualized Assessment: Direct Threat Analysis Review Nature Frequency duration of the behavior Assess Likelihood Imminence And nature of harmful conduct in the future Lundquist & Shackelford You Must Consider Alternatives to Suspension Do not require the cessation of the behavior as a condition for continued enrollment. Explore alternatives that mitigate the risk such as removal from campus housing, distance education, reduced course load and/or modifications of college policies. Consider interim steps prior to suspension. Lundquist & Shackelford Establish and Communicate Conditions for Return You may set requirements upon exit that must be met prior to your considering the student‘s return. You may be more specific with requirements for readmitting students than during their initial admission to the college or university. Lundquist & Shackelford Readmission Agreements State terms of exit and readmission Indicate that have received medical information as requested Institution desires to assist and support, but has certain expectations Student must comply Can confirm receiving counseling or other medical treatment Acknowledges that the agreement is not disciplinary action, but failure to abide by it will result in such. Lundquist & Shackelford Readmission Agreements Student waives right to appeal Student acknowledges that s/he has read, understands and agrees to comply Define terms Standard terms or requirements: participation in counseling or treatment, appointments with medical professionals, use of alcohol or other drugs, urine samples, medical exam, obey all laws, notify of change in address, etc. Lundquist & Shackelford Involuntary Withdrawal Protocols Add language to your Student Conduct Code about self-harm and threats to others. Establish suicide prevention programs. The University of Illinois at Urbana-Champaign‘s model is a good starting point. It reduces its liabilities and helps students. Establish Threat Assessment Teams and Critical Incident Response Plans. Lundquist & Shackelford Policies, Procedures and Protocols Risk Management: Effective Policies and Decision-Making Clear campus policy on information-sharing Develop protocol for response to danger to self or others Include individualized assessment Create effective and non-punitive involuntary leave policies Lundquist & Shackelford Develop Technical Standards ―Not otherwise qualified‖ = not entitled to accommodations. To determine qualifications, must have standards. Hallmark of sound planning (and avoiding claims of discrimination) starts with having written technical standards. Should be developed before they are needed. Vicki Gotkin, ―From Diagnosis to Treatment: Addressing Legal Issues Related to Mental Illness on Your Campus.‖ Stetson 24 th Annual Law and Higher Education Conference. 2003. Lundquist & Shackelford Technical Standards Utilizing a planning group of students, faculty and staff ensures buy in. Akin to ―essential functions‖ of a job and can include skills such as communication, intellect, behavioral and social attributes and motor skills. Include complying with Code of Conduct as a technical standard. Lundquist & Shackelford Psychological Disabilities and Your ADA Policy Identifying the diagnosis and submitting documentation of test results is insufficient. Require a qualified medical professional to provide a DSM-IV diagnosis and a detailed explanation of how this affects the student in the academic and co-curricular environment. Poor judgment, irresponsible behavior, poor impulse control are not disabilities. Lundquist & Shackelford Psychological Disabilities and Student Misconduct Focus on the observable behaviors. As indicated previously, include threats of self- harm, self-injury and threats to others as violations of your Student Conduct Code. Be consistent in your enforcement of your policies and procedures. Lundquist & Shackelford AISP Model: Assessment-Intervention of Student Problems (Ursula Delworth, 1989) Student behaviors that raise campus safety concerns are categorized ―Disturbed‖ (i.e. muttering while walking across campus or poor hygiene) ―Disturbing‖ (i.e. muttering includes threats to self /others or hygiene presents health threat to self or others) Lundquist & Shackelford Disturbed/Disturbing Matrix* Mental Health Concern: ―Disturbed‖ YES NO YES Disturbed/Disturbing Disturbing Disruptive Behavior: ―Disturbing‖ NO Disturbed Neither Lundquist & Shackelford *Dunkle, Silverstein and Warner 2008 Disturbed/Disturbing Student Observed Chief Student Affairs Officer: Monitor roles and responsibilities of other administrators. Be involved as appropriate. Lundquist & Shackelford Dunkle, Silverstein and Warner 2008 Involving Parent(s) or Other Appropriate Family Members Parents do not want to learn about serious academic, conduct or health related consequences without a previous warning. Previous contact with a parent makes a difficult situation easier. When appropriate, counsel the student to make contact with her or his parents about a potentially serious issue involving alcohol, drugs, pending disciplinary sanctions or emotional problems. Involve those directly concerned with the situation, such as the alcohol, drug or mental health counselor, in a phone conversation with the parents so that everyone is on board concerning actions taken. Appropriate waivers are required. Lundquist & Shackelford FERPA Has Always Been a Speed Bump, Not a Stop Sign FERPA does not require parental notification, but it provides opportunities. Institution may release all information if the student is under 18 or a tax dependent. There may be an exception, however, if the student is legally emancipated. Lundquist & Shackelford FERPA Has Always Been a Speed Bump, Not a Stop Sign FERPA permits release of information regarding student over 18 who has signed a waiver to release such information. Warner Amendment permits release of information concerning alcohol or drug violations for students under 21 to parents or legal guardian. Lundquist & Shackelford FERPA Has Always Been a Speed Bump, Not a Stop Sign FERPA also permits nonconsensual disclosure of student information on a ―need to know‖ basis when an imminent health or safety danger exists. FERPA does not provide a private cause of action (Gonzaga Univ. v. Doe). Lundquist & Shackelford Department of Education Final Rule (January 8, 2009) New regulations encourage institutions to release information to avoid outbreaks of violence. They ―make it crystal clear to schools that they have flexibility if there‘s an emergency‖ (LeRoy Rooker, former director of the Family Policy Compliance Office). Lundquist & Shackelford Department of Education Final Rule: Health and Safety Emergency Exceptions ―Educational agencies and institutions are permitted to disclose personally identifiable information from students‘ education records, without consent…in connection with a health and safety emergency.‖ ED will not second guess an institution's conclusion that a health or safety emergency exists. May disclose to ―protect the health and safety of the student or other persons‖ Lundquist & Shackelford Department of Education Final Rule: Threat or Emergency Possible terrorist attack, natural disaster, campus shooting, outbreak of epidemic, etc. ―Articulable and significant threat‖ means that institution must be able to state the specific nature of the threat when it makes and records the disclosure. Institutions may contact parents, potential victims, previous institutions and law enforcement agencies to avoid imminent harm. Lundquist & Shackelford Department of Education Final Rule: Recording Requirement Institutions must record the ―articulable and significant threat.‖ Must also record the parties to whom the information was disclosed. This document becomes an ―education record.‖ ED review will focus on ―information available at the time of determination‖ and will not ―substitute its judgment in evaluating circumstances.‖ Lundquist & Shackelford FERPA‘s Final Rule Attendance Directory information Education records Permissible disclosure without student consent School official definitions Redisclosures Personally identifiable information Enforcement www.ed.gov/legislation/FedRegister/finrule/200 8-4/120908a.pdf Lundquist & Shackelford HIPAA Considerations Student health centers, business offices, student affairs offices who collect medical information are bound by HIPAA. OCR provides guidance on how to release information for public health reasons. Provisions in cases of domestic or sexual violence. Provisions for release of private information in the case of serious threat to health and safety. Lundquist & Shackelford Responding Effectively to a Threat and/or Crisis When You Least Expect It, a ―Student Crisis‖ Can Explode When it happens, you must be prepared to respond to: The student(s) directly involved Other students and campus constituents Parents The law and lawyers The media Lundquist & Shackelford When a Crisis Explodes, the Administration Is Tested When unanticipated events or crises occur, the best intentions regarding how the senior administrators and the institution‘s professional communicators will react to those events and communicate internally and externally may evaporate. Lundquist & Shackelford The Institution May Appear to Lose Its Way A student suicide, a disabilities related incident or claim, an alleged hate crime or violence on campus can quickly tear down the presumed invulnerability of an institution‘s insular ivy walls. It often seems as if the ability to think, act and communicate decisively and appropriately is lost. Lundquist & Shackelford Systemic Risk Management Implications of Indecision When colleges and universities fail to respond immediately with the best interests of both its students and the institution uppermost in mind, students, administrators, faculty and the institution itself may be placed at serious risk of harm in unforeseen ways. Lundquist & Shackelford Preventative and Proactive Assessment and Planning Prepare now for the unexpected and unforeseen. Anticipate and identify potential student related events, crises and/or tragedies. Learn from the experiences of others. Lundquist & Shackelford Preventative and Proactive Assessment and Planning What are the sources of your greatest risks? Develop a base of knowledge about the potential risks, their implications and possible solutions. Develop policies, procedures and protocols to respond to these issues. Educate and train your staff. Lundquist & Shackelford A Triangulated Approach to Crisis Management First, make decisions that take into consideration the best interests of students -- all students. Second, make decisions that take into consideration how the institution‘s interests may be affected and can be protected. Lundquist & Shackelford A Triangulated Approach to Crisis Management Third, focus on controlling the institution‘s ―message‖ and the media, to the extent appropriate and practicable. To accomplish these objectives, requires foresight, planning, preparation, confidence, trust and credibility. Lundquist & Shackelford How Can You Be Prepared? Create effective policies –and follow them. Keep good records—good paper helps, bad paper hurts. Understand your institution‘s process for engaging legal counsel. Be diligent about confidentiality. Understand attorney-client privilege. Work to educate others on your campus. Lundquist & Shackelford Working Effectively with Faculty From the Survey: ―Issues that Keep You Up at Night‖ ―Faculty lack of understanding and lack of interest in learning about disabilities.‖ ―Faculty who don‘t get it.‖ ―Student with disability conflict with faculty.‖ ―Individual instructors who try to block student‘s accommodations.‖ ―Instructor ignorance.‖ ―Faculty attitude.‖ Lundquist & Shackelford From the Survey: ―Issues that Keep You Up at Night‖ ―Faculty lack of interest in using techniques which are proven to improve outcomes for all students and students with disabilities in particular (universal design).‖ ―Faculty issues.‖ ―An instructor not providing an accommodation repeatedly.‖ (Actually, a ―worst case scenario‖) Lundquist & Shackelford From the Survey Wish List ―Wish that Faculty was mandated to take a ‗disability sensitivity‘ course to help them appreciate the challenges facing students with disabilities.‖ Lundquist & Shackelford The Legal Requirements Rehabilitation Act of 1973 Americans with Disabilities Act ADAAA State Law (New York ―Human Rights Law‖) Local ordinances OCR regulations DOJ regulations Contractual obligations Lundquist & Shackelford Section 504 of the Rehabilitation Act At the postsecondary level, the recipient of federal financial assistance is required to provide reasonable accommodations, appropriate academic adjustments and auxiliary aids and services to a ―qualified student with a disability.‖ A ―qualified student with a disability‖ is one who meets the academic and technical standards of admission or participation in the institution‘s educational program or activity. Lundquist & Shackelford This Is a Shared Institutional Responsibility Accommodating the needs of qualified students with a disability is, of course, a legal obligation requiring an interactive process involving individual faculty members. Accommodations, adjustments, aids or services are not required if they would result in a fundamental alteration of an academic program or activity or impose an undue burden. Lundquist & Shackelford One Legal Caveat for Your Consideration The burden is on a student to self-identify and initiate the reasonable accommodation process. However, last year, the U.S. Court of Appeals for the Second Circuit (jurisdiction over NY, Vermont and Connecticut) ruled, in a case that arose in an employment context under the ADA and NY state law, that an employer may have a duty to provide reasonable accommodations to an individual with a disability if that ―disability is obviously known to the employer.‖ Lundquist & Shackelford Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2nd Cir., 2008) This case is now precedent under the federal law applicable to the State of New York. A question for your future consideration is whether the same outcome might be reached by the OCR or a court in New York presented with a similar situation involving a student at an institution of higher education. Also, query whether the refocus of the ADAAA might have an impact on how the OCR responds. If the question arises, consult with your counsel. Lundquist & Shackelford One Other Legal Word of Caution for Your Consideration Just what is the impact of the ADAAA on your obligation to accommodate students with disabilities? The OCR website says, ―The Amendments Act does not require ED to amend its Section 504 regulations. ED‘s Section 504 regulations as currently written are valid … .‖ ―… OCR is currently evaluating the impact of the Amendments Act on OCR‘s enforcement responsibilities under Section 504 and Title II of the ADA, including whether any changes in regulations, guidance, or other publications are appropriate.‖ Stay tuned for further developments. Lundquist & Shackelford There Is Also an Ethical Aspect to this Issue Academic freedom includes responsibilities. Obligations and responsibilities are often outlined in faculty handbooks. The AAUP Statement of Professional Ethics says, in part, ―Professors demonstrate respect for students as individuals and adhere to their proper roles as intellectual guides and counselors.‖ Lundquist & Shackelford The Underlying Considerations You Face in Attempting to Work with Faculty On which side of the academic fence does your office fall? All politics is local! What do you need to do to get someone to tell the faculty that they don‘t know everything and that they need to pay attention to you? Having a collaborative environment for responding to students with disabilities is a crucial risk management issue. Lundquist & Shackelford Specific Steps in the Process of Working with Faculty Develop and implement appropriate policies, procedures, protocols and guidelines. Obtain buy-in from the academic side of the house. Institute an institutional requirement for professors to attend workshops in which they are educated on their legal obligations and responsibilities. Sometimes using scare tactics may be the only way to get their attention. Teach the teachers to teach! One key question is how much information to share with faculty about a particular student. Lundquist & Shackelford What Strategies Have You Found to Be Particularly Successful? 1. 2. 3. 4. 5. 6. 7. Lundquist & Shackelford Wrapping Up EFFECTIVE RISK MANAGEMENT FOR STUDENTS WITH AND WITHOUT DISABILITIES: THE INTERSECTION OF RISK, THREATS AND CRISES ON COLLEGE AND UNIVERSITY CAMPUSES Anne Lundquist and Allan Shackelford This presentation was designed to provide accurate and authoritative information regarding the subject matter covered. However, it does not constitute legal advice. Please consult with your institution’s legal counsel regarding the specific facts and circumstances associated with any legal matter or case.
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