Public Risk September 2016

PUBLISHED BY THE PUBLIC RISK MANAGEMENT ASSOCIATION SEPTEMBER 2016

CHRONIC PAIN + Psychological Factors Ignore At Your Own Risk

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ALSO IN THIS ISSUE

LAW ENFORCEMENT LIABILITY

How a Municipal Reciprocal Improved its Results

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THE ABC’S OF SCHOOL RISK MANAGEMENT PAGE 15

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SEPTEMBER 2016 | Volume 32, No. 8 | www.primacentral.org

CONTENTS

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.

PRESIDENT Terri L. Evans Risk Manager City of Kingsport Kingsport, TN PAST PRESIDENT Dean R. Coughenour, ARM Risk Manager City of Flagstaff Flagstaff, AZ PRESIDENT-ELECT Amy J. Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN DIRECTORS Brenda Cogdell, AIS, AIC, SPHR Risk Manager, Human Resources City of Manassas Manassas, VA Scott J. Kramer, MBA, ARM City/County Director of Risk Mgmt Montgomery County Commission Montgomery, AL

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Chronic Pain + Psychological Factors IGNORE AT YOUR OWN RISK

By Fernando Branco, M.D.

Jani J. Jennings, ARM Insurance & Safety Coordinator City of Bellevue Bellevue, NE Scott Moss, MPA, CPCU, ARM, ARM-E, ALCM P/C Director Oregon Public Entity Excess Pool Salem, OR Lori J. Gray Risk Manager County of Prince William Woodbridge, VA Donna Dolinger-Capria, CRM, CIC, AINS Risk & Insurance Coordinator WaterOne of Johnson County Lenexa, KS NON-VOTING DIRECTOR Marshall Davies, PhD Executive Director Public Risk Management Association Alexandria, VA EDITOR Jennifer Ackerman, CAE Deputy Executive Director 703.253.1267 • jackerman@primacentral.org

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Law Enforcement Liability

HOW A MUNICIPAL RECIPROCAL IMPROVED ITS RESULTS

By J. Brett Carruthers, CSP, RSSP

15

The ABC’s of School Risk Management

By Joe Jarret

and Robert Bambino, CPCU, ARM

IN EVERY ISSUE

4 NEWS BRIEFS | 31 ADVERTISER INDEX | 32 MEMBER SPOTLIGHT

ADVERTISING Courtney Blackford 888.814.0022 • courtney@ahi-services.com

Public Risk is published 10 times per year by the Public Risk Management Association, 700 S. Washington St., #218, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200 email: info@primacentral.org • Web site: www.primacentral.org Opinions and ideas expressed are not necessarily representative of the policies of PRIMA. Subscription rate: $140 per year.

Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine.

POSTMASTER: Send address changes to PRIMA, 700 S. Washington St., #218, Alexandria, VA 22314.

Copyright 2016 Public Risk Management Association

SEPTEMBER 2016 | PUBLIC RISK

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MESSAGE FROM PRIMA PRESIDENT TERRI L . EVANS

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Fleet Safety Isn’t Just the Operation of Vehicles

hen we discuss fleet safety, we often focus on driving and vehicle operation—operators utilizing proper defensive driving techniques, having proper policies regarding utilization of vehicles, off-road and construction equipment operation, use of GPS systems for operational efficiencies, policies regarding use of cell phones while driving, making sure our employees are not under the influence, safe emergency vehicle operation, etc. But what about the actual vehicle itself? Making sure our vehicles and equipment are properly maintained is imperative to help avoid accidents, increase efficiencies, reduce vehicle down time and ensure our employees have responsibility for their actions in the case of a failure.

What can employees do to help with this process? If you have CDL drivers, you know they are to perform a pre-trip inspection prior to each shift-use of the vehicle. This pre-trip includes a visual inspection of things like hoses, tires, wires, windshield wipers, battery cables and various connections, as well as an actual check of tire pressure and fluid levels. It is not a huge jump to require a scaled down version of this pre-trip inspection of all your non-CDL vehicles and equipment. After appropriate training in what to look for and how to evaluate potential issues, the operator then has responsibility to inspect the vehicle and see if there are operational issues prior to use. It can also help with a feel of “ownership” whereby the operator takes greater pride in the vehicle or equipment. My entity, the City of Kingsport, set up such a program, and it can lead to discovery of potential catastrophic failures prior to their occurrence, which can avoid accidents and larger repair expenses down the road.

There are other fleet safety issues and opportunities if you have an in-house repair

There are other fleet safety issues and opportunities if you have an in-house repair facility. Setting up parameters whereby the technicians have the responsibility for inspecting vehicles during services for proper operation places a greater emphasis on safety of operations.

facility. Setting up parameters whereby the technicians have the responsibility for inspecting vehicles during services for proper operation places a greater emphasis on safety of operations. If a vehicle was at the garage last week and was then involved in a collision where the brakes failed, the potential liability of your entity increases. Why not establish policies and procedures to lessen that likelihood and reduce your overall potential for exposure? Requiring employees to report issues, as well as empowering repair technicians with the ability to “down” vehicles if necessary without repercussions, allows everyone to be involved in the safe operation of your fleet.

Providing safer vehicles and equipment for the operator while reducing fleet expenses make this a program everyone can get behind!

During this year’s PRIMA Institute in Pittsburgh, which will be held October 24-28, Oscar Goedecke, CSP, of Travelers, will be presenting an entire session on fleet liability.

In addition to Oscar’s session, there will be 21 more formal presentations, numerous round-table participant discussions, and many

networking opportunities. This is another example of the high-caliber educational offerings PRIMA has for public entity risk professionals.

This month, your PRIMA Board of Directors is hard at work with the conference planning committee, selecting another slate of quality educational sessions for our PRIMA Annual Conference, to be held in Phoenix, June 4-7, 2017. With more than 200 sessions submitted, this is a monumental but worthwhile task that the committee takes very seriously.

Our goal is to continually improve the conference for you, our valued members, as our only purpose is to serve you.

Terri L. Evans 2016–2017 PRIMA President Risk Manager City of Kingsport, Tenn.

SEPTEMBER 2016 | PUBLIC RISK

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NEWS BRIEFS

NEWS Briefs

POKÉMON GO A NO-GO FOR SEX OFFENDERS IN NEW YORK Under the direction of Gov. Andrew Cuomo, registered sex offenders in New York are no longer allowed to play the popular app Pokemon Go, reports the Tribune News Service.

According to the New York State Office of Public Safety, the governor has barred all registered sex offenders under the state’s supervision from downloading, accessing or playing Pokemon Go. The Department of Criminal Justice is now tasked with providing the app’s maker, Niantic, with the most up-to-date list of registered sex offenders in the state, the public safety office said in a post on its Facebook page.

The move, according to the agency, was made with the “hopes the company will use the list to prevent sex offenders from using the app.”

Cuomo’s action immediately hits more than 3,000 sex offenders now on parole and classified among the top three classes of offenders.

For sex offenders on probation, the state is advising county probation departments to take the same measure.

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PUBLIC RISK | SEPTEMBER 2016

Cuomo said his directive was spurred by a report by state Sens. Jeffrey Klein (D-Bronx) and Diane Savino (D-Staten Island) that

“

found the game luring youths near sex offenders’ homes.

Protecting New York’s children is priority number one and, as technology evolves, we must ensure these advances don’t become new avenues for dangerous predators to prey on new victims.

“

“Protecting New York’s children is priority number one and, as technology evolves, we must ensure these advances don’t become new avenues for dangerous predators to prey on new victims,” Cuomo said in a statement in the Facebook post on Monday, Aug. 1, 2016. “These actions will provide safeguards for the players of these augmented reality games and help take one more tool away from those seeking to do harm to our children.”

Andrew Cuomo, New York governor

WASHINGTON D.C. POISED TO JOIN THE $15 MINIMUM WAGE MOVEMENT Washington, D.C. will be the next major city to implement a $15 minimum wage rate following a unanimous vote by its city council, reports NPR. In a victory for local and national labor unions, Washington joins the ranks of cities such as San Francisco, Los Angeles and Seattle in raising wages for primarily lower-income workers in restaurants, retail and other service industries.

The District’s current hourly minimum wage is $10.50, and it was scheduled to go up to $11.50 next month under a law enacted in 2014.

OREGON’S PUBLIC PENSIONS COSTS TO GO UP $885M NEXT YEAR Schools, cities, state agencies and other public employers across Oregon will have to pony up an extra $885 million next biennium to fund the state’s public pension system, reports The Oregonian.

That’s about 10 percent higher than previously forecast and a 44 percent increase from the $2 billion per biennium that public employers are currently paying to support the system. And the cost is almost certain to continue climbing, which is prompting a renewed outcry from Republican lawmakers for a reluctant legislature to take up PERS reform again.

The actuary for the Public Employees Retirement System shared an updated valuation of the pension fund’s assets and liabilities at the system’s regular board meeting. The new

numbers incorporate the system’s investment returns through the end of 2015, as well as new economic assumptions about future returns and members’ mortality.

The PERS Board will send employers their new rates in September, though they won’t take effect until July 1, 2017.

The news from the meeting, though widely telegraphed in previous presentations to the board, was sobering. Despite healthy financial markets, PERS investment returns have lagged well behind the system’s assumed rate of 7.5 percent.

The Oregon Supreme Court threw out most of the legislature’s money-saving pension reforms from 2013. The PERS Board has tweaked a few underlying economic assumptions to better reflect its real-world experience in the fund.

SEPTEMBER 2016 | PUBLIC RISK

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TITLE

CHRONIC PAIN

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PUBLIC RISK | SEPTEMBER 2016

Psychological Factors Ignore At Your Own Risk

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BY FERNANDO BRANCO, M.D.

HEN A PATIENT PRESENTS WITH CHRONIC PAIN, their psychological status—both past and present—should always be considered.

We know from research, that chronic pain can lead to depression and anxiety as well as other psychological conditions. The patient’s previous psychological history and experiences are equally powerful. They can increase the patient’s suffering and perception of their pain.

These experiences can become powerful factors throughout the entire course of treatment.

In the wide world of medicine, we would never contemplate performing surgery on a patient until we had determined such things as blood type, heart/lung status, prior surgeries, or response to previous treatments. In the case of the chronic pain patient, it is equally important to consider their psychological status.

Many “normal” individuals may have minor psychological or behavioral issues. We have all had life experiences that greatly determine how we approach an injury or its aftermath. In the case of an injured worker, the acute event of the injury can trigger previous psychological issues or experiences that were supposedly dormant.

It is usually not possible to treat one without considering the other. Here is a typical example of a case with which I was involved: “Joe” was a 35- year-old bus driver. He had worked for over a decade without any incidents.

One day, he is involved in a minor “fenderbender” near the end of his shift. He experiences a slight discomfort in his neck. Joe is not

concerned. After filing an accident report, he goes home.

By the next morning, Joe’s neck is stiff and he is unable to dress himself. His company recommends he goes to a local urgent care center.

There, an X-ray is read as unremarkable. He is given an anti-inflammatory medication and told to take a couple of days off from work.

A week later, Joe’s pain and stiffness have not resolved. He begins to feel that his condition is not being taken seriously by his employer. He sees an orthopedic surgeon on his own. The orthopedist orders an MRI, which he interprets as showing several levels of degenerative disc disease. The doctor recommends surgery. The

SEPTEMBER 2016 | PUBLIC RISK

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CHRONIC PAIN + PSYCHOLOGICAL FACTORS: IGNORE AT YOUR OWN RISK

workers’ compensation carrier initially denies the surgery. Now Joe is certain that his company does not care for him. Joe hires a lawyer.

It is now 10 years later. Joe has had three unsuccessful surgeries, and more than 100 spinal procedures, including a spinal cord stimulator trial that failed. He is now on heavy amounts of narcotics, has gained 50 pounds, is a heavy smoker, very depressed with severe anxiety, and unable to sleep more than two hours a night.

Now Joe feels his company has been unjust and he has developed a great sense of entitlement. He demands that his bariatric surgery, testosterone replacement, and psychiatric care be covered by workers’ compensation. In addition, he is now divorced and claims he is unable to care for himself. He expects his attendant care to be covered. Joe feels justified in all of this because, as he states, “I was perfectly fine until the accident.”

Is Joe different from thousands of other individuals who go through similar life experiences, but do not fall into this helpless state? How can a minor accident be responsible for this disaster? It cannot.

During his teenage years, Joe experimented with marijuana and also did some binge drinking. No one considered these might reflect a problem.

At this point, it would be instructive to review some of Joe’s medical history. As a teenager, he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). He was distracted in school and his grades were failing. He felt isolated and often embarrassed. He was started on Adderall. This psycho-stimulant improved his focus and his grades. Unfortunately, he was never weaned off the medication. Adderall is an amphetamine, a potentially highly addictive substance, which can have serious effects on a developing brain. Throughout his years of Adderall use, Joe was never thought to have become addicted, since it was approved and prescribed by his doctors. No one considered that his brain might have been set up to easily become dependent on narcotic pain medications.

In high school, Joe loved sports. He found the physical activity and attention very positive.

He played football throughout high school, but was injured in his senior year. This had a serious negative impact. He quit sports. After high school, he attempted community college but withdrew after one semester. By 19, Joe was driving a school bus, and married with one child on the way. He had no serious medical problems until the accident.

There were significant risks evident in Joe’s medical history and personal life that were overlooked by medical providers. When he was initially seen, the doctor ignored the possibility that there was a soft tissue injury that would not be seen on an X-ray. Appropriate treatment was

This is not the usual psychological approach that often attempts to resolve issues in the past. No one can change the past, but it is important to recognize how the past has influenced the way we see the present. This is often of extreme importance in the case of injured workers.

Traditional psychotherapy can be very helpful to many people; however, it is not always the appropriate approach for injured workers, even if psychiatric issues are present.

Psychotherapy may not have clear end goals and may not be limited in time.

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not provided. Subsequent interviews revealed that Joe immediately became fearful of his injury. He believed his football career had ended in the same way. No one helped Joe understand that his injury would improve with time if he were given the correct treatment, which would include proper therapeutic exercises and postural corrections.

The MRI report unfortunately led the surgeon to believe that Joe needed surgery (When you are a hammer, the whole world looks like a nail). Subsequently, Joe began to see himself as “damaged goods,” a repeat of his high school football experience. All of his old insecurities and fears came rushing back.

Several unsuccessful surgeries and treatments later, we find Joe in a sad but fairly common place for many injured workers. All of this brings us to the important question: what do we do now?

Although Joe does not have a significant personality disorder, he does have a possible history of iatrogenic addiction. In addition, he has a record of anxiety/depression-associated with setbacks.

Joe has a “disability conviction.” He sees himself as permanently disabled. While secondary gains can account for a portion of his situation, Joe truly believes he is damaged goods. In his case, Cognitive Behavioral Therapy (CBT) could be very useful in helping Joe address his disability conviction, medication need belief, and fear of re-injury. Considering his present level of disability and his high levels of medication use, he would benefit from a comprehensive functional restoration program that would taper him from narcotics while working with his convictions through CBT. The CBT counselor, in association with functional restoration, can help Joe learn to change his feelings by changing his behavior and thoughts.

This is not an easy process. It takes hard work from a multi-disciplinary staff. However, in contrast with traditional psychotherapy, CBT has objective goals and limited sessions to accomplish them.

This is not the usual psychological approach that often attempts to resolve issues in the past.

No one can change the past, but it is important to recognize how the past has influenced the way we see the present. This is often of extreme importance in the case of injured workers.

Traditional psychotherapy can be very helpful to many people; however, it is not always the appropriate approach for injured workers, even if psychiatric issues are present. Psychotherapy may not have clear end goals and may not be limited in time.

In Joe’s case, no significant psychiatric disorder was present. There were no personality disorders or psychosis. If these had been present, a psychiatric evaluation would have been in order, with stabilization by medications under strict control.

vital to make certain that the injury could have exacerbated an issue, but did not cause it. In addition to the appropriate physical therapies and treatments, focus must be on changing behavior and mindset. If implemented early and correctly done, the majority of patients will want to improve and mitigate the results of their injury. Avoiding the patient’s psychological or behavioral issues will never resolve the problem. It may, however, affect the resolution and the management of the claim—in a negative and expensive way. And that is a risk we cannot take.

Dr. Fernando Branco is the medical director for Midwest Employers Casualty Company (MECC), a W. R. Berkley Company.

The physician in charge of a patient like Joe must also work on the medication conviction.

Joe and countless other injured workers make the statement: “I can’t live without meds.” Changing that belief and behavior are key to success.

Doctors are taught that no one should ever be on more than seven-to-eight prescription medications, even if multiple co-morbidities are present. Joe was on twenty medications.

These were uppers, downers, and even medications to treat the side effects of the other medications. All too often, doctors simply add more medications without removing ineffective ones. This can be a disaster. Deaths by overdose, injuries from falls, and organ failure (kidney/liver) are common problems faced by injured workers who are given medications without thought and tight control.

In conclusion, the patient’s psychological status—both past and present—should always be considered. The physician should always make certain that any previous diagnosis of personality disorder is included in the file. It is

SEPTEMBER 2016 | PUBLIC RISK

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LAW ENFORCEMENT

LIABILITY:

HOW A MUNICIPAL RECIPROCAL IMPROVED ITS RESULTS

BY J. BRETT CARRUTHERS, CSP, RSSP AND ROBERT BAMBINO, CPCU, ARM

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AW ENFORCEMENT LIABILITY (LEL) is a challenging exposure to control and manage. As with other behaviorally-based exposures (such as employment practices liability) success requires a change in human behavior—significantly more difficult than mitigating physical hazards.

Public sector exposures are affected by external forces and LEL is an excellent example. Controversial police actions that receive intense media attention change the public’s perception of police officers. Large verdicts against police officers encourage litigation. Historically, LEL provides unfavorable underwriting results for the insurance industry.

This article describes the way the New York Municipal Insurance Reciprocal (NYMIR) and its management company Wright Risk Management (Wright) created and implemented a plan to address and control LEL through a comprehensive, long term, cooperative initiative that ultimately improved loss frequency and severity.

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L AW ENFORCEMENT LIABILIT Y: HOW A MUNICIPAL RECIPROCAL IMPROVED ITS RESULTS

PLANNING

In 2007, NYMIR’s LEL experience was trending unfavorably. The NYMIR Board of Governors wanted to continue offering LEL coverage for its member-subscribers. False arrest, wrongful imprisonment, malicious prosecution and use of force claims were increasing. The board asked for a plan to address the trend, and create a long-term strategy that would improve the exposure going forward. This directive led to a multi-phase approach involving the Board and different departments at Wright. The board directed its Rules Committee (a subcommittee of the Board responsible for risk management) to oversee the initiative. All efforts, planning and reporting were under the direction of the NYMIR executive director. The risk management department at Wright was charged with program design, implementation and monitoring. In 2007, NYMIR insured approximately 2,800 officers over 130 different agencies, including correctional departments and jails.

PHASE ONE

Phase One was a fact-finding, data collection process to identify hazards, vulnerabilities and undesirable practices and to establish metrics for further assessments. There were three steps in Phase One: • Conduct law enforcement and correctional agency assessments • Review policies • Analyze loss trends

 Assessment. Twenty subscribers (counties, small cities, townships and villages) with poor loss experience were identified and assessed.

The assessment involved an onsite evaluation of operations, facilities, jails and equipment.  Policy Audits. Audits of agency general orders and operating procedures were conducted. Policy content was reviewed and compared to templates with acceptable terms and provisions. The templates were created by staff from claims counsel, defense counsel and attorneys from the Association of Towns of the State of New York, New York Conference of Mayors and the New York State Sheriff’s Association. The general orders and operating policies reviewed include the following: • Use of Force • Use of Lethal Force • Tasers and Other Less Lethal Force Instruments • Arrest Procedures • Domestic Violence • Off-Duty Employment • Protective Vests • Pursuit • Emergency Vehicle Operations • Officer Conduct • Correctional Facility Intake Procedures • Correctional Facility Searches • Strip Searches • Prisoner Procedures • Cell Extractions • Sexual Harassment and Discrimination

In 2007, NYMIR’s LEL experience was trending unfavorably. The NYMIR Board of Governors wanted to continue offering LEL coverage for its member-subscribers. False arrest, wrongful imprisonment, malicious prosecution and use of force claims were increasing. The board asked for a plan to address the trend, and create a long-term strategy that would improve the exposure going forward.

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 Loss Data Analysis. Trending by cause of loss as well as large losses (losses in excess of $50,000) were identified. Behavioral or physical hazards that impacted loss frequency and severity were noted, including: problematic police actions; unsafe or inappropriate facilities; deficient inmate holding areas or jails; improper supervision; training deficiencies and inadequate policies and procedures.

Not surprisingly, use of force (lethal and less lethal), false arrest, inmate-related claims and breach of duty were the leading loss drives.

Inmate-related claims involved allegations denying various inmate services—meals, medical services, dental services, religious expression.

During Phase One, subscribers were asked for suggestions concerning additional risk control services. Suggestions were later incorporated into the program, such as, establishing a dedicated portion of the NYMIR Website for LE risk management resources; reviewing general orders and conducting LE seminars around the state.

As Phase One concluded, NYMIR underwriting, marketing and risk management staff discussed and eventually created a new protocol for reviewing prospective members with LEL exposures. NYMIR marketing supported this protocol by communicating with service representatives and gathering feedback about the process. Risk control specialists assigned to the NYMIR program worked on the project and interacted with subscribers.

PHASE TWO

The information from Phase One was disseminated to a broad group of recipients, including the NYMIR Rules Committee, NYMIR management and functional departments at Wright. Thirteen programwide recommendations were developed that addressed the following: • • • • • • •

Establishment of LE Newsletter Establishment of LEL Web Section New LEL Business Vetting Evaluation of Court Security Exposures LE Agency Accreditation Support Lateral Hiring Practice Monitoring Alternative LE Training Delivery

• LE General Order Reviews • Strip Search Policy Assessments • Patrol Rifle Deployment Monitoring

• Special Vehicle Equipment Exposure Analysis • Less Lethal Equipment Monitoring • Contraband Screening Equipment Monitoring

These 13 recommendations were implemented in 2009. They were adopted in the LE Assessment Program.

Additionally, a risk control plan and other initiatives were formalized to address LEL going forward.

NYMIR LEL RISK CONTROL PROGRAM SERVICE

DESCRIPTION

Annual Assessment of LE Agencies

• Full assessments of LE and Correctional Facilities • Assessments focus on: − Leadership − Operations − Hiring Practices − Policy Review and Violations − Training − Special Equipment − Special Services − Loss Review

Review LE General Orders and Operational Policies

Evaluating policy elements in the policies listed above.

Vet Prospective Subscribers with LE Agencies

The following are the metrics for vetting prospective subscribers seeking LEL coverage: • Key general orders • Loss history • Google search for agency headlines • Agency prospect assessments (generally for larger agencies)

Law Enforcement Newsletter

A LE-specific newsletter is published semi-annually. It contains articles, briefings, current news stories and explanations of applicable court decisions. Defense counsel contributes to newsletter articles.

Law Enforcement List Server

Creation of NYMIRShield • Quick messaging to LE Subscribers • Supplements Semi-Annual Newsletter • Provides a forum for questions/answers • Fosters LE agency problem solving and information gathering on new program deployment and other issues • Newsletter and training announcements

Website with Technical Information

Creation of LE Section of NYMIR Website • Model Agency Policies • Relevant LE Articles • Relevant LE Links • LE Resource Documents • Training Announcements

Regional LE Seminars

Approximately four LE seminars are conducted annually. The topics are geared for LE Executives and first line supervisors. Topics include review of NYMIR loss trends; developments regarding use of force and general orders; case studies; emerging issues and new programs.

LE Advisory Committee

The NYMIR LE Advisory Committee was created in 2008 and meets semi-annually. The committee provides guidance concerning LE risk control services for subscribers. Emerging issues and guidance for current and new risk management services are discussed with the committee. The committee also reviews any new online training programs for accuracy and relevance.

The LE advisory committee recommended the creation of an online university with specific LEL training. As a result of their efforts, a six-part online training course was created that is available to NYMIR subscribers. The modules cover an Overview of LE Liability; use of force, false arrest and imprisonment, pursuit, employment practices liability and strip searches. Officers can use this training to satisfy required training requirements as it was approved for training credit by the NYS Division of Criminal Justice Services.

Other departments at Wright were involved in the process. The claims department provided loss data and details about large losses. NYMIR’s claims philosophy is to vigorously resist unwarranted liability claims. This philosophy reduces frivolous claims and overall, contributed to the success of this initiative.

PHASE THREE

The program was fully implemented in 2009.

Modifications were made to the program based on changing exposures and input from subscribers, NYMIR LE Advisory Committee, NYMIR management and Rules Committee members.

Underwriting staff identified loss trending that required focusing on other exposures or hazards.

RESULTS

The initiative produced favorable results. The average number of LE claims per officer for the years after implementation (experience years—2008–2015) dropped 17.3 percent when compared to the five years preceding implantation (base years—2003 to 2007).

Severity, measured as the average claim cost per officer for the experience years dropped 23.5 percent when compared to the base years. We recognize that the loss data for 2015 is not fully matured. Other factors positively affected the results, such as a more focused underwriting approach, a defensive claims philosophy and additional vetting by risk control staff.

Overall, the costs for the program were negligible. The work was done by existing risk control staff. Additional expenses were incurred for travel, newsletter formatting, developing the training course and for Website upgrades.

J. Brett Carruthers, CSP, RSSP and Robert Bambino, CPCU, ARM, are employees of Wright Risk Management Company, LLC. Wright Risk is the management company for the New York Municipal Insurance Reciprocal (NYMIR).

SEPTEMBER 2016 | PUBLIC RISK

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ABC’s of School Risk Management The

BY JOE JARRET

I

t was risk manager Bill Tarro1 who wisely asserted, “Risk management is the protection of school district assets, but is more importantly about saving money that should be used to educate children.” Unfortunately, while many public entities maintain viable risk and insurance management programs, the same cannot be said of some school districts. In a recent poll of school administrators, they reported that the top 10 issues impacting their jobs were:

1) Charter Schools

2) Construction and Repair of Facilities 3) Enrollment Boom 4) Funding

5) Improving the Learning Environment 6) Security

7) Maintenance and Operations

8) Staff Training and Retention 9) Technology

10) Unfunded Mandates

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THE ABC’S OF SCHOOL RISK MANAGEMENT

Were you to ask parents of school-aged children what their top priorities are, you would most likely hear such things as standardized testing, school choice, teacher competency and security.

What school administrators and parents have in common is that neither have risk management high on their list of priorities. For those school districts that have traditionally maintained viable, well-funded risk management programs, there appears to be an alarming trend in the form of failing to fill a vacant risk manager position when an incumbent moves on or retires. In an effort to operate in these austere times, the risk management position is often assigned to an

of an overburdened job description and who lacks the experience professional risk managers enjoy.

THE CHALLENGE

Today’s school risk manager is called upon to identify and reduce hazards, reduce risks in school activities, improve safety for students, employees and the public, conserve the district’s fiscal resources and protect the board of education and staff from liability.

Although school risk issues such as workers’ compensation, general liability and insurance do not, in and of themselves, present unique

Schools, their administration and staff, along with adults who administer field trips and similar programs, have a responsibility to protect children in their care from harm in order to avoid general liability claims, school premises liability lawsuits, as well as negligent supervision of students claims. already overworked department director (the human resources director is a favorite target) as an “additional duty.” Consequently, a department that is traditionally tasked with risk identification, analysis, control, financing and administration, as well as student and employee safety, workers’ compensation, claims management and insurance, is reduced to a minor player at best.

Needless to say, before a risk can be effectively analyzed, transferred, controlled, or financed, it must be identified by a professional who can readily discern whether it is human in nature, or related to defects in real property, equipment, the school’s physical environment, etc. Although today’s savvy school risk manager appreciates the value of relying upon various internal and external people and resources to effectively manage the myriad risks threatening the district, nevertheless, professional risk managers bring a core set of leadership and communication skills that ensure that cutting-edge techniques of risk avoidance, transfer, or mitigation are consistently applied to the education environment. This skill set cannot be effectively exercised by someone who views the risk function as merely one aspect

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PUBLIC RISK | SEPTEMBER 2016

challenges, when it comes to issues involving children, the rules of the risk game change dramatically. Unlike adults, children often lack the maturity or intellectual acumen to heed warnings, follow directions, anticipate danger, or recognize/ appropriately react to peril. School administrators, while burdened with carrying out school board policies in the form of personnel management, student activities and behavior, teacher certification and financial management, have little time to get involved in the nuts and bolts of risk and insurance management. However, Wanglin and Glutches2 recommend that school boards be introduced to the concept of enterprise risk management by placing their risk plan on the school’s strategic agenda, seeking a commitment to risk management by integrating risk management practices into all areas of operations, supporting the school superintendent’s risk management policies and making available the risk manager’s professional expertise as appropriate.

SCHOOL RISKS

Although our nation continues to be rightly horrified over the rash of school shootings of

late, inappropriate teacher-student relationships, bullying/cyber-bullying, bus safety and premises liability continue to consume the school risk manager’s time. Further, just controlling who has access to a school can be a challenge.

STRANGER-DANGER

Many schools pride themselves on being open and transparent where parents and legal guardians are concerned. However, a parent-friendly school need not be an unsecure one. For instance, visitors should be required to use a designated entrance, present a valid photo ID that should be inspected and copied and likewise be required to wear a badge or other identifying object that is clearly visible and readily identifiable by staff. Visitors should likewise be escorted by a staff member throughout their visit. Prominently posted, easily readable signs (in multiple languages depending upon your demographic) should be on hand that serve to identify “staff only” and “no entry points.” Entry points should be kept to a minimum and unsupervised entrances secured. Further, school access should be 100 percent controllable through designated, supervised, or locked entry points, including windows and service entries.3

GETTING THERE

Parents who entrust their children’s care to schools by putting them on school buses have reason to be concerned. One need only turn-on the T.V. or take a glance at the Internet to be exposed to news reports of undisciplined, unprofessional drivers causing accidents, resulting in student injury, while sending text messages on their cell phones or absorbed in other distractions when they should be concentrating on driving their vehicles.

The school risk manager is well aware that merely entering into hold-harmless or indemnity agreements with bus subcontractors and requiring commercial drivers’ licenses (CLDs) offer only a base level of protection. Subcontractors should be required to demonstrate that their drivers remain qualified as part of an ongoing process that includes confirmation through annual, or in some cases, semi-annual Motor Vehicle Records checks. Criminal background checks are likewise recommended. Violations such as driving under the influence of alcohol/drugs, failure to stop/ report an accident, reckless driving/speeding contest, failing to report an accident or making a

false accident report should result in the removal of the driver in question.

BULLYING

The U.S. Department of Health & Human Services defines bullying as “unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance.

The behavior is repeated, or has the potential to be repeated, over time.” School bullying, both physical and that perpetrated via social media, is on the rise and has led to increasing numbers of suicides in school-aged children. Lawsuits founded in a theory of “failure to protect” are increasingly being successfully filed against school districts across the U.S. There are three basic types of abuse that fall within the definition of bullying; physical, verbal and emotional bullying, also referred to as relational bullying.

Bullying can either be direct or indirect.

Indirect bullying is more difficult to identify as it typically involves multiple aggressors, victims and bystanders. The risk manager should insure that administration has an anti-bullying policy in place that is easily understood by both students and staff and provides and promotes easily accessible mechanisms and procedures for reporting and handling bullying complaints.

Further, the policy should offer counselling to both the alleged bully and affected student, provide a procedure for disciplining the perpetrator and monitor student relationships.

Students must be encouraged to report incidents if interventions are to be accurately assessed.4

FIELD TRIPS

The school field trip has a long history in American public education. Nevertheless, these events are generally considered “out of the ordinary,” and as such are an area rife with possibilities for injuries and liability. The off-site situations mean that students may be exposed to hazards not present in the usual school environment and staff members can more easily lose control of the students. Therefore, additional safeguards must be used for the protection of students during such outings. It is always important to inculcate in staff the distinctions between school sponsored activities versus nonschool sponsored activities. Courts across the United States have ruled that school personnel who undertake field trips have the explicit duty to not merely warn and inform but to:

• • • • • • •

provide proper instruction condition and equip participants properly provide proper supervision provide safe facilities provide safe equipment provide prompt and appropriate post-injury care provide appropriate chaperones

Because some activities provide unusual risk to staff and students involved, the risk manager should consistently be made aware of those field trips that are beyond the norm. It sometimes takes the risk manager to inquire of school staff whether the curriculum objectives are worth the potential risk of injury to those involved. More than one school has been the target of a lawsuit due to a well-meaning, albeit over-zealous teacher who planned activities such as parachute/bungie jumping, mechanical bull riding, hang-gliding, jet skiing and venomous snake handling.

SCHOOL PREMISES LIABILITY

When a child becomes injured on school grounds or during a field trip, chances are that the lawsuit that will follow will include a count for negligent supervision. The chances of the school prevailing in its defense of the suit often hinges on whether the school had in place clear, concise and consistently enforced policies. More often than not, plaintiffs enjoy high rates of success with school premises liability lawsuits once it is demonstrated that the school failed to maintain its campus and equipment, failed to have a regular inspection plan and failed to instruct and supervise students in the safe and appropriate use of equipment. The greatest deterrent to litigation with respect to premises and equipment liability is to keep the building and grounds free from hazards, both obvious and hidden, maintain them on a regular basis and ensure that playground and other equipment is safe, age-appropriate and properly installed, used and maintained. In those cases when plaintiffs successfully allege that equipment, especially playground equipment, is defective, the proximate cause is attributed to a breach of a duty of care by failing to adequately maintain the equipment. In the case of a 4-year-old whose finger was badly mangled while playing on a merry-go-round (Fetters v. City of Des Moines5), the plaintiff alleged that the merry-go-round was defective, not due to the manufacturer’s negligence, but because the city failed to properly maintain same. In another case in which negligent maintenance was

alleged (Rich v. City of Goldsboro6), the plaintiff was thrown from a see-saw that was worn and wobbly and that lacked handholds or stabilizing devices. Dr. Edward F. Dragan7 suggests that, when a potentially dangerous situation is identified, there are several alternatives: • Discontinue the activity; • Do not allow activity in an area where children would be exposed to the danger; or, • Modify the activity by adjusting the manner of play to avoid contact with the defect Schools, their administration and staff, along with adults who administer field trips and similar programs, have a responsibility to protect children in their care from harm in order to avoid general liability claims, school premises liability lawsuits, as well as negligent supervision of students claims. Policies that set standards for ensuring safety and maintaining the building, grounds and equipment are a start, but those policies must be reviewed by the entity’s risk manager and supported and enforced by administrators and teachers in a concerted effort to protect students, staff and visitors and reduce the frequency and severity of claims.

Joe Jarret is an attorney, former public risk manager and past-president of the Southwest Florida of PRIMA and PRIMA’s 2016 Author of the Year.

FOOTNOTES 1 Bill Tarro, CSRM, is the Risk Manager for the Lubbock, Texas, Independent School District.

2 Wanglin, R. and Gutches, D. (2013) A Primer on Insurance and Risk Management for Independent Schools, Bolton & Co. 3 See, “Improving School Access Control”, National Clearinghouse for Educational Facilities, 2008, http://www.ncef.org/pubs/ accesscontrol.pdf and Courrege, Allison, 2015, Risk Management for Schools Risk Management for Schools: Top Ten Risks and How to Manage Them. J. Gallagher Risk Management Services, Inc. 4 For a more expansive study on school bullying, see: http://www.stopbullying.gov 5 Fetters v. City of Des Moines, 49 N.W.2d 815 (1967).

6 Rich v. City of Goldsboro, 192 S.E.2d 824 (1972). 282 N.C. 383.

7 Dragan, Edward F. (2016). School Premises Liability: Maintaining School Grounds to Keep Students Safe. www.education-expert.com

SEPTEMBER 2016 | PUBLIC RISK

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TITLE MEMBER SPOTLIGHT

MMRMA Develops Guide to Autism Awareness

A

utism is now diagnosed in as many as 1 in 68 children and 1 in 59 boys. It is the fastest-growing serious developmental disability in the United States.

developed another guide for first responders, Handling of Autistic and Diminished Capacity Persons, with input from its Fire and EMS and Law Enforcement Risk Control Advisory Committees.

Because of this high occurrence rate, Michigan Municipal Risk Management Authority (MMRMA) decided it was vitally important to provide public service employees, including first responders, with the training and knowledge necessary to provide exemplary customer service to the people in their communities.

“The impact of unrecognized autism is particularly acute for law enforcement, where behaviors could be misinterpreted due to lack of training and understanding of autism,” said Michael Rhyner, MMRMA executive director.

“Autistic individuals may not comprehend the law or understand the consequences of their actions.”

MMRMA’s Risk Control staff worked with its Administrative Risk Control Advisory Committee to develop the Municipal Employee’s Guide to Autism Awareness. This resource is intended to provide municipal employees with a basic understanding of autism. MMRMA also

According to Rhyner, these resources could be adapted for use by any organization or business.

MMRMA has developed this autism awareness initiative as a proactive effort to reduce risk and liability for Michigan municipalities.

For more information, contact MMRMA Director of Risk Management Paul Mongiello at pmongiello@mmrma.org.

Each month, Public Risk features a member who has gone above and beyond in a feature column titled “Member Spotlight.” Do you know someone who deserves recognition, has made a contribution or excelled in their profession?

If so, we’d like to hear from you for this exciting column, as PRIMA shines the spotlight on its members. To be considered for the Member Spotlight column, contact Jennifer Ackerman at jackerman@primacentral.org or 703.253.1267.

“The impact of unrecognized autism is particularly acute for law enforcement, where behaviors could be misinterpreted due to lack of training and understanding of autism…

“

“

To supplement the written resources, MMRMA partnered with the Autism Alliance of Michigan to provide multiple half-day training sessions for its members. MMRMA hopes that, with increased knowledge and training, municipal employees will be able to better recognize behaviors and mannerisms that may be seen in a person with autism.

This awareness could also help reduce

the likelihood of unfortunate encounters and outcomes.

Michael Rhyner, MMRMA executive director

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