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POLICIES AND PRACTICES RELATED TO SCHOOL DISTRICT INVOLVEMENT WITH FAMILY PLANNING SERVICE PROVIDERS

WHY SHOULD A SCHOOL DISTRICT BE CONCERNED ABOUT USING FAMILY PLANNING SERVICE PROVIDERS?

A School District is responsible to students and their parents, for providing students with a safe environment in which they are given the opportunity to acquire an education. What that means is that the priority of the district should always be the creation of a safe learning environment for every child. Many experiences offer an educational opportunity, but are simply not safe for every student. Drivers education is not offered in pre-school, chemistry lab is not taught to first graders, shop classes are not available in many districts because they are considered unsafe.

In each of the above examples there was a cost benefit analysis performed to determine what learning experience provides education safely. If the district fails to meet its duty to the students and parents to provide a safe learning environment the district will be responsible for the harm that arises from the failure to meet that duty.

The evaluation of family planning service providers that will be involved with students in the form of sex education, referral for abortion, referral for treatment of STDs and the provision of birth control materials, should be made in the light of a cost benefit analysis. Essentially the district should determine if the educational benefit, if any, outweighs the risk of injury/liability of the school district may face as a result of the conduct of the family planning service provider. From a liability standpoint, the evaluation that an insurance underwriter would make is to determine the number of risk factors involved and the extent to which those risk factors can be reduced or eliminated. Factors of risk that are not within the control of the school district cannot be reduced or eliminated. Risks that cannot be reduced or eliminated increase the potential liability for the district. The increase in potential liability increases the cost of insuring around the risk, or the costs for compensating the victim if damages result from the conduct.

NOTE: FAMILY PLANNING SERVICE PROVIDERS PRODUCE AND PRESENT PROGRAMS FOR TEACHING SEX EDUCATION, INCORPORATING REFERRAL TO THEIR AGENCIES FOR ABORTION AND BIRTH CONTROL SERVICES WITHIN THE PRESENTATIONS.

1. DECIDE IF YOUR DISTRICT WANTS SUCH A PROGRAM AT ALL.

The first level of questions that ought to be globally addressed is whether the school district is in need of the services offered by a family planning service provider.

•Does the district adequately educate children regarding matters of human sexuality through their science curriculums?

•Is there a need in the district to provide information regarding human sexual relations outside of the above instruction?

•Does the district intend to provide instruction regarding sexual practices and family planning other than an abstinence program?

•Do the services fill a real need within the school district, or do they provide a means by which the provider can advertise services to potential consumers?

•Once again, by looking at these service providers from the standpoint of a cost benefit analysis, what is the benefit these services provide to the students and their parents within the school district?

Policy Proposal

•The district must evaluate the need for sex education, abortion referral, birth control materials and counseling services within the school district.

•In the event there is a demonstrable need for these services, then the district must decide whether they should be contracted outside of the district or provided by district personnel.

•If there is a decision to make these services available then the school district will also have to determine what the curriculum will involve.

•If district personnel conduct the classes then the district must evaluate the degree of liability it may incur for the instruction it gives.

•If the district contracts out the services, even if it does not pay for these services, then the district must know the liability for using and thereby endorsing the contractor's curriculum.

For example:

A school district decided to provide a metal shop class and in the course of the class presented the facts related to making a pipe bomb. The district instructor told the students that they should not make the bomb. Would the district be responsible if some students took this knowledge from the classroom and constructed a bomb, which they detonated?

Of course they would. They have instructed in the manufacture and provided the knowledge that could produce the explosion, which would cause injury.

Now, the school district contracts out the shop class to a group that endorses the use of pipe

bombs. Does this action create a greater degree of responsibility because the district is aware of

the agenda of the group?

Yes, the knowledge of the contractor's agenda heightens the degree of liability because the district knowingly exposed their students to this instruction and therefore the agenda. What the students do with the information was proximately caused by the referral to the contractor and the endorsement that referral entails.

2.IF THE DISTRICT WANTS THE PROGRAM TO BE PRESENTED BY DISTRICT PERSONNEL, WHAT RISKS MUST BE ADDRESSED?

The district must undertake to review the qualifications of the instructors for the program. In the course of that evaluation the district must be certain that:

•All instructors are fully aware of the statutes regarding the mandatory reporting of child abuse.

•All instructors are competent to identify the symptoms of sexual activity and understand the reporting protocol once their symptoms are identified. These symptoms include but are not limited to:

1. Seeking birth control information or paraphernalia

2. Treatment for a sexually transmitted disease

3. Pregnancy testing

4. An abortion or referral for abortion services

•All instructors are aware of the liability for the failure to report the abuse.

•All instructors are provided with an instructional program by competent counsel as to the liability of the district for the failure of the instructors to properly perform their duties.

In the course of providing a program regarding family planning the district must perform a cost analysis for the training and supervision necessary to implement this program. Along with the out of pocket costs related to the personnel issues there is a need to factor in the cost of insuring against losses. These losses may be precipitated by failure of the district's employees to comply with the state law and/or the policies of the district.

The district's policies and procedures identify a standard of performance that will establish a compliance measurement, which determines the liability of the district. Once such a program is operational all employees must strictly adhere to the standards of performance.

Policy Proposal:

•Establish a person singularly responsible to insure district wide compliance with all pertinent state laws.

•Review all compliance standards with your insurance underwriter to incorporate all measures necessary to minimize the liability of the district.

•Maintain a program of instructor training that updates the various program presenters with the criterion they must meet in order to satisfy the curriculum as well as the policies and practices of the district as related to state laws regarding the reporting of abuse.

•Monitor the performance of each instructor, agent, servant or employee of the district, as to the conduct of instruction and the evaluation of student activity.

•Incorporate a protocol with local law enforcement and child protection authorities that provides an immediate response to underage children's sexual activity.

3. IF THE DISTRICT WANTS TO CONTRACT THESE PROGRAMS TO A FAMILY PLANNING SERVICE PROVIDER, A RISK ANALYSIS MUST BE PERFORMED.

The district is ultimately responsible for anything that has an impact on the students within the context of providing education or extracurricular activities. Within the context of this responsibility the district must evaluate the performance of its agents, servants or employees.

The contracting of an entity to make a presentation to the students does not necessarily hinge on the payment for these services. So long as consideration has been exchanged between the parties in any form the contractor acts on behalf of the district. The consideration the district receives comes in the form of services (classes or instruction to the students), while the contractor is afforded the opportunity to advertise services and thus build its client base.

The district should therefore review the contractor that provides family planning services in the same light as any other contractor to the district, but in addition should scrutinize the contractor even more carefully because of the contact with the children.

Policy Proposal:

• Review the policies and practices of the organization to determine:

1. Their procedures for compliance with state reporting statutes

2. Their policies and practices to determine the sexual activity of underage children for the purpose of reporting

3. The relationship between the organization and child protection agencies as well as the local law enforcement authorities.

•Verify the organization's ability to insure or indemnify the district against a damage award resulting from the organization's contact with the children of the district.

•Establish a routine for the monitoring of the organization's activities as it relates to the children of the district.

•Review the records of the organization in order to verify by documentation all of the above.

4. ULTIMATELY THE EVALUATION OF THE PROGRAM MUST ADDRESS THE POTENTIAL LIABILITY OF THE DISTRICT FOR THE PROGRAM'S IMPLEMENTATION.

The basis for determining the liability of an entity (person, or organization) for any damages (injury) suffered is based on the duty that entity has to the person or persons injured.

The formula for a personal injury lawsuit is to:

•Identify all those who have a legal duty to the victim.

•Determine whether the duties have been met.

•If a duty has not been met, was the injury to the victim proximately the result of the failure to meet that duty?

•If the proximate cause of the injury was a result of the failure to meet the duty, what percentage of responsibility does the entity with the legal duty to the victim have for the damages caused by the injury?

•If a duty that exists has not been met and the failure has resulted in injury, the entity that failed will be sued for the resulting damages.

Policy Proposal:

Establish a loss prevention program that insures against events that will establish the liability of the district. If any of the following events occurs regardless of the program presenter the district is exposed to being responsible for the injury to the child:

•Instruction encouraging the sexual activity of underage children or the promotion of sexual activity with adults (either actively or passively).

•A failure to report the reasonable suspicion of abuse that comes from the fact that an underage child is sexually active.

•A mandatory reporter encouraging an underage child to conceal his or her sexual activity from the authorities or other mandated reporters.

•Coaching an underage child in the manner and means by which the child can conceal his or her sexual activity.

•Any falsification of official documents for the purpose of concealing an underage child's sexual activity.

•Any conduct that is designed to avoid a policy or practice of the district for parental involvement when an underage child is reasonably suspected of being sexually active.

•Any conduct that contravenes the state statutes (where applicable) for parental involvement when underage children are sexually active.

•Any provision of advice, counsel or assistance to underage children to leave the jurisdiction of the courts in which the district is located in order to procure the means by which they may conceal their sexual activity.

•Any referral of an underage child to an individual, clinic or organization which results in an injury, death or sexual assault of the child.

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