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Use Heightened Vigilance in Study Abroad Risk Management

Hillary Pettegrew, Esq.
October 2020
Actions to protect students and avoid liability related to study abroad

A February 2018 federal Court of Appeals decision should serve as a reminder to your K-12 school, college, or university to increase vigilance related to study abroad management.

The court affirmed a jury’s $41.5 million verdict against the school in Munn v. Hotchkiss School, a case in which a former student claimed she contracted encephalitis from a tick bite during a school-sponsored trip to China.

Determine Risks of Foreign Trips

While institutions should collect information from multiple sources about potential study abroad destinations, always consult two authoritative sources: the State Department and the Centers for Disease Control and Prevention (CDC).

  • The State Department’s travel advisory system ranks every country on one of four levels according to a variety of safety factors.
  • The CDC issues three levels of travel health notices for foreign travel depending on health issues that impact traveler safety, such as widespread disease outbreaks.

Be Prepared to Cancel Trips

Your institution’s written policies should explicitly reserve the right to cancel any foreign trip it sponsors if your institution determines safety risks to be unacceptably high. If your institution follows State Department and/or CDC guidance when deciding whether a trip will proceed, note this practice in policies. Even if you don’t follow State Department or CDC guidance, notify participants (and the parents of minors) during trip preparation if the following apply to any countries or areas on the trip itinerary:

  • A Level 3 (Reconsider travel) or Level 4 (Do not travel) travel advisory from the State Department
  • An Alert Level 2 (Practice Enhanced Precautions) or Warning Level 3 (Avoid Nonessential Travel) from the CDC

Transfer Risk

To reduce potential liability, consider transferring to third-party providers the risk for programs or specific activities during a program. However, it may be impossible for your institution to completely shield itself from liability for programs you sponsor — regardless of how much responsibility a third party carries for daily operations.

Consult counsel for legal advice. Institutions may find United Educators’ (UE’s) contracting resources helpful when working with third-party vendors.

Use Waivers or Releases

Always use waivers or releases for institution-sponsored study abroad programs. Waivers or releases — relinquishing the right to sue — should be signed by program participants who are 18 or older and by the parents (or guardians) of participants under 18. In most states, parents can give up only their own right to sue on their child’s behalf, not the child’s right to sue, and waivers or releases signed by minors generally are unenforceable.

Waivers or releases for any institution-sponsored trip abroad should be specific to that trip. They should:

  • Provide detailed descriptions of all known risks for the trip
  • Explain that any foreign travel involves general risks
  • State that your institution doesn’t and can’t guarantee participant safety

Understand that if litigation arises from a program, courts will examine waivers or releases closely and — if supported by the facts — may hold that they are invalid or against public policy.

Institutions that send minors abroad should consider having them sign assumption of risk forms. Unlike a waiver or release, these forms don’t ask participants to relinquish their right to sue. Rather, they spell out the trip’s risks and ask minors to affirm they understand and assume these risks voluntarily. If litigation develops, this form can bolster an institution’s defense. A court may uphold an assumption of risk form even if it strikes down a waiver or release.

Note: State laws governing the content and enforceability of waivers and releases vary, so work with local counsel to draft or review these documents to ensure they are consistent with applicable legal requirements.

Hold Mandatory Orientation for Trips

Have participants and parents of minor students attend mandatory orientation before each trip. During orientation:

  • Discuss the trip’s risks.
  • Review necessary or recommended vaccinations.
  • Encourage questions.
  • Distribute and review in detail waivers, releases, and/or assumption of risk forms — but don’t require them to be executed on the spot. Let parents and participants take forms home for further consideration before signing and returning them.
  • Document attendance.

Carefully Consider Participant Supervision

Look for ways to improve student safety through more effective, age-appropriate supervision during each institution-sponsored trip abroad. For example, some trips may require more leaders or chaperones, or a re-examination of sites and activities on the itinerary.

Consider Requiring Students to Purchase Insurance

Consider whether to require students traveling on institution-sponsored programs to purchase catastrophic and/or medical evacuation insurance. Over 20% of study abroad claims in a recent UE study involved a program participant’s injury or illness, reinforcing the importance of adequate planning to cover high medical expenses.

 

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