Nonprofits Insurance Alliance

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Emergency Preparedness – Active Shooter

While most of us will never experience an active shooter emergency, the number of incidents is on the rise. Given this fact, and the seriousness of these events when they happen, it’s important to be attentive to both education and prevention.

According to the U.S. Department of Homeland Security, an active shooter is an individual actively engaged in killing or attempting to kill people in a confined and populated area. In most cases, active shooters use firearm(s), and there is no pattern or method to their selection of victims.

There is not one, single profile of an active shooter. Personality traits do not follow any set pattern, vary widely, and are usually too general to be useful. According to the Department of Homeland Security, many active shooters follow a violence pattern that begins with negative situations, moves to intense negative feelings and the idea that violence is the right way, followed by planning the violent incident. Some workplace shooters are trying to right a perceived wrong, such as a conflict on the job or termination, and may have a specific target. Many others have no specific target, but may have an ideological goal. Perpetrators are relatives in 40% of female workplace homicides, while only 2% of perpetrators against males were relatives.

Active shooter incidents are often unpredictable and evolve quickly. Recognizing potential threats and reacting as quickly as possible cannot be emphasized enough. Many survivors of active shooter incidents have said that they heard noises, but weren’t sure they were gunshots. Every second counts. An active shooter situation will put you under extreme stress, so much so that your ability to think straight and make good decisions may be impaired. It is important that you have trained, practiced, and mentally rehearsed what you will do in this type of emergency, so you can react without hesitation.

The City of Houston Mayor’s Office of Public Safety, with funding from the U.S. Department of Homeland Security, produced the Run, Hide, Fight video. This is an excellent free resource for training your employees and volunteers and has quickly gained traction as a national standard for active shooter protocol.

While the majority of all incidents from 2000-2013 occurred in an environment related to commerce, you should be sure that active shooter training is part of your workplace violence program. An effective response plan should include procedures to respond to mass casualty threats, such as active shooters, by developing evacuation or sheltering plans that are appropriate and feasible for the facility, a procedure for warning individuals of the situation, and a procedure for contacting the appropriate law enforcement agency.

In your training, encourage individuals to consider the environment in which they work and identify two possible escape routes. If possible, identify a secure location in your facilities where individuals could take cover and hide. Hiding in a secure location has been extremely effective in active shooter situations. The shooter knows there is limited time before law enforcement arrives and will typically move on from locked doors rather than use that time to attempt to force entry.

In an active shooter situation, do not assume that someone else has called 9-1-1. Call if you can do so without slowing down your exit or revealing your hiding place. When calling, be prepared with your exact location (address, floor you are on, section of building, etc.). If you have the information, provide the number of shooters, including a description of the individual(s) and any weapons, their current location, and if there are any victims.

It is important to note that even when law enforcement arrives, the danger is not over. The responsibility of the first officers on the scene is to stop the shooter before they do anything else. Officers will be under stress and prepared to use deadly force. If an officer sees you, they will look at your hands for a threat, so put your hands up, spread your fingers, show them your palms and stay very still.

The U.S. Department of Homeland Security (DHS) aims to enhance preparedness through a “whole community” approach by providing products, tools, and resources to help you prepare for and respond to an active shooter incident. Visit their website to access the many resources available to help your nonprofit with this important area of emergency preparedness.

Winter is Coming – Property Checklist

The holiday season is upon us and with all of the stress generally associated with this time of year, you probably haven’t given much thought to frozen pipes, roof collapses, ice dams, or any of the other property maintenance issues that can lead to water damage. However, as illustrated in one of our recent blog posts, water property damage can be costly, and is often not covered by insurance. Given that there is an increased risk of water damage this time of year, it’s vital that your nonprofit plan and prepare for the upcoming winter season.

If you haven’t read our blog on water damage claims, you may not be aware that typically, property policies exclude water damage unless something else is accidentally or suddenly damaged first, such as with wind or fire. For example, let’s say the gutters on your building are rusty and water is not being properly diverted off your roof. Then a rainstorm comes along and pushes water through the weakened area into your roof and water leaks under the eaves, into your walls, and starts to pool. Because this damage is due to improper maintenance and not a sudden, unforeseen event, it is not covered by your insurance.

Whether it’s a slow leak, a frozen pipe, or a full-fledged flood, water damage can have a negative effect on your organization and its ability to provide services to the community. Not only can water and moisture damage the interior of your building, but it can also damage or destroy fire protective equipment and electrical equipment. Another unforeseen issue that is more likely to arise in the cooler, wetter months as a result of unwanted water or moisture is mold. Like most water property damage, mold damage is generally not covered by insurance, as it is considered preventable with proper maintenance.

While every building is unique, each is at risk for water damage, whether from a minor roof leak, improperly maintained plumbing, or a violently destructive storm. Before the weather takes a turn, give your premises a good lookover for early signs of damage or wear-and-tear, including damaged flashing, gutters and drainpipes, or broken windows. Identify and repair all leaks and cracks in windows, doors, and exterior walls, as well as in the building’s roof, foundation, plumbing and HVAC systems.

A properly maintained building is only part of protecting your organization’s facility from water damage. Also be sure to check all drains, gutters and down spouts for leaf litter, debris and other clogs or obstructions that cause water to collect or travel toward a building. Remember, standing water is a tell-tale sign that water is not draining properly. As a precautionary measure, also consider labeling your water shut-off valves clearly so that they are clear and noticeable, in case of an emergency plumbing situation. Repairing damage early can prevent more extensive damage from winter weather conditions.

Here are links to a few resources from the Insurance Institute for Business & Home Safety (IBHS) for your reference:

Transporting Vulnerable Populations

Transportation provides a vital lifeline for vulnerable populations to access employment, education, healthcare, and community life. Your organization may transport disabled individuals, developmentally disabled children or medically fragile seniors, or it may transport individuals in wheelchairs or other special mobility devices. Regardless of the individuals being served, there are many factors that come into play when providing safe transportation to these more vulnerable populations. When reviewing your transportation programs, it may help to ask yourself the following questions:

  • What written policies and procedures are in place to ensure client safety and protection against liability? How will they be enforced?
  • What is the level of knowledge and training required for drivers, to ensure that clients are safely transported? Do your drivers know that smooth operation of the vehicle is extremely important in transporting individuals with disabilities?
  • How do I demonstrate through my recordkeeping that my staff are trained to proficiency?
  • Are your vehicles in good working order? Do they have proper securement equipment for mobility devices?
  • What are the established safety standards and restraint systems for securing and transporting wheelchair bound clients?

To keep your clients safe, it’s essential to know the answers to these questions. Why? What could go wrong? Here are two examples from our claims files:

High-Risk Clients

The first example features a community support agency that provides transportation for seniors to medical appointments. One of their clients was known by the member to unbuckle himself when being transported. The driver on this occasion knew of the client’s behavior and had refused to transport him earlier that morning; the afternoon driver, however, was not aware of this client’s behavior. The driver secured the client, who later unbuckled himself and fell. He subsequently injured his knee, which required surgery.

The investigation into this incident also revealed that the van was not equipped with federally-mandated shoulder harnesses or lap belts, making the van illegal to transport wheelchair bound individuals. The agency narrowly avoided an attempt by the client’s attorney to recover enhanced damages which might have been awarded due to the possibility of being charged with a violation of the Americans with Disabilities Act. The claim cost $350,000 as a result of the injuries incurred.

Lack of Training

The second example features another community services center; where drivers transport clients with physical and mental disabilities to do errands, such as going to the laundromat. On the day of the incident, there were three clients on board in the van, one of whom was in a wheelchair. The driver for the nonprofit member had put the client, a 35-year old woman with a congenital brain disorder, on the lift and strapped the chair down with all four straps, as she usually did. In the middle of a left turn, the chair tipped over. She stopped and righted it, not noticing that the tie-down straps were loose. Meanwhile, the woman had hit her head and become unresponsive. The driver traveled back to the center immediately, where an ambulance was called. The client’s head injury resulted in a severe worsening of her condition. During the investigation, the driver stated that she had never received any training in how to properly tie down a wheelchair. The family of the client made a claim through their attorney and it eventually settled for $800,000.

 

Use of Non-Owned Autos

Does your nonprofit have employees or volunteers that use their personal vehicles on behalf of your organization, for purposes such as running errands, performing services, or transporting clients? Many nonprofits do not realize that their organization has an additional and potentially serious exposure to loss that arises from employees and volunteers using their personal vehicles. Unfortunately, this is a situation where what you don’t know may very well hurt you!

Your organization can be held responsible for any liability associated with operating that vehicle, since it may be held responsible for the actions of employees and volunteers during the course of service or employment. Although the individual has personal insurance to cover their own liability, that coverage may not be adequate to cover the full extent of damages incurred, in which case a claimant may then pursue your nonprofit.

If you have any individuals driving a personal vehicle on behalf of your nonprofit, even for short errands, at a minimum you should:

  • Have a written driver policy, which is signed by the individual driver (a sample policy is available on our secure site for current members of the Group)
  • Require that individuals have an authorization from your nonprofit before driving a personal vehicle
  • Get a copy of the employee’s current driver’s license
  • Require proof of personal auto coverage and get updated copies at each policy renewal
  • Purchase a non-owned auto insurance policy for your nonprofit

Accident claimants and their lawyers will seek recovery from as many sources as they can, so don’t leave your nonprofit vulnerable! Non-owned auto coverage applies when damages exceed the vehicle owner’s personal auto insurance limits, or in situations where a vehicle owner’s primary coverage declines a claim. We have seen both large and small claims related to non-owned auto use, one of the largest being $2 million. Without a non-owned auto policy to protect them, that nonprofit would likely not have survived.

For better risk management, also consider running an annual motor vehicle record check or use a “DMV pull program.” This is highly recommended for organizations that have a significant non-owned auto use related to the delivery of services (e.g., meals on wheels; neighbor-ride programs). Knowing more about this exposure and implementing some simple risk controls can help protect your nonprofit from financial loss.

 

Claims You Won’t Believe: Contraception as Contraband

Reproductive freedom and the right to privacy, for minors especially, can be murky territory, with laws differing from state-to-state. In fact, only 26 states and the District of Columbia currently allow minors aged 12 or older to receive contraceptive services without parental approval. But how do these rights work when there’s no parent or guardian involved? What if contraception is legally permissible for minors in a state, but another party steps in and assumes the role of the guardian in making these decisions regarding their right to reproductive health care? One Nonprofits Insurance Alliance Group member in California found out the hard way — read below for their experience.

The Claim

A California nonprofit group home for foster teens was sued by current and former residents asserting a violation of their right to privacy and a denial of their access to reproductive health care. The group home required the teens, as a matter of policy, to be abstinent in order to reside in the group home. While they had no formal policy prohibiting residents from obtaining birth control, the group home admitted taking condoms and other forms of birth control away from the teen residents and penalizing them under their privilege-earning system for possession of what they deemed contraband. The suit also alleged that access to reproductive health care appointments was restricted, and that the teens were not allowed to meet alone with their medical care provider, if requested. The teens were represented by two national, nonprofit public interest law firms that promote youth and reproductive health care rights. The lawsuit sought damages and injunctive relief, which is a court order prohibiting the group home from continuing its practices in this regard, and attorney’s fees under the Private Attorney General Act (PAGA). The suit received extensive publicity.

The lawsuit was based on a violation of the right to privacy guaranteed under Article I, Section 1 of the California Constitution, which applies to public, as well as private entities. It also alleged negligence of the nonprofit for failure to supervise, evaluate and train childcare staff to ensure that they understood the healthcare rights of foster youth as required under California regulations, which includes the right to confidentiality and access to reproductive health care. The suit also alleged failure to follow the Caregiver Resource Handbook issued by the county (which placed the teens in foster care) as it pertained to reproductive healthcare.

While the suit was founded primarily on California law, it did cite the federal case Arneth v. Gross, which determined that the right to access reproductive health care extends to minors in foster care. Under the more narrow federal right to privacy, the Arneth court found that “minors have a constitutional privacy right to practice artificial contraception absent compelling state considerations to the contrary, and this is not diminished because they are in foster care.”

Due to the risks of a large potential damage award, and negative publicity, this case was settled in mediation. While each of the five claimants received a modest settlement of $5,000, the plaintiffs sought an attorney’s fees award available under PAGA. When this issue was submitted to arbitration, the plaintiff’s attorneys were awarded a staggering $400,000.

Lessons Learned

Access to reproductive health care rights for those in residential care is highly regulated by local, state, and federal statutes, as well as the state and federal constitutions. As this claim demonstrates, impairment of those rights can be a huge risk to a nonprofit residential care provider. To avoid such a claim, nonprofits must understand the rules and laws of their jurisdiction concerning the right to reproductive health care for those in their custodial care, and adopt policies and train staff to ensure that those rights are respected and preserved.

 

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