Listen to thisThe threat of litigation hangs heavy over the heads of Child and Youth Care managers. There are several reasons for concern. First, the happy times of uncomplicated compassionate caregiving, of “charitable immunity” from negligence actions (Schroeder, 1995), are largely past. Like other human service providers, Child and Youth Care agencies are vulnerable to charges of wrongdoing in a wide and seemingly expanding range of legal contexts. Second, the sheer quantity of legal concerns confronting the typical Child and Youth Care organization today is oppressive. Any list must include a diverse range encompassing everything from “abuse” of clients to “zoning” of property. (A classification of the major categories of concerns appears below.) Third, as a rule Child and Youth Care managers are ill-prepared and poorly qualified to manage legal risks. In part this condition is due to the paucity of education and training programs available to managers in the Child and Youth Care field specifically. Largely it reflects the overall lack of preparedness in human services, however; even graduate programs in social work administration tend to slight legal concerns. (Brilliant and Holloway, 1995)
Equal measures of fear and frustration are understandable in face of the need to maintain currency and to proceed cautiously in so many diverse areas simultaneously. Moreover, while some concerns are relatively constant (e.g., compliance with state licensing regulations) and a few even negligible (it’s rare that an organization might face litigation over its articles of incorporation, for example), other concerns are grave, with organizational risk exposure high and in some cases increasing rapidly. Most notable, of course, is increasing legal vulnerability around treatment related issues. Ironically, this vulnerability expands in direct proportion to the recognition of the professional status of the Child and Youth Care field (and, usually, the amount of money paid for treatment services), if not all classes of workers themselves; with greater public acknowledgment of competency comes greater legal risk exposure. The service settings that comprise the field, moreover – foster care and adoption, group home care, residential treatment, wilderness camping, day treatment – may carry some of the highest levels of inherent risk exposure existing today. (Pecora, Whittaker and Maluccio, 1992)
This brief article attempts three tasks: 1) to identify and classify some of the major types of legal risk facing contemporary child and youth caring organizations; 2) to suggest a number of strategies administrators may employ in their efforts to contain legal risk; and 3) to highlight a few areas of salient concern for the future.
Sources of Legal Risk:
The major sources of legal risk to the Child and Youth Care organization
may be somewhat arbitrarily grouped into four categories: 1)
Client-centered; 2) Structural-organizational; 3) Personnel; and 4)
Child and family policy related.
1) Client-centered risks
Legal concerns in this area focus directly in one way or another on how
clients are treated by the child and youth caring agency and its
personnel. Kurzman (1991) provides a useful list of the major types of
risk in this classification, expressed in terms of a human service
organization's duties or obligations to its clients. In each case,
failure to fulfil a duty or obligation constitutes an instance of legal
risk.
Well-known is the duty to keep confidential material that clients share with the agency’s practitioners in the course of treatment. While the guarantee of confidentiality is generally considered far from absolute (Barker, 1995: 320), and client communications with Child and Youth Care workers do not as a rule enjoy the “privileged” status that communications with attorneys, physicians, the clergy, and even most licensed social workers, agencies are typically covered by state law governing confidentiality in mental health.
Human service organizations are bound to properly diagnose and treat those it serves. The greatest risk here applies to agencies making diagnoses and implementing subsequent treatment plans in a context of weak supervisory review and inter-professional consultation and referral. An organization's diagnosis and treatment of psychosocial problems before first ruling out possible medical causes of the problems might well invite a negligence judgment at some point down the road, for example.
Moreover, once engaged with clients, agencies are obliged to ensure continuity of service, even for the most difficult and troublesome of clients. Where agencies are themselves unable to provide needed services, appropriate referral, and possibly advocacy to ensure genuine continuity of service, is required. This duty has particular salience in the Child and Youth Care field where, sadly, stories are common of difficult youth being “dumped” from placements back on the public child welfare agency for recirculation within the substitute care system.
Agencies have, further, a duty to create and maintain accurate and adequate records of service and service outcomes. This requirement becomes more acute as Child and Youth Care agencies increasingly enter the arena of vendorship of differentially priced services tied to specific diagnoses and plans of treatment (in contrast to generic “days of care"). Failure to support diagnoses with appropriate documentation, or to provide services other than those planned, may not merely disqualify the agency for reimbursement, but in some cases may constitute an act of fraud and render the agency liable to legal action.
Finally, professional providers shoulder the duty to avoid sexual impropriety. Child and youth care workers should under no circumstances engage in sexual activity with clients. Damage may done not only to the clients but to the organization purporting to serve them, since under the principle of respondent superior agencies responsible for supervising workers committing wrongful acts may share liability for those acts (Watkins and Watkins, 1989). Legal risk in this area is further heightened by the likelihood that professional insurance policies will exclude sexual impropriety from coverage as a form of intentional wrongdoing.
2) Structural-organizational risks
A second category of concerns, itself quite capacious, addresses
quintessentially “administrative” matters having to do with the legal
foundation of the organization, its governance and on-going financial
operations. Falling under this heading are the organization's articles
of incorporation and by-laws; the functioning of its board of directors/
trustees; licensure of the agency’s activities; its financial status as
non-profit or for-profit organization, and its financial contracts and
property arrangements.
Needless to say, the quantity of law and policy relevant to this broad area of concern is large. Relative to other categories of legal concerns, however, actual risks in the structural-organizational arena are generally low in any reasonably well-managed organization. Though it is not uncommon for administrators to discover at some point that agency operations have strayed in some respects from the by-laws, for example, plaintiffs who might claim injury as a result of by-law deviations are uncommon. While serious licensing violations have the potential, in theory, to result in a total agency shut-down, agency and licensing body usually share a common interest in maintaining an acceptable level of organizational operation. Once established, the typical voluntary agency’s status as a non-profit organization is not easily jeopardized (though the increasing involvement of nonprofits in profit-making ventures does pose serious risks; see, for example, Olenick and Olenick, 1991).
Substantially higher levels of structural-organizational risk do pertain to financial contracts and property related liability. Litigation could well follow failure (or a funder’s perceived failure) of the Child and Youth Care agency to fulfil the terms of a service contract, for example. Property related claims might relate to either the property’s condition (e.g., faulty wiring leading to a building fire), or its use by agency personnel (damage caused by an agency vehicle). However, financial contracts are typically among the more closely monitored of agency operations, and property risks are among those most readily insured against, sustaining the judgment that the structural-organizational is a relatively low-risk category.
3) Personnel risks
Personnel concerns, by contrast, constitute a relatively “high-risk” legal category for the typical Child and Youth Care organization. All
dimensions of the agency’s personnel practice must, of course, comply
with prevailing employment and labor legislation, but most notably those
pertaining to recruitment and selection, on the one hand, and
involuntary separation (discharge) on the other. Employment law is a
complex, constantly evolving area encompassing formal legislation, case
law, and administrative decision-making. The prudent administrator will
want to establish a working knowledge of the legalities involved in “human resources management” (Mathis and Jackson, 1994) as well as to
secure competent counsel.
Child and youth care administrators should be aware that the 1990’s have seen several new entries to the corpus of major federal equal employment opportunity legislation, including:
The Immigration Reform and Control Act, which prohibits employment discrimination on the basis of national origin or citizenship.
The Americans with Disabilities Act, requiring employer accommodation of disabled individuals.
The Older Workers Benefit Protection Act of 1990, prohibiting age-based discrimination in early retirement and other benefit plans and
The Civil Rights Act of 1991, which overturned a number of earlier Supreme Court decisions and changed damage claims provisions.
In particular, administrators should be mindful that sexual harassment has emerged in recent years as a foremost workplace concern. It is a unique and highly sensitive legal risk for virtually all employment environments, including Child and Youth Care settings. (Weiler, 1997) The federal Equal Employment Opportunity Commission reports that since 1990 the number of sexual harassment charges shot up 165 percent, from 6,127 claims in 1990 to 15,549 in 1995. In the same period judgment awards to complainants jumped from $7.7 million to $24.3 million. Numbers across the board have continued to climb, including those of cases involving claims filed by men against both women and other men. (El Nasser, 1997: 3A) The weight of responsibility is clearly on an organization's management to provide all employees with working conditions free of any form of sexual harassment.
Contrary to the popular misconception that management’s “hands are tied” when it comes to disciplining or discharging poorly performing workers, the common law principle of “Employment at Will” – that workers are employed at the pleasure of owners and managers, and enjoy no right to employment per se – retains a good deal of force in non-union settings, by far the majority in the Child and Youth Care field. Yet a substantial body of case law protects workers from arbitrary treatment. (Mathis and Jackson, 1994: 484-485) Just as the disciplining of children is characterized by child and youth caring agencies as an essentially educational process, so should administrators be careful to devise and follow consistently and fairly a process of discipline that permits workers to learn from their mistakes well in advance of discharge from employment. Though agencies are not required by law to include progressive discipline provisions in their personnel policies, such practices are popular in large measure because, if followed consistently and rigorously, they reduce the appearance of arbitrary treatment, and hence the exposure to litigation from the infamous “disgruntled former employee.”
4) Child and family policy-related risks
Child and youth caring agencies operate in a complex and constantly
evolving legal-policy environment. Constitutional, statutory,
administrative, and common law elements are threaded and interwoven
throughout a crazy-quilt “system” of rights and responsibilities. Civil,
criminal and constitutional forms of law are all included and frequently
overlap. (Schroeder, 1995) Further, all branches of the U.S.
governmental system – legislative, judicial, and
executive/administrative – are prime actors in the policy environment.
From the standpoint of the typical voluntary Child and Youth Care
agency, however, the juvenile court, a state creation authorized to
place children in substitute care arrangements, and the public child and
family welfare agency, which sets the rules governing the day-to-day
administration of state policy, play especially prominent roles.
Policy-related legal entanglements, should they occur, will likely
emerge in connection with one or the other of these sources.
Perhaps the most sharply defined policy-related risk area is created by the “mandated reporter” status of workers in child and youth caring agencies. Failure to report suspicion of abuse of a child in care by any party (including agency employees, and parents who may already be in treatment with the agency) may incur liability for both the agency and the individual worker. (Stein, 1991)
More general are potential legal risks related to the larger child welfare policy context. In principle, the national policy of “permanency planning” for children, established by the federal 1980 Child Welfare Reform and Adoption Assistance Act (P.L. 96-272) in response to the “foster care drift” experienced by large numbers of children and youth growing up in substitute care, provides the framework for practice in child and youth caring agencies. Embraced by all the states, the philosophy of permanency articulates a preferential hierarchy of intervention objectives: family preservation where possible; child placement in the least restrictive setting when the family cannot be maintained intact; movement to a permanent family home for every child within a reasonable period of time. (Maluccio, Fein and Olmstead, 1986) Though controversy has raged over some aspects of implementing permanency, notably the appropriateness of family preservation efforts with severely dysfunctional families (Cooper, 1996), the essentially child-centered philosophy continues to enjoy broad consensual support as well as the force of law. To date liability for failing to promote permanency with sufficient speed, diligence or effectiveness has fallen exclusively on the public child welfare agencies who shoulder the burden of the child protection and permanency mandates. (Pecora, Whittaker and Maluccio, 1992: 454-455) This situation may change rapidly and dramatically, however, as states move to privatize more and more of their operations, including investigations of abuse and neglect reports and arrangement/ supervision of substitute care placements. (Emenhauser, Barker, and DeWoody, 1995)
Strategies of legal risk management:
What can Child and Youth Care managers do to address the myriad legal
risks facing their organizations? Following are a number of recommended
strategies. Though agencies might profitably pursue the various
strategies individually, the more prudent course would be to implement
all simultaneously for maximum risk minimization.
1) Assessment
No less than in the process of serving clients, addressing legal risk
begins with sound assessment. Actual, identifiable risks (as distinct
from sources of risk, or potential risk) arise from one or a combination
of four factors – 1) physical (e.g., building construction, vehicle
maintenance); 2) human (actions of staff, volunteers, or board members);
3) environmental (lighting, noise, crowding); 4) management (policies,
procedures, controls). (Stone and North, 1988) Even without benefit of
outside consultation, Child and Youth Care administrators can draw on a
number of sources in order to make an initial identification of risks – including past insurance claims; first aid and injury reports; insurance
exclusions (which usually point to high levels of risk); inspection and
other types of checklists; and staff and management suggestions.
Following identification, a second assessment step involves the evaluation of each risk for severity and frequency. Simple scales can rate risks from minor (minimal property damage) to extreme (death or extensive property loss) in terms of severity, and from very remote (almost no chance this will ever occur) to highly likely ("an accident waiting to happen") in terms of frequency. Once management has assessed a risk, it can readily apply a generic problem solving analysis aimed at control, i.e. identifying alternative course of action, weighing pro’s and con's, and making a decision.
2) Legal counsel
Ample on-going legal counsel in all identified risk areas should be a
staple resource available to management. Competent counsel can
frequently prevent the transformation of exposure into crisis by
identifying areas for corrective action in advance. This is perhaps most
pointedly the case in personnel matters, where the greatest number of
litigation threats are likely to occur. When a legal problem cannot be
prevented, the availability of counsel knowledgeable in the
organization's work will permit the most rapid and effective response to
the challenge. The common practice of ensuring that one or more
attorneys serve on the board of directors is a wise one for Child and Youth Care administrators to follow, but board members alone are rarely
able to provide the range of specialized counsel that may be needed.
While it may seem financially imprudent to retain one or more attorneys
on a continual basis, the alternative is seeking representation under
the pressure of a crisis situation.
3) Insurance protection
Hefty insurance expenses are unfortunately a given in the current
organizational environment. Adequate coverage in the variety of exposure
areas is in fact the bedrock of legal risk management; in many instances
the most rational approach to controlling a risk is simply to secure
policy coverage against it. Without adequate insurance coverage, the
agency may stand literally one lawsuit away from disaster and possibly
dissolution. Specific coverages needed of course differ by agency scope
and services, but virtually all Child and Youth Care organizations
require casualty policies in at least the areas of professional
liability (including the actions of volunteers and consultants);
vehicular liability; premises liability; board directors and officers
insurance, shielding members from liability in the performance of their
fiduciary responsibilities; and bonding for agency staff and board
members who manage the organization's assets and income.
Child and youth care administrators should be aware of the precise extent of insurance protections, and not simply assume that “we’re covered.” Needless to say, policies should be regularly reviewed and adjusted in light of changing circumstances, for example, the expansion of the agency into new service areas requiring previously uncovered professional employees.
4) Staff development
Preparation is the best prophylactic. Child and youth care organizations
that place a high priority on competency-based staff development – in
this context meant to include, at a minimum, both regular job-relevant
training and consistent supervision – can substantially cut legal risk
exposure. While few organizations would explicitly belittle the value of
staff development, a number of common problems plague most agency
programs:
greater concern for the quantity of training provided (number of contact hours, C.E.U.”s) than for quality in terms of currency or job relevance to trainees/ supervisees;
emphasis on clinical content with little attention to policy issues of legal import;
more or less exclusive focus on the needs of relatively inexperienced staff for “basic” practice skills and knowledge;
reliance on extra-agency training programs that cannot address specific agency risk factors;
inconsistency in the frequency and content of staff supervision throughout the administrative hierarchy; and
absence of any organized training for supervisors/ administrators.
This last oversight is perhaps the most egregious from the standpoint of legal risk management. Supervisors are the linchpins of service delivery in most organizations and the true “front line” on a majority of potentially damaging legal issues; their thorough and on-going preparation is overlooked at the cost of heightened (and unnecessary) risk to the agency.
5) Evaluation
In this context, “evaluation” refers to a regular assessment of the
Child and Youth Care agency’s adherence to standards of practice and
management designed to minimize legal risk exposure. In this type of
evaluation “outcomes” are largely irrelevant, in that the agency might
remain indefinitely claim- or litigation-free in face of dangerous
levels of risk. Such an “audit” of performance may be considered a
parallel to the commonplace fiscal audit that virtually all
organizations undertake annually, and should be carried through with at
least the same rigor.
Kurzman (1991) provides a suggestive checklist of the type of questions the audit should address:
Are agency licenses in order?
Are professional staff properly licensed or registered?
Are provisions for various emergency actions (everything from safety drills to client hospitalization) current and universally known?
Is insurance coverage adequate and up-to-date?
Are recording procedures regarding client treatment consistently followed?
Does agency practice comply with the contractual requirements of funding sources?
Are supervisory evaluations of staff conducted and reviewed on schedule and in compliance with formal personnel policies?
Additional items might be readily gleaned from the discussion in this article, from the administrator’s own agency experience, or from a more formal risk assessment checklist.
6) Community relations
A Child and Youth Care agency that enjoys good reputation and overall
positive community relations is in better shape to weather a major
crisis in which it is clearly “in the wrong” legally than is an agency
with poor reputation and weak relations that is legally guilt-free
regarding some mishap. The former is likely to be judged mildly for its “lapse,” and the latter harshly on the suspicion that “where there’s smoke there’s fire.” A comprehensive proactive approach to risk
management includes, then, the long-term cultivation of good community
relations and public relations (a strategy with, of course, much broader
applicability that legal risk reduction). “Long-term” should perhaps be
underscored here, to distinguish this type of public relations activity
from that of the smooth-talking “spinmeister” who attempts “damage
control” in response to a threat of legal action. While damage control
is advisable once damage has indeed already occurred, action in this
vein is, of course, inherently reactive and defensive in nature, and
likely to carry with it a stigmatizing sense of “circling the wagons.”
Excellent guides to the construction of effective public relations, or “marketing,” plans are readily available (for example, Johnson, 1993). Plans typically feature the characteristics of openness to the community/ public, careful analysis of relevant “publics” or “markets,” frequent communications, and on-going education of the community about the work B worth and “products” B of the agency.
7) Scanning the external environment
The external environment of the child and youth are agency is “turbulent” and constantly changing (Hodge and Hankin, 1988)
Particularly given the diversity and breadth of legal concerns facing
today’s agencies, administrators have little choice but to constantly “scan” the environment for indications of emerging threats, and to shape
such developments where possible. Hodge and Hankin (1988) identify seven
major arenas of environmental change – culture, political system,
economic system, competition, technology, labor availability, and client
groups – each with the potential to substantially impact the legal risk
exposure of the Child and Youth Care agency.
From the risk management perspective, environmental scanning involves a two-step effort by administrators: first, to “scope” the external environment so as to identify those components with the most direct bearing on organizational risk; and second, to collect data aimed at answering a number of key questions – what important events are occurring in the current state of affairs? what are the apparent trends? what dramatic events might occur? and what is the potential for surprises? Managers fortified with this sort of “scanning” information, however partial and imprecise, will be much better prepared to identify and respond effectively to emergent risks.
8) Crisis management plan
Risk can never be fully controlled. Surprises occur in the course of
work with children and families. Crises erupt. A youth dies in the midst
of an extended physical restraint by professional staff. Another youth
in care leaves the residential campus without permission and is
apprehended breaking into a community home. Two local high school girls
sneak into a residential cottage at 1 a.m. “to visit” the boys there and
later claim to have been gang-raped. A trusted staff member is publicly
accused of sexually abusing youth in his care. The agency’s comprehensive legal risk management plan must incorporate (if not
prominently feature) a detailed step-by-step crisis plan. (Bloom, 1991)
Responsibilities, lines of authority, notifications, fact-finding and
reporting requirements, actions to protect staff, clients and community,
stance toward media – all should be as clear and specific, without
hindering management’s ability to act decisively both to address the
immediate issue and to limit additional risk.
A well-developed plan in which all managers and line staff are well-versed can avoid two dangers in particular. The first danger is that management and the governing board, feeling under fire, will gratefully place all critical decision-making in the hands of lawyers and insurance companies. Consultation from these quarters is crucial in face of crisis, of course; their interests, however, will not necessarily coincide with those of the agency at all points. As with other forms of advice and consultation, decision-making should remain in the hands of the client (in this case, the agency), a likelier circumstance if the agency has a crisis management plan in place. A second danger can be a rush to sacrifice offending staff members or youth, as a way to quickly “resolve” a real of impending crisis. Over the years I have seen a number of employees and youth alike discharged from agencies in ill-considered efforts to contain crises even before a full determination of the facts involved could be made. Needless to say, the best way for management to minimize legal risk of one type (e.g., negligence) is not to act in ways that open wide the door for litigation of another type (e.g., wrongful discharge). Following a crisis management plan will reduce the probability that under pressure managers will made risk-exposing decisions.
Conclusion
While absolute legal security is no more possible than the elimination
of risk itself, the prudent Child and Youth Care manager will eschew a
crisis mentality in favor of proactive attention to areas of legal risk
B for the good of the organization and that of the children, youth and
families served. With forethought, planning, the pursuit of prudent
strategies to identify and reduce risk, and perhaps just a bit of luck,
legal risk can indeed be “managed” within tolerable limits. Perhaps more
importantly, it can be welcomed as a pragmatic inducement to provide the
highest possible quality of care.
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