This is an excerpt from Day Camp Programming and Administration by Jill Moffitt.
Laws and Legislation
Camp leaders exhibit the greatest amount of anxiety when issues of liability are discussed, planned, or considered. This is a good reason to learn the laws and legislation that rule the city or town, county, and state in which your camp operates. Keeping up with laws and legislation is not only good practice that legally protects the camp but also the right thing to do because it results in the creation of a caring community aimed at protecting vulnerable populations.
This section provides a general and minimal overview of the federal statute in loco parentis and highlights considerations for state and labor laws. It also addresses the importance of waivers to protect the camp program and the larger organization in a court of law. The section ends with a discussion of using the expertise and resources of the larger organization's risk management team, which many municipalities, colleges, and private clubs already have as part of their legal teams.
In Loco Parentis
The federal standard of care for caretakers of vulnerable populations in the United States is based on the notion of in loco parentis (Smith, 1991). In loco parentis literally means "in the place of the parent." It is a legal phrase that is used commonly in the field of education and casts a net of implications on school partners such as those found in after-school programs, retreats, field trips, day care, and community camp programs (Shivers, 1989). In loco parentis initially granted education providers and caregivers the authority to act as a parent when parents are not present. The scope and meaning of this has changed drastically over the last three decades. In the beginning, educators and legal analysts read the law very broadly and determined that caregivers had a great deal of flexibility in making decisions that affected children in the absence of their parents (Lefstein et al., 1982). This interpretation essentially protected caregivers who spanked, reprimanded, or paddled children.
Today, clear guidelines define the scope and authority of caregivers. Spanking, paddling, severe punishment, and any type of touching by untrained or uncertified staff are not protected in a court of law (Smith, 1991). Today's caregivers, including camp administrators, are expected to act in the best interest of the child by protecting them physically, emotionally, cognitively, and socially. This mandates that the organization's mission include a strong philosophy, fair goals, and reasonable objectives that focus on the development of the whole child. For most camps, this can be accommodated through the development of a solid discipline plan that is clear, consistent, and well communicated to campers, parents, and staff. Staff members should be trained well on verbal de-escalation techniques, understand the law as it applies to their counselor role, and receive ongoing training so that they can continue to improve these skills.
State and Labor Laws
In addition to understanding the federal legal implications of in loco parentis, camp personnel must also understand the standard of care mandated by state laws. Most states include all or some elements of in loco parentis in their laws governing education and children's services (Freeburg, 1949; Hulett, 1960; Lefstein et al., 1982). Because camp administrators are educators first, becoming familiar with those standards and what they mean for the camp is imperative in ensuring that staff are trained well and that policies and procedures are developed to protect the camper, the staff, and the organization.
Labor laws, both federal and state, govern many issues regarding how you relate to your staff. Generally speaking, day camp workers working six to eight hours are entitled to a 30-minute paid break every four hours (Ball & Ball, 1995). When hiring staff and planning schedules, be creative and try to adhere to staff members' requests for hours as much as possible. Additionally, it is always better to hire more staff members than you need rather than fewer because it provides much more flexibility in scheduling and meeting the criteria of the law. However, this is only feasible if you have factored additional staff costs into your overall budget, as discussed in chapter 2.
Participation waivers have become a staple in just about every camp program. In this day of litigation, every program seems to want to ensure that the organization, and its actors, are clear of any wrongdoing or financial obligation in the event of camper injury.
Waivers should be well written and use language that will hold up in court if the actions of the staff or program are ever questioned. A risk management or legal team should assist in constructing a waiver that is unique to the camp (Ball & Ball, 1995). If the camp program uses digital media and Internet marketing initiatives, the waiver should include permission to use a child's likeness (i.e., photo, video, or both) for these purposes. General waivers, or release of liability statements, and photo waivers should be part of registration forms. The CD-ROM includes sample waiver forms that can be used in registration materials:
- Form 3.1: Media and Photo Release for Minor Children
- Form 3.2: Field Trip Permission Slip
- Form 3.3: Kids Camp Application
- Form 3.4: Kids Camp Registration
- Form 3.5: Release of Liability
Participation waivers are a good practice, but it is important to remember that they will not hold up in court in cases in which staff or personnel demonstrated behavior lawfully deemed as negligent (Shivers, 1989). If staff members are not trained adequately, are not supervised to the reasonable standard of care mandated by law, or make extremely poor decisions, and a camper gets injured or dies, no waiver in the world will save the staff, the administration, or the program from liability. Waivers are not guarantees, and although they are necessary, it is far more important to invest time and resources in providing staff with the skills and resources they need to make sound decisions and to act quickly and appropriately in any given situation.
Risk Management Team
Municipalities, colleges, and private organizations most likely have protective structures established that help them identify risks. In many organizations, this is simply known as the risk management office, or the legal team. These professionals can help you identify potential risks, as well as determine the type and scope of language required on all camp documentation, such as the waiver.
Basic questions to ask when conversing with risk management teams include, but are not limited to, the following:
- What are the potential risks?
- How might these be managed?
- What constitutes negligence and gross negligence?
- How can this be minimized?
- What types of forms and documentation will be required?
- How will these documents be reviewed, stored, and completed?
- What will the follow-up procedures be?
- How will incidents be handled?
- How will federal, state, local, and organizational laws be incorporated into any documentation and language that help manage liability risk?
- Should the camp seek outside accreditation, and if so, why?
Including a parent or community member on the risk management team is a good way to solicit information from those whom the camp serves. This person can be an advocate for the camp by telling others about the level of thought, care, and concern the camp administrators put into making sure all children are safe at camp. This type of parent-to-parent advocacy goes a very long way in helping a new camp establish a patron base.