by Bill Frederick
If the prevailing practice for the screening of students for participation in education abroad were more robust, it would likely contribute to the reduction of harm sustained by some students during their study abroad programs.
Concern for violating legal statutes or creating a greater duty of care inhibits objective analysis of the appropriateness of student participation and curtails the sharing of important information with those staff who are in most frequent contact with the students during overseas programs and therefore in the best position to contribute to their safety. Some of the concerns are generated when we as legal laypersons interpret the statutes to simply mean that screening is not an option. That interpretation may especially appeal if it prevents us from having to do a lot more work as most education abroad offices are perpetually engaged in task triage. However, the work that may be saved on the front end by a less than comprehensive screening strategy may be more than offset by the work generated at the back end responding to students returning home prematurely or more serious incidents abroad.
“Screening” is something of a misnomer. It implies a separation of those who may participate in study abroad from those who may not participate. Very few applicants are “screened out” for pre-existing conditions and there would be little reason to do so for most students who are successfully functioning on a domestic U.S. college campus. Screening is also the term used for collecting and evaluating information about pre-existing physical and mental health conditions. That information could potentially be used to better accommodate some pre-existing conditions as well as to anticipate and plan for possible problems.
A compelling argument might be made that the opportunity to study abroad should be made available to everyone regardless of medical profile or mental health history. However, not every study abroad program is appropriate for everyone. As reported in a white paper by Dr. Robert Quigley of International SOS, the number of mental health related RFAs (requests for assistance) that ISOS received over a 2 year period for study abroad students was 23 times the number received from all their other clients combined. Most study abroad practitioners have little to no training for responding to medical or mental health issues. When a program is operating in an area with significantly underdeveloped medical and mental health resources, by the time a serious problem emerges, the window for really effective decision-making has passed. An applicant could make the argument that it is their decision as to how much risk they choose to assume. However, emergencies are disruptive and expensive; an applicant might indeed choose to take the risk and then choose to bring suit against the program; and when students sustain serious illness or injury on education abroad programs it can be traumatic for all involved.
The question then becomes one of can we avoid increasing our liability exposure, operate within the letter and spirit of the legal statutes, and reduce the likelihood of being obliged to risk inappropriate participation? The short answer is yes. The longer answer involves additional cost and work. Arguably again however, perhaps not more cost or work than you’d incur managing an emergency that might have been avoided with a better screening process or the liability that might accompany such an emergency.
There is an argument that says if a program collects information regarding a student’s pre-existing conditions, and then accepts the student onto the program, then the program has created a greater duty towards the student than would have been the case without screening. In a civil court case where an institution is being sued for negligence, four conditions need to be established, i.e.,
- There needs to be harm.
- There needs to be duty to act.
- There needs to have been a breach of that duty
- The breach needs to be shown to have caused the harm.
The argument has some validity. However, education abroad institutions already have a duty towards their students. By not screening students we make it much more likely that there will be harm. It is true that if you end up in court, the determination of the scope of your duty may be a factor in the outcome. However, setting aside the moral and ethical issues of accepting harm to students in an effort to minimize liability, the surest way to reduce liability exposure is to reduce the risk of harm.
The legal statutes that are of greatest concern for gathering and sharing information on student physical and mental pre-existing conditions are HIPAA, FERPA and the ADA.
HIPAA, the Health Insurance Portability and Accountability Act applies to Health Plans, Health Care Clearing Houses and Health Care Providers. The question hinges on whether your institution, as an entity that collects medical information on staff and students, can be considered a Health Care Clearing House. Certainly, HIPAA will have bearing on organizations from which programs seek information, including college and university Health Plans and Health Care Providers, but students do have a right of access to their own information and the ability to direct those entities to share that information with your program.
FERPA, the Family Educational Rights and Privacy Act, is a Federal Law that protects the privacy of student educational records. FERPA gives students the following rights regarding educational records:
- The right to access educational records kept by the school;
- The right to demand educational records be disclosed only with student consent;
- The right to amend educational records;
- The right to file complaints against the school for disclosing educational records in violation of FERPA
FERPA is applicable to any organization that receives federal dollars, i.e., most colleges and universities. However, medical records, and for that matter, campus police records are not considered educational records under FERPA until the information is shared. However, again students do have a right of access to their own information and the ability to direct those entities to share that information with your program. Incidentally, there was an informal poll taken of about 100 insurers and lawyers at a 2010 University Risk Managers and Insurer’s Association Conference presentation, asking how many of them had ever been involved in a lawsuit where FERPA was a central issue. One person raised their hand.
The ADA, the Americans with Disabilities Act, (from Wikipedia) is a wide-ranging civil rights law that is considerably more complex in regards to screening. The ADA prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal. Disability is defined by the ADA as “a physical or mental impairment that substantially limits a major life activity.” Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. “Public accommodations” includes education. However, there is some question about whether or not the ADA applies outside of the U.S. There are two lower court rulings, one that supported the applicability of the ADA for overseas American programs (Bird vs. Lewis and Clark) and one that denied its applicability (Arizona State University (OCR)). No one wants to be the Federal court test case for the ADA. There are strategies that make violating the statute unlikely that also reduce the likelihood of having dangerously inappropriate students on specific education abroad programs.
If you want to acquire information from doctors, the student healthcare center, or mental health counselors, you will likely need to get students to submit a written request for their medical records for the release of that information. Even then, some institutions will be hesitant to share the information. And, besides the legal issues, there are good reasons as to why this is the case. Study abroad programs do not need to know about every personal medical condition or the details of everyone’s mental health history. They need to know about those that have implications for health and safety abroad. If you are collecting very personal but not necessarily pertinent medical and mental health information, then we unnecessarily risk compromising confidentiality. Additionally, as Charlie Morse, Director of Counseling at Worcester Polytechnic Institute, has pointed out, students will not disclose freely if they believe that there is any chance that such information might be shared outside the counseling relationship.
The best approach to collecting information about pre-existing conditions may be to create an education abroad specific suite of medical and mental health forms and to conduct the screening in house.
Does this mean that every student going abroad has to have an additional, very cumbersome and expensive, multilayered physical and mental health work up in order to go abroad? No, not every student for every program would need to do this. If you are a student functioning adequately on a U.S. college campus and your program is going to be conducted for 2 weeks in a capital city in Western Europe where there are medical and mental health resources very similar to those in the U.S., it might be reasonable to simply ask: “Do you have any physical or mental health conditions that the program should know about?” However, if you are going to a low-income country or to a remote area within any country, or going anywhere for a longer course of study, you need to know a lot more information in order to determine if any pre-existing conditions can be adequately managed; to identify what needs to be put into place in order to manage that condition; or to determine that that particular program cannot reasonably manage the condition. The information collected should be program appropriate.
The spectrum of inquiry for pre-existing conditions and physical and mental health history may be represented as follows:
- A brief self reporting form or a comprehensive self reporting form
(Most inaccuracies in physical and mental health screening result from omissions rather than outright misrepresentation. The more specific the questions, the more accurate the information)
- Comprehensive self reporting from + physical examination form (to be completed by medical professional)
- Plus a counseling questionnaire to be completed by applicant’s counselor
- Plus a psychotropic medication questionnaire to be completed by prescribing medical professional
All forms that need to be completed by medical or mental health professionals need to be signed by students authorizing the disclosure of such information. That authorization should include how that information will be used and who will have access to it. The forms should also contain a program description that includes a description of expected physical activity, e.g., hiking or snorkeling; destination environmental exposures (heat, cold, sun, etc); and a description of relative availability of destination medical and mental health care resources. It should also include a description of potential program stressors, i.e., jetlag, language and cultural stress, academic challenges, unfamiliar foods, etc. Lastly, the form should ask the medical or mental health professional to sign off on their assessment that the student is appropriate for the program based on the provided description. If they are unwilling to do so, it will make it easier to deny participation. If they do so, it will shift some liability exposure away from the program.
A few strategic considerations:
There are applicants for education abroad programs who have medical conditions that may eventually be fatal or significantly disabling. However, those applicants certainly want and should have the opportunity to study abroad. Don’t disallow or discourage participation based on the condition’s label. Look at where the disease process is on the spectrum of severity, assess how stable the condition is and how well the applicant controls the condition, e.g., how many hospitalizations have they had within the last year; what activities are they typically engaged in; what interventions might they potentially require.
While most screening is routine and does not require a high degree of medical or mental health expertise, it is critical to have that expertise available for consultation and to work with the applicant’s medical and mental health professionals.
Distinguish between behavioral history and physical or mental health history. Develop policies around behavioral history. An example policy might be that no one may participate in a program if they have had a suicide attempt within a year of the program start date. Policies may be formulated concerning adjusting medications prior to the program or the timing for coming out of a secure mental health facility.
We don’t want to prevent them from studying abroad, but that doesn’t mean we have to allow them to participate when there is indication of instability.
If you believe that someone is not a reasonable risk for a particular destination or program because of the exposures or the lack of medical or mental health resources at that destination, try to accommodate them on a program or destination where there are appropriate resources. If an applicant had a severe allergy to peanuts and they wanted to go to a West African program where peanut products were a staple of the diet, it might work to offer them a program where the exposure was much less. If a student with Addison’s disease (an adrenal gland deficiency that in the event of trauma, the person would require an injection of cortisol or have a much higher risk of death) applied to a program in a low income country where the road travel fatality rate was much higher than in the U.S. and where emergency medical services were non existent, they might be offered a program where trauma was less likely and medical care was at a higher standard. The applicant should not be prevented from studying abroad, but they should also not be allowed to put themselves at high risk.
How well you can accommodate some pre-existing conditions will also depend upon the capabilities and training of your field staff. Someone with a 4 – 8 day emergency medical course under their belt is more likely to feel comfortable with a range of conditions than someone without any training. They are not medical professionals by any stretch, but they are likely to recognize problems earlier, are better able to determine when there is an emergency, they know what the important questions are and they can administer first aid and basic life support.
There is some debate about what degree of screening information in country staff should have. That depends on how their roles are envisioned. If they are expected to make complex judgments and problem solve in the service of health, safety and security, they need to have all the screening information that is pertinent to health, safety and security. If their role is strictly that of teaching, conducting research or cobbling together logistics, they should not require any screening information. There are a couple of arguments specifically against field staff accessing this information. The first is that most education abroad practitioners are not medical or mental health professionals and therefore do not possess the expertise to evaluate screening information. While that may be true, if they are expected to have a high degree of responsibility for the health, safety and security of the students on those programs, then they are already making some decisions based on their limited understanding of medicine and mental health. Withholding screening information deprives them of important background information and ensures that their decision- making is additionally under-informed. A better approach might be to provide training to assist them in being more able to more effectively manage the health, safety and security aspects of their role. The second argument is that trip leading faculty should respond solely to observable behaviors and not be prejudiced by screening information. As anyone who has ever led a trip abroad knows, it is extremely helpful to know the background context within which the observable behaviors are occurring. If you are aware of a previously existing eating disorder or depressive disorder, then you are more likely to recognize a developing problem sooner and perhaps well before it develops into an emergency. Likewise not knowing about pre-existing asthma, diabetes or severe allergies may mean losing any effective intervention window as you try to discern what the problem might be.
Maintaining an underdeveloped screening program out of concern for legal liability exposure is not a good strategy for health, safety and security. Nor is it a good strategy overall for minimizing liability exposure.
A comprehensive screening program will calibrate the degree of inquiry based on program destination, duration, nature of activities, time of year, goals and participants. An efficient program will have an effective suite of forms and guidelines for use of each. For most routine conditions there should be clear guidelines for evaluation. For non-routine pre-existing conditions, medical and mental health expertise needs to be involved.
A comprehensive screening strategy should be an important part of any education abroad program’s health, safety and security strategy. An excellent screening program will reduce harm to students, reduce expenses associated with unsuccessful study abroad experiences as well as emergencies and reduce liability exposure for educational organizations operating abroad.