Student Suicides - Washington School Personnel … powerpoint - 2015 law conference... · Student...

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Student Suicides Prevention Plans, Liability Issues, and Resources Mark F. O’Donnell Founding Member, Seattle Mike Donlin Program Supervisor, School Safety Center Shannon McMinimee General Counsel

Transcript of Student Suicides - Washington School Personnel … powerpoint - 2015 law conference... · Student...

Student SuicidesPrevention Plans, Liability Issues,

and Resources

Mark F. O’DonnellFounding Member, Seattle

Mike DonlinProgram Supervisor, School Safety Center

Shannon McMinimeeGeneral Counsel

Student Suicides• HB 1336 - State Law Requirements: Developing and

Implementing EMB and Suicide Prevention Plans– Shannon McMinimee

General Counsel, Tacoma Public Schools• Liability Assessments In Student Suicides

– Mark F. O’DonnellFounding Member, Preg O’Donnell & Gillett

• OSPI Suicide Prevention-Intervention Efforts: resources,initiatives, and projects– Mike Donlin– Program Supervisor, School Safety Center– http://www.k12.wa.us/SafetyCenter– Office of the Superintendent of Public Instruction

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Why now?

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Facts

• Suicide is the 14th leading cause of all deathsworldwide

• It is among the top five causes of death foradolescents.

• It is the second leading cause of death for peopleages 15 to 34.

• Having emotional or behavioral disorders orsubstance abuse issues, identifying as LGBTQ, orlosing a friend or relative to suicide placeteenagers at high risk for suicide.

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An Epidemic?• Health officials in Snohomish County say the

number of teen suicides since September 2014 ismore than double what's been recorded inprevious years.

• Studies show that a considerable number of youthsuicides and suicide attempts occur in the wake ofthe self-inflicted death or injury of someone else– either in their community or in the media.

• Researchers are concerned with the effect of thesocial media environment on suicides because it ismore sensational and interactive than traditionalmedia.

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Respondingto Students in

Social/Emotional Distress

Shannon McMinimeeGeneral Counsel

State Law–RCW 28A.320.127

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RCW 28A.320.127Students in Distress

New law requiring school planning for therecognition, initial screening, and responseto emotional or behavioral distress instudents, including but not limited toindicators of possible substance abuse,violence, and youth suicide.

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RCW 28A.320.127Students in Distress

• Identification of training opportunities inrecognition, screening, and referral;

• How to use the expertise of existing staff;• How staff should respond to suspicions, concerns,

or warning signs of emotional or behavioraldistress in students;

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RCW 28A.320.127Students in Distress

• Identification and development of partnershipswith community organizations for referral ofstudents to health, mental health, substance abuse,and social support services, including one MOUwith such an agency;

• Protocols and procedures for communication withparents;

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RCW 28A.320.127Students in Distress

• How staff will respond to a crisis situationwhere a student is in imminent danger tohimself or herself or others; and

• How staff will support to students and staffafter an incident of violence or youthsuicide.

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RCW 28A.320.127Students in Distress

• Each District and school must have aformal written plan.

• 40 page model OSPI plan online at:http://www.k12.wa.us/safetycenter/YouthSuicide/SuicidePrevention.aspx

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• Plan for students in distress can be foldedinto the “Safe Schools Plan” that allschools have been required to have sinceSeptember 2008 under RCW28A.320.125.

RCW 28A.320.127Students in Distress

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Liability Issues inStudent Suicide

Service + Solutions = SuccessMark F. O’Donnell

Founding Member, Seattle

Seattle:901 5th Ave. Ste 3400

Seattle, WA 98164P: (206) 287-1775F: (206) 287-9113

Portland:222 SW Columbia Ste 1575Portland, OR 97201-6615

P: (503) 224-3650F: (503) 224-3649

Anchorage:310 "K" St., Ste 200

Anchorage, AK 99501P: (907) 274-1544F: (907) 276-5291

Mark F.O’Donnell

Mark O’Donnell has practiced law since 1983 and is a foundingmember of Preg O'Donnell & Gillett.

Mark O'Donnell's practice is devoted principally to the resolution ofinsurance-related matters. Typically, he handles cases involvingpersonal injury or death, product liability, property damage, premisesliability, construction site injuries, construction deficiencies, and schoolliability. Mark is an experienced litigator. He has attended theNational Institute of Trial Advocacy and successfully tried andarbitrated many cases. Mark has the highest rating possible fromMartindale-Hubbell, (AV).

Mark has been on the approved counsel list for the WashingtonSchools Risk Management Pool since 1990. He has successfullyhandled in excess of 300 cases to date. Mark has represented morethan 40 school districts in Washington.

Mark has handled cases dealing with issues such as physical assault,sexual assault, athletic injuries, defamation, weapons, injuriesoccurring on school premises or with school-furnished equipment,injuries occurring during school-sponsored activities, bus accidents,negligent hiring, training or supervision, and property damage.

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Background

• In the last several years, we have looked atfive suicide events and conducted liabilityassessments.– Purpose: to document witnesses, events, and

timelines, in case of a claim– Not one has resulted in a claim– None of the suicides occurred on campus or

during the school day.

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Legal PrinciplesWhat is “negligence”?

• Negligence is the failure to exercise ordinary care.– It is the doing of some act that a reasonably careful person

would not do under the same or similar circumstancesOR– the failure to do some act that a reasonably careful person

would have done under the same or similar circumstancesSource: Washington Pattern Jury Instruction 10.01

• As applied to school districts– it is doing some act that a reasonably prudent school district

would not do under the same or similar circumstancesOR– failing to do some act that a reasonably prudent school

district would have done under the same or similarcircumstances.

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Legal PrinciplesElements of Negligence

• A duty is owed• The duty owed was breached• There is a proximate cause between the

breach of the duty and the injury• The injury or damages has occurred

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Legal PrinciplesSources of “Duty”

• State and federal laws• District policies• “Standard of care” – established by relevant

standards or guidelines from professionalorganizations or agencies– For example, OSPI guidelines or model policies,

national organizations setting “best practices” like theUS Department of Health and Human Services,Substance Abuse and Mental Health ServicesAdministration, youth suicide prevention programs,and WSSDA model policies.

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Duty• Do school counselors “owe a legal duty” to

prevent suicide?– Risk of death trumps confidentiality– FERPA’s Health or Safety Emergency Exception to the

Consent Requirement. School officials may disclose PIIfrom education records without written consent toappropriate parties when there is an actual,impending, or imminent emergency, such as an“articulable and significant” threat to a student’shealth or safety. 34 CFR §§ 99.31(a)(10) and 99.36.

• When do school employees owe a legal duty toprevent suicide?– When they know or should have known of the risk

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Legal PrinciplesProximate Cause

A proximate cause is a cause that was asubstantial factor in bringing about the injuryor event even if the result would haveoccurred without it.

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Source: Washington Pattern Jury Instruction 15.02

Possible legal theories of action

• State Law Negligence claims:– Failure to train– Failure to follow policy– Failure to act or to intervene– Complaints around HIB

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Possible legal theoriesand causes of action

• Federal claims– 42 USC § 1983

• Alleges that someone violated the student’s constitutional orstatutory rights

– IDEA and the Rehabilitation Act• Failure to recognize a mental or emotional disability• Failure to provide special education services or reasonable

accommodations– Title IX

• Failure to prevent, investigate, or remedy gender-basedhostility including sex discrimination, harassment, or sexualassault.

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Examples of Assessments We HaveDone

• Failure to follow procedures and policies• Inadequacy of intervention• References to bullying, harassment, and

intimidation.• Concerns about the student made to the

teacher• Failed to tell parents…

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What we look for in an investigation

• Did the District have a policy or procedure inplace that complied with applicable state andfederal law?

• Did the District and its personnel follow thepolicy?

• Was the District’s action reasonable in light ofthe circumstances?

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Examples of policy and procedure• School Responsibility. Each school principal shall designate a school

staff member to act as a point of contact in each school for issuesrelating to suicide prevention and policy implementation.

• Staff Training. Annually, staff will participate in the district's suicideprevention training which will help staff identify and respond tostudents at risk of suicide.

• Intervention. Whenever a staff member suspects or has knowledgeof a student's suicidal intentions he/she will take proper steps tosupport the student, promptly notify the principal or designee whowill request that appropriate school staff conduct an initialassessment. The principal or designee will then notify the student'sparents/ guardians as soon as possible, unless notification of theparents/ guardians will jeopardize the student's safety. The districtmay also refer the student to mental health resources in thecommunity.

26Source: a district’s policy

Key Facts We Are Looking At:• Who knew what, and when?

– Was there a HIB complaint?– What is in the counseling records?– Is there an IEP?– Is there disciplinary history?– Is there a past treatment for mental health issues?

• What action was taken?• Based on the information, did the District

personnel :– Comply with their legal obligations?– Comply with the District’s policies?– Comply with standards of care?

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First key: Does the District have apolicy that complies with

applicable state and federal law?

• The failure to have a policy required by law is afailure to meet the legal standard.

• This is your legal duty and a part of the standardof care

• The failure to have a policy means that the schoolmay be liable if this proximately caused thesuicide.

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Second key: Did the District followits policy?

• Deviation from established policy or practice isdangerous.

• Does the District regularly follow the written policy andpractice?

• Takeaway: If the District has a written policy andpractice but employs a different practice every time,then the written policy and practice should be revisedto reflect its actual practice and policy.

• The failure to follow policy means that the school maybe liable if this proximately caused the suicide

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Third key: Did the District complywith the standard of care?

• Every employee has a different standard ofcare, according to their professional practiceand judgment.

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The Importance of Documenting:

• Document promptly and accurately!• Do you have concerns about a particular

student?• Document communications or attempted

communications

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Good documentation

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Example 1:Student attempted suicide at school twice during school hours byhanging himself in the bathroom. School never called the student’sparents or guardians. The student later killed himself at home.The state’s student health manual said that in the event of anaccident or serious illness during the school day, the school wasobligated to immediately notify the student’s parents. The state’sstudent health manual also indicated that an acute emotional statemay require medical care as well but did not state that the schoolmust immediately notify the student’s parents for such issues.The school did not call the parents, because the school employeesdid not believe that the student was “injured” and did not requiremedical care.

• Liability?

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Example 1:Wyke v. Polk Cty. Sch. Bd.

129 F.3d 560 (11th Cir. 1997).• Liability? Yes.

– “If ever there was a situation where a person of ordinaryprudence would recognize an acute emotional state, thiswas it.”

– If a person of ordinary prudence would notify a student’sparents of such an emergency, there was no reason why,as part of their duty to supervise, school officials andteachers should not also notify a student’s parents.

– The failure to discharge those obligations could subject theschool to possible liability for reasonably foreseeableinjuries.

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Example 2:

• Student was expelled from middle school for significantbehavioral issues. Later, in high school, the studentcommitted suicide. Mother claimed that the districtfailed to exercise care towards the student by failing totake appropriate steps to exercise proper care towardsthe student under the circumstances. The complaintalleged that the district failed to take appropriate stepsto prevent his suicide, to protect him from bullying,and to arrange an alternative learning environment forhim.

• LIABILITY?

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Example 2:Moore v. Hamilton SE Sch. Dist.,2013 WL 4607228 (Ind. 2013).

• LIABILITY? Maybe. Summary judgment denied and set fortrial.– The district failed to establish written procedures for the

identification of students needing special services and breachedits duty of care under the IDEA.

– The district failed to provide special educational services for thisstudent in the face of at least some evidence that such serviceswere appropriate and necessary to his well-being.

– The lack of intervention for this student left him uniquelyvulnerable to self-harm in light of his mental and emotionalproblems.

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Example 3:

• A high school student in Longview, Washington,tells her mother that her former boyfriend hasbeen threatening to kill himself.– The girl's mother notifies the school counselor.– The counselor ignores school policy, and instead of

calling the boy's parents, asks the girlfriend's motherto call them.

– The boy kills himself that night before the call ismade.

• Liability?

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Example 3:Lewis v. Longview Sch. Dist. (W.D. Wash. 1999)

• Liability? Likely.– The school had a policy to notify parents.– The counselor did not notify the student’s parents but

asked the ex-girlfriend to do it.– Case settled for $690,000 in 1999.

• TAKEAWAY: follow the law, and your District’spolicies and procedures. Notify all appropriatepeople who need to know.

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Lessons Learned:

• Watch for warning signs• Have a policy and a procedure in place that

complies with state and federal laws• Follow the policy and procedure• Document your compliance.

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OSPISuicide Prevention-Intervention Efforts

Mike DonlinProgram Supervisor, School Safety Center

http://www.k12.wa.us/SafetyCenter

OSPI Suicide Prevention-Intervention Efforts

http://www.k12.wa.us/SafetyCenter

Multi-Tiered System of Supports (MTSS)

Tier III - Intensive

Tier I - Universal

Foundation – School Safety / School Climate

Tier II -Targeted

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OSPI Suicide Prevention-Intervention Efforts

http://www.k12.wa.us/SafetyCenter

School Safety Planning:RCW 28A.320.125 requires all public school districts and public schools to have currentschool safety plans and

procedures in place.NaturalHazards

TechnologicalHazards

BiologicalHazards

Adversarial,Incidental,

orHuman-causedThreats

- Earthquakes- Tornadoes- Lightning- Severe wind- Hurricanes- Floods- Wildfires- ExtremeTemperatures

- Landslidesor

mudslides-Tsunamis-Volcaniceruptions/Lahar flows

-Winter or otherprecipitation

- Explosions oraccidentalrelease of toxins fromindustrial plans

-Accidental release ofhazardous materials

fromwithin the school, such

as gasleaks or laboratory

spills-Hazardous materialsreleasesfrom major highways

orrailroads

-Radiological releasesfrom

- Infectiousdiseases,such as pandemicinfluenza,

extensivelydrug-resistanttuberculosis, -Staphylococcusaureus, and

meningitis- Contaminatedfoodoutbreaks,

includingSalmonella,

botulism,and E. coli

- Toxic materials

- Fire- Active shooters- Criminal threats oractions- Bomb threats- Domesticviolence/abuse

- Suicide- Harassment,Intimidation, or- Bullying/Cyberbullying- Mental Health Issues- Threats based ongenderidentity

- Trafficking / CSEC- Cyber attacks- Gang violence

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OSPI Suicide Prevention-Intervention Efforts

http://www.k12.wa.us/SafetyCenter

Legislative Background

1163 - Anti-HIB Work Group- d. Identify curriculum and best practices for incorporating instruction about

mental health, youth suicide prevention, and prevention of bullying andharassment;

1336 - Troubled Youth in School- Requires that each Washington school district have in place a plan for how it

will handle emotional and behavioral distress, including suicidal thinking,behavior, and threats of violence,

6431 - Implementing Youth Suicide Prevention Activities- OSPI must work with state agency and community partners to assist schools in

implementing youth suicide prevention activities

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OSPI Suicide Prevention-Intervention Efforts

http://www.k12.wa.us/SafetyCenter

Bullying Prevention – Intervention

Saying that bullying directly causes - or is the only cause of - suicide is not helpful and ispotentially harmful.

What we know:- Most kids involved in bullying do NOT engage in suicide-related behavior.

- Bullying behavior and suicide ideation are related.- Youth who report any involvement with bullying behavior are more likely to

report suicide-related behavior.

- Involvement in bullying, along with other risk factors, can increase the chancethat a young person will engage in suicide-related behaviors.

http://www.stopbullying.gov/blog/2013/12/30/bullying-and-suicide-whats-the-connection

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OSPI Suicide Prevention-Intervention Efforts

http://www.k12.wa.us/SafetyCenter

WSSDA Policy & Procedures

- Policy 2145 & Procedures 2145P speak to:

- training opportunities for staff

- using trained district staff

- guidelines for responding to suspicions, concerns or warning signs

- partnerships with community organizations and agencies

- communication procedures

- staff response to a crisis situation involving students in danger of

causing harm

- response & recovery support to students and staff

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OSPI Suicide Prevention-Intervention Efforts

http://www.k12.wa.us/SafetyCenter

Training Opportunities / Target Communities

1336 - Temporary task force of 25 members from several agencies including tribalrepresentatives

Over 60 Networks for Life trainers in Washington, including YSPP staff and ESDtrainees.

Over 300 YSPP trainees from 2/14 to presentYMHFA – DBHR ToT in June 2014; 32 participants; each to do 6 full-day trainings;

6431 - Full time FTE at OSPI focused on Suicide Prevention and related programmingbeginning in 2014.

Ron Hertel [email protected]: curriculum, training and outreach to Pend Oreille, Stevens, Ferry, and

Okanogan counties. (2014-15)University of Washington – Forefront: community development, training and

outreach to Stevens, Okanogan and Island counties (2015-16)

Project AWARE – YMHFA: Battle Ground (ESD 112), Marysville (ESD 189), Shelton (ESD113)

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OSPI Suicide Prevention-Intervention Efforts

http://www.k12.wa.us/SafetyCenter

Youth Suicide Prevention & Intervention

Model Emotional, Behavioral and Suicide Crisis Plan, 2014The attached draft, model Plan will help districts and schools develop their own plans torespond quickly and effectively in a crisis.Preventing Suicide: A Toolkit for High Schools, SAMHSA.The Preventing Suicide: A Toolkit for High Schools from Substance Abuse and MentalHealth Services Administration (SAMHSA)A Journey Toward Health and Hope: Your Handbook for Recovery After aSuicide Attempt.The Handbook guides people toward recovery and a hopeful future after a suicide attempt.Model School District Policy on Suicide Prevention: Model Language,Commentary, and ResourcesThe Trevor Project, in collaboration with the American Foundation for SuicidePrevention, the American School Counselor Association, and the National Association ofSchool Psychologists,To Live To See the Great Day that Dawns: Preventing Suicide by AmericanIndian and Alaska Native Youth and Young Adults.

A guide “to support American Indian and Alaska Native (AI/AN) communities…in developing effective,culturally appropriate suicide prevention plans.”

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