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NSE Handbook

Campus Program

Risk Management

This section is designed to provide information to NSE member institutions regarding potential areas of dispute or risk associated with participation in the National Student Exchange and suggest steps toward managing those risks. It provides information which benefits students and protects universities from legal liability.
 
Risk management is about managing information and how it is provided to outgoing, incoming, and returning students. The primary concern is presenting information which is delivered in a way to be in the best interest of the student. Proper written communication about NSE reduces risks for the participating institutions, addresses expectations and reality for the student, and lessens the time of solving problems and mediating disputes.
The information in this section and the sample forms at NSE.org are for information only and are not to be considered legal advice.
 
21.1 Disclaimers
 
21.1.1 National Student Exchange
National Student Exchange links member colleges and universities to provide students with opportunities for educational exchange with institutions of higher learning in the United States and Canada. NSE does not make warranties of any kind, expressed or implied, regarding NSE program participation, including perceived quality of the experience or services rendered. NSE is not liable to the home institution, host institution, or exchange participants for benefits not provided by either the home or host institutions. National Student Exchange assumes no responsibility and disclaims any liability for any injury, loss, or damage (personal, academic, financial, or other) suffered by students by reason of their participation in this exchange program.
 
21.1.2 Campus
Individual campuses are strongly encouraged to develop disclaimer statements as well as documentation which identifies the responsibilities and potential risks assumed by students when they participate in National Student Exchange.
 
This NSE Handbook section is intended to assist NSE members in identifying areas of potential dispute and/or risk to aid in managing and reducing these incidents.
21.2 Areas of Potential Dispute or Risk
The NSE coordinator is the "informed campus source" for the NSE program, and the campus agent for moving the student from home to host institution. The information that is provided and how it is provided by the coordinator may determine whether exchange is well-received for the student experience, for the coordinator, and for the institution. Coordinators must recognize that student and parental expectations may not match theirs or that of their institution.
Potential risks or areas of dispute associated with participation in the National Student Exchange may include, but are not limited to:
1) maintenance of academic progress, 2) health and safety, 3) discrimination, 4) finances and financial loss, 5) sexual harassment, 6) transportation, 7) drug and alcohol issues, 8) dealing with physical and learning disabilities, 9) difficulties in adapting to different cultural settings, 10) natural disasters, and 11) inherent risks associated with study abroad linkages provided through NSE member colleges and universities. NSE lists these study abroad opportunities as a service to its member institutions as well as to interested students and accepts no responsibility or liability for the quality of the programs listed.
 
21.3 Reducing the Potential for Disputes and Risks
 
21.3.1 The NSE Coordinator as an "Informed Source"
Potential sources of liability for injuries (personal, academic, financial, or other) suffered by students on university programs arise from contract law, statutory requirements (i.e., discrimination statutes), and/or negligence. Written materials and promises made or implied in policy and procedural documents may be seen as enforceable in a court of law. NSE coordinators, acting on behalf of their institutions, are making enforceable commitments as the NSE coordinator, speaking on behalf of the institution, is speaking as an "informed source", a term used in contract law.
 
Information received by students, whether oral or written, from this "informed source" is understood to be an accurate interpretation or explanation of institutional policies, program benefits, and procedures for participation in the National Student Exchange. An "informed source" who gives mostly verbal and little to no written information on the program puts the institution and the coordinator at risk should problems later arise. Clear, concise, and comprehensive written information concerning program participation is essential.
 
NSE coordinators can lessen the potential for disputes as well as their exposure in several ways:
  1. disseminating campus specific NSE policies and procedures for outgoing, incoming, and returning students
  2. distributing NSE publications to interested exchange students
  3. sharing available other NSE informational forms and materials (i.e. NSE.org)
  4. providing information on costs associated with program participation
  5. ensuring that advising agreements are completed prior to departure
  6. utilizing release forms, waivers, and/or hold harmless agreements
  7. developing a good working relationship with campus implementation offices (e.g., admissions, registration, financial aid, accounts payable, residence life, academic affairs)
  8. documenting NSE procedures related to program implementation
21.3.2 Written Materials
Colleges and universities need to be aware of the potential for disputes as well as liability (contractual, statutory, or negligence) when preparing brochures and other documents related to the National Student Exchange. Manage potential disputes and risks related to exchange by noting the following in exchange communications
  1. document policies, procedures, and responsibilities for exchange participation
  2. clear and definitive statements of the inherent risks and costs associated with exchange
  3. definitive expectations for performance and behavior
  4. utilization of appropriate disclaimers, releases, and hold harmless clauses
  5. inclusion of a statement in the front piece of materials indicating that the materials are informative in nature and do not constitute a contract
  6. elimination of unclear exchange language
Careful definition of program expectations, policies, and procedures will manage the potential for dispute or risk. Effective written communication should serve to manage both expectations and risks in the process.
 
Samples of campus specific policies and procedures are available from the NSE Headquarters. NSE staff are willing to review and critique campus developed exchange materials and publications, but are not able to certify that materials meet the legal requirements of the institution or state. Coordinators must consult with home campus legal counsel to determine the adequacy of their materials in regard to their own institutional and state requirements.
 
21.3.3 Orientation for Incoming Students
A group orientation should be held prior to the first day of classes. During the orientation, the coordinator should familiarize students with the host institution academic regulations and standards, financial obligations, payment policies, student code of conduct, and NSE policies governing their stay. Coordinators are responsible for ensuring that students have been properly informed, in writing, of their responsibilities as well as their rights. Information on institutional rules and regulations is usually found in catalogs, schedule of classes, and student and residence hall handbooks. Verbal information should be reinforced by clear and concise written documentation. Orientation should also include information which might be specific to the campus or the area dealing with such issues as cultural differences, health and safety issues, and disaster preparedness (e.g., areas in which hurricanes, typhoons, tornadoes, or floods are prevalent).
 
21.3.4 Legal Audit
Coordinators should annually review their own policies, procedures, forms, publications, and other materials related to the NSE program on their campus. They should also request that their institutional legal staff review all materials related to the NSE program. A request should be made for a definitive statement on whether or not the materials, in whole or in part, are acceptable. Use of such legal audits ensures that written publications used in support of the NSE campus program are reviewed for content and accuracy within the framework of the institution requirements. These reviews help develop proactive relationships with institutional counsel and place responsibility for the final approval process with the campus legal staff and not the NSE coordinator.
 
21.4 Shifting the Risk: Utilizing Releases, Waivers, and/or Hold Harmless Agreements
Liability is lessened where the student has signed a form in which the risks associated with exchange are accepted, and the student agrees to waive, or give up, the legal right to sue the college or the university. Such forms are called waivers and form a contract between the student and the institution. Waivers range from simple statements that the student assumes the risk, to complex legal documents in which the student agrees to hold the institution and/or the program harmless thereby giving up the legal right to sue even where the institution may have been negligent.
 
21.4.1 National Student Exchange
All students participating in the National Student Exchange complete and sign a Placement Acceptance Form. From a risk management perspective, signing the Placement Acceptance Form means the student agrees to hold NSE harmless for any injury, loss, damage, or expense (personal, academic, financial, or other) suffered by the student by reason of participation in the National Student Exchange. Failure to sign the form cancels the placement. Note that while the Placement Acceptance Form serves to hold NSE harmless, it provides no such protection for the campus. Refer to Section 21.4.2.
 
The Placement Acceptance Form identifies the host campus, exchange duration, and tuition plan for exchange and provides additional information about the student to the host coordinator prior to arrival on campus. The form invites students to disclose any physical challenges or learning disabilities to the host campus for the purpose of assistance and reasonable accommodation.
 
The Placement Acceptance Form also serves as an opportunity for the student to review the conditions for exchange prior to making the final commitment to participate. These conditions are articulated in greater detail at NSE.org. Conditions govern student responsibility as it relates to timely completion of forms, maintenance of eligibility, period of exchange, course approval and access, payment of tuition and other fees, transcripts, health insurance, medical matters, personal health and safety, and rules and regulations. In signing this form, the student agrees that information may be released between home and host institutions throughout the exchange process.
 
21.4.2 Campus
While the NSE Placement Acceptance Form serves as a waiver as it relates to NSE as an organization, it cannot, due to state statutes and institutional policies, provide a waiver of any responsibility as it relates to the campus. Therefore, NSE strongly encourages its member institutions to develop and use release forms, waivers, and/or hold harmless agreements that have been developed by, and specifically designed for, their own campus as a means of managing potential areas of dispute or risk as well as limiting exposure to liability. Each of these devices forms a contractual agreement between the institution and the exchange student that may absolve the institution from liability for any losses.
Courts impose very strict standards in interpreting release clauses. Therefore, the following elements are essential to their development:
  1. The release should be drafted by the university attorney.
  2. The release should address the individual characteristics of the university and its exchange program.
  3. The tone of the release must be user friendly, in simple language which is understandable by a lay person.
  4. Clauses must be as specific as possible in describing the requirements, responsibilities, and risks assumed by the program participants.
  5. The release should require that all lawsuits claiming damages from NSE participation should be brought in the university home state and settled in accordance with the laws in that state.
  6. The release should contain a statement that the student has read the release and understands its contents.
  7. If under legal age, the participant and/or parent or legal guardian signature should appear under a statement that he/she has read the release and understands its contents.
21.5 Sample Forms
Sample forms provided at NSE.org are generic in nature and include the elements described above as well as c areas for potential dispute or risk which might be associated with NSE program participation. Campus developed release forms, waivers, and/or hold harmless agreements should be used in addition to, not as a replacement for, campus specific policies and procedures for NSE program participation. Because risk management is an issue that varies with states and agencies within the states, any forms utilized by the campus to minimize risk associated with NSE participation must be reviewed and approved by campus legal counsel.