Bradley York Quoted in Independent Agent Magazine

“Public entities should plan for an evolving landscape in terms of higher rates, shrinking capacity and potentially increased liabilities,” says Bradley York, president of OneBeacon Government Risks. “We are truly in a new environment.”

Public Entities: Planning for an Evolving Landscape

As social inflation, pressure on pricing, capacity and the coronavirus pandemic turn up the heat on the public entity insurance market, many of the existing troubling trends, such as cyber liability, the growth of technology and the waning economy continue to leave insurance professionals scratching their heads when trying to find solutions for clients.

“Public entities should plan for an evolving landscape in terms of higher rates, shrinking capacity and potentially increased liabilities,” says Bradley York, president of OneBeacon Government Risks. “We are truly in a new environment.”

During the coronavirus pandemic, cybercrime skyrocketed. A month into the pandemic, the FBI reported that it was receiving between 3,000 and 4,000 cybersecurity complaints each day, a major jump from prior to the pandemic when about 1,000 complaints were received daily.

To read the story in its entirety, visit Independent Agent.

Considerations for a Fireworks Show Amid COVID-19

Amid the COVID-19 pandemic, many cities across the country have canceled or postponed their 4th of July celebrations including the traditional fireworks display. But with so many activities and events cancelled in 2020, some cities have decided maintaining their fireworks show is a tradition too important to forego. Working through the logistics of keeping spectators safe and socially distanced, however, is a new challenge. Some cities are promoting drive-in events with parking lot recommendations for good viewing while others are hosting neighborhood-based events which allow the community to remain in their own backyard.

Although attendance at this year’s fireworks celebrations will be different from past years, one thing remains a constant for a public entity – the liability that comes with hosting a fireworks display. The following are considerations for planning and contracting with a vendor for a fireworks show. All government entities should develop controls that will fit their specific needs.

Guidelines and procedures by which fireworks may be safely displayed and/or discharged upon an entity’s property. These polices should comply with applicable federal, state, and local laws, rules and regulations as well.

Establish who within your entity will have the authority to oversee and control the use of fireworks displays.

The polices that your government entity develops should comply with all local, state, and federal laws and state that local, state, or federal government shall have the sole authority to suspend or terminate fireworks shows/displays any time upon their own discretion and/or upon the advice of the operator, the producer of the event.

The fireworks company/operator shall supply the fireworks, tools and equipment for shipping and receiving, on-site storage, and the necessary number of qualified personnel needed to set up, fire the display and thoroughly clear the entire area of fireworks debris at the conclusion of the event.

The operators shall be licensed and approved in accordance with any and all applicable state, federal, county, parish, or municipal laws.

The sponsor of the event or the contractor shall furnish a certificate of liability insurance in the amount of at least $1,000,000 naming the government entity as an additional insured. They shall provide a hold harmless agreement in favor of the government entity. This is to satisfy claims for damages to property or personal injuries arising out of any act or omission on the part of such person, firm or corporation or any agent or employee thereof with an occurrence.

Jail is No Place to Get Sick

Throughout the United States, there over 3,200 local and county jails housing more than 700,000 inmates. Providing adequate medical care to the inmate population is challenging to say the least which has led to many states contracting out their jail healthcare to private companies. Unfortunately many of the leading jail healthcare vendors have been on the receiving end of hundreds of lawsuits, some with multi-million dollar judgments.

Increased exposure to liability and significant medical costs indicate a current healthcare crisis in jails yet public entities remain challenged with controlling costs without jeopardizing the quality of medical services. Taking a proactive approach to establishing strong management and oversight of jail healthcare is necessary to reduce complaints, claims, and overall liability to your public entity.

Jail Inmates Have Complicated Healthcare Needs

Caring for the pre-existing conditions of jail inmates is a major contributor to the high cost of jail healthcare. Jail inmates tend to have high rates of chronic illness, substance abuse, and mental health conditions. According to data published by the journal American Family Physician, 26.3 percent of jail inmates presented with hypertension, 63.3 percent with drug dependence or abuse, and 44.3 percent with a history of mental health issues. It’s common for inmates to have multiple pre-existing conditions when they arrive at the jail. It is important to accurately identify, acknowledge and treat these issues. Some courts say that jails need to go so far as to treat the inmate’s conditions regardless of whether the inmate sought prior treatment or not. Once again, your legal council’s advice here is necessary.

Budget Decisions Can Impact Liability and Service Quality

A recent study conducted by The Pew Charitable Trusts provided several insights into the jail healthcare crisis. Decisions made for budgetary reasons can increase exposure to liability and have a tremendous impact on the quality of medical care. One example that can have various negative outcomes is the common practice of not budgeting to staff a jail with healthcare personnel around the clock.

Since jails book new inmates at all hours, some inmates are not screened by trained medical personnel when they arrive. It’s easy for correctional staff, who usually do not have medical training, to miss that a new inmate needs medical treatment or has symptoms of a communicable disease. If the inmate or someone the inmate comes in contact with experiences a negative health outcome due to the delayed medical screening, a claim or even a lawsuit could result.

Not having medical care on-site has resulted in unnecessary expenses. When correctional staff cannot reach medical staff for advice about an inmate’s condition, their next step is to have the inmate taken to the hospital for an expensive emergency room visit.

Improper Management of Private Providers Can Aggravate the Crisis

Many public entities have a contract with a private company that provides jail healthcare. It’s important that public entities involve the entity’s legal counsel in the creation of these contracts. Otherwise, the public entity may later find it disagrees with the private provider’s interpretation of the company’s responsibilities.

It’s also critical to ensure Request For Proposals (RFPs) are detailed enough for contractors to create adequate proposals. Although such diligence may seem obvious, the aforementioned Pew Charitable Trusts study found critical omissions in the RFPs related to jail healthcare. A sample of their findings follows:

  • Many RFPs did not include any utilization data.
  • 70 of the 81 RFPs they reviewed did not request medication-assisted treatment, an evidence-based protocol for treating substance abuse.
  • Most RFPs didn’t include performance requirements.

When contracts have performance requirements, failure to meet them can have serious consequences for the health of inmates as well as legal action against the public entity. Also, it’s important to acknowledge contracts with performance requirements that carry financial incentives or penalties are meaningless if the public entity does not assign anyone to monitor the third-party provider’s performance.

Public sentiment toward the healthcare system in jails may never change; however, public entities can certainly work to develop stronger partnerships with medical providers helping to support continued care for their inmate population.

ADA Compliance? It Goes for your Public Entity Website & Mobile App Too

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination in “places of public accommodation” which historically has included restaurants, theaters, retail stores and more. However, a recent ruling by the 9th Circuit Court of Appeals in San Francisco held in its decision that the ADA applies also to a company’s website and mobile app.

An increasing number of website lawsuits—2,285 in 2018—is cause for action. Within a public entity, poor online accessibility can make it hard for the disabled to apply for benefits, renew library books, register to vote, etc. An accessible website also benefits other users, as it encourages simple designs that work well on all devices and makes it easier for people to find the information they need. The Web Content Accessibility Guidelines give us some hints as to the likely coming legislation that websites will be required follow. You can find a simpler format here.

Being fully compliant is time consuming but there are few easy (and important) changes you can start to make now:

  1. Provide alternative text for all pictures. Infographics should have a full caption. Proper alt text is invisible to sighted visitors but picked up by screen readers. Show full captions beneath the image.
  2. Ensure all links in text stand out from the normal text by using at least two markups.
  3. Keep a consistent layout through the site.
  4. Provide proper captioning of any videos on the site. If you use YouTube, they have an easy way to add closed captions. Text transcripts are also vital, although they can take a little longer to input.
  5. Remove any automatic video or audio (besides affecting accessibility, this can annoy regular users).
  6. Provide a search function on the homepage.
  7. No pop-ups unless they are there to assist users. Pop-ups can mess with screen readers.
  8. Do not use color alone to convey meaning.
  9. Use proper nested headings within the text.

The Section 508 Standards are what Federal agencies use, and there is a useful guide here. Section 508 provides tutorials and recommendations for products that can help with accessibility. One of the most important things you can do is be consistent through your site and avoid frequent changes. Similar pages should look and feel the same. This also makes for a clean website your users will appreciate. Don’t rely on automatic checkers, which find only a small number of the problems. Instead, have manual tests, which should include:

  1.  Navigating the website using a screen reader.
  2. Navigating the website without using a mouse.
  3. Checking for alternatives to all content, such as alt text for pictures, transcripts for videos, etc.

If users don’t find your site accessible, they are likely to complain. If you are lucky, they will only complain to you. If you receive an accessibility complaint, it’s best to address it as soon as possible considering the high expense of a potential lawsuit. A website audit can help find problems, but it will not fix them. And the ADA is a strict liability law, which means you won’t be able to use any arguments other than compliance. The only way to get out of an ADA lawsuit is to fix the problem immediately.

Conclusion

More than 4 million disabled persons have never used the Internet due to either accessibility frustrations or lack of trying. Either way, ensuring your public entity website meets ADA standards is good business practice and will benefit people in the communities you serve.

5 Actionable Tips on Emergency Preparedness for your Public Entity

Mother Nature is unpredictable, and whenever a disaster strikes, critical public infrastructure is at risk. Public learning establishments, libraries, recreational areas, local government buildings, water and power utilities that host administrative departments in townships and states will have their normal activities disrupted.

Every year, an average of 15 disasters occur in various locations in the US. The total cost of these calamities just last year was approximately $91 billion. Whether it is a natural disaster or emergency challenges from incidents like terrorism, emergency preparedness is critical. It helps in mitigating the risk of such disasters that, unfortunately, are not covered by insurance policies.

Although previous disasters like Hurricane Harvey caused immense disruptions and damage, very few public entities and businesses have adopted sufficiently detailed disaster recovery, and mitigation plans to help alleviate anticipated losses.

Steps to Ensure Emergency Preparedness

Here are the actionable steps that you can undertake to ensure prompt response and mitigation of emergency scenarios.

1. Create an emergency preparedness team.

Constituting a team of emergency responders once a disaster has already begun may be too late to implement any quick fixes or apply prevention details. A public institution of any level should establish groups of well-trained personnel to execute disaster preparedness plans and respond to emergencies.

The team should oversee the implementation of policies and standard procedures that should inform the model of communication between the staff and the allocation of responsibilities that each member should serve. The preparedness team should also advise and coordinate the evacuation efforts and sourcing of survival kit and supplies that are necessary during an emergency event.

2. Develop a disaster plan.

Having a plan in place to respond to an emergency event ensures rescue efforts are conducted and recovery is realized on time. Plans should detail the extent of flexibility there is in acquiring needed assistance, materials, equipment and supplies. One of the proven ways to safeguard against unforeseeable damages of public entities is proper insurance coverage. Consider the loss that tremors can have on bridges and public roads. Cyber criminals could also unleash attacks against your network or website. As a solution, the appropriate insurance policy can better protect public utilities from financial loss that could hinder the recovery.

Depending on the location of your entity, developing a comprehensive list of disasters prevalent in your area is recommended. Each of these should carry a level of risk based on the factual data. This primarily offers valuable insights when creating a logical emergency preparedness plan.

The plan should address how critical files and data can be recovered if they get damaged or lost in the process. Cloud-based data storage could be adopted as a strategy to back up information that will come in handy during rebuilding and recovery efforts.

3. Train your staff.

How employees respond to an emergency scenario determines their overall safety. A workplace should have a safety checklist that is known to all staff. The relevant departments should teach the standard practices on hazardous risks, technical instructions on how to respond to an emergency event, and precautions to observe to ensure the safety of employees and citizens. Being part of a risk-mitigation strategy, the training should be performed and reviewed occasionally to keep abreast of changing emergency risks.

4. Practice, practice, practice!

Training for an emergency is not enough to guarantee the safety of residents and reduce damages on public entities. Frequent drills are recommended to ensure all the individuals exposed to disaster risks are prepared at all times. Regular practice acts as a way to test the level of emergency preparedness among employees and the effectiveness of emergency mitigation and response strategies.

Every county has an Emergency Management Coordinator and many times, an entire department, dedicated to education, pre-planning and conducting exercises in preparation for these large unexpected events. Be sure to utilize this valuable resource that may be able to assist you in pre-planning as well as during an emergency event.

5. Always monitor for threats.

Thanks to modern technology, public entity risk managers have advanced tools on their hands. They can accurately identify and predict the magnitude and time of anticipated disasters. With real-time data and information, emergency response teams can make informed decisions on the appropriate steps in case of an emergency.

You can also rely on organizations tasked with disseminating current weather patterns based on satellite imagery, drones, or spatial analysis from GIS. Furthermore, social media can be reliable, offering real-time emergency updates and warnings.

With these tips, you can forestall losses from an unforeseeable future disaster and minimize damages or injuries in your public institution.