The Year in Review — Reflections on Camp Legal Issues

Catherine Hansen-Stamp and Charles R. Gregg
April 2016

This article will survey certain legal issues that have arisen in camp operations over the past year, as presented to the ACA Camp Crisis Hotline, other inquiries to staff, reported cases, and our experience with our camp clients. 

We are reminded that we are enrolling young men and women who bring to their camp experience medical and other conditions, and attitudes that are novel and challenging. Camp staff — admissions and operations — are called on to address issues ranging from exotic allergies to gender self-identification. Some applicants have been deprived of those life experiences which might have taught them to trust the outdoors. Campers’ young brains are most receptive to adventure and experimentation (the mature, calculating, and strategic brain is a number of years in the future), and that natural inclination requires special handling, even with children who are experienced and comfortable in the camp environment. Camp offers that special expertise, mindful of the value of outdoor adventures, accepting some deficits in campers’ past experiences and commiting to responsible risk management. 

To become a part of the lives of these young people, a camp may have to be open to changes in some of its traditional operating practices and policies. These “new” campers and their families add to the diversity of the camp experience and to the physical and emotional growth of all children who come to the program. They are a resource — not a problem.

The issues discussed below fall roughly into these categories: enrollment (including screening for suitability); operations (including a camp’s legal responsibilities for the health and safety of campers), matters of camper and staff conduct and business considerations. A reminder, as we begin this discussion:  the focus of a well-run camp is the quality of the program, not the avoidance of litigation. Concentration on the latter will leave important matters unattended.

I. Camper Enrollment: 

A. Campers with severe health issues. 
Must a camp accept campers with severe health issues (asthma, diabetes, etc.) if it is not set up to serve these conditions?  Endeavoring to manage the physical, mental, and emotional well-being of campers can be challenging enough in the current culture, tempting some camps to conclude: “we are just not equipped for this kid or this condition.” It may be true that a camp is not comfortable in managing a particular health condition; however, the reality may be that the camp is dealing with a disability protected under the Americans with Disabilities Act (ADA) and companion state laws. The ADA doesn’t spell out every disability, and a camp therefore may not know whether a camper’s health condition is an ADA protected disability. Bottom line, camps and other programs providing outdoor and adventure programming may not (with some exceptions) discriminate against individuals with disabilities and must consider reasonable modifications to programs to provide access. There are limits on the law, but those can be difficult to assess, particularly at the last minute.  

Essential Eligibility Requirements (EEC) — Non-discriminatory identification of physical, cognitive, and other elements of a camp’s activities that focus on risk management and safety issues is an excellent way to provide early and critical information to all participants; This also allows camps to avoid health or medical surprises at the ‘front gate’ and ties into a camp’s medical screening inquiries. See: “Access to Programs: The Value of Developing" 2013, www.campbusiness.com/archives/access-to-programs; also check out “Essential Functions of a Camper: Analysis and Determination” by Tracey C. Gaslin, Ph.D., CRNI, CPNP, FNP-BC for more information. www.ACAcamps.org/resource-library/articles/essential-functions-camper-analysis-determination

Don’t put your head in the sand. The ADA, recently reinforced by Congress to expand its protections and strengthen inclusion for those with disabilities, must be on your radar. Disability or not, health conditions deserve to be handled sensitively and thoughtfully. Decisions to deny access must be well informed, substantiated, and documented. The good news is that the ADA is not set up to fuel litigation, but rather to encourage productive resolution by way of the Justice Department’s no-cost mediation options. See our The CampLine articles: “The Americans With Disabilities Act.  Revisited”; December 2015, www.acacamps.org/resource-library/campline/americans-disabilities-act-revisited; “ADA Title III: Access to Recreation Programs for People with Disabilities— What Does it Mean For Me? (An Update)” January 2006, www.ACAcamps.org/resource-library/articles/ada-title-iii-access-recreation-programs-people-disabilities-%E2%80%94-what-does-it-mean-me-update  

B. Immunizations – can a camp require them for campers and staff?  
Most state laws governing immunizations for public and private school students allow an exemption based upon religious beliefs. A state’s laws may require a state-run camp to provide this exemption. Exemptions are also available under various state child care licensing laws (a licensing that is required of camps in some states). Many private camps’ policies mimic state laws, requiring immunizations but allowing for an opt-out, based upon religious beliefs or other reasons. However, barring some applicable and enforceable state law or regulation requiring a camp to allow exemptions, private camps may, if they choose, require immunizations.  Ask your camp legal counsel to investigate applicable law in your jurisdiction as you develop your policy. See also: “Emerging Issues: Immunizations, Measles, and Other Communicable Diseases”, www.ACAcamps.org/resource-library/campline/emerging-issues-immunizations-measles-other-communicable-diseases.

C. Transgender or other gender nonconforming — must a camp provide access?  
The regulations specifically exclude “homosexuality and bisexuality” from the definition of a ‘physical or mental impairment’ for the purposes of the above definition. In addition, the regulations exclude “gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” from the definition of “disability.” (28 CFR 36.104). According to some commentators, these exclusions extend to transgender or other gender nonconforming individuals.1  

That said, a camp that refuses admittance or reasonable accommodations to a homosexual, transgender, or other gender nonconforming individual may be found to have violated state human rights or anti-discrimination laws. Importantly, if your camp has a statement posted on its website and in its materials professing NOT to discriminate against individuals based upon, among other factors, sexual orientation, your refusal to admit or appropriately accommodate gender nonconforming campers or staff may violate your own policy.  This is a developing issue, and it behooves camps to understand current practices around admitting and serving gender nonconforming individuals in their camp programs, including those governing the individual’s preferences regarding cabin and bathroom use. ACA has excellent resources, including, “Transgender Staff and Anti-Discrimination” by Nick Teich, LCSW, www.ACAcamps.org/resource-library/articles/transgender-staff-anti-discrimination.

D. Medical marijuana — must a camp allow use for campers or staff?  
Notwithstanding many states’ decisions to ‘legalize’ use of marijuana, for either medical or recreational use, marijuana is still an illegal Schedule I controlled substance under Federal law. Although the U.S. Justice Department has declared it will not prosecute, Federal law generally ‘pre-empts’ (overrides) state law on this point. As a result, camps may prohibit marijuana use by campers or staff (whether or not in prescription form) during camp. If your camp chooses to allow marijuana use by campers or staff, consider the risk management issues associated with use, including impairment (an important issue, in the camp world of adventure and recreation activities). A delicate issue in current court litigation is how to deal with staff who claim that marijuana use is needed to treat an ADA protected disability. The ADA does not protect the (current) use of illegal drugs, and camps and other organizations are encouraged or required to provide a ‘Drug Free’ workplace, typically trumping the use ‘card.’ See our Fall 2011 The CampLine article: “Medical Marijuana: Current Issues for Camps”, www.ACAcamps.org/resource-library/articles/medical-marijuana-current-issues-camps. These are evolving issues and worth your close attention.

E. The Camper Agreement. 
Whether a camp operates under a “Terms of Agreement,” a “Camper Parent Contract,” or other form of information exchange with its camper families, it is important that camps address unique issues prominently, including in a camp’s enrollment materials. By way of example, more and more frequently campers are coming from families of divorced parents, where a parent may — typically weeks or days before camp starts — challenge the registering parent’s authority and oppose the child’s enrollment, threatening the camp with litigation if the child is admitted. Camps should not be in the business of interpreting (even with the help of legal counsel) a couple’s divorce decree or shared parenting order.  Putting the enrolling parent on notice of their obligation to proceed with secure authority, and having that parent agree to protect and indemnify the camp if that authority is questioned, can be an effective way to test the signing parent’s confidence in his or her authority at the front end. See our Winter 2014-15 The CampLine article: “Who’s in Charge,” www.ACAcamps.org/resource-library/articles/whos-charge

A prudent camp will also address the issue of a camper’s after-camp contacts with camp staff (via the camp’s website, social media, in person or otherwise) and importantly, the camp’s responsibilities (or not) in those situations (for example, is the camp sponsoring an after camp get together?). In addition, the camp can inform and direct the child/parent regarding, for example, responsible use of the camp’s websites and protecting the reputation of the camp in discussion or images posted on the internet. See our Spring 2012 and 2014 The CampLine articles: “After-Camp Contacts between Campers and Staff: A Problem? Whose?” www.ACAcamps.org/resource-library/articles/after-camp-contacts-between-campers-staff-problem-whose and “Camp Staff Use of Electronic Devices and Social Media: Some Issues and Solutions,” www.ACAcamps.org/resource-library/articles/camp-staff-use-electronic-devices-social-media-some-issues-solutions

A camp may also advise parents regarding the importance of addressing, before camp and with their child, issues regarding potential bullying or sexual (or other) abuse, to empower their child in these situations — perhaps referring the parent to resources on the camp website. The camp can also inform the parents of the steps it is taking to address these issues at camp.

F. The information exchange: the role of adventure, risks and personal responsibility in the camp experience.  
There is an important tension between aggressive marketing and the legal fallout of unfulfilled promises and misrepresentations. Both the law and camp families expect the truth regarding the camp experience, and its possible injuries and surprises. The camp is not and cannot be an insurer of everything that might go wrong, and no responsible camp will guarantee this.  

In spite of this reality, some camps, in their zeal to attract campers, will market without considering how their words may come back to haunt them in the event of a program-related incident or otherwise. Camps want to emphasize those characteristics that mean the most to families, and say what parents and campers most want to hear: that their camp is “the best” and camp is “safe.” Messages that may say otherwise or documents the camp utilizes that present a different message — including those which perhaps release the camp from some liability, or ask the camper and/or parent to acknowledge or assume risks—are considered distasteful. A camp may perceive a neighboring camp achieving success with its message of “safety” and “24/7 supervision.”  

The challenge is to achieve marketing goals, while providing appropriate disclosure and addressing legitimate legal and risk management issues. The tension is real, but there are solutions.

Your marketing messages are a critical part of what we term the “Information Exchange” — the critical flow of information between the camp and prospective camper families. A camp’s effort to inform the public about the nature of the camp experience is a vital part of this exchange. Honesty builds trust.

A camp’s disclosure should be fair, accurate, and provide enough information to educate and prepare the camper and his or her parents for the camp experience. Importantly, the message should provide a balance of information, allowing families to understand the camp’s benefits (what makes it unique and special), but also understand their personal responsibilities, as well as the activities, risks and inconveniences to which the camper may be exposed. (See our Winter 2007 The CampLine article “Marketing Your Camp – Finding the Balance” www.ACAcamps.org/resource-library/articles/marketing-your-camp-%E2%80%93-finding-balance)

The camp’s website or other social media may be the first contact the camp has with the family.  It is the beginning of a relationship that will be sustained through further exchanges of information, and the camp experience — including, unfortunately, the prospect of disappointments. Honesty from the start will hopefully provide a basis for an amicable resolution of disputes later. Misleading the family at the outset is an invitation to later surprises, disappointments, and anger. 

Ultimately, the camp can endeavor to manage risks. It cannot, in a traditional camp experience, eliminate risks or promise safety. Risks and hazards simply come with the camp territory, and neither camp nor camp family should want those risks eliminated, for they are the generators of growth and experience. Parents need to know and understand this as they consider the appropriate camp for their child. 

II.    Operations (including Camp’s Duty of Care - Camper/Staff health and welfare)

A. A camp’s duty of care and its application to operations (and enrollment).
An understanding of a camp’s legal duty of care to campers and their families is important, because the existence of such a duty is the keystone of a claim of negligence. If no duty is owed, there is no liability for an alleged act or omission that might have caused harm to a child. (The other elements of a negligence claim are, as we have described in past articles: 1) a breach of a duty owed, and 2) a loss which is caused by that breach.) 

Negligence claims — real and potential — make up a large part of the inventory of complaints which might be asserted by a family. It is clear that a camp owes a duty of care to its campers and families, in a variety of ways, depending upon the circumstances. Whether a duty exists — and the nature and scope of that duty in a given situation — is ultimately determined by a court, as a matter of law.  Whether that duty was breached is determined by the fact-finder, judge or jury.  

Ultimately, the family delivers control of the child to the camp with a high degree of trust and expectations, relying significantly on the camp’s representations of the camp experience and its willingness to accept the child. At a minimum, the family is entitled to believe that the camp will comply with local, state, and federal laws and if ACA-accredited, will comply with applicable ACA standards. 
 
When camp is in session, a duty of care commonly arises because the camp has chosen to provide these services to the public and implicitly assumed an obligation to protect the child from unreasonable harm. Although a camp’s duty of care to campers is significant, there are limits on the duty owed. For example, the law in many jurisdictions recognizes the concept that a camp does not owe a duty to protect campers from injury resulting from the inherent risks of outdoor or adventure activities, and that a reasonable duty to supervise does not require “constant supervision.” A duty may also be eliminated by a written agreement. And, a camp’s obligations under its duty of care will shift as the activities and relationships within the camp program shift, and may or may not continue after the child leaves the camp (See our The CampLine article: April, 2012 “After Camp Contacts Between Campers and Staff – A Problem? Whose?” www.ACAcamps.org/resource-library/articles/after-camp-contacts-between-campers-staff-problem-whose.  

In the event of an incident, and in a negligence context, the camp’s (and/or its staff member’s) conduct will be measured in this way: did the camp/staff member act as a reasonable camp or staff member would have acted in the same or similar circumstances? The test is reasonableness, not perfection or “best practices.” 

The doctrine of in loco parentis (“in the place of the parent”) calls on a person or organization having a particularly close relationship to a child to use the same “care” as a parent would in dealing with the child. To the extent the doctrine continues to have some currency, it recognizes that the prudent parent understands that adventure and risk are a part of the camp experience, and that things can go wrong.

So, for our analysis of duty: did the camp owe a duty of care to the camper? Frequently, yes.  Did the camp meet that duty? We will know when we — or a jury — apply the “reasonable camp” test described above to the circumstances of the alleged loss. 

Today, the test of reasonableness may have to be applied to enrollment and operations issues that have little or no learning behind them.  The camp community must figure out what does and does not best serve its interests in addressing these new circumstances.  

In addition to the challenging enrollment issues discussed above, consider the following: In mid-2015 a Texas teenager was responsible for a fatal automobile accident while he was under the influence. He received only a probated sentence from a judge who ruled that the young man was raised in an environment of such privilege and advantage that he could not have understood right from wrong. The child’s condition was described in television and print media as “affluenza.”

In a recent Ohio case (Amoako v. Church of the Messiah United Methodist Church, 2015 Ohio App. LEXIS 3732), a camper was killed in what apparently was a game or prank involving experimentation with near-asphyxiation (the “choking game”). 

As we discuss above, requests for accommodation to a camper’s gender identification pose significant challenge to camp management and families, and the dizzying array of social media options expose children to predators frequently beyond the reach of camp management. 
Bottom line: these are not your traditional enrollment and management issues. Medical and psychological circumstances rarely encountered in the past are now, in a sense, “foreseeable.”  Camps reasonably exercising their legal duty of care have the burden of understanding and endeavoring to screen for the existence of these circumstances, and more often than not being prepared to supervise and manage them. 

B. Distributing, administering and carrying camper medications — who at the camp is authorized?  
Camps are faced with a myriad of health care issues including the variety of medications, prescription or otherwise, taken by its minor campers. A licensed physician or nurse hired by the camp will frequently manage and distribute and/or administer these medications at a residential camp.  

However, consider a tripping camp (that has no residential facilities) or a residential camp that provides overnight tripping opportunities for its campers. When out of camp, consider the importance of camp staff (versus the camper) keeping medications in their secure possession – considering the ‘street value’ of certain drugs, and the potential for overuse, trading between campers or other abuse.  State licensing laws or other laws or regulations often identify who at the camp is capable of carrying and/or administering medications in an in camp or out of camp setting. Leaders or other camp staff may be tasked with these duties, under the lawful delegation of authority of a licensed health care provider (physician, nurse or other).  An individual’s ability to take on these duties is often paired with a legal requirement that the individual undertake or already possess required training in the handling or administration of medications. A camp should investigate these issues under applicable state laws.  An excellent overview can be found online, “Medication Management: 13 Common Questions from Camps— And Their Answers,” by Linda Ebner Erceg, RN, MS, PHN, www.ACAcamps.org/resource-library/articles/medication-managment-13-common-questions-camps-%E2%80%94-their-answers

Also, consider the value in working with organizations that pre-package medications sent directly to the 

camp from the pharmacy (versus brought to the camp by the camper parent). Among other convenient services, these outfits pre-package medications in individual doses, offering an excellent option for camps. 

Camps, with varying degrees of oversight, allow off duty camp staff access to camp premises, facilities, and even equipment and animals. This is logical given the unique circumstances of camp employment. Camp staff (particularly at residential camps) typically don’t ‘punch a clock’ and go home, but instead, live on camp premises. As a result, when staff members are off duty, they are certainly moving about the premises. Camps may allow and even encourage staff to ‘get outdoors’ during their off time to take advantage of what the camp has to offer (in fact, staff who enjoy recreating outdoors may see these expected opportunities as a coveted benefit of taking the job).  

If a camp allows staff more than the most limited access to the camp premises during off duty time, consider the legal and risk management issues of doing so. Know that the risks increase if a camp allows staff to invite guests to join them. 

Consider a two-pronged approach to off duty staff access to the camp and its amenities, identifying and managing the risks and associated risk of loss to: 1) staff, their guests and other third party/s, and 2) the camp. See our Fall 2015 The CampLine article: “Off Duty and the Camp is My Playground.(What Could Possibly Go Wrong?)”www.ACAcamps.org/resource-library/campline/duty-camp-my-playground-what-could-go-wrong

III.  Business Issues 

In addition to the care of the camper, a camp has an obligation to take care of itself. Camps are becoming “big business,” in terms of governmental regulation and the need for sound business practices to protect their financial interests. 

Successful camps may hire a full or part-time business manager to assist in their business affairs. In addition they need good professional advice in accounting, law, medicine and insurance. Some camps may find it helpful to seek the counsel of child development specialists and educators, although many smart persons are swimming in the same unfamiliar waters when it comes to today’s youth.

An accountant, in addition to his or her other duties (taxes, banking and other controls), may urge the formation of a limited liability form of business for the camp.  That same expert may suggest that the camp premises and the camp operations have separate ownership, so that operating liabilities will not impact the value of the usually very valuable land on which the camp operates. 

A lawyer will help the camp understand its duty of care to camper families, craft its agreements with vendors, staff and campers, assist with claims, and acquaint the camp with laws and regulations which apply to it.

The camp doctor and nurse will help camp management develop a screening strategy appropriate for the camp’s activities and environment, identify potential medical problems that arise in the enrollment process, and provide medical care and referrals. 

Insurance is a critical component 
of a camp’s “protect the camp” responsibilities. The terms of an insurance policy, including those describing who is covered (volunteers?) and for what (cyber-liability? Sexual abuse and molestation?) can be difficult to understand. An agent whom the camp trusts and importantly, understands, is an indispensable asset. n

*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law as well as considerations regarding their specific business or operation.

Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 
713-982-8415, or e-mail 
rgregg@gregglaw.net
www.rebgregg.com.

Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. She can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney.com; www.hansenstampattorney.com.

Footnotes: 1Barry, Kevin M. (2013) “Disabilityqueer: Federal Disability Rights Protection for Transgender People,” Yale Human  Rights and Development Journal, Vol.  16: Issue 1, Article 1; see:  digitalcommons.law.yale.edu/cgi/viewcontent.