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How Can an Attorney Help Your Nonprofit Update Policies to Avoid Future Adult Survivors Act Claims?
Contents
Introduction
The recent passage of the Adult Survivors Act in New York has significant implications for nonprofits in the state. This law creates a one-year lookback window for adult survivors of sexual abuse to pursue civil claims against their abusers and negligent institutions, regardless of how long ago the abuse occurred.
While the intent behind this law is noble – to provide justice for victims – it does create potential legal exposure for nonprofits. Organizations that serve vulnerable populations, like children, the disabled and the elderly, are at particular risk of facing lawsuits over past abuse.
To mitigate this risk, New York nonprofits would be wise to review their policies and procedures with the guidance of a nonprofit attorney. Doing so can help identify areas of potential liability and allow the organization to update practices to avoid accusations of negligence.
Conduct an Internal Audit
The first step an attorney can guide a nonprofit through is a comprehensive internal audit looking at past and present policies for any potential compliance gaps. Key areas to review include:
Screening and background check procedures for staff and volunteers
Code of conduct expectations and enforcement
Staff training requirements on abuse prevention and mandatory reporting
Safety protocols for one-on-one interactions between staff and clients
Procedures for intake, supervision and monitoring of programs
Mechanisms for clients to safely report concerning behaviors
Record-keeping policies and document retention schedules
Wherever current practices fall short, the attorney can recommend changes to strengthen policies and limit liability.
Review Insurance Coverage
It’s also critical to review insurance policies with counsel to understand the extent of coverage in the event of an Adult Survivors Act claim. Key considerations include:
Do current policies cover abuse and molestation claims?
What is the amount of coverage per claim/in aggregate? Is it sufficient?
Are there any exclusions that would preclude coverage?
Does the insurer have a duty to defend against claims?
How much is the deductible per claim?
Depending on this analysis, the attorney may advise adjusting coverage by increasing policy limits, adding endorsements, or changing carriers altogether.
Create a Response Plan
With the one-year lookback window now open, organizations should also work with counsel to create a response plan for any potential claims. This includes:
Designating an internal team to direct the response
Crafting a communications strategy in the event of public allegations
Developing policies for record gathering, document holds and evidence preservation
Outlining the investigation process if a claim arises
Reviewing how attorney-client privilege applies
Having protocols in place can allow for a more organized, effective response if an organization finds itself accused of past negligence.
Update Employee Handbooks
As policies are revised, attorney guidance can also help update employee handbooks to reflect changes. Handbooks should provide clear guidelines to staff on:
Mandatory reporting requirements
Appropriate vs inappropriate conduct
Interactions with vulnerable populations
Use of technology and social media
Document retention schedules
Non-retaliation for reporting concerns
Clear handbook policies are critical for enforcing new expectations.
Ongoing Training
Finally, working with counsel to implement ongoing staff training on updated policies is key to avoiding future claims. Training should occur at onboarding and repeated annually to ensure compliance. Attorneys can provide guidance on training content and help identify risk areas to address.
By taking these proactive steps with the help of a qualified nonprofit attorney, organizations can best position themselves to avoid liability in the new legal landscape created by the Adult Survivors Act. Reviewing policies, procedures and insurance coverage through the lens of potential negligence can help nonprofits close gaps and enact standards that protect both clients and the organization itself.