6 CAR pt. 195 | 6 CAR Part 195 — Rules Governing the School Worker Defense Program and the School Worker Defense Program Advisory Board

Chapter I

Subchapter G

Subpart 1

6 CAR § 195-101 Purpose {#sec-6-car-195-101 omnilex-key=us-ar-regs-official--title-6-part-195--6 CAR § 195-101}

6 CAR § 195-101. Purpose.

The purpose of this part is to establish the requirements and procedures concerning the:

(1) School Worker Defense Program; and

(2) School Worker Defense Program Advisory Board.

6 CAR § 195-102 Definitions {#sec-6-car-195-102 omnilex-key=us-ar-regs-official--title-6-part-195--6 CAR § 195-102}

6 CAR § 195-102. Definitions.

As used in this part:

(1) “Authorized volunteers” and “volunteers in a registered volunteers program” means those who meet the definition of “volunteer” and “registered volunteer” pursuant to the Arkansas Registered Volunteers Program Act, Arkansas Code § 6-22-101 et seq.;

(2)(A) “Backup documentation” means documentation included to justify the amount invoiced.

(B) Examples may include:

(i) Timesheets;

(ii) Receipts; and

(iii) Supplier invoices;

(3)(A) “Costs” means:

(i) Court filing fees;

(ii) Photocopying costs;

(iii) Mailing and postage fees;

(iv) Service of process fees;

(v) Transcript request fees;

(vi) Expert testimony; and

(vii) Reasonable mileage for court appearances and depositions.

(B) Mileage reimbursement is based on the current rate set by the Department of Finance and Administration;

(4) “Covered person” or “covered entity” means those individuals and entities listed in 6 CAR § 195-104(a); and

(5) “Official duties” means those duties legitimately related to the carrying out of an individual’s position listed in 6 CAR § 195-104(a).

6 CAR § 195-103 School Worker Defense Program Advisory Board {#sec-6-car-195-103 omnilex-key=us-ar-regs-official--title-6-part-195--6 CAR § 195-103}

6 CAR § 195-103. School Worker Defense Program Advisory Board.

(a)(1) The School Worker Defense Program Advisory Board is composed of the following seven (7) members:

(A) The Executive Director of the Arkansas Association of Educational Administrators or his or her designee;

(B) The Executive Director of the Arkansas Rural Ed Association or his or her designee;

(D) The Executive Director of the Arkansas Education Association or his or her designee;

(E) The designee of the Attorney General;

(F) The Secretary of the Department of Finance and Administration or his or her designee; and

(G) The Commissioner of Elementary and Secondary Education or his or her designee.

(2) No employee of the Division of Elementary and Secondary Education who is charged with administering the School Worker Defense Program shall be eligible to serve as the designee of the commissioner.

(b) Members of the advisory board shall biannually elect a chair, a vice chair, and a secretary from the membership of the advisory board, whose duties shall be those customarily exercised by those officers or specifically designated by the advisory board.

(c) The advisory board shall meet within the State of Arkansas and may meet as often as it deems necessary for the purpose of carrying out its duties as listed in Arkansas Code § 6-17-1118 and this part.

(d) A majority of the members of the advisory board shall constitute a quorum for the purpose of a meeting.

(e) The advisory board shall have final authority to hear and adjudicate any appeal filed by a school worker for protection against liability pursuant to Arkansas Code § 6-17-1113 and this part.

(f) In an emergency situation, the chair of the advisory board may approve payment of a claim without a meeting of the advisory board.

(g) The division shall provide support staff for the advisory board.

6 CAR § 195-104 School Worker Defense Program {#sec-6-car-195-104 omnilex-key=us-ar-regs-official--title-6-part-195--6 CAR § 195-104}

6 CAR § 195-104. School Worker Defense Program.

(a) The School Worker Defense Program is established for the protection of:

(1) Education service cooperatives;

(2) Education service cooperative board members;

(3) Public school districts;

(4) Public charter schools;

(5) Public school board members;

(6) Public school treasurers and bookkeepers;

(7) Public school nurses;

(8) Public school secretaries;

(9) Public school substitute teachers;

(10) Authorized volunteers;

(11) Volunteers in a registered volunteers program;

(12) Public school custodians;

(13) Food service workers employed by public schools;

(14) Bus drivers and mechanics employed by public schools;

(15) Maintenance personnel employed by public schools;

(16) Each employee of the following who is required to hold an educator license issued by the Division of Elementary and Secondary Education:

(A) A public school district;

(B) The Arkansas School for Mathematics, Sciences, and the Arts; and

(17) A public charter school teacher;

(18) Each teacher’s aide and each student teacher in:

(A) A public school district;

(B) A public charter school;

(D) The Arkansas School for the Deaf and Blind; and

(19) Each member of the dormitory staff of the:

(A) Arkansas School for Mathematics, Sciences, and the Arts; and

(B) Arkansas School for the Deaf and Blind.

(b)(1) The School Worker Defense Program is authorized, subject to governmental or statutory immunity and any exclusions or rules set forth herein, to protect any of the entities and individuals listed in subsection (a) of this section against civil liability, attorney’s fees, and costs of defense for acts or omissions of each employee, authorized volunteer, or volunteer in a registered volunteers program in the performance of his or her duties as a school volunteer or his or her official duties as a school employee, including civil liability for administering corporal punishment to students, in the amount of:

(A) Two hundred fifty thousand dollars ($250,000) for incidents that occurred prior to July 1, 1999; and

(B) One hundred fifty thousand dollars ($150,000) for each incident that occurs after June 30, 1999.

(2) An employee or volunteer who administers corporal punishment to a child who is intellectually disabled, nonambulatory, nonverbal, or autistic is not subject to the protection against:

(A) Civil liability;

(B) Attorney’s fees; and

(c) The School Worker Defense Program is further authorized to provide limited financial reimbursement not to exceed five thousand dollars ($5,000) for attorney’s fees and costs for the defense of criminal charges if the covered person listed in subsection (a) of this section is exonerated by a court of law or if all charges are subsequently withdrawn or dismissed unless:

(1) Withdrawal or dismissal of the criminal charges is conditioned upon termination of employment or surrender of a professional license; or

(2) The covered person enters a plea of guilty or nolo contendere to the criminal charges.

(d)(1) The School Worker Defense Program Advisory Board may authorize reimbursement under subsection (c) of this section in excess of five thousand dollars ($5,000) in matters that the School Worker Defense Program Advisory Board finds to require extraordinary attorney’s fees and costs.

(2) Such authorization may be made at the sole discretion of the School Worker Defense Program Advisory Board if such authorization is sufficiently justified in writing by the covered person or entity as set forth in 6 CAR § 195-106(a)(3)(D).

(e) The cost of the School Worker Defense Program shall be paid annually out of funds in the Public School Fund that are designated for that specific purpose.

(f) The School Worker Defense Program shall not pay any costs associated with the administration of the School Worker Defense Program if:

(1) No funds are designated in the Public School Fund for the purpose of administering the School Worker Defense Program; or

(2) All designated funds have been depleted through the payment of claims through the School Worker Defense Program.

(g) Any school districts previously covered by or moneys expended pursuant to the self-insurance program of the division or the School Worker Defense Program shall be deemed a proper expenditure of state funds as set forth in Arkansas Code § 6-17-1113(c) as that statutory subsection existed on July 1, 2011.

(h) The establishment of the School Worker Defense Program, the approval of this part, the investigation of any incident, the payment of any claim, or the defense of any covered person or entity by the School Worker Defense Program does not waive or forfeit any immunity or authorization to provide for hearing and settling claims extended to educational entities and their personnel by the laws of the State of Arkansas.

6 CAR § 195-105 Administration of the School Worker Defense Program {#sec-6-car-195-105 omnilex-key=us-ar-regs-official--title-6-part-195--6 CAR § 195-105}

6 CAR § 195-105. Administration of the School Worker Defense Program.

(a) The School Worker Defense Program shall be a part of and administered by the Division of Elementary and Secondary Education.

(b) The Commissioner of Elementary and Secondary Education may appoint a division Administrator (Program Administrator) who will administer the program.

(d) The Program Administrator will determine whether requests for protection, coverage, reimbursement, or payment meet the requirements of Arkansas Code § 6-17-1113 and this part.

(e) Any person entitled to protection under the program may appeal the decision of the Program Administrator to the School Worker Defense Program Advisory Board.

6 CAR § 195-106 Procedures for filing a claim {#sec-6-car-195-106 omnilex-key=us-ar-regs-official--title-6-part-195--6 CAR § 195-106}

6 CAR § 195-106. Procedures for filing a claim.

(a)(1) Any person entitled to protection under 6 CAR § 195-104(a) shall submit a notice of claim to the Program Administrator.

(2) The notice of claim shall be sent by certified mail, return receipt requested, to:

School Worker Defense Program

ATTN: Program Administrator

Division of Elementary and Secondary Education

Four Capitol Mall

Little Rock, Arkansas 72201

(3) The notice of claim shall include the following information:

(A) The name, address, telephone number, and position of the entity or individual covered under 6 CAR § 195-104(a);

(B) If the claim is filed pursuant to 6 CAR § 195-104(b):

(i) A copy of the summons and complaint; and

(ii) An explanation of how the acts and omissions of the employee or volunteer in question were in the performance of his or her official duties;

(C) If the claim is filed pursuant to 6 CAR § 195-104(c) or § 195-104(d), a copy of relevant court documents indicating the withdrawal, dismissal, or acquittal of criminal charges;

(D) If the claim is filed pursuant to 6 CAR § 195-104(d), an explanation of the reasons why extraordinary attorney’s fees and costs are appropriate;

(E)(i) A description of the nature of each insurance policy that may provide coverage for the claim.

(ii) This description shall include, but not be limited to, coverage limits under each policy; and

(F) The name, address, and telephone number of the attorney who will represent the covered entity or person in the matter or a request for an attorney to be appointed by the School Worker Defense Program.

(4) Notice of any claim must be given to the program within thirty (30) days of a covered person or entity having knowledge of a civil or criminal action being filed or having reason to believe that a claim under the program will be made, whichever is later.

(5) Once notice has been received by the covered person or entity as to the formal filing of charges or complaints, immediate notice shall be given to the program along with copies of any summons and complaints.

(b)(1) For requests for payment or reimbursement, the covered individual or entity shall provide an itemized invoice along with backup documentation and any information required by the Division of Elementary and Secondary Education to substantiate the amounts listed in the invoice.

(2)(A) Invoices and backup documentation shall be submitted by the covered individual or entity quarterly (every three (3) months).

(B) Invoices that are not submitted on a timely basis may not be paid by the program.

(3) To be submitted on a timely basis, any request for payment of an expense or reimbursement, other than attorney's fees paid pursuant to 6 CAR § 195-104(c) and § 195-104(d), must be received by the Program Administrator within three (3) months of the date the expense was incurred by or known to the covered entity or person or attorney.

(4)(A) For invoices requesting the payment of attorney’s fees, the program may reimburse the covered individual or entity for attorney’s fees up to one hundred dollars ($100) per hour.

(B) The payment of fees in excess of one hundred dollars ($100) per hour is the responsibility of the covered individual or entity.

(c) The Program Administrator shall make an initial determination of whether the request for protection, coverage, reimbursement, or payment meets the requirements of Arkansas Code § 6-17-1113 and this part.

(d)(1) The Program Administrator shall notify the individual or entity making the claim or request for reimbursement and/or payment of the initial determination, in writing, within ten (10) days of receipt of the notice of claim or request for reimbursement and/or payment, subject to the provision of subsection (e) of this section.

(2) If the Program Administrator denies a claim, the Program Administrator shall provide in writing the reasons for the denial.

(e)(1) The Program Administrator may request additional information before making an initial determination.

(2) If additional information is needed for a proper determination, and if the Program Administrator gives timely notice of the request to the individual or entity making the claim, the Program Administrator may approve or disapprove the request for protection, coverage, reimbursement, or payment within ten (10) days of receipt of the additional information.

6 CAR § 195-107 Procedures for filing an appeal with the School Worker Defense Program Advisory Board {#sec-6-car-195-107 omnilex-key=us-ar-regs-official--title-6-part-195--6 CAR § 195-107}

6 CAR § 195-107. Procedures for filing an appeal with the School Worker Defense Program Advisory Board.

(a) The individual or entity filing the claim may appeal the initial determination of the Program Administrator by filing a written notice of appeal with the School Worker Defense Program Advisory Board within twenty (20) days of receipt of the initial determination.

(b) The written notice of appeal shall be sent certified mail, return receipt requested, to:

School Worker Defense Program Advisory Board

ATTN: Program Administrator (APPEAL)

Division of Elementary and Secondary Education

Four Capitol Mall

Little Rock, Arkansas 72201

(c)(1) The written notice of appeal shall include a detailed explanation of:

(A) How the request for protection, coverage, reimbursement, or payment meets the requirements of Arkansas Code § 6-17-1113 and this part; and

(B) Whether the appealing party wishes to appear in person at the meeting during which the advisory board will review the appeal.

(2) If the appealing party does not wish to appear in person at the meeting during which the appeal will be heard, the advisory board may determine whether to grant or deny the appeal based upon the written materials provided by the appealing party and the Program Administrator.

(d) The advisory board shall schedule a meeting to review the appeal as soon as practicable, but no later than thirty (30) days from the date of receipt of the notice of appeal by the School Worker Defense Program.

(e) The Program Administrator shall notify the appealing party in writing of the date, time, and location of the meeting during which the advisory board will review the appeal.

(f) If the appealing party appears at the meeting during which the appeal is heard, the following procedures shall apply:

(1)(A) The Program Administrator shall provide an introduction of the matter and present the reasons supporting the Program Administrator’s initial determination.

(B) The presentation of the Program Administrator shall be limited to fifteen (15) minutes;

(2) The appealing party or the appealing party’s representative may provide a presentation of up to fifteen (15) minutes explaining how the appealing party’s request for protection, coverage, reimbursement, or payment meets the requirements of Arkansas Code § 6-17-1113 and this part;

(3) The chair of the advisory board may, for good cause, allow the Program Administrator and/or the appealing party additional time to complete their presentations; and

(4) Any member of the advisory board may, at any time, ask questions of the Program Administrator or appealing party.

(g) A decision to grant or deny the appeal shall be made by a majority of the members of the advisory board who are present at the meeting during which the appeal is heard.

(h)(1) The advisory board’s decision shall:

(A) Be in writing or stated in the record; and

(B) Include findings of fact and conclusions of law, separately stated.

(2) Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

(i)(1) The advisory board shall notify the appealing party of its decision concerning the appeal within seven (7) days of the meeting during which the appeal is considered.

(2) The notice shall include a copy of the written decision issued by the advisory board.

(j) A decision to grant or deny the appeal shall be final.

6 CAR § 195-108 Conditions {#sec-6-car-195-108 omnilex-key=us-ar-regs-official--title-6-part-195--6 CAR § 195-108}

6 CAR § 195-108. Conditions.

(a) Nothing in this part should be interpreted to waive any governmental or statutory immunity available under Arkansas law.

(b)(1) Any covered person or entity shall cooperate fully in the defense provided by the School Worker Defense Program.

(2) However, a covered person or entity shall not voluntarily make any payment, assume any obligation, incur any expense, or enter into any settlement agreement without prior written approval from the Program Administrator.

(3) A violation of this stipulation may void any or all benefits for protection or coverage under the program.

(c) The protection or coverage provided by the program is primary to any group protection or insurance furnished by a teacher organization.

(d) The protection or coverage provided by the program is secondary or excess to any protection, insurance, or policy:

(1) Purchased by a school district or association of school districts; or

(2) Provided by any self-funded risk-sharing pool or insurance cooperative.

(e)(1) The program may settle or defend, as necessary, any suit or claim seeking compensatory damages.

(2) However, any portion of any claim or suit not pertaining to compensatory damages may not be settled without the permission of the covered person or entity involved.

(f)(1) The attorney representing the covered individual or entity must file, on a quarterly basis, a short summary concerning the status of the lawsuit with the Program Administrator.

(2) Failure to file a timely summary may result in withdrawal of coverage under the program.

6 CAR § 195-109 Exclusions {#sec-6-car-195-109 omnilex-key=us-ar-regs-official--title-6-part-195--6 CAR § 195-109}

6 CAR § 195-109. Exclusions.

(a)(1) The protection afforded under the School Worker Defense Program does not apply to any claims for damages which are successfully defended on the affirmative defense of governmental or statutory immunity under Arkansas law.

(2) The program may pay attorney’s fees and costs for the purpose of asserting a successful affirmative defense of governmental or statutory immunity.

(b) The School Worker Defense Program shall not provide protection, coverage, or payment for the following:

(1)(A) Intentional torts committed outside the scope of employment or dishonest or criminal acts or omissions, other than corporal punishment administered in accordance with school district policies on file with the Division of Elementary and Secondary Education.

(B) Such disqualifying acts do not include intentional acts that are reasonably committed:

(i) In self-defense;

(ii) In defense of another; or

(iii) To prevent bodily injury to self or another;

(2) Contractual damages, including back wages;

(3) Acts or omissions falling outside the official duties of a covered person;

(4) Violation of a court order issued by a court of competent jurisdiction;

(5) Punitive damages;

(6) Willful violation of a penal statute or ordinance committed by or with the knowledge or consent of a covered person;

(7) Lawsuits involving desegregation-related issues filed after September 14, 1993;

(8) Lawsuits involving voting rights issues filed after September 14, 1993;

(9) Administrative hearings or other hearings of any type unless a formal civil complaint has been filed;

(10) Plaintiff attorney’s fees;

(11) The payment or reimbursement of any deductible or self-insured retention included in any protection, insurance, or policy:

(A) Purchased by a school district or association of school districts; or

(B) Provided by any self-funded risk-sharing pool or insurance cooperative; and

(12) Any and all demands, claims, suits, actions, complaints, or litigation brought by or filed by a covered entity against another covered entity.

(1) The operation, maintenance, or use of any motor vehicle; or

(2) Any automobile claims of any type.

6 CAR Part 195 — Rules Governing the School Worker Defense Program and the School Worker Defense Program Advisory Board