There are a number of reasons why management of an aquatics facility or swim school might develop their own learn-to-swim curricula and methodology in lieu of a certifying organization’s.
In some cases, swim schools may opt to use their own if their views don’t align philosophically with the existing certifying organizations. Perhaps they believe more or less emphasis should be placed on stroke instruction versus survival skills, or there’s a disagreement about the timing of these skills in the progression. Other times, schools might strongly disagree about when to teach back floating versus front floating.
Sometimes they prefer methods that they consider more cutting-edge than those espoused by the larger certifying groups.
Other times, having developed their own curriculum may provide a differentiator for a particular school or facility.
But it can pose legal risks to work without the backing of a universally accepted program that is considered to be vetted and supported by accepted research and hard data.
Here, experts discuss this concern and offer advise for legally protecting yourself if you choose to take this route.
In the courtroom
It’s every operator’s nightmare to have a drowning incident happen on their watch.
But in addition to the emotional trauma such an event would pose, a company’s or facility’s ability to defend itself in court can become complicated if the methodology doesn’t come from a widely approved source. Opposing counsel may ask about your organization’s methodology, why you chose it and what research and data support it. It can hurt a defendant’s credibility if an attorney convinces the court that the methodology lacks proper vetting. And attorneys often don’t accept personal experience and anecdote.
“When you’re teaching any activity, whether swimming or any kind of program for children, and you’re using a program that’s certified and approved, if, heaven forbid, somebody has an unfortunate event ... it’s easier to defend yourself in a lawsuit, as opposed to using one that you may have come up with on your own,” says Steve Getzoff, outside national counsel for the Pool & Hot Tub Alliance, and a partner in New York-based Lester Schwab Katz & Dwyer. “That doesn’t mean you can’t come up with one on your own. You just don’t have that protection.”
And customizing a program that is safe, effective and defensible may require more time and effort than you can afford.
“It’s difficult sometimes to find a program that fits every check box that you may be looking for,” says Adam Katchmarchi, CEO of the National Drowning Prevention Alliance. “When you think about the resources and expertise that you’re going to need to create your own curriculum — you may need external content expert reviewers, you’ll have to put it through a legal challenge and set up instructor development ... It’s quite the process.”
Some facilities and schools choose to go with a certifying agency to simplify the process.
Legal protections
If an aquatics center or swim school does elect to devise its own curriculum, these experts offer a few pieces of advice to protect yourself in the case of litigation.
First, be sure to have lifeguards on duty who are dedicated solely to monitoring for swimmers in distress. While some states and municipalities allow the instructor to perform double duty by teaching and guarding, drownings have occurred under those circumstances. Best practices call for dedicated lifeguards, who should be certified by a third party, whether or not code calls for it.
“The expectation is that lifeguards are in a singularity of purpose model, not multitasking or doing two distinct things when they are responsible for the surveillance and protection of people in the water,” says Michael Oostman, owner and president of Oostman Aquatic Safety Consulting in North Redding, Ma.
At the very least, have enough lifeguards stationed so that a person in distress from any point in the pool could be identified and reached by a guard in 30 seconds or less.
Next, establish and enforce specific and documented training requirements for your instructors, advises Lisa Zarda, executive director of the United States Swim School Association.
Document your own instructor training program, as well as who taught it. Record who took continuing education and what they took, whether facilitated by you or an outside organization.
“An outline of the training that you provided to those instructors will be really valuable in the unfortunate event that something does happen,” Zarda says. “My understanding is that, usually, one of the first questions [you’re asked] is, ‘What training, and show me the ... proof that everyone teaching in the water has received training.’”
Clearly document your own methodology and curricula, including the whys behind it. What research and data caused you to become an advocate of those particular methods? In a court of law, your own experience likely will not suffice.
Take extra care with how you teach special-needs populations, infants, or others who require extra skill, expertise and nuance from their instructors. Teaching people on the autism spectrum and infants, for instance, requires more expertise.
“I think it is absolutely imperative that ... if you’re going to have instructors working with infants and toddlers, there needs to be an exceptionally higher level of training because you have a myriad of developmental milestones to work through and emotional and cognitive things that you’re dealing with,” says Angela Wild, owner of San Diego-based Elemental Aquatics. “I think it requires a higher level of training.”
Research to find the programs that seem best and most effective for these populations and subscribe to those methods, she suggests.
If you develop your own curriculum, the work never stops. You are not taking the easy route. You’ll need extra diligence staying on top of the latest research and methodologies. For this reason, Zarda recommends joining and participating in as many organizations that are relevant to your operation as possible.
“Use as many resources as you can find,” she says. “There’s a wealth of knowledge amongst folks who have been teaching for decades.”
Seek Guidance
Turn to others for their expertise — or just their eyes.
As another layer of risk protection, consult with an attorney and your insurance carrier. They have the expertise and, in the case of your insurer, a vested interest in making sure your methods will protect you from litigation.
Keep insurers updated of any changes, Zarda says: “Some insurance programs are based on how many swimmers you have, so if that number drastically changes you want to make sure that you’re keeping that updated and current.”
Enlist parents to help ensure their children’s safety, she adds. Require them to observe the class and, in particular, monitor their own children. But that doesn’t reduce your responsibility.
“We encourage all parents to watch the lessons and think of themselves as just another layer of protection, an additional set of eyes,” she says. “The swim school should be doing all they can, but then the parents can take part in that as well.”
