Compliance with the Concussion Management and Awareness Act
On Board Online • February 27, 2012
By the New York State
Association of School Attorneys
Effective July 1, a new law will require school districts to have procedures in place to deal with students who are suspected of suffering concussions while participating in athletics or engaging in any school-sponsored activity, including academics. Although the act’s effective date is months away and regulations are forthcoming, school districts should start compliance efforts now, if they have not already done so.
School boards at times seek to exceed legal requirements, particularly in the context of student health and safety. Concussion management may be one such example. For instance, the law requires all school coaches, physical education teachers, nurses and athletic trainers to complete a training course designated by the school district every two years. School boards could, instead, require annual training, which is available from multiple sources. For instance, a video of a training program can be viewed at www.keepyourheadinthegame.org, a website co-sponsored by the New York State Athletic Administrators Association and the New York State Public High School Athletic Association (NYSPHSAA).
Also, the law states that school districts are authorized, at their discretion, to establish a “concussion management team” (CMT). The CMT may be composed of the athletic director, a school nurse, the school physician, an interscholastic team coach, an athletic trainer or such other appropriate personnel as designated by the school district. The CMT will oversee the implementation of forthcoming rules and regulations of the commissioner of education. The CMT may also establish and implement a program providing information on concussions to parents/guardians throughout each school year.
School districts may also desire to go beyond the law by adopting state-of-the-art procedures and protocols. Notably, some school districts in New York State and elsewhere give student athletes cognitive tests prior to the start of athletic seasons to establish baseline data. Such data can help a physician gauge whether or not a student is recovered from a concussion, also called a mild traumatic brain injury (MBTI). This approach, not legally required, is used by many professional athletic teams and even some secondary schools including Rocky Point school district. The Suffolk County district has partnered with Long Island’s Pediatric Traumatic Brain Injury Rehabilitation Program at St. Charles Hospital in Port Jefferson to assist team physicians and athletic trainers in evaluating and treating head injuries. (On Board, Sept. 19, 2011).
Similarly, state law does not require districts to arrange for the presence of medical personnel on site at athletic events in case a player suffers a blow to the head. However, districts may establish that as a precaution at football games or other competitions.
This article will address the recent legislation in this area, expectations regarding forthcoming regulations and the need for school districts to have procedures in place to safeguard student athletes and others who exhibit symptoms associated with concussions.
Regulations under development
Pursuant to the Concussion Management and Awareness Act [N.Y. Education Law section 305(42)(a)], the state commissioners of education and health are required to develop rules and regulations relative to students who suffer concussions while receiving instruction or engaging in any school-sponsored activity. Key guidelines established by the legislation are outlined below:
- School districts must provide a course of instruction on concussions and appropriate responses to suspected concussions that is taken by all school coaches, physical education teachers, nurses and athletic trainers on a biennial basis. The course must include, but not be limited to the following content: the definition of a “concussion”; signs and symptoms of mild traumatic brain injuries and how such injuries may occur; practices regarding prevention; and guidelines for return to school and certain school activities after a pupil has suffered a concussion.
- Schools must include information on concussions in any permission form or parent/guardian consent form required for a student’s participation in interscholastic sports. The information must include, but not be limited to: the definition of “concussion”; signs and symptoms of mild traumatic brain injuries and how such injuries may occur; and guidelines for return to school and certain school activities after a pupil has suffered a concussion, regardless of whether the injury occurred outside of school. Districts should also either post such information on their websites or inform parents how they can obtain such information from the websites of the State Education Department and the Department of Health.
- School districts must immediately remove from athletic activities any student believed to have sustained a concussion. If there is any doubt as to whether the student has sustained a concussion, school districts must operate on the presumption that the student has a concussion. Students are not permitted to resume athletic activity unless they have been symptom-free for at least 24 hours, been evaluated by a licensed physician and received the physician’s written, signed authorization clearing them. Consistent with the student’s treating physician’s directives, guidelines must be established for limitations and restrictions on school attendance and activities after sustaining a concussion.
According to the legislation, a concussion does not have to be sustained at school in order to fall within the requirements summarized above. If it is merely suspected that the student may have sustained a concussion, school districts have the duty to comply with this legislation.
Recommendation to school districts
As a result of this new legislation, and in anticipation of the promulgation of regulations by the commissioner of education, many districts are developing policies that address concussion management. It is recommended that such policies be developed notwithstanding the fact that the regulations have not yet been promulgated.
A keen awareness has developed in the sports community regarding the potentially debilitating consequences of failing to recognize and address concussion-type symptoms. Professional athletic teams use a litany of field tests to determine whether the player has suffered a concussion. Districts should bear in mind that extreme caution is warranted. The law soon will require districts to take action for even suspected concussions, and the same standard should apply today.
Beyond the priority of student safety, districts can be exposed to liability in connection with athletic injuries in certain cases. While it’s unusual for school districts to be sued for failure to appropriately address situations where students exhibit concussion type symptoms, there was such a claim three decades ago. The case involved a claim against the school district for allowing a student athlete to continue to participate in high school football despite experiencing concussion symptoms the previous Saturday [Coonradt v. Averill Park CSD, 414 N.Y.S.2d 242 (Sup. Ct. Rensselaer Co. 1979)]. In order to mitigate liability, districts should ensure adherence to the law as well as the district’s concussion management procedures. In that regard, school districts that choose to develop policies that are more stringent than what the law requires should be aware that they can be held to that standard in lawsuits.
In addition, since the law requires districts to consider concussions that occur outside of school, districts may wish to use sports permission forms that include an attestation that the parent will promptly inform the district of concussions that occurred outside of school. Contact your school attorney for further guidance.
Given the heightened awareness of this issue, and the potential for liability, school boards should ensure their district complies fully with the law and establishes appropriate policies and procedures to protect student safety.
[Editor’s Note: Subscribers to NYSSBA’s Policy Update service have received model language to update existing policies to take into account the requirements of the Concussion Management and Awareness Act.]
While NYSSBA’s Policy Services Department does not view a separate concussion policy as necessary, it has worked with the New York State Public High School Athletic Association, which has developed a sample policy on concussion management. Other organizations with resources on concussions that may be helpful include your district’s insurance company, as well as the state education and health departments.
Members of the New York State Association of School Attorneys represent school boards and BOCES. This article was written by Chris Venator of Ingerman Smith LLP, a law firm with locations in Hauppauge and Harrison, N.Y.
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