New CA Laws Push Youth Sports to Evolve Health and Safety Protocols

www.injurefree.com

California continues to make eforts to improve the structure and accountability for youth sports injuries. As a law frm, Buchalter possesses extensive expertise in California’s “Return to Play” statutory schemes and ofers assistance to sports organizations and related entities seeking to ensure compliance with these ground-breaking laws or embroiled in litigation arising therefrom. Technology company InjureFree provides youth sports and educational organizations with injury management tools, aimed at reducing administrative burden and maintaining compliance with state mandates. In this paper, Anne Marie Ellis and Paul Alarcon from Buchalter, APC and InjureFree ofer an analysis of AB-2007—California’s recent expansion of its Return-to-Play laws. www.injurefree.com

Introduction

As a society, Americans have reached a consensus that the benefts of sport - physical activity, leadership, teamwork, self-confdence - outweigh the risks.

(https://www.aspenprojectplay.org/the-facts)

Yet, participants get hurt. While exerting themselves, contacting other athletes, and pushing their adolescent bodies, injuries happen.

Each year in the United States, between 8-20 million children play organized sports. Why the range? At any time, there are a number of reports which provide conficting statistics for youth sports participation. (http://www.espn.com/espn/story/_/id/9469252/hidden-demographics- youth-sports-espn-magazine) These numbers demand thoughtful attention in designing systems to protect and treat this population. With the passing of law AB-2007, the state of California is improving its mechanisms for advocating awareness, accountability, and safety in youth sports. The new law lays the framework for increased communication, injury tracking, and improved outcomes. For example, an athlete’s community summer-league soccer coach connects information about an ankle sprain to his/her junior high basketball coach, by requiring the reporting of injuries to parents. It ensures coaching staff are engaging with parents/guardians and a qualifed medical professional.

In theory, this legislation widens the safety net in youth athletics. In practice, plenty of organizations and schools will fnd this mandate challenging. Kids show up unannounced and unregistered the frst day of practice and parents hurriedly fll out paper contact forms and emergency waivers. Thorough communication lines are not established. That’s the world of today. But to protect both the future of youth sports and the wellness of its athletes, a frst step toward improving this situation needs to be taken and that is the aim of AB-2007.

To protect both the future of youth sports and the wellness of its athletes, a frst step toward improving this situation needs to be taken and that is the aim of AB-2007. www.injurefree.com

Who Is AB-2007 Protecting?

Who’s playing, what are they playing, and what are the risks?

There are several important studies and articles which address these questions. Today’s generation is choosing team and outdoor sports. (Per 2017 report by Physical Activity Council - cite: www.physicalactivitycouncil.com/pdfs/current.pdf ). The numbers may be in decline. Children are engaging in less organized sports than their predecessors.(https://www.aspeninstitute.org/blog-posts/7-charts-that-show-the-state-of-youth- What was perceived sports-in-the-us-and-why-it-matters/) Recent attention to sports injuries in the media - and the as a concern of the sports in which the most serious injuries occur - cannot be ignored. Sports with the highest [reported] levels of concussion are seeing the largest drop-offs (http://www.engagesports. legislation in the initial com/blog/post/1488/youth-sports-participation-statistics-and-trends). stages of the bill was that “the onus will be If poor injury management is the largest contributing factor in the decline of youth sports placed on youth sports participation, we’re failing our kids. With every new social network launch and every new video organizations for game release, kids have another reason to sit inside instead of getting outside to play. It’s no recordkeeping... Youth coincidence that former First Lady Michelle Obama created the Play60 initiative, encouraging sport organizations kids to participate in physical activity for 60 minutes each day - the nation has a serious sedentary-based health issues. As a society, Americans are failing to build healthy physical do not have the ftness habits in children. (http://www.physicalactivityplan.org/reportcard/NationalReportCard_ resources to evaluate longform_fnal%20for%20web.pdf - p. 9) a youth athlete...”. Te technology of By alleviating part of the parental fear that miscommunication of an injury, or inability to InjureFree is that it understand or be aware of an injury suffered in the context of youth sports could have long- A.) halts the afected term detrimental effects on their child because of the failure of an information communication athlete from further system, AB-2007 and technology like InjureFree help pave the way for parents to encourage participation in the life-changing activity of youth athletics. participation until cleared by sanctioned medical providers and in-concert also B.) notifes all involved parties to initiate this process in an expedited way and keeps each apprised of progress.” www.injurefree.com

CURRENT LANGUAGE Requires a school district, charter school, or private school that elects to offer an athletic program to comply

NEW LANGUAGE Requires a youth sports organization that elects to offer an athletic program to comply

Introduction

In California, concussions and head injuries in the arena of youth sports are the subject of several recent legislative enactments commonly referred to as “Return to Play” or “Lystedt” laws. The frst, Assembly Bill 25 (“AB 25”), passed in 2011 regulates public school districts that offer athletic programs. AB 25 was California’s frst foray into the feld of Return to Play laws. AB 25 was subsequently amended by Assembly Bill 588 (“AB 588”), passed in 2013, and Assembly Bill 2127 (“AB 2127”), passed in 2014. AB 588 expanded the reach of AB 25 to include charter and private schools, and AB 2127 regulated the number and length of “full-contact” football practices for middle and high schools throughout California. Finally, in 2016, the California legislature passed Assembly Bill 2007 (AB-2007). AB-2007 regulates youth sports organizations for 27 enumerated sports. While these various pieces of legislation represent some of the most signifcant and widely-applicable laws in the country, California was not the frst state to enter into the feld of Return to Play laws. www.injurefree.com

The Origin of Return to Play Laws

Return to Play laws trace their genesis to a middle school football game in October 2006 in Seattle, Washington. During this game, thirteen- year-old Zackery Lystedt sustained a concussion. No one realized, however, and Zackery returned to play minutes later. After the game, Zackery collapsed, spent the next three months in a hospital, and continued to suffer from long-term disabilities in the years that followed.

Zackery’s experience inspired his family to initiate an education campaign to spread awareness about concussions and head injuries in youth sports. Ultimately, with the aid of several other stakeholders, they were able to persuade the Washington state legislature to enact the Zackery Lystedt Law in 2009 (House Bill 1824). As enacted, the law mandates that school districts and the Washington Interscholastic Activities Association develop guidelines and other bodies of information “to inform and educate coaches, youth athletes, and their parents and/or guardians of the nature and risk of concussion and head injury including continuing to play after concussion or head injury.” RCW 28A.600.190. Parents or guardians must be provided with head injury information on an annual basis. Moreover, a youth participant suspected of sustaining a concussion may not return to play until evaluated by a health care provider who clears the participant to return to play.

As advocates for greater regulation of head injuries and concussions in youth sports gained momentum, other states quickly followed the lead of Washington and adopted variations of the Zackery Lystedt Law—indeed, in the following eight years, every single state as well as the District of Columbia passed some version of a Return to Play law.

While the provisions of these laws vary across states and are adapted to different youth sports cultures, the basic purpose of these Return to Play laws remain the same: increased education and greater caution. Generally speaking, Return to Play laws seek to advance imposed educational, training, and notifcation requirements designed to ensure that coaches, parents, and youth athletes are better educated about the signs and risks of concussions. Such laws also require an athlete suspected of suffering a concussion to sit out the rest of the game and remain out of play until cleared by a qualifed health care profession. As time has passed, some states have recognized that despite the passage of Return to Play laws, signifcant gaps remain in the protection of youth athletes. California, for example, has been one of the most active states with respect to expanding the scope of its Return to Play laws. www.injurefree.com

The following is a non-exclusive list of Return to Play laws throughout the United States:

• ALABAMA • LOUISIANA • OKLAHOMA House Bill 308 (2012) and Senate Bill 189 (2011) Senate Bill 1700 (2010) House Bill 108 (2011) • MAINE • OREGON • ALASKA Senate Bill 654 (2012) Senate Bill 348 (2009) House Bill 15 (2011) • MARYLAND • PENNSYLVANIA • ARIZONA House Bill 858 (2011) Senate Bill 200 (2011) Senate Bill 1521 (2011) • MASSACHUSETTS • RHODE ISLAND • ARKANSAS Senate Bill 2469 (2010) House Bill 7036 (2010), Senate Bill 1158 (2013) House Bill 5540 (2011), and • MICHIGAN House Bill 7367 (2014) • CALIFORNIA House Bill 5697 (2012) and Assembly Bill 25 (2011), Senate Bill 1122 (2012) • SOUTH CAROLINA Assembly Bill 588 (2013), House Bill 3061 (2013) Assembly Bill 2127 (2014), and • MINNESOTA Assembly Bill 2007 (2016) Senate Bill 612 (2011) • SOUTH DAKOTA Senate Bill 149 (2011) • COLORADO • MISSISSIPPI Senate Bill 40 (2011) House Bill 48 (2014) • TENNESSEE Senate Bill 882 (2013) • CONNECTICUT • MISSOURI Senate Bill 456 (2010) House Bill 300 (2011) • TEXAS House Bill 2038 (2011) • DELAWARE • MONTANA Senate Bill 111 (2011) Senate Bill 112 (2013) • UTAH House Bill 204 (2011) and • DISTRICT OF COLUMBIA • NEBRASKA House Bill 58 (2013) B19-0007 (2011) Legislative Bill 230 (2011) • VERMONT • FLORIDA • NEVADA Senate Bill 100 (2011) and 2012 Fla. Laws, Chap. 167 Assembly Bill 455 (2011) Senate Bill 4 (2013)

• GEORGIA • NEW HAMPSHIRE • VIRGINIA House Bill 284 (2013) Senate Bill 402 (2012), Senate Bill 652 (2010) and House Bill 180 (2013), and House Bill 410/ Senate • HAWAII House Bill 1113 (2014) Bill 172 (2014) House Bill 2273 (2012) • NEW JERSEY • WASHINGTON • IDAHO Assembly Bill 2743 (2010) and House Bill 1824 (2009) House Bill 632 (2012) Assembly Bill 4008 (2010) • WEST VIRGINIA • ILLINOIS • NEW MEXICO Senate Bill 336 (2012) House Bill 200 (2011) Senate Bill 1 (2010) • WISCONSIN • INDIANA • NEW YORK House Bill 400 (2012) Senate Bill 93 (2011) and Senate Senate Bill Bill 222 (2014) 3953 (2011) • WYOMING Senate Bill 38 (2011) • IOWA • NORTH CAROLINA Senate File 367 (2011) House Bill 792 (2011)

• KANSAS • NORTH DAKOTA House Bill 2182 (2011) Senate Bill 2281 (2011)

• KENTUCKY • OHIO House Bill 281 (2012) House Bill 143 (2011) www.injurefree.com

California’s Return to Play Laws

Assembly Bill 25 (2011), Assembly Bill 588 (2013), and Assembly Bill 2127 (2014)

California’s frst piece of Return to Play legislation was adopted in 2011. AB 25 was introduced by Assemblymember Mary Hayashi of California’s 18th Assembly District. The bill codifed into state law the previously existing policy of the California Interscholastic Federation’s Bylaw 313. While Bylaw 313 regulated only high school athletics, AB 25, which added section 49475 to the California Education Code regulates all school districts that opt to offer athletic programs. Cal. Educ. Code § 49475(a). AB 25 contained two mandates: (1) “[o]n a yearly basis, a concussion and head injury information sheet shall be signed and returned by the athlete and the athlete’s parent or guardian before the athlete initiates practice or competition;” and (2) “[a]n athlete who is suspected of sustaining a concussion or head injury in an athletic activity shall be immediately removed from the activity for the remainder of the day, and shall not be permitted to return to the activity until he or she is evaluated by a licensed health care provider . . . [and] receives written clearance to return to the activity from that licensed health care provider.” Notably, the “health care provider” cannot be just any medical professional, but must be one “who is trained in the management of concussions and is acting within the scope of his or her practice.”

Subsequently, AB 25 was amended in 2013 by AB 588 to regulate charter schools and private schools as well as school districts that opt to offer an athletic program. Cal. Educ. Code § 49475(a). Then, in 2014, the California state legislature passed AB 2127, which mandated further that “[i]f the licensed health care provider determines that the athlete sustained a concussion or a head injury, the athlete shall also complete a graduated return-to-play protocol of no less than seven days in duration under the supervision of a licensed health care provider.” Moreover, AB 2127 further limited the defnition of “licensed health care provider” to mean only a “health care provider who is trained in the management of concussions and is acting within the scope of his or her practice.” Cal. Educ. Code § 49475(b).

Assembly Bill 2007 (2016)

The progression of AB 25, AB 588, and AB 2127 demonstrates how the California state legislature responded with amendments to the initial Return to Play law as gaps in its coverage and application were identifed. Like many other states, California’s Return to Play law regulated only youth sports in a scholastic setting––non-scholastic sports remained outside the reach of the Return to Play law. However, similar to the progression of amendments for California Education Code section 49475, the California state legislature sought to close this regulatory gap in its Return to Play law AB-2007. www.injurefree.com

In 2016, Assembly member Kevin McCarty, who represents the California’s 7th Assembly District introduced AB-2007. The bill was sponsored by the California Athletic Trainer’s Association, an advocacy organization that “strives to improve the quality of health care for athletes, patients, and clients and enhance the profession of Athletic Training.” AB-2007 added section 124235 to the California Health and Safety Code. As enacted the bill regulates “youth sports organization[s] that elect[] to offer an athletic program.” Cal. Health & Safety Code § 124235(a).

Similar to California’s original Return to Play law, AB-2007 mandates that upon suspicion of concussion or head injury, a youth athlete must be immediately removed from the sporting activity for the remainder of the day and not permitted to return until the athlete is evaluated by and obtains written clearance to return from a licensed health care provider. Cal. Health & Safety Code § 124235(a). In addition, if the athlete is found to have suffered a concussion or head injury, “the athlete shall also complete a graduated return-to-play protocol of no less than seven days in duration under the supervision of a licensed health care provider.” Id. Moreover, AB-2007 requires the youth sports organization to give a concussion and head injury information sheet to each athlete, which must be signed by the athlete and his or her parent before the athlete initiates practice or competition. Id.

Critically, AB-2007 goes signifcantly further than the provisions of California’s original Return to Play law. Notably, the bill regulates a much wider range of persons and entities. AB-2007 defnes “youth sports organization” as any “organization, business, nonproft entity, or a local governmental agency that sponsors or conducts amateur sports competitions, training, camps, or clubs in which persons 17 years of age or younger participate in any of the following sports:” Baseball, Basketball, Bicycle Motocross (BMX), Boxing, Competitive Cheerleading, Diving, Equestrian Activities, Field Hockey, Football, Full Contact Martial Arts, Gymnastics, Ice Hockey, Lacrosse, Parkour, Rodeo, Roller Derby, Rugby, Skateboarding, Skiing, Soccer, Softball, Surfng, Swimming, Synchronized Swimming, Volleyball, Water Polo, or Wrestling. Id.

Not only does the law apply more broadly than the older Return to Play law, but it also imposes additional notifcation and education obligations not found in California’s original Return to Play law. For example, AB-2007 contains a parental notifcation requirement: “If an athlete who is 17 years of age or younger has been removed from athletic activity due to a suspected concussion, the youth sports organization shall notify a parent or guardian of that athlete of the time and date of the injury, the symptoms observed, and any treatment provided to that athlete for the injury.” Cal. Health & Safety Code § 124235(a). Furthermore, AB-2007 requires youth sports organizations to “offer concussion and head injury education, or related educational materials, or both, to each coach and administrator of the youth sports organization,” and also obliges each coach and administrator to successfully complete this education at least once before supervising the youth sport. Id. Finally, youth sports organization must develop and identify what procedures it has adopted to guarantee compliance with the new law. Id.

Given the wide variety of new statutory obligations and the reliance on volunteer coaches by many youth sports organizations, California’s Youth Sports Concussion law may be a game-changer for how youth sports organizations operate on a going-forward basis. Organizations that do not adapt their procedures to ensure swift and complete compliance with the new statutory regime run the risk of lawsuits by injured participants premised on the plaintiff-friendly doctrine of negligence per se. Assumption of risk and contractual waiver likely will not serve as a defense if an organization fails to provide adequate information to participants and parents or fails to educate all coaches before they step on the feld. Strict compliance with the medical clearance requirements is now a sine qua non for any youth sports organization seeking to limit potential liability. Finally, in light of the fact that many youth athletes participate in both scholastic and non-scholastic sports, it will be imperative for youth sports organizations to maintain a heightened level of scrutiny of youth athletes who shift back and forth between regulation under the California Education Code section 49475 and California Health and Safety Code section 124235.

Conclusion As goes California, so goes the nation. Given how quickly other states adopted variations of Washington’s Zackery Lystedt Law, private youth sports organization in other states can expect that they soon will be subjected to similar laws requiring comprehensive concussion- related education for coaches, parents and participants, as well as strict adherence to notifcation and medical clearance requirements whenever a head injury is suspected. Youth sports organizations—especially those with a national presence—must ensure that they understand the full scope of the laws that apply to their leagues, competitions, training, camps, or clubs and remain abreast of any developments to or expansion of those laws. www.injurefree.com

InjureFree

Founder & President Charlie Wund understands a thing or two about youth sports. He spent 20 years coaching football, baseball, basketball, and softball, and 7 years as an athletic director at a private high school with a fourishing sports program. The InjureFree concept was hatched because he recognized the disconnect between all of the arenas in which his athletes were competing, and how challenging communication was between all of the channels. And he has two young daughters himself who he plans on encouraging to pursue sports.

When I researched the systems being used to track injury information, I saw antiquated technology being used, ofen passed over because paper forms were more user-friendly. Knowing that mobile technology was on the rise (2008), I felt there was a better way to connect all caregivers and aggregate important data while improving communication. I wanted my girls to have the same level of access to healthcare as the professional athletes playing on Sunday. It seems obvious that we should be taking care of our children frst. -CHARLIE WUND, CEO/President, InjureFree www.injurefree.com

We’re learning that… Technology works where previous analog systems have failed. An early adopter of InjureFree, Southern California Youth Rugby continues to maximize the features available within the platform.

Initially, the organization started using InjureFree for efcient, real-time notifcations to relevant parties when athletes suffered injuries, especially suspected concussions which could then be prevented from returning to play before completing the required protocol. It was a way to condense any combination of fve phone-calls into a single notifcation via app.

This helpful notifcation was bolstered by access to training materials provided by the CDC Heads Up Concussion Education program, so that the organization could ensure related parties were fully compliant in concussion protocol, including the parent & coach requirements from AB-2007. More than ever, concussions are a hot-button issue.

With the ability to customize the platform, the rugby league was able to tell InjureFree what pieces were important - and in some cases required - to them as a league. Any organization who opts to use InjureFree can entirely customize what they need from their participants and their parents/legal guardians, plus coaches and medical personnel. If a cheerleading group needs to know information about prior gymnastics training for a waiver, this information can be built into the athlete enrollments. If any individual state has particular content that is required for review by coaches around classifcations of injuries (concussions most applicable right now), InjureFree can easily build that in.

When information is centrally stored and shared with all stakeholders, it alleviates the pressure one person feels to maintain compliance and improves oversight. This level of transparency is essential when ensuring the optimal level of safety for children. Any parent will tell you, kids aren’t always the best communicators. When the adults establish a clear line of communication, everyone benefts and the administrative burden is reduced.

InjureFree has already played a role in sharing the medical “status” of a youth rugby athlete across clubs. In one instance, a child was removed for suspected concussion and their name was fagged in red within InjureFree. As part of the RTP protocol, they weren’t allowed to participate without medical clearance. Before that occurred, the child attempted to participate in another club. With a clear designation of “not cleared”, the administrators were able to address the issue before allowing the child to take part in any rugby activity. InjureFree played a key part in closing the communication gap and ensuring unauthorized participation didn’t occur.

In relation to AB-2007, now SCYR will have the access to information from the students’ school sports in which they participate throughout the year, without having to over-engage time-crunched parents. Previously, they would have relied on reporting by a concerned parent [or worried athletes themselves] to inform them of injuries (and recovery) sustained on other teams or activities. AB-2007 now requires the capture of this information, and with InjureFree it is relayed to all parties in real-time, or immediately upon sign-up into a new league.

“ With over 5,000 athletes and growing fast, SCYR needed a system that would allow us to efectively and efciently manage our concussion protocol, ensure that our athletes› medical information was properly safeguarded, and ensure that we could notify parents when signifcant injuries, including suspected concussions, occurred. InjureFree has been a fantastic partner, meeting those needs and more, such as enabling us to adapt quickly to comply with CA AB2007 by using their system to deliver and track mandatory coach concussion awareness training. We look forward to continuing to work with InjureFree to meet our ongoing commitment to delivering the safest possible youth rugby experience to our athletes and their families.” ALEXANDRA WILLIAMS, Executive Director, SCYR www.injurefree.com

Post CA-AB-2007 Passage Status

In an environment like youth sports, where parents are becoming more involved, stories of injuries - and freak accidents – are easily shared, and society is increasingly litigious, the stakes for establishing and safeguarding critical procedures are higher than ever. With the introduction of AB-2007 into CA law, the state of California has taken the initiative to unite health information about minors playing sports, with the intent to better protect their well being - both from a health and academic standpoint. There will never be a day when youth sports are completely free from injury, but understanding the factors behind the causes of incidents and monitoring the road to recovery from all vantage points will aid in making the best decisions for the safety of young athletes.

Recommendations from the feld and experts include:

1. Organizations should start discussions with parents early; what information will be needed from them, the platform on which they should plan on receiving communication, and the benefts of improved connectedness and awareness between their child’s sports leagues.

2. Organizations are encouraged to switch from traditional (paper/pencil) to digital/cloud-based storage of aforemen- tioned information.

3. In searching for management tools, ask potential providers about how and if their system updates for changes in laws based on national, state, and local levels.

4. Youth sports organizations must anticipate and develop policies, procedures, and implementation plans for address- ing the unavoidable increased costs of doing business necessary to comply with AB-2007’s new requirements, including providing training and educational materials, securely maintaining records, and increasing liability insur- ance limits to deal with potential liability.

The team at the Agency for Student Health Research, the engine behind the InjureFree technology, propose that the best way to keep young athletes participating in organized sports safely is to increase connectedness, awareness, and education about relevant health and safety issues.