BILL ANALYSIS

C.S.H.B. 2038

By: Price

Public Health

Committee Report (Substituted)

BACKGROUND AND PURPOSE

A concussion is an injury to the brain that can be caused by a blow to a person's body or head. Because the impact that results in a concussion may not result in loss of consciousness, the symptoms of a concussion, such as physical, cognitive, emotional, or sleep-related symptoms,  can be missed by someone without the proper training to recognize such a condition. The medical consequences for failing to recognize and appropriately treat a concussion can be severe, sometimes causing brain swelling and death, and athletes who sustain concussions are sometimes more susceptible to repeat injury. Recent studies have shown that younger patients may recover from concussions more slowly than adults, making young athletes particularly vulnerable.

Though increased media attention has called attention to the seriousness of concussions, it is believed that many concussions sustained by student athletes go unrecognized or unreported. While current law establishes protocol for a student athlete who becomes unconscious while participating in an extracurricular athletic activity, statute does not adequately provide for the safety of student athletes who sustain concussions from an impact that does not render the athlete unconscious. C.S.H.B. 2038 seeks to increase awareness of student athletes, parents, coaches, athletic trainers, and administrators regarding concussions, thereby increasing the safety of student athletes, by requiring the governing body of applicable schools and school districts to appoint or approve a concussion oversight team to establish a return-to-play protocol for student athletes who are believed to have sustained a concussion during a practice or competition.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly granted to the commissioner of education in SECTION 1 of this bill.

ANALYSIS

C.S.H.B. 2038 amends the Education Code to prohibit a student from participating in an interscholastic athletic activity, including practice and competition, sponsored or sanctioned by a school district, including a home-rule school district, or a public school, including any school for which a charter has been granted, or the University Interscholastic League, for a school year until both the student and the student's parent, guardian, or another person with legal authority to make medical decisions for the student have signed a form for that school year that acknowledges receiving and reading written information explaining concussion prevention, symptoms, treatment, and oversight and including guidelines for safely resuming participation in an athletic activity following a concussion. The bill requires the form to be approved by the league.

C.S.H.B. 2038 requires the governing body of each school district and open-enrollment charter school with students enrolled who participate in interscholastic athletic activity to appoint or approve a concussion oversight team.  The bill requires each concussion oversight team to establish a return-to-play protocol, based on peer-reviewed scientific evidence, for a student's return to interscholastic athletics practice or competition following the force or impact believed to have caused a concussion.  The bill requires each concussion oversight team to include at least one physician and, to the greatest extent practicable, considering factors including the population of the metropolitan statistical area in which the school district or open-enrollment charter school is located, district or charter school student enrollment, and the availability of and access to licensed health care professionals in the district or charter school area, to also include one or more athletic trainers, advanced practice nurses, neuropsychologists, or physicians assistants.  The bill requires an athletic trainer employed by a school district or open-enrollment charter school to be a member of the district or charter school concussion oversight team.  The bill requires each member of the concussion oversight team to have had training in the evaluation, treatment, and oversight of concussions at the time of appointment or approval as a member of the team.

C.S.H.B. 2038 requires a student to be removed from an interscholastic athletics practice or competition immediately if a coach, a physician, a licensed health care professional, or the student's parent or guardian or another person with legal authority to make medical decisions for the student believes the student might have sustained a concussion during the practice or competition. The bill prohibits a student removed from an interscholastic athletics practice or competition from being permitted to practice or compete again following the force or impact believed to have caused the concussion until the student has been evaluated, using established medical protocols based on peer-reviewed scientific evidence, by a treating physician chosen by the student or the student's parent or guardian or another person with legal authority to make medical decisions for the student; the student has successfully completed each requirement of the return-to-play protocol established by the concussion oversight team necessary for the student to return to play; and the treating physician has provided a written statement indicating that, in the physician's professional judgment, it is safe for the student to return to play.  The bill prohibits such a student from being permitted to practice or compete again following the force or impact believed to have caused the concussion until the student and the student's parent or guardian or another person with legal authority to make medical decisions for the student have acknowledged that the student has completed the requirements of the return-to-play protocol necessary for the student to return to play, have provided the treating physician's written statement to the person responsible for compliance with the return-to-play protocol and the person who has supervisory responsibilities over an athletic trainer or other person responsible for such compliance, and have signed a consent form containing certain specified information.

C.S.H.B. 2038 prohibits a coach of an interscholastic athletics team from authorizing a student's return to play.  The bill requires the school district superintendent or the superintendent's designee or, in the case of a home-rule school district or open-enrollment charter school, the person who serves the function of superintendent or that person's designee to supervise an athletic trainer or other person responsible for compliance with the return-to-play protocol.  The bill prohibits the person who has supervisory responsibilities from being a coach of an interscholastic athletics team.

C.S.H.B. 2038 requires the University Interscholastic League to approve for coaches of interscholastic athletic activities training courses that provide for not less than two hours of training in the subject matter of concussions, including evaluation and diagnosis, prevention, symptoms, appropriate medical treatment, risks, and long-term effects.  The bill requires the league to maintain an updated list of individuals and organizations authorized by the league to provide the training.  The bill requires the Department of State Health Services Advisory Board of Athletic Trainers to approve for athletic trainers training courses in the subject matter of concussions and to maintain an updated list of individuals and organizations authorized by the board to provide the training.  The bill requires a coach of an interscholastic athletic activity; a licensed health care professional who serves as a member of a concussion oversight team and is an employee, representative, or agent of a school district or open-enrollment charter school; and a licensed health care professional who serves on a volunteer basis as a member of a concussion oversight team for a school district or open-enrollment charter school to take a training course from an authorized training provider at least once every two years.  The bill requires each person required to take a training course to initially complete the course not later than September 1, 2012, and specifies which type of course each person is required to take. The bill requires a physician who serves as a member of a concussion oversight team, to the greatest extent practicable, to periodically take an appropriate continuing medical education course in the subject matter of concussions.  The bill requires each person required to take a training course to submit proof of timely completion of an approved course to the school district superintendent or the superintendent's designee, or, in the case of a home-rule school district or open-enrollment charter school, a person who serves the function of a superintendent or that person's designee.  The bill prohibits a licensed health care professional who is not in compliance with the training requirements from serving on a concussion oversight team in any capacity.

C.S.H.B. 2038 provides that its provisions do not waive any immunity from liability of a school district or open-enrollment charter school or of district or charter school officers or employees; create any liability for a cause of action against a school district or open-enrollment charter school or against district or charter school officers or employees; waive any immunity from liability for emergency care; or create any cause of action or liability for a member of a concussion oversight team arising from the injury or death of a student participating in an interscholastic athletics practice or competition, based on service or participation on the concussion oversight team.

C.S.H.B. 2038 authorizes the commissioner of education to adopt rules as necessary to administer its provisions and makes its provisions applicable beginning with the 2011-2012 school year. The bill defines "coach," "concussion," "licensed health care professional," "neuropsychologist," "open-enrollment charter school," "physician," and "physician assistant," and provides for the meaning of "advanced practice nurse" and "athletic trainer" by reference to the Occupations Code.

EFFECTIVE DATE

On passage, or, if the bill does not receive the necessary vote, September 1, 2011.

COMPARISON OF ORIGINAL AND SUBSTITUTE

C.S.H.B. 2038 differs from the original by defining "concussion" as a complex pathophysiological process affecting the brain caused by a traumatic physical force or impact to the head or body, which may include temporary or prolonged altered brain function resulting in physical, cognitive, or emotional symptoms or altered sleep patterns and involve loss of consciousness, whereas the original defines "concussion" as a brain injury resulting from an impact to the head or body and causing a change in brain function and a temporary or prolonged altered mental state.  The substitute contains provisions not in the original defining "licensed health care professional" and "open-enrollment charter school."

C.S.H.B. 2038 differs from the original by applying the bill's provisions to an interscholastic athletic activity sponsored or sanctioned by a school district, including a home-rule school district, or a public school, including any school for which a charter has been granted, or the University Interscholastic League, whereas the original applies the bill's provisions to an interscholastic athletic activity sponsored or sanctioned by a school district, public school, including an open-enrollment charter school, or private school; the league; or the Texas Association of Private and Parochial Schools or a successor organization.

C.S.H.B. 2038 differs from the original by requiring the governing body of each applicable school or school district to appoint or approve a concussion oversight team, whereas the original requires such governing bodies to designate a concussion management team.  The substitute differs from the original by requiring each concussion oversight team to establish a return-to-play protocol, based on peer-reviewed scientific evidence, for a student's return to interscholastic athletics practice or competition following the force or impact believed to have caused a concussion, whereas the original requires such a protocol to be developed by the concussion management team, in collaboration with certain persons,  for a student believed to have sustained a concussion during practice or competition before the student may be allowed to practice or compete.  The substitute differs from the original by requiring a concussion oversight team to include, in addition to at least one physician and, to the greatest extent practicable in consideration of certain factors relating to population of the area, district or charter school student enrollment, and availability of and access to licensed health care professionals in the area, one or more athletic trainers, advanced practice nurses, neuropsychologists, or physician assistants, whereas the original requires each concussion management team to include a physician and, to the greatest extent practicable, an athletic trainer and a neuropsychologist or, if it is not practicable to include an athletic trainer or a neuropsychologist, to include a physician assistant or advanced practice nurse. The substitute contains a provision not included in the original requiring an athletic trainer employed by a school district or open-enrollment charter school to be a member of the district or charter school concussion oversight team.

C.S.H.B. 2038 differs from the original, in a provision requiring a student to be immediately removed from a practice or competition if certain individuals, including a coach or physician, believe the student may have sustained a concussion during the practice or competition, by including among those individuals a licensed health care professional, defined by the bill to mean an advance practice nurse, athletic trainer, neuropsychologist, or physician assistant, and the student's parent or guardian or another person with legal authority to make medical decisions for the student, whereas the original includes among those individuals an athletic trainer. The substitute omits a provision in the original prohibiting a student so removed from a practice or competition from being permitted to practice or compete during the 24-hour period following the impact that is believed to have caused a concussion.

C.S.H.B. 2038 differs from the original, in provisions setting out the conditions under which a student is authorized to practice or compete following the force or impact believed to have caused the concussion, by specifying that the evaluation of a student is to be conducted by a treating physician chosen by the student or the student's parent or guardian or another person with legal authority to make medical decisions for the student, whereas the original specifies that the evaluation is to be conducted by the physician on the concussion management team and by at least one other member of the team.  The substitute contains a provision not in the original requiring the student to have successfully completed each requirement of the return-to-play protocol established by the concussion oversight team necessary for the student to return to play. 

C.S.H.B. 2038 differs from the original, in a provision requiring a written statement from certain persons evaluating a student for purposes of determining if the student may return to practice or competition, by requiring the written statement to be provided by the treating physician evaluating the student, whereas the original requires the written statement to be signed by the physician on the concussion management team and at least one other member of the team. The substitute contains provisions not in the original requiring the student and the student's parent or guardian or another person with legal authority to make medical decisions for the student, in order for the student to return to practice or competition, to have acknowledged that the student has completed the requirements of the return-to-play protocol and provided the treating physician's written statement to the person responsible for compliance with the return-to-play protocol and the person who has supervisory responsibilities.  The substitute differs from the original, in a provision requiring a consent form to be signed by the student and the student's parent or guardian or another person with legal authority to make medical decisions for the student, to require that the form indicate that the person signing consents to the disclosure to appropriate persons of the treating physician's written statement and any return-to-play recommendations of the treating physician, and that the person understands the immunity provisions established by the bill, whereas the original does not require the consent form to include those indications.

C.S.H.B. 2038 contains a provision not included in the original prohibiting the coach of an interscholastic athletics team from authorizing a student's return to play. The substitute omits a provision included in the original requiring an athletic trainer, if an athletic trainer is a member of the concussion management team, or other person employed by an applicable school or school district to perform the duties generally performed by an athletic trainer, to enforce each directive established by the return-to-play protocol.  

C.S.H.B. 2038 omits provisions included in the original requiring each applicable school to submit to the school district board of trustees or other applicable governing body an annual report for the school that contains certain information relating to concussions sustained by students, the treatment of those concussions, and the persons serving on the concussion management team, as well as provisions establishing maintenance requirements for such a report.

C.S.H.B. 2038 omits provisions included in the original requiring the Texas Education Agency to establish a Training and Education Advisory Council to develop a training course in concussion management and relating to the approval of the course by the Advisory Board of Athletic Trainers and requirements to maintain and post on the board's Internet website an updated list of approved providers. 

C.S.H.B. 2038 contains a provision not included in the original requiring the University Interscholastic League to approve for coaches of interscholastic activities training courses relating to concussions that meet certain requirements and to maintain an updated list of individuals and organizations authorized by the league to provide the training.  The substitute contains a provision not included in the original requiring the Department of State Health Services Advisory Board of Athletic Trainers to approve for athletic trainers training courses in the subject matter of concussions and to maintain an updated list of individuals and organizations authorized by the board to provide the training. 

C.S.H.B. 2038 omits a provision included in the original including an athletic trainer employed by an applicable school or school district or, if an athletic trainer is not employed by a school or school district, a person employed to perform the duties generally performed by an athletic trainer among the individuals required to take an approved training course once every two years.

C.S.H.B. 2038 contains a provision not included in the original requiring a physician who serves as a member of a concussion oversight team, to the greatest extent practicable, to periodically take an appropriate continuing medical education course in the subject matter of concussions.  The substitute contains a provision not included in the original specifying which type of training course a coach, an athletic trainer, and a licensed health care professional other than an athletic trainer is required to take once every two years.  The substitute contains a provision not included in the original prohibiting a licensed health care professional who is not in compliance with the training requirements from serving on a concussion oversight team in any capacity.

C.S.H.B. 2038 differs from the original by establishing that the bill does not waive any immunity from liability of a school district or open-enrollment charter school or of district or charter school officers or employees; create any liability for a cause of action against such a school or against such a school's officers or employees; waive any immunity from liability for emergency care; or create any cause of action or liability for a member of a concussion oversight team arising from the injury or death of a student participating in an interscholastic athletics practice or competition, based on service or participation on the concussion oversight team, whereas the original establishes the specific conditions under which a school district or open-enrollment charter school is immune from liability for the injury to or death of a person participating, on property owned by the district or used for a charter school campus, as an athlete in a private, nonprofit athletics program for primary or secondary students that is caused by the act or omission of a person employed by or under contract with the athletics program.

C.S.H.B. 2038 differs from the original by authorizing the commissioner of education to adopt rules as necessary to administer the bill's provisions, whereas the original requires the commissioner to adopt rules to administer its provisions.

C.S.H.B. 2038 omits a provision included in the original relating to the authority of the commissioner to develop and by rule establish guidelines for the employment of an athletic trainer by a school district or open-enrollment charter school.

C.S.H.B. 2038 differs from the original in conforming and nonsubstantive ways.