Ohio Joins In

By Hosea H. Harvey, JD, PhD

Last week, Ohio joined the vast majority of states that have enacted laws designed to reduce long-term health consequences for youth athletes who suffer concussions (technically, traumatic brain injuries or TBIs) in organized youth sports activities.  Based on my research for an upcoming article “Reducing Traumatic Brain Injuries in Youth Sports” (forthcoming, American Journal of Public Health), it appears that Ohio has followed the lead of most other states by adhering to a common framework and (at the same time) has substantially innovated with respect to certain key provisions of such laws.

Most youth sports TBI laws are organized around three broad risk-reduction methods: 1) educating parents, youth athletes, and/or coaches, 2) requiring the removal of youth athletes suspected of having concussions, and 3) providing criteria that a youth athlete must meet prior to returning to athletic competition. Each of these methods are, in part, derived from legislation crafted after a tragic football injury to Zachary Lystedt in Washington, leading the state to pass the nation’s first such law in April 2009. (You can read the law on LawAtlas™)  Since then, adherence to the “Lystedt framework” has been a common feature of state-level youth sports TBI laws. In this fast-paced legislative environment, unprecedented in scope, Ohio is relatively late to the game. Yet, by moving later, Ohio’s deliberate speed has resulted in legislation that relies on the Lystedt framework but also contains innovations of uncertain efficacy.

Ohio’s law generally adheres to the Lystedt framework by relying on the three standard risk-reduction methods. Ohio now mandates an education/permission component for sport eligibility, requiring athletes, parents, coaches and referees to receive concussion education (parents/athletes by an annual release and information form and coaches/referees by formal training as part of certification). Ohio also requires that athletes suspected of having concussions be removed from play by that sport’s coaches or referees. Additionally, Ohio requires that prior to returning to that sport, youth athletes are evaluated by a physician or health care provider and receive written clearance. In each of these core methods of reducing post-TBI risk or harm, Ohio fits squarely within the standard state law approach to this field. However, within and across these methods, Ohio’s law contains reforms and changes unlike most states. Let’s look at each in turn.

First, with respect to health provider assessment and clearance, like most states with such requirements, Ohio allows for a physician to make a return to play assessment. Many states (you can explore their laws using the Sports Concussion interactive map at LawAtlas.org) also provide for assessment/clearance by a “health care provider” and define that term at the state-wide level in youth sports TBI laws or other state-level regulations. Ohio’s innovation allows for clearance by a “health care provider.” However, Ohio requires that the provider have some professional relationship to or with a physician and also expressly permits the definition of “health care provider” to be determined in part by local school boards — an unprecedented delegation of a key part of youth sports TBI risk-reduction. Thus, in Ohio, it will be possible (across school districts) for “return to play” evaluations to have substantively different criteria and differing sets of authorized providers making return to play decisions, provided they make such decisions in consultation with, collaboration with, referred by, or under the supervision of a physician.

Second, in Ohio, it is technically possible for an athlete who has suffered a concussion to engage in sports activity on the same day as the injury. This loophole arises because coaches and referees are responsible for removing and evaluating return criteria only for the sport in which the athlete competed or practiced under their supervision. So, in Ohio’s framework, it would be possible for a youth athlete to be removed from morning hockey practice, not be cleared to return that day, and still participate in football after school — provided that the referees and/or coaches for the two sports were different. This might seem to be a far-fetched scenario — who would take that risk? Yet, in the heat of a season, with championships on the line, athletes may not be forthcoming with such information in order to help the (second) team win.

Third, unlike most youth sports TBI laws, Ohio’s provisions are explicitly split between two separate types of youth athletic endeavors:  school-authorized athletics and athletic events outside of a school district’s official capacity. The provisions substantially differ in two main areas. First, perhaps in deference to the autonomous nature of non-school based organized youth sports activities, parents and youth athletes must receive concussion risk/information sheets, but they are not required to sign a release/waiver or provide proof that they have read such materials.  Second, coaches and referees but also officials from the youth sports organization are empowered to make removal decisions in such programs.  However, the two Ohio-specific reforms noted above (locally-approved health provider qualification and sport-specific return guidelines) are also applied to non-school based organized sports.

Finally, Ohio’s law provides a fairly sweeping liability waiver for individuals acting to effectuate the goals or requirements of the law, provided that such acts or omissions in carrying out the law do not constitute “willful or wanton misconduct.” While some states have a similar requirement, the vast majority of states that have enacted such laws do not provide for such liability waivers. The efficacy of liability waivers on performance of duties relating to youth sports TBI laws is completely unknown, raising the key question: What if such waivers reduce the efficacy of such laws?

Ohio should be commended for taking first-steps toward reducing the potential for repeat TBIs in youth athletics, although it has done so relatively late compared to most states. And, because Ohio has chosen to depart from various precedents established in other states, it may be possible to assess the health-efficacy of Ohio’s unique provisions compared to jurisdictions that do not share these provisions.  In particular, as Ohio’s nuanced expansion of health provider eligibility, sport-specific removal criteria, and non-school based youth sports guidelines play themselves out over time, we may learn more about how such distinctions help improve the real legislative bottom line — TBI risk reduction for a very vulnerable population — youth athletes.

Hosea H. Harvey, JD, PhD has received funding from PHLR to examine the impact of TBI- and concussion-related laws. He is also the curator of the LawAtlas™ Sports Concussion dataset.

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One thought on “Ohio Joins In

  1. One point you missed here is that there is a clause that allows any organization that has more stringent guidelines in place to take precedent over this law. The Ohio High School Athletic Association (OHSAA) already mandates only an MD, DO, or AT (their practice act requiring them to work under an MD or DO) to make a RTP decision. The OHSAA does not allow PTs, RNs, DCs, EMTs, or any one else to make that decision, regardless if they are under an MD or DO supervision. This makes the criteria for RTP arguement moot.

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