Aug 17 2011
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NewPublicHealth Q&A: Hosea Harvey and Kerri Lowrey

file Hosea Harvey and Kerri McGowan Lowrey

While a growing number of major league sports teams have policies on concussion assessment and return to play, many youth and school sports leagues and teams do not have similar rules, despite thousands of sports-related concussions reported in children and adolescents every year. To address the issue, the Public Health Law Network recently held a webinar on the topic, sponsored by Public Health Law Research, a Robert Wood Johnson Foundation program at Temple University.

The discussion included a look at legal and legislative approaches to address concussions in youth sports. NewPublicHealth spoke with two of the webinar presenters,Kerri McGowan Lowrey, J.D., M.P.H., Senior Staff Attorney with the Public Health Law Network, Eastern Region, who is based at the University of Maryland School of Law, and Hosea H. Harvey, Ph.D., J.D., Assistant Professor of Law and Political Science at the Temple University Beasley School of Law.

NewPublicHealth: What’s the status of law in youth sports concussions right now?

Kerri Lowrey: Many of the laws that have been passed are very, very similar. They’re mainly based on the Zackery Lystedt Law passed in Washington State and I don’t think that we’re seeing much alteration from that template [which includes removing athletes from play if suspected of having a concussion, until evaluated by a licensed physician]. The one new thing that does seem to be emerging is mandatory head injury baseline assessment or brain functioning baseline assessment so that there is a baseline of how the child behaves, how their brain functions before they start playing sports. That lets sports directors have some way of measuring whether a child who is injured is ready to return to play. That’s happening mainly at the county level and on a voluntary basis. One state, Rhode Island, requires baseline testing, while Massachusetts requires completion of a comprehensive, up-to-date concussion history form.

NPH: Do you expect that to be implemented more widely?

Kerri Lowrey: I know that the research isn’t there to show whether that’s been effective for jurisdictions that seek to have a baseline for knowing when to return a child to play. I think that once that data becomes available, we’ll be able to answer that question a little better.

NPH: When it comes to creating guidelines or laws that could possibly prevent concussions and youth sport injuries, what seems to be propelling more activity and what might be keeping things at the status quo for now?

Kerri Lowrey: In terms of why states are passing these laws over the last couple of years, I think that has a lot to do with media publicity. Several states, for example, have named concussion-related laws after youth athletes in their states who have been injured. It’s just one of those heart tugging stories and easy to get passed for that reason and it tends to be bipartisan.

Hosea Harvey: There are a few things that have delayed or slowed adoption of laws in certain states. One is state leadership that isn’t thinking about the issue, or hasn’t made it a priority. The second thing is that in some states there’s a concern about the scope of liability and depending upon the political leanings of the state, it’s difficult to get a law passed where some don’t want to adopt the liability waiver and others do. Negotiating that process can take a long time. It may also be that having a large percentage of schools that are non-public, such as religious or private schools, might also influence the tenor of the debate. There are certainly some legislators that have caution when trying to create regulations that are going to control religious and private schools.

NPH: Do you think that a law is always the best way to go or could guidelines also work?

Hosea Harvey: From my perspective, I think that we certainly don’t know that any particular law is the best solution at this stage. That’s because there’s a lot about the science that medicine still doesn’t know, which influences how we determine whether or not these new laws will have the impact that everyone desires - namely a reduction in youth concussions. Because of this scientific uncertainty, some suggest that we can't yet determine which parts of these new laws - if any - best address the problem. We don’t really know, for example, precisely how concussions occur or the rates across different sports or the science of helmets and a variety of other factors that influence concussions. So there are certainly a variety of things that the states could do and in fact have done to address the problem with or without legal mandates.

Another thing that’s interesting about that is that if you look at a certain number of the laws they require essentially that the state’s public health department take the lead in crafting guidelines separate from the law itself, which suggests that having a rigorous public health effort led by people who are invested in the issue from a medical perspective, is something that might be done in tandem with or separate from the legislation as well.

Kerri Lowrey: I think that’s an excellent point that Hosea makes. Broadly I think that law is often underutilized and also mis-utilized to address many of our public health problems, and in this area, I think Hosea is exactly right, we don’t know whether law is going to be the best approach to this problem. But I think at least some kind of uniform approach to governing when a student can return to the game after sustaining an injury is probably a really good approach, using CDC curriculum or something similar to educate coaches and parents and students themselves about why it’s dangerous to return to the game or to practice too soon.

NPH: Should, or could, the federal government step in here with a uniform law?

Hosea Harvey: From my perspective I would lean against the federal government jumping in at this point if only because so many states have already taken the lead and because we haven’t given them the time to determine which legislative solution works best. One area in which the federal government could make an impact is information gathering because we still don't have many longitudinal scientific measurements of youth concussions and we have no kind of broad national network of complete concussion reporting. If the federal government chose to figure out how to do a better job transferring information between doctors and health departments, I think that would be a useful non-invasive government intervention that everyone would agree would benefit those who are studying the issue.

>>The Public Health Law Webinar Series is brought to you in partnership by American Society of Law, Medicine & Ethics; Public Health Law Association; Public Health Law Network; and Public Health Law Research.

>>For more information on how laws and policies can impact public health, see the latest public health law stories on NewPublicHealth.

Tags: Public and Community Health, Public health law, Q&A, Safety, School Health