Senate Bill No. 336
(By Senators Stollings, Wells, Plymale, Barnes, Beach, Unger, Palumbo, Kessler (Mr. President) and Jenkins)
[Originating in the Committee on the Judiciary;
reported March 21, 2013.]
A BILL to repeal §55-7-19 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §18-2-25a; and to amend and reenact §29-12-5a of said code, all relating to establishing protocols and protections to limit and treat injury to youth athletes and students; making legislative findings with respect to concussions; defining certain terms; requiring certain rules; setting forth certain minimum provisions of rules; requiring Board of Risk and Insurance Management to provide insurance coverage for certain additional individuals; clarifying Board of Risk and Insurance Management shall provide insurance coverage for licensed health care professional; limiting civil liability in certain circumstances; and making certain technical changes.
Be it enacted by the Legislature of West Virginia:
That §55-7-19 of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto a new section, designated §18-2-25a; and that §29-12-5a of said code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-25a. Management of concussions and head injuries in athletics at West Virginia Secondary School Activities Commission member high school or middle school.
(a) The Legislature makes the following findings:
(1) Concussions are one of the most commonly reported injuries in children and adolescents who participate in sports and recreational activities. The Centers for Disease Control and Prevention estimates that as many as 3.9 million sports-related and recreation-related concussions occur in the United States each year;
(2) A concussion is caused by a blow or motion to the head or body that causes the brain to move rapidly inside the skull. The risk of catastrophic injuries or death is significant when a concussion or head injury is not properly evaluated and managed;
(3) Concussions are a type of brain injury that can range from mild to severe and can disrupt the way the brain normally functions;
(4) Concussions can occur in any organized or unorganized sport or recreational activity and can result from a fall or from players colliding with each other or with obstacles;
(5) Concussions occur with or without loss of consciousness, but the vast majority occur without loss of consciousness;
(6) The interscholastic athlete who continues to play or practice with a concussion or symptoms of head injury is especially vulnerable to greater injury and even death; and
(7) Even with generally recognized return-to-play-and-practice standards for concussion and head injury, some affected interscholastic athletes are prematurely returned to play or practice resulting in increased risk of physical injury or death to the athletes in the State of West Virginia.
(b) For the purposes of this section, “interscholastic athlete” means any athlete who is participating in interscholastic athletics at a high school or middle school that is a member of the West Virginia Secondary School Activities Commission. “Licensed health care professional” means a health care provider whose licensed scope of practice includes the ability to diagnose and treat an injury or disease.
(c) The West Virginia Secondary School Activities Commission shall promulgate rules pursuant to section twenty-five of this article that address concussions and head injuries in interscholastic athletes: Provided, That prior to state board approval and notwithstanding the exemption provided in section three, article one, chapter twenty-nine-a of this code, the state board shall submit the rule to the Legislative Oversight Commission on Education Accountability pursuant to section nine, article three-b, chapter twenty-nine-a of this code.
(d) The rules required by this section shall include, but are not limited to, the following:
(1) Guidelines and other pertinent information to inform and educate appropriate school administrators, coaches, interscholastic athletes and their parents or guardians of the nature and risk of concussion and head injury including the risks of continuing to play or practice after a concussion or head injury;
(2) A concussion and head injury information sheet that shall be signed and returned by the interscholastic athlete and the athlete's parent or guardian on an annual basis before the interscholastic athlete begins practice or competition;
(3) A requirement that each head coach of an interscholastic sport at a high school or middle school who is a member of the West Virginia Secondary School Activities Commission complete a commission-approved concussion and head injury recognition and return-to-play protocol course annually;
(4) A requirement that an interscholastic athlete who is suspected by a licensed health care professional or by his or her head coach or athletic trainer of having sustained a concussion or head injury in a practice or game shall be removed from competition at that time;
(5) A requirement that an interscholastic athlete who has been removed from play or practice may not return to play or practice until the athlete is evaluated by a licensed health care professional trained in the evaluation and management of concussions and receives written clearance to return to play and practice from the licensed health care professional;
(6) A list of the respective categories of licensed health care professionals who, if properly trained in the evaluation and management of concussions, are authorized to provide written clearance for the interscholastic athlete to return to play; and
(7) A requirement that all member schools must submit a report to the West Virginia Secondary School Activities Commission within thirty days of an interscholastic athlete suffering or being suspected of suffering a concussion or head injury in a practice or game. The report must state whether an evaluation by a licensed health care professional verified that a concussion or head injury was actually suffered, whether the athlete received written clearance to return to play or practice and, if written clearance was given, the number of days between the incident and the actual return to play or practice. If written clearance to return to play is given after thirty days of the incident, a report update shall be submitted. The West Virginia Secondary School Activities Commission shall compile and submit the reports to the appropriate state and national organization or agencies to analyze and make determinations on whether the rule required by this section needs to be amended or if equipment worn by interscholastic athlete needs to be changed accordingly.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 12. STATE INSURANCE.
§29-12-5a. Liability insurance for county boards of education, their employees and members, the county superintendent of schools and for employees and officers of the State Department of Corrections.
(a) In accordance with the provisions of this article, the State Board of Risk and Insurance Management shall provide appropriate professional or other liability insurance for all county boards of education, teachers, supervisory and administrative staff members, service personnel, county superintendents of schools, and school board members, volunteer workers and student teachers, and for all employees and officers of the State Department of Corrections: Provided, That the Board of Risk and Insurance Management is not required to provide insurance for every property, activity or responsibility of county boards of education, teachers, supervisory and administrative staff members, service personnel, county superintendents of schools, and school board members, volunteer workers and student teachers, and for all employees and officers of the State Department of Corrections: Provided, however, That the Board of Risk and Insurance Management shall provide insurance for a licensed health care professional as defined in section twenty-five-a, article two, chapter eighteen of this code.
(b) Insurance provided by the Board of Risk and Insurance Management pursuant to the provisions of subsection (a) of this section shall cover claims, demands, actions, suits or judgments by reason of alleged negligence or other acts resulting in bodily injury or property damage to any person within or without any school building or correctional institution if, at the time of the alleged injury, the teacher, supervisor, administrator, service personnel employee, county superintendent, school board member, volunteer worker or student teacher, or employee or officer of the Department of Corrections, was acting in the discharge of his or her duties, within the scope of his or her office, position or employment, under the direction of the Board of Education or Commissioner of Corrections or in an official capacity as a county superintendent or as a school board member or as Commissioner of Corrections.
(c) Insurance coverage provided by the Board of Risk and Insurance Management pursuant to subsection (a) of this section shall be in an amount to be determined by the State Board of Risk and Insurance Management, but in no event less than $1 million for each occurrence. In addition, each county board of education shall purchase, through the Board of Risk and Insurance Management, excess coverage of at least $5 million for each occurrence. The cost of this excess coverage will be paid by the respective county boards of education. Any insurance purchased under this section shall be obtained from a company licensed to do business in this state.
(d) The insurance policy provided by the Board of Risk and Insurance Management pursuant to subsection (a) of this section shall include comprehensive coverage, personal injury coverage, malpractice coverage, corporal punishment coverage, legal liability coverage as well as a provision for the payment of the cost of attorney's fees in connection with any claim, demand, action, suit or judgment arising from such alleged negligence or other act resulting in bodily injury under the conditions specified in this section.
(e) The county superintendent and other school personnel, volunteer worker and student teacher shall be defended by the county board or an insurer in the case of suit, unless the act or omission shall not have been within the course or scope of employment or official responsibility or was motivated by malicious or criminal intent.
(f) For the purposes of this section, “volunteer worker” includes, but is not limited to, a licensed health care professional as defined in section twenty-five-a, article two, chapter eighteen of this code. A licensed health care professional is not liable for any civil damages as a result of rendering diagnostic or treatment services for an injury or disease, or as a result of any act or failure to act in providing or arranging further medical treatment, in accordance with acceptable standards of care, to an extent greater than the applicable limits of the professional liability insurance provided by the State Board of Risk and Insurance Management pursuant to this section and in effect at the time.