Legislation for safety isn’t no-brainer

Part I examined the passage of the first Lystedt Law three years ago, which calls for major reforms in how youth sports concussions and brain injuries are treated and diagnosed. The law is designed to prevent what happened to Zack Lystedt, who suffered brain damage at age 13 as a result of returning to the football field prematurely after having suffered a prior concussion and getting re-injured.

Thirteen states have yet to sign a law to protect youth athletes from the risks associated with post-concussion trauma.

But it’s one of the 37 states that did pass such legislation that could be the best example of how the inner workings of lawmaking can thwart a common sense approach to safeguarding the nation’s most vulnerable athletes.

“I felt very frustrated to be honest,” Wyoming senator Bill Landen told FOXSports.com. “I can remember having several down nights thinking that even though this was a very good bill, it would be shot down in one of the two houses (of the legislature). What you learn in politics is that sometimes you have to compromise and get what you can.”

What was left turned out to be weakest of any of the bills signed into law nationally, legislation often referred to as the Lystedt Law named after Zackery Lystedt, who, at age 13, suffered brain damage when he returned to a football game prematurely after an initial concussion. (This month marks the three-year anniversary of the first law passed in Lystedt’s home state of Washington.)

The legislation Wyoming signed into law last year called only for the state department of education to work with local officials to “develop model protocols for addressing risks associated with concussions and other head injuries resulting from athletic injuries.” But local school districts are under no obligation “to adopt any part of the model protocols.”

Landen, who is also the athletic director at Casper College, said his efforts to keep return-to-play rules, concussion education and other mandates as part of the bill were overrun by what many thought was a civil liberty issue.

“That’s some of the feedback that we got,” Landen said. “We were told parents already know the risk their children are in when they play football, basketball or are on the cheer squad. They didn’t want the state coming in and issuing mandates on this or that.”

Jeff Miller, NFL’s vice president of government affairs and public policy, is hopeful that Wyoming — and the other states that have yet to even to propose serious legislation — will come around.

“Where there have been efforts like Wyoming or states that haven’t passed legislation at all like Georgia and some others, I think it’s only a matter of time,” Miller said. “It is frustrating that some states haven’t passed it. So many other states have passed (more robust) legislation and they chose to do what’s right for kids. More people are aware of the risks of concussions because of these laws. We are encouraged that Wyoming and other states will come around, maybe not this year, but soon.”

South Carolina, for one, doesn’t seem to be in much of a hurry. The state’s House of Representatives failed to move its bill that had the three major tenets of the Lystedt Law out of committee before the so-called “crossover” deadline on May 1, meaning the bill is effectively dead this year.

“The feeling is that after we reached out to the South Carolina High School League and talking to coaches, concussions are being handled appropriately already,” said State Rep. Phillip D. Owens, who heads the House’s Education and Public Works Committee where the bill has stagnated. “The state’s high school athletic league already has concussion training and has its own rules for following up (after a concussion). We do have an interest in concussions, but we feel this is being taken care of by the South Carolina High School League.”

The South Carolina High School League does have return-to-play guidelines in place, but doesn’t cover every school in the state like a legislative mandate would have. A good portion of the state’s private schools are governed by another association, which has its own set of concussion guidelines.

But that’s all they are: guidelines. They don’t have the weight of the state government behind them.

“We are trying to get out ahead of it,” said Bruce Hulion, assistant commissioner of the South Carolina High School League. “We’re telling coaches (to follow the guidelines) if you don’t want a law that would make yourself subject to legal action. So, hopefully, the wise ones will follow this protocol and not take any chances. When you are in a ball game and the game’s on the line, some forget that.”

South Carolina is joined by a dozen other states — Arkansas, Georgia, Hawaii, Michigan, Mississippi, Montana, Nevada, New Hampshire, Ohio, Tennessee, Vermont and West Virginia — that have yet to sign concussion legislation into law despite a nearly two-year lobbying effort by the NFL, the family of Zackary Lystedt and other groups.

“They need to meet our family. It’s that simple,” said Victor Lystedt, Zackary’s father. “You can’t look and tell me how tough your kids are or, ‘We don’t want a nanny,’ like we’re hearing from a lot of Southern states. I don’t think you’re ever going to meet anybody as tough as my kid. There’s not a player I’ve met who could hold a candle to my son’s therapy every day to get better.

“Sometimes it’s weird to find that some really dumb people are lawmakers. How can you not stand up and support this when you have the ability to save a life? As a lawmaker, what more do you want? In our state since Zackary’s law went into effect, we have not lost one kid to a hematoma because of a return-to-play issue. It’s not happening.”

Michigan, one state where legislation couldn’t gain a foothold after it was first introduced three years ago, has made significant strides in recent weeks and the proposed law covers all youth athletes, not just ones involved in high school sports. The bill was referred to the state senate’s health policy committee earlier this month and hearing was held last week where Detroit Lions Team President Tom Lewand and Hall of Fame Lions tight end Charlie Sanders lobbied for passage of the bill.

“I do believe that this bill can get passed,” said Barbara Semakula, chief resident at Wayne State University and a longtime proponent of concussion legislation in Michigan. “Hopefully they can get it done in this session.”

Other states have included athletes outside of those purely participating in high school sports, but the proposed Michigan law is expansive in another way: it lets a wide variety of health professionals to clear a youth athlete after a concussion. “A youth athlete who has been removed from physical participation in an athletic activity … shall not return to physical participation in the athletic activity until he or she has been evaluated by an appropriate health professional and receives written clearance,” Senate Bill No. 1122 reads.

“Appropriate health professional” is open to interpretation and Semakula said could include not only doctors, but nurse practitioners, athletic trainers, neuropsychologist and chiropractors.

“We don’t want to exclude any medical professional who has undergone the proper training (to diagnose and treat head trauma),” Semakula said. “There are sports chiropractors who go through two years of extra training and have been through seminars on concussions. They are probably more qualified to clear an athlete than an OBGYN.”

A main reason why Michigan’s proposed law doesn’t specify a medical doctor as the only health professional allowed to clear an athlete is access.

“You don’t want to have a kid who should be cleared miss an entire season because it took him or her six months to get to a big city,” Semakula said.

Several states have seen extensive lobbying by different associations who want their membership to be allowed to clear athletes. Some — like the National Athletic Trainers’ Association — have worked hand in hand with the NFL, while other groups have taken other routes to be heard. A lobbying group for chiropractors, for example, was successful in delaying a bill in the Florida legislature.

“Diagnosing concussions and other closed head-wound injuries are taught in all of our schools,” said Jack Hebert, director of government affairs for the Florida Chiropractic Association. “It was very important (to be included in the bill) because of our history in the state. It would have been a loss of status. This falls within the scope of practice (of a chiropractor).”

The proposed law in Florida was eventually amended to allow the state’s high school athletics association to determine what constituted a medical professional. Gov. Rick Scott signed the bill into law earlier this month.

“You hear horror stories of who wants to be that person (able to clear athletes),” said Marjorie J. Albohm, president of the National Athletic Trainers’ Association. “Based on their knowledge, skills and ability, chiropractors are not considered qualified to make concussion-related return-to-play decisions.”

For those seeking to get those final states on board, the legislative obstacles — whether it be because of bureaucracy or lobbying efforts — remain frustrating.

“Even in the fractionated political world we live in, this is a common sense law that deserves a consensus vote,” said Stanley Herring, director of the Sports, Spine and Orthopaedic Health for University of Washington Medicine and key backer of the Lystedt Law. “This transcends politics. We can all agree that this is helpful. It’s something to make sure that the brains and health of our youth athletes are being protected as best as possible.”

Senior NFL writer Alex Marvez contributed to this report.