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James M. Hood, Jr.

Office of the Attorney GeneralSeptember 19, 2014

2014 WL 5350508 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2014-00348
*1 September 19, 2014

Re: Mississippi Youth Concussion Law

 
*1 James M. Hood, Jr.
*1 Houston Municipal School District Attorney
*1 112 North Jefferson Street
*1 Houston, MS 38851-0246
Dear Mr. Hood:
*1 Attorney General Jim Hood has received your opinion request and has assigned it to me for research and reply.
 
Issues Presented
 
*1 You seek clarification on the applicability of House Bill 48, 2014 Regular Session, which enacted the Mississippi Youth Concussion Law (MYCL). Specifically, you provide, in pertinent part, the following:
*1 (The MYCL) requires local school boards to “adopt and implement a concussion management and return to play policy” and defines a school athletic event as ““activities sanctioned by the Mississippi High School Activities Association (MHSAA) or the Mississippi Association of Independent Schools (MAIS), and school sponsored activities in Grades 7 through 12 of schools that are not members of the MHSAA or the MAIS which activities are organized and conducted in a manner substantially similar to activities that are sanctioned by the MHSAA or the MAIS.”
*1 It is unclear to me whether the MYCL applies only to school athletic events as defined by the statute or whether the requirements also apply to recreation or sports activities held on the school grounds, such as those authorized under Miss Code Ann. Section 37-171-1, et seq., or school district activities that are outside the definition of a school athletic event. Therefore, I am asking your official opinion on the following questions:
 
Specific Questions and Responses
 
*1 Question 1. Is a policy adopted by the school board that addresses only those school athletic events as defined in the MYCL in compliance with the MYCL and other applicable Mississippi statutes?
*1 Response: Yes.
*1 Question 2. Does the school district have a duty to ensure that outside groups who use the school district facilities comply with or adopt their concussion management and return policy?
*1 Response: No.
 
Applicable Law and Discussion
 
*1 According to the MYCL:
*1 Each local board of education, administration of a nonpublic school, and governing body of a charter school shall adopt and implement a concussion management and return to play policy that includes the following components:
*1 (a) Parents or guardians shall receive and sign a copy of the concussion policy before the start of the regular school athletic event season.
*1 (b) An athlete who reports or displays any symptoms or signs of a concussion in a practice or game shall be removed immediately from the practice or game. The athlete shall not be allowed to return to the practice or game for the remainder of the day regardless of whether the athlete appears or states that he or she is normal.
*1 (c) The athlete shall be evaluated by a health care provider working within the provider's scope of practice.
*1 (d) If an athlete has sustained a concussion, the athlete shall be referred to a licensed physician, preferably one with experience in managing sports concussion injuries.
*2 (e) The athlete who has been diagnosed with a concussion shall be returned to play only after full recovery and clearance by a health care provider.
*2 (f) An athlete shall not return to a competitive game before demonstrating that he or she has no symptoms in a full supervised practice.
*2 (g) Athletes shall not continue to practice or return to play while still having symptoms of a concussion.
*2 Although there is no stated definition of athlete in the MYCL, it is clear from the construction of the statute that, for the purposes of the MYCL, an athlete is a student who participates in “activities sanctioned by the MHSAA or the MAIS, and school-sponsored activites in Grades 7 through 12 of schools that are not members of the MHSAA or the MAIS which activities are organized and conducted in a manner substantially similar to activities that are sanctioned by the MHSAA or the MAIS.” Therefore, any policy adopted that addresses only those school athletic events as defined in the MYCL is in compliance with the requirements of the MYCL.
*2 As noted in your request, the question of whether the MYCL applies to outside groups using a school district's facilities can be further broken down into two subgroups: outside groups participating in a school sponsored activity, such as the visiting team in an athletic event, (Visiting Teams), and members of the public using the school district facilities for recreation or sport that is not sponsored by the school district (Public Recreation).
*2 The MYCL simply requires that school districts adopt and adhere to their own concussion policy. It does not require school districts to adopt a policy that applies to Visiting Teams as well. Because the MYCL applies to all public school districts, nonpublic schools and charter schools, each Visiting Team would necessarily be required to adopt their own concussion policy. A parent would sign a copy of the concussion policy for the school district that his child(ren) attend. Thus every athlete, whether on the home or visiting team, would be covered by a concussion policy. That the school in which a student is enrolled is responsible for its own students is further supported by Section 37-11-9 (“The board of trustees of any school district is authorized and empowered to pay out of the athletic fund or funds obtained from athletic activities all of the actual medical expenses evidenced by itemized bills of account, for injuries sustained by any regularly enrolled student while participating in athletic activities considered a part of any sport that said school engages in as a part of any regularly scheduled athletic contest with other schools.”) and Miss Code Ann. Section 37-7-301(q) (School Boards have the power, authority and duty “to provide athletic programs and other school activities and to regulate the establishment and operation of such programs and activities.”)
*2 With respect to Public Recreation, Miss Code Ann. Section 37-171-1 encourages school districts to allow “the public use of indoor or outdoor school property during nonschool hours for purposes of recreation or sport.” (Miss Code Ann. Section 37-171-5) Miss Code Ann. Section 37-171-5(2) specifically states:
*3 School districts and school district employees may not be held liable for any claim resulting from a loss or injury arising from the use of indoor or outdoor school property or facilities made available for public recreation or sport. However, this chapter does not relieve a school district or school district employee of liability that otherwise exists for:
*3 (a) Deliberate, willful or malicious injury to persons or property by a school district employee; or
*3 (b) Injury resulting from a lack of proper maintenance or upkeep of a piece of equipment or facilities, unless the school district or school district employee had attempted to restrict access to a piece of equipment or facilities area in need of repair which would endanger a student during normal school hours.
*3 This subsection may not be deemed to create or increase the liability of any person.
*3 In accordance with the above cited section, liability for a school district with respect to Public Recreation only exists for “deliberate, willful or malicious injury” or “lack of proper maintenance or upkeep of a piece of equipment or facilities.” There is no requirement in either the MYCL or Miss Code Ann. Section 37-171-1, et seq. that a school district ensure outside groups using its facilities for Public Recreation comply with or adopt the school district's concussion policy.
*3 Notably, the MYCL is silent on school sponsored extra curricular activities or physical activities that fall outside the definition of a School Athletic Event, such as Junior Reserve Officers' T raining Corps and physical education classes. While the MYCL does not require that a school district's concussion policy address these activities, there is nothing to prevent a school district from including them in its concussion policy or another district policy. Under Miss. Code Ann. Section 37-7-301.1, a “school board of a school district may adopt any orders, resolutions or ordinances with respect to school district affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi.” Similarly, although it is not required by the MYCL, a school district could choose to include compliance with or acknowledgment of the district's concussion policy for Visiting Teams or Public Recreation.
 
Conclusion
 
*3 A concussion policy that addresses only those school athletic events as defined in the MYCL is in compliance with the MYCL. A school district does not have a duty to ensure that outside groups who use the school district's facilities comply with or adopt the school district's concussion policy. While the MYCL does not require that a school district's concussion policy address events outside the definition of a school athletic event, under Home Rule, a school district may choose to adopt a concussion policy that applies to additional extra-curricular activities, Visiting Teams and/or Public Recreation.
*4 If our office may be of further service, please let us know.
Very truly yours.
*4 Jim Hood
*4 Attorney General
*4 By: Beebe Garrard
*4 Special Assistant Attorney General
2014 WL 5350508 (Miss.A.G.)
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