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Getting Your Head In The Game: School Concussion Policies And Protocols

[August 21, 2014]  With the beginning of the academic year underway or imminent, many students are returning to campus for pre-season athletic training. This school year, however, many schools and student-athletes will be governed by new (and perhaps improved) concussion protocols.

Combatting concussions has become a forefront issue in school athletics. Across the nation, legislatures, student athletic associations, and schools are responding to the demand for more comprehensive concussion policies to better protect student-athletes. Indeed, as of January 2014, every state and the District of Columbia had passed legislation regulating the prevention and management of student-athlete traumatic head injuries. In March, the National Athletic Trainers’ Association (NATA) released a new position statement on the management of sports concussions and offered comprehensive guidelines. And just over the summer, California’s governor signed a law that not only limits the number of tackling practice sessions for young football players—to only two, 90-minute full-contact practices per season—but the law also requires one week on the bench for all student-athletes who suffer a concussion.

Although concussion management laws vary from state-to-state, they generally share three pillars—a return-to-play rule, an informed consent requirement, and an education and training obligation. The return-to-play rules regulate the circumstances in which a student-athlete suspected of having a concussion or head injury must be removed from play and when he or she can resume participating in athletics.

Baseline testing is another tool to help manage sports-related concussions. By requiring students to have a pre-season exam to measure balance and brain functioning, medical professionals can better identify and diagnose post-exam head injuries. While no states currently require baseline testing, Rhode Island strongly encourages all youth sports programs (including those operated by private schools) to adopt the practice; and Massachusetts requires public schools and schools that are members of the Massachusetts Interscholastic Athletic Association to mandate that student-athletes provide head injury medical histories.

At independent schools, administrators, coaches, medical support personnel, students, and parents all play a significant role in protecting student-athletes. To help achieve their goal, we recommend including the following components in a comprehensive head injury policy:

  • An action plan policy for all students participating in interscholastic athletics;
  • Protocols for head injuries, including Return to Activity guidelines;
  • Education for parents and students, coaches, medical support employees, and other relevant persons about recognizing and managing traumatic head injuries;
  • Requests for student-athlete head injury histories;
  • Mandatory baseline testing for all student-athletes;
  • Recordkeeping of all head injuries occurring on and off campus; and
  • Policies for students who are suffering from concussions.

In addition, we recommend updating Athletics Handbooks to address concussion management and other issues such as medical emergencies, practice guidelines, and academic policies related to participation in athletics.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for student-athlete head injury policies and protocols.

Some Closely Held For-Profits Exempt From ACA Contraceptive Mandate

[July 23, 2014]  On June 30, 2014, the Supreme Court held, 5-4, that closely held for-profit corporations whose owners have sincerely held religious beliefs opposing contraception need not comply with the contraception mandate of the Patient Protection and Affordable Care Act (“ACA”), which requires employers to provide coverage for all FDA-approved contraceptive methods.  Specifically, the Court ruled that the Religious Freedom Restoration Act of 1993 (“RFRA”) shields such for-profits from providing coverage for contraception methods they find objectionable.

The case was brought by family-owned Hobby Lobby Stores Inc. and another closely held corporation.  Hobby Lobby is controlled exclusively by a married couple and their adult children; each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries.

Hobby Lobby filed suit under RFRA, which prohibits the federal government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.  Hobby Lobby sought to enjoin application of the ACA’s contraceptive mandate with respect to four contraceptives:  two forms of “morning after” pills and two types of intrauterine devices.  (Hobby Lobby did not object to the other sixteen contraceptives required by the ACA’s contraceptive mandate, including birth control pills.)

The Supreme Court held that for-profit corporations are “persons” within the meaning of RFRA’s free exercise protections and that the challenged regulations substantially burden Hobby Lobby’s exercise of religion. (In support of finding substantial burden, the Court noted that the penalty on Hobby Lobby for providing a non-compliant health plan would equal about $475 million per year, and the penalty for failing to provide health coverage would equal about $26 million per year.)

The Court further concluded that the ACA contraceptive mandate was not the “least restrictive means” of furthering a compelling governmental interest.  The Court explained that the most straightforward way of ensuring coverage for all women “would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.”  Concurring with the majority opinion, Justice Kennedy noted that the government is already doing this for nonprofit religious organizations.  (However, that system has also been challenged in a separate pending litigation.)

The Court indicated that its decision should be read narrowly:  the ruling only extends to closely held companies whose owners have sincerely held religious beliefs opposing contraception, and does not apply to vaccinations, blood transfusions, etc.  However, Justice Ginsburg, dissenting, argued that corporations will inevitably use the decision to opt out of other laws with which they disagree.

In light of this decision, closely-held employers may wish to consider whether to object to the ACA’s contraception mandate, if their owners have sincerely held religious beliefs opposing contraception.  Publicly-traded companies could seek to expand the Supreme Court’s decision.

Updated COBRA Notices Provide Information About Obamacare Options

[June 9, 2014]  On May 2, 2014, the Department of Labor (“DOL”) released proposed regulations containing new model notices pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”).  The new notices inform workers that they may purchase coverage through the health insurance exchanges established pursuant to the Affordable Care Act (“ACA”) and that such coverage may be less expensive than COBRA continuation coverage.

In general, administrators for group health plans must issue two types of notices pursuant to COBRA:  1) a “general” notice when a participant initially becomes covered under the plan; and 2) an “election” notice when a participant experiences a COBRA qualifying event.  The new regulations revise both the model general notice and the model election notice by including information about the ACA.

The model general notice instructs employees that health coverage may be more affordable when purchased through an ACA exchange, and it directs them to the ACA health exchange website.  The model election notice contains detailed information, through a question and answer format, about the ACA, including where and when to enroll in coverage, whether an employee can switch between COBRA and ACA coverage, and factors to consider when choosing coverage, including severance provisions, access to current providers, and prescription coverage.

Even though the open enrollment period for ACA coverage has closed, people with COBRA insurance have a special enrollment period to obtain coverage through the federal ACA exchange:  they may enroll by July 1, 2014.  The Department of Health and Human Services established the special enrollment period because the former model COBRA notices did not sufficiently address ACA options.

Although plan administrators are not required to use the model notices, such use is considered good faith compliance with the notice requirements of COBRA.  Thus, we advise using the updated models immediately.

Home Sweet Home: It May Not Be So Sweet…

[May 12, 2014]  The media and the government are both paying more attention, and we urge educational administrators to take a second look as well.

The question is whether independent schools, colleges and universities are obligated to treat the rental value and utility costs of a school-owned residence, occupied by a school employee (e.g., Head of School, faculty member), as a component of the employee’s gross taxable income.  In other words, may the school provide housing to the employee as a tax-free benefit, or must the school report the value of the housing benefit on the employee’s W-2 form?

Under the applicable federal legal standard, the default is that an educational institution is obligated to include the rental value and utility cost of the employee’s house provided by the school within his or her gross income, unless the school’s housing arrangement satisfies a “three criteria test.”  The test is whether:  (i) the school’s housing is furnished on the school premises; (ii) the school’s housing is furnished for the convenience of the school; and (iii) the employee is required to accept such housing arrangement as a condition of employment.  Or, alternatively, the school falls within the “qualified campus lodging” exception (i.e., the school’s housing is located on campus, furnished for use as a residence, and the employee pays an adequate rent).

The prongs of these tests are not always easy to satisfy – especially in the context of a day school (non-boarding).  Historically, on-campus housing has been a fabulous perk for educational leaders.  Today, the regulatory environment is such that a formal legal opinion should be rendered as to the taxability of the benefit.  It is no longer sufficient to simply recite that on-campus residence is a requirement of the job – a stronger rationale may be required by the government to satisfy a non-taxable benefit.

In addition, it is important to note that state laws do not always mirror the federal law.  For example, New Jersey tax law uses the three criteria test and does not recognize the “qualified campus lodging” alternative.  Thus, the “qualified campus lodging” benefit could be tax-free for federal purposes, but still taxable for New Jersey purposes.

Analyzing the excludability of housing benefits from an employee’s gross income is highly fact-intensive.  We recommend carefully evaluating the school’s housing arrangement in light of applicable federal and state laws.

Union Rights For Student Athletes? NLRB Decision Creates A Whole New Ball Game For Colleges And Universities

[April 24, 2014] Football players for Northwestern University (the “University”) who receive grant-in-aid scholarships may vote for union representation under federal labor law, according to a recent, controversial ruling by the Regional Director (“RD”) of the National Labor Relations Board (“NLRB” or “Board”) office in Chicago. The secret-ballot election has been scheduled to take place tomorrow, April 25, 2014.

The University has filed a request for review of the RD’s decision by the full Board. If the Board agrees to review the RD’s decision, then the Board could either (i) stay the election pending the outcome of its review, or (ii) let the election proceed, but with the ballots impounded until the review is completed.

If the Board lets the RD’s decision stand (either after review or by declining review), and if in turn, the football players vote to unionize, then the University might refuse to bargain with the union. This would force the union to file an unfair labor practice charge, the first step in a legal process that includes rights of appeal to the United States Court of Appeals and then to the United States Supreme Court. (If the players voted against unionization, then the legal process would end, but the players could seek another union election after one year.)

If allowed to stand, the RD’s ruling would be a “game changer” for many colleges and universities. In this regard, union organizing campaigns targeted toward student athletes, followed by costly collective bargaining involving big-ticket demands, could become the norm.

Background

Earlier this year, a labor organization called College Athletes Players Association (“CAPA”) filed a representation petition with the RD. The petition asked the RD to schedule a secret-ballot election for University football players receiving grant-in-aid scholarships (the “Players”) to determine if they wished to be represented by CAPA for purposes of collective bargaining with the University.

The University objected to the representation petition, primarily on the ground that its football players are not employees and, as such, do not have a right to unionize under federal labor law. In this regard, the National Labor Relations Act (the “Act”) provides collective bargaining rights only to nonsupervisory “employees” of employers covered by the Act. (In the educational realm, the Board generally (i) asserts jurisdiction over private and nonprofit colleges, universities, and other schools with gross annual revenue of $1 million or more; (ii) treats public educational institutions as exempt from the Act; and (iii) declines to assert jurisdiction over employees of religious organizations who are involved in effectuating the religious purpose of the organization. Please note, however, that entities not covered by the Act may be covered by state labor laws.)

The University and CAPA (which, by the way, receives financial support from the United Steelworkers union) participated in an evidentiary hearing at the NLRB and then submitted briefs in support of their respective positions. The briefs were forwarded to the RD for a decision.

The RD’s Decision

The RD concluded that the Players are employees of the University for purposes of the Act. In reaching this conclusion, the RD applied the common law definition of “employee.” Under this definition, an employee is a person who (1) performs services for another, (2) under a contract of hire, (3) subject to the other’s control or right of control, and (4) in return for payment. According to the RD, each of these elements was satisfied.

First, the RD found that the Players’ participation on the football team constituted “valuable services” to the University. He noted that the University’s football program generated approximately $235 million in revenue between 2003 and 2012 through ticket sales, television contracts, merchandise sales, and licensing agreements. According to the RD, the University “was able to utilize this economic benefit provided by the services of its football team in any manner it chose.” The RD also reasoned that the Players’ services have resulted in a winning football program, which has had an “immeasurable positive impact” on alumni giving and the number of applicants for enrollment at the University.

Second, in the RD’s view, the “tender” that each Player was required to sign before the beginning of each scholarship period served “as an employment contract.” The tender is a document providing detailed information about the duration of the scholarship and the conditions under which scholarship funds are to be provided. Noting that the National Collegiate Athletic Association (“NCAA”) prohibits student athletes from receiving additional compensation or otherwise profiting from their athletic ability and reputation, the RD concluded that “the scholarship players are truly dependent on their scholarships to pay for basic necessities, including food and shelter,” making the tender all the more akin to an employment contract.

Third, the RD determined that the Players perform their services under the University’s “strict and exacting control” throughout the entire year. In particular, the RD found that the University requires the Players: (a) to commit 50-60 hours per week to football-related activities during a six-week training camp prior to the academic year; (b) to commit 40-50 hours per week to football-related activities during the “football season” portion of the academic year, despite NCAA rules purporting to limit such activities to 20 hours per week once the academic year begins; and (c) to abide by restrictions governing numerous aspects of their personal lives, including, among other things, their living arrangements, outside employment, and off-campus travel.

Fourth, according to the RD, “it is clear that the scholarships the players receive is compensation for the athletic services they perform throughout the calendar year, but especially during the regular season and postseason.” In this regard, the RD noted that “while it is true that the players do not receive a paycheck in the traditional sense, they nonetheless receive a substantial economic benefit for playing football” in the form of “tuition, fees, room, board, and books for up to five years.” The monetary value of these scholarships, the RD found, was as much as $76,000 per year – and in excess of $250,000 in the aggregate – for many of the Players.

The RD rejected the University’s argument that the Board’s decision in Brown University, 342 NLRB 483 (2004), required a finding that the football players are not employees. In Brown University, the Board ruled that “graduate assistants” who sought union representation were not employees within the meaning of the Act. The RD distinguished Brown University as being premised on a finding that the graduate assistants were “primarily students.” To the contrary, explained the RD, “it cannot be said that [the Northwestern University football players] are ‘primarily students’ who ‘spend only a limited number of hours performing their athletic duties.’”

Implications and Recommendations

If the RD’s ruling is allowed to stand, then student athletes who receive scholarships from colleges and universities are likely to become targeted for aggressive union organizing. This means, in effect, that members of many collegiate football teams, basketball teams, and the like (i.e., student athletes whose teams require them to put in substantial hours and generate substantial revenues, as reflected in the RD’s first and third factors) could opt for representation by CAPA or other labor organizations and then proceed to demand collective bargaining with the institution.

What would the parameters be for collective bargaining involving student athletes? This is far from clear. CAPA’s Web site suggests that, at a minimum, protecting student athletes from injury and assisting with medical expenses would be areas of emphasis. In this regard, CAPA contends that the NCAA denies having a legal duty to protect college athletes from injury; has failed to investigate and minimize concussion-related deaths; and ignores reports that coaches pressure athletic trainers to clear concussed players for action. CAPA also wants to loosen restrictions on how and the extent to which student athletes may be compensated.

Educational institutions – particularly those that generate revenue through their athletic programs – are urged to monitor the Northwestern University case closely. As the matter now stands, the prospect of union organizing campaigns in dormitories and athletic facilities; collective bargaining sessions with union-represented student athletes; and demands for big-ticket items such as guaranteed medical benefits for sports injuries is one step closer to reality. Given what is at stake, the game plan for educational institutions should be to stay informed and, in turn, to be prepared.