Meeting of the Board of Regents | June 2003

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	The Honorable the Members of the Board of Regents
FROM:	James A. Kadamus
COMMITTEE:	Elementary, Middle, Secondary and Continuing Education
TITLE OF ITEM:	Proposed Amendment to the Regulations of the Commissioner Relating to Physical Education and Athletic Trainers
DATE OF SUBMISSION:	May 19, 2003
PROPOSED HANDLING:	Approval (Consent Agenda)
RATIONALE FOR ITEM:	Clarification of Regents Policy
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

SUMMARY:

Attached is a proposed amendment to the Regulations of the Commissioner of Education relating to physical education and athletic trainers for approval. Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

The purpose of the proposed amendment to section 135.4 of the Regulations of the Commissioner is to establish qualifications and the scope of duties and responsibilities of athletic trainers who may be employed by boards of education for interschool and intramural athletic teams or physical education classes. The current regulations do not reflect provisions for New York State Certification of certified athletic trainers pursuant to Article 162 of the Education Law, thereby decreasing the incentive for some trainers to obtain such certification and for schools to hire qualified personnel. Further, the proposed amendment would allow the State Education Department oversight and control over the professional practice of certification related to athletic trainers in high schools, and would enable school districts to hire the most qualified candidates for athletic trainer positions.

A Notice of Proposed Rule Making was published in the State Register on November 20, 2002. Based on comments at the Board�s December meeting, the proposed amendment was revised to specify that athletic trainers must successfully complete training in the operation and use of an automated external defibrillator. A Notice of Revised Rule Making was published in the State Register on December 31, 2002. The proposed amendment was subsequently revised in response to public comment. An Assessment of Public Comment is attached.

VOTED: That paragraph (5) of subdivision (c) of section 135.4 and clause (d) of subparagraph (i) of paragraph (7) of subdivision (c) of section 135.4 of the Regulations of the Commissioner of Education be amended as submitted, effective July 10, 2003.

PROPOSED AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to sections 101, 207, 305 (1) and (2), 803 (5), 3204 (2), 8351 and 8352 of the Education Law

1. Paragraph (5) of subdivision (c) of section 135.4 of the Regulations of the Commissioner of Education is amended, effective July 10, 2003, as follows:

(5) Facilities. Trustees and boards of education shall provide adequate indoor and outdoor facilities for the physical education program at all grade levels. [Appropriate guidelines to schools with respect to facilities will be provided by the Division of Physical Education, Fitness, Health, Nutrition and Safety Services.]

2. Clause (d) of subparagraph (i) of paragraph (7) of subdivision (c) of section 135.4 of the Regulations of the Commissioner of Education is amended, effective July 10, 2003, as follows:

(d) to determine the need for an athletic trainer and to permit individuals to serve as athletic trainers for interschool athletic teams, intramural teams or physical education classes only in accordance with the following:

(1) Qualifications. Persons serving as an athletic trainer shall possess a valid [certificate] license as a Certified Athletic Trainer from [the National Athletic Trainers Association or have completed a course of study comparable to that required for certification by the National Athletic Trainers Association;] the State of New York issued pursuant to Article 162 of the Education Law and, commencing July 10, 2003 and thereafter, shall have successfully completed training pursuant to Public Health Law section 3000-b(3)(a) in the operation and use of an automated external defibrillator, provided that persons already serving as athletic trainers on July 10, 2003 shall successfully complete such training no later than December 31, 2003.

(2) Scope of duties and responsibilities. The practice of the profession of athletic training shall be as defined in Education Law section 8352. Consistent with Education Law section 8352, [The] the services provided by an athletic trainer shall include, but not be limited to, the following:

(i) [provide first aid and sport injury emergency services for students] prevention of athletic injuries, including assessment of an athlete�s physical readiness to participate;

(ii) [provide school personnel and students with advice and services on physical conditioning programs, training methods, screening procedures, injury prevention and use of safety equipment for sports participation; and] management of athletic injuries;

(iii) [supervise the training room, maintain and order first aid supplies, and maintain records on student injuries and illnesses relative to sports participation in cooperation with the school health service office] reconditioning to minimize the risk of re-injury and to return the athlete to activity as soon as possible, excluding the reconditioning of neurologic injuries, conditions or disease;

(iv) health care administration, including medical record keeping, documentation and reporting of injuries, writing policies and procedures, budgeting and referral of injured athletes to appropriate authorized health care professionals when indicated;

(v) education and counseling of coaches, parents, student athletic trainers and athletes;

(vi) risk management and injury prevention, including:

(A) assisting in the arrangement of pre-participation examinations;

(B) assisting in the proper selection and fitting of protective equipment, including the application of wraps, braces, tape and pads;

(C) assisting in the inspection of fields and playing surfaces for safety;

(D) advising on weather-related conditions and care for their specific injuries/illnesses;

(E) advising on designing and implementation of fitness and conditioning programs for athletes;

(F) a
dvising students on the maintenance and attainment of optimal body weight and physical conditioning to prevent and avoid athletic injury; and

(G) advising the athlete in avoidance of substance abuse;

(vii) management of athletic injuries, including:

(A) recognizing the various types of musculoskeletal and nervous system injuries that may occur in athletes;

(B) understanding the various phases of healing and promoting an environment that assists in the healing process;

(C) referring the athlete for further evaluation and accurate diagnosis after the initial management of an injury; and

(D) accessing local health services, including social support services available to the athlete;

(viii) immediate care of athletic injury and physical conditions, including responsibility for:

(A) the initial on-the-field injury assessment of acute injuries;

(B) administering appropriate first aid and emergency care to the injured athlete

including, as necessary, the use of an automatic external defibrillator, and deciding on the management of acute injuries, provided that nothing herein shall authorize the use of an automatic external defibrillator by an athletic trainer who has not successfully completed training in the use of such equipment pursuant to Public Health Law section 3000-b(3)(a); and

(C) the recognition and evaluation of potentially serious, life threatening injuries;

(ix) treatment and reconditioning of athletic injuries, including responsibility for:

(A) under the supervision of a physician, designing reconditioning programs that make use of appropriate therapeutic exercise, reconditioning equipment or therapeutic modalities in relation to athletic injuries;

(B) overseeing the reconditioning process and returning the athlete to full activity;

 

(C) designing and supervising an athletic injury reconditioning program and modifying that program based on the healing process;

(D) using appropriate therapeutic exercise techniques;

(E) designing a series of sport related activities that allow the athlete to gradually progress to complete functional ability; and

(F) assisting in social support of an injured athlete, with regards to pain threshold, compliance, competitiveness, and the ability to adjust to injury;

(x) organization and administration, including:

(A) responsibility for maintaining an athletic training room facility;

(B) maintaining detailed injury reports, treatment records, and reconditioning programs;

(C) responsibility for ordering equipment and supplies;

(D) establishing rules and policies for the daily operation of the athletic training room; and

(E) educating student athletic trainers by providing a quality environment consistent with all rules and regulations to develop professionally;

(xi) professional development and responsibilities, including:

(A) attending continuing education programs offered at state, district or national meetings;

(B) consulting and reviewing professional journals and textbooks;

(C) educating the community of health care professionals as to the role of the certified athletic trainer; and

(D) informing parents, coaches and athletes as to the importance of quality health care for the physically active.

PROPOSED AMENDMENT OF SECTION 135.4 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 101, 207, 305 (1) AND (2) 803 (5), 3204 (2), 8351 AND 8352 OF THE EDUCATION LAW, RELATING TO PHYSICAL EDUCATION AND ATHLETIC TRAINERS

ASSESSMENT OF PUBLIC COMMENT

Since publication of a Notice of Revised Rule Making in the State Register on December 31, 2002 the State Education Department has received the following comments:

1. COMMENT:

The provision in proposed section 135.4(c)(7)(i)(d)(2)(vi)(F) that includes, within the scope of duties and responsibilities of an athletic trainer employed by a school district, "advising the athlete in matters related to diet, weight loss, weight gain and eating disorders" should be deleted. Such activities are not authorized under the definition of athletic training in Education Law section 3852 and would blur the lines of scope of practice between the professions of dietetics and nutrition and certified athletic training.

DEPARTMENT RESPONSE:

The Department recognizes that there may be a likelihood of confusion between the professions of dietetics and nutrition and certified athletic training. To clarify that issue, the proposed rule has been revised to replace the phrase "advising the athlete in matters related to diet, weight loss, weight gain and eating disorders" with the phrase "advising students on the maintenance and attainment of optimal body weight and physical conditioning to prevent and avoid athletic injury."

2. COMMENT:

The provisions in section 135.4(c)(7)(i)(d)(2)(ii) and (vii) of the proposed rule that would authorize athletic trainers to engage in recognition, evaluation and assessment of athletic injuries, instead of managing such injuries, exceeds the statutory definition of Athletic Training.

DEPARTMENT RESPONSE:

The Department agrees that it would be clearer to track the statutory language in defining the practice of athletic training and has revised the language accordingly to refer to the "management of athletic injuries."

3. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(iii) that would authorize "reconditioning to minimize the risk of re-injury and to return the athlete to activity as soon as possible" exceeds the statutory definition of athletic training, since the statute limits the scope of reconditioning to exclude the reconditioning of neurologic injuries, conditions or disease.

DEPARTMENT RESPONSE:

The proposed rule is meant only to clarify the range of activities permitted within the statutory definition of practice. The reconditioning activities described in this provision are not intended to imply that reconditioning of neurological injuries is permissible. Accordingly, section 135.4(c)(7)(i)(d)(2)(iii) has been revised to specifically exclude the reconditioning of neurologic injuries, conditions or disease.

4. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(vii)(A) that would permit "recognizing the various types of musculoskeletal and nervous system injuries that may occur in athletes", exceeds the statutory definition of athletic training since it does not limit such injuries to "athletic injuries."

DEPARTMENT RESPONSE:

The proposed rule is meant to clarify the practice modalities authorized by the definition of the practice of athletic training contained in Education Law section 8352. Consistent with the statute, section 135.4(c)(7)(i)(d)(2)(vii) has been revised to refer to "management of athletic injuries, including [sub-items A through D]" thereby assuring that the scope of this provision pertains to only athletic injuries.

5. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(viii) that would authorize athletic trainers to provide "immediate care of injury and illnesses" exceeds the statutory definition of athletic training because the practice is limited to "recognizing illness and referring to the appropriate medical professional."

DEPARMENT RESPONSE:

The proposed rule has been amended to authorize athletic trainers to provide "immediate care of athletic injury and physical conditions."

 

6. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(ix) exceeds the statutory definition of athletic training by failing to specify that treatment and reconditioning be pursuant to physician's orders.

DEPARTMENT RESPONSE:

The provision relating to physician's orders is found in Education Law section 8352. Section 135.4(c)(7)(i)(d)(2) has been revised to clarify that the services listed therein, including "treatment and reconditioning of athletic injuries" under (d)(2)(ix), shall be consistent with Education Law section 8352.

7. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(ix)(A) that would allow athletic trainers under the supervision of a physician to design reconditioning programs that "make use of . . . manual therapy techniques or therapeutic modalities" exceeds the scope of practice for athletic training. The term "manual therapy" should be replaced with "massage therapy" and the reference to "therapeutic modalities" should be deleted as vague.

DEPARTMENT RESPONSE:

The Department recognizes the need for clarification in specifying the modalities that will fall within the scope of duties of athletic training. Accordingly, the proposed rule was revised to delete reference to manual therapy techniques and to specify "reconditioning programs that make use of appropriate therapeutic exercise, reconditioning equipment or therapeutic modalities in relation to athletic injuries."

8. COMMENT:

The provisions in section 135.4(c)(7)(i)(d)(2)(i) and (ii) relating, respectively, to "[a]ssessment of an athlete's [physical] readiness to participate" and "assessment of the type and severity of injuries and obtaining pertinent medical history" impinge on the practice of the medical doctor and nurse practitioner.

DEPARMENT RESPONSE:

The Department is mindful of the need for the coordination of all appropriate licensed professionals in the promotion of good health of student athletes. In that regard, the provisions in the proposed rule are meant to suggest cooperative care rather than impingement by one practitioner over another. Section 135.4(c)(7)(i)(d)(2) has been revised to clarify that any services to be provided by an athletic trainer as listed therein shall be consistent with Education Law section 8352.

9. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(iii) relating to returning the athlete to activity as soon as possible may not be in the best interest of the athlete and a holistic assessment to determine the most appropriate action would best serve the student.

DEPARTMENT RESPONSE:

Returning an athlete to activity "as soon as possible" is not meant to suggest that such return would be appropriate if adverse to a student's health. The intent is simply to gain the most efficient efforts at total rehabilitation, consistent with the student's health interests.

10. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(vi)(F), relating to advisement in matters relating to diet, could involve advising on eating disorders involving emotional and/or psychological counseling, for which nurses are prepared and expected to perform.

DEPARTMENT RESPONSE:

Consistent with the scope of practice of athletic training, section 135.4(c)(7)(i)(d)(2)(vi)(F) has been revised to replace "advising the athlete in matters related to diet, weight loss, weight gain and eating disorders" with "advising students on the maintenance and attainment of optimal body weight and physical conditioning to prevent and avoid athletic injury."

11. COMMENT:

The provision in section 135.4(c)(7)(i)(2)(viii), relating to the immediate care of injury and illness, infringes upon the practice of nursing and medicine since the care of illness necessitates a diagnosis.

DEPARMENT RESPONSE:

Consistent with Education Law section 8352, the proposed rule has been amended to authorize athletic trainers to provide "immediate care of athletic injury and physical conditions."

12. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(viii)(C), relating to the recognition and evaluation of potentially serious life threatening injuries, should be revised to clarify the term "evaluation" consistent with the scope of athletic training.

DEPARTMENT RESPONSE:

The Department agrees that all evaluations that are performed by an athletic trainer must be in accordance with the statutorily accepted definition of practice. The introductory language of section 135.4(c)(7)(i)(d)(2) has been revised to specify that the services provided by an athletic trainer, including those listed in items (9) through (xi), shall be "consistent with Education Law section 8352."

13. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(ix)(A), relating to treatment and reconditioning under the supervision of a physician, should be revised to also include supervision by a certified nurse practitioner.

DEPARTMENT RESPONSE:

The provision merely tracks the language of Education Law sections 8351 and 8352 that refers to supervision by a physician.

14. COMMENT:

The provision in section 135.4(c)(7)(i)(d)(2)(x)(B), relating to maintaining detailed injury reports, treatment records and reconditioning programs, should be revised to provide for the merging of such records with the school health records to ensure a holistic approach to the students' care.

DEPARTMENT RESPONSE:

As a licensed professional, the athletic trainer is responsible for the accurate maintaining of patient records pursuant to 8 NYCRR section 29.2(3). Consistent with the licensed professional's responsibility, the Department believes it would be inappropriate to prescribe specific systems for maintaining such records. The proposed rule would not prohibit merging with school health records or other methods of record keeping, provided that such methods ensure that accurate records are kept.

15. COMMENT:

The services set forth in section 135.4(c)(7)(i)(d)(2)(xi)(D), relating to informing parents, coaches and athletes as to the importance of quality health care for the physically active, should be coordinated by the school health nurse who has responsibility for educating students, families and groups to achieve optimal health.

DEPARTMENT RESPONSE:

It is the intent of the proposed rule that all licensed professionals involved with the care of a student athletes will cooperate professionally to ensure the safe and adequate provision of professional services to each patient. Each professional has a unique role and the employment of that role should satisfactorily serve the interests of the involved student and the student's family.