Chapter 3: Legal Concerns and Insurance Issues

Legal Concerns for the Athletic Trainer Critical to be mindful of the litigious nature of our society as it relates to healthcare Athletic trainers are held accountable for their patient care Potential exists that techniques and procedures used by athletic trainers may result in legal action due to issues of liability and negligence

Liability: State of being legally responsible for the harm one causes to another person.

Standard of Reasonable Care Negligence failure to use ordinary or reasonable care Standards of reasonable care Assumes that a person is of ordinary and reasonable prudence Bring commonsense approach to the situation Must operate within the appropriate limitations of ones educational background

Torts Legal wrongs committed against a person (liability results) May emanate from Nonfeasance Fail to perform legal duty (i.e. fail to refer) Malfeasance Performs action that is not his/hers to legally perform (i.e. perform advanced treatment leading to complications) Misfeasance Performs an action incorrectly that the he/she has the legal right to do

Proving Negligence Care giver does something a reasonably prudent individual would not. Care giver fails to do something a reasonably prudent individual would not. For a negligence suit to be successful Must prove the athletic trainer had a duty to exercise reasonable care The athletic trainer breached that duty Establish a connection between the failure to use reasonable care and the injury suffered by the individual

Individual possessing higher level of training will possess higher level of competence Once coach or athletic trainer assumes duty of caring for athlete that person has an obligation to provide appropriate care Obligation to provide services vs. Scope of employment

An athletic trainer at an institution has a duty to provide care to individuals at the institution May be protected through sovereign immunity Sovereign Immunity Neither the government nor individuals employed by the government can be held liable for negligence May vary state to state Good Samaritan Law Provides limited protection against legal liability to one that provides care should something go wrong

Statutes of Limitation Specific length of time an individual can sue for injury resulting from negligence. Varies by state but generally ranges from one to three years Clock begins at the time the negligent act results in suit or from the time injury is discovered following negligent act Minors have generally have an extension

Assumption of Risk Individual is made aware of inherent risks involved in sport and voluntarily decides to continue participating Expressed in written waiver or implied from conduct of athlete once participation begins Can be used as defense against an individual’s negligence suit

Does not excuse overseers from exhibiting reasonable care and prudence in regards to conduct of activities or foreseeing potential hazards Many and varied interpretations (particularly with minors) Often a waiver will stand in court except in incidents of fraud, misrepresentation or duress

Reducing the Risk of Litigation

Athletic Trainer Work to establish good working relationships with athletes, parents, patients, and coworkers Establish policies regarding athletic training facility and coverage Develop emergency action plan Become familiar with medical history of individuals under your care Maintain adequate records

Detailed job description Obtain written consent relative to providing health care Maintain confidentiality Exercise caution with regards to medication distribution and modality use Ensure safe equipment and facilities Develop an understanding with coaches on how and when injured participants will be cleared for return to play Allow injured players to return following physician clearance

Follow physician’s orders, particularly when dealing with participation of athlete Purchase liability insurance Know scope of practice Use common sense

Product Liability Liability of any or all parties involved in manufactured product for damages caused by product Includes manufacturer of components, assemblers, wholesaler, and retail store owner Products with inherent defects are subject to liability suits May be based on negligence, strict liability or breach of warranty fitness

Equipment warning labels Manufacturer of equipment has duty to design and produce equipment that will not cause injury Express warranty Manufacturer’s written guarantee – product safety Equipment warning labels Informs individual of possible dangers inherent with product use National Operating Committee on Standards for Athletic Equipment (NOCSAE) Minimum standards for equipment to ensure safety

Athletic trainers should not alter equipment Doing so invalidates the manufacturers warranty Results in placing liability solely on the athletic trainer

Insurance Considerations Major changes in insurance have occurred in light of managed care Major increases in the number of lawsuits and cost of insurance Medical insurance is a contract between the company and policyholder Company agrees to pay portion of medical bills following payment of a deductible

General Health Insurance Policy that covers illnesses, hospitalization and emergency care Sometimes offered through academic institutions for students (athletics) Secondary insurance provided through institutions to cover costs above primary insurance coverage Schools and universities must ensure that individuals have primary insurance coverage (in place or arranged for)

Accident Insurance Low cost plan to cover accident on school grounds or in workplace Protects against financial loss from medical and hospital bills Provides for additional protection for institution above regular policy Will cover costs associated with hospital care, surgery, and catastrophic injuries

Professional Liability Insurance Most employees have insurance to protect against damages that may arise from injuries occurring on their property Liability insurance covers against claims of negligence on part of individuals Because of rise in lawsuits, professionals must be fully protected, particularly in regards to negligence All ATs should carry and understand limits of coverage

Catastrophic Insurance Catastrophic injuries in athletics are relatively rare, but are staggering to all involved Organizations (NCAA, NAIA, NFSHSA) provide additional coverage to deal with lifetime extensive care

Errors and omissions liability insurance has evolved to protect individuals against suits claiming malpractice, negligence, errors and omissions Individuals within program should have personal liability insurance Ensuring that all athletes and faculty/staff coverage is in place is critically important

Filing of claims, at times, is the responsibility of the athletic trainer Can be very time consuming taking the AT away from other responsibilities Additional staff may be necessary to deal with added responsibilities

Third-Party Reimbursement Primary mechanism of payment for medical services in the U.S. Policyholder insurance company reimburses health care providers for services rendered Number of different options Pre-arranged systems Payment for preventive care Other systems developed to contain costs

Health Maintenance Organization Provide preventive measures and dictate where individual can receive care Permission must be gained to see someone outside of the plan (except in emergencies)

HMO will pay 100% of costs if care rendered within the HMO plan providers ATs must have working knowledge of HMO limits and restrictions

Preferred Providers Organization Provide discount health care and also limit where treatment can be obtained Must be aware of what facilities are approved for the program in order have cost completely covered May include additional types of coverage (physical therapy) PPO pay on a fee-for-service basis

Point of Service Combination of HMO and PPO Based on HMO model but allows for care outside of the plan Flexibility is allowed for certain conditions and circumstances

Exclusive Provider Organization Combination of HMO and PPO plans Restrictive in number and type of providers ( more like HMO) Most will not pay anything if you use out of network providers

Physician Hospital Organization Involves a major hospital or hospital chain and its physicians PHO organization contract directly with employers to provide services and or contracts with managed care organizations

Third Party Administrators Used to administer services Pay claims for self-insured group plans functioning as a pseudo insurance company Perform member services Enrollment and billing Assist with controlling utilization without financial risk

Medicare Federal health insurance program for the aged and disabled Most people age qualify for benefits Two parts A: Hospital portion – premium free at retirement to beneficiaries B: Physician portion – monthly premium charge

Medicaid Health insurance program for people with low incomes and limited resources Funded via federal government and individual states Individual states administer Medicaid Benefits will vary by state

Workers Compensation Laws and benefits for injured workers are mandated by states Employer pays premiums Claims are settled by workers compensation insurance carriers Insurance carrier goal – return worker to work as soon as possible

Indemnity Plan Most traditional form of billing for health care Fee-for-service plan that allows insured party to seek care without restrictions Provider charges patient or third-party payer Charges are set on fee schedule

Capitation Form of reimbursement where members make standard payment monthly regardless of services rendered Managed care plans utilize this practice

Third-Party Reimbursement for Athletic Trainers ATs have been able to bill third parties Most insurance companies refuse to reimburse Recently, increases in reimbursement in a variety of settings has been noted Third-party payers viewed “licensed health care professional” as reimbursable In most states this included ATs

Reimbursement Advisory Group (NATA) responsible for assessing changes in managed care and helping athletic trainers secure a place as a health care provider Athletic Training Outcome Assessment project (NATA) developed to present results of 3 year study Study focused on functional outcomes, perceptions of care, physical, social, mental well-being, time lost due to injury and satisfaction of care and treatment

Centers for Medicare & Medicaid Services (CMS) Ruling Third-party payers require outcomes research when evaluating a contract Centers for Medicare & Medicaid Services (CMS) Ruling Ruling states that they would no longer provide reimbursement for services unless provided by a physical, occupational or speech language therapist Does not allow physicians to bill for services rendered by ATs Federal government does not recognize ATs as providers of rehab services for Medicare patients at any age

May also impact legislation both at the state and federal level Ruling has had major implications for those ATs working in clinics and hospitals as physician extenders May also impact legislation both at the state and federal level The NATA continues to work to reverse this ruling In 2009, Athletic Trainers Equal Access to Medicare Act (H.R. 1137) was introduced to the US House of Representatives Allows for Medicare beneficiaries to receive care provided by AT’s Securing third-party reimbursement for athletic training services must remain a priority

Insurance Billing Must file claims immediately and correctly To facilitate, collect insurance information at the start of the academic year Letters should be sent home to fully explain the coverage available and necessary procedures Standard forms are the norm, but accurate and thorough completion is critical

Filing an Insurance Claim Standard forms are utilized Must be complete and detailed More accuracy and thoroughness = quick return and higher rate of reimbursement Billing Codes Diagnostic code Specifies injury/condition that is being treated Procedural code

ATs in clinical setting must be aware of third-party billing procedures May need to request approval from insurance companies for treatments to be rendered Billing must be in accordance with Current Procedural Terminology set by AMA Thorough record keeping is critical throughout the process

National Provider Identifier (NPI) Government issued identification number for individual health care providers and organizations Covered health care providers health plans, and health care clearinghouses must use NPI in all administrative and financial transactions according to HIPPA As of 2007, all electronic transactions (claims, verifications, inquiries) require use of this 10 digit number