Transcript Legal Concerns and Related Issues

Chapter 3: Legal Concerns
and Insurance Issues
© 2011 McGraw-Hill Higher Education. All rights reserved
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
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Liability:
State of being legally
responsible for the harm
one causes to another
person.
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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
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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
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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
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• 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
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• 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
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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
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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
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• 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
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Reducing the Risk
of Litigation
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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
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• 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
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• Follow physician’s orders, particularly
when dealing with participation of
athlete
• Purchase liability insurance
• Know scope of practice
• Use common sense
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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
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• 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
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• Athletic trainers should not alter
equipment
– Doing so invalidates the manufacturers
warranty
– Results in placing liability solely on the
athletic trainer
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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
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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)
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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
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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
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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
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• 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
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• 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
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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
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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)
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• HMO will pay 100% of costs if care
rendered within the HMO plan providers
• ATs must have working knowledge of
HMO limits and restrictions
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Capitation
• Form of reimbursement where members
make standard payment monthly
regardless of services rendered
• Managed care plans utilize this practice
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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
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• 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
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• 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
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– 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
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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
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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
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• 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
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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
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