Testimony by Jon Almquist for the January 23, 2007 NCVHS Subcommittee on Privacy and Confidentiality Hearing

Testimony to the National Committee on Vital and Health Statistics and its subcommittee on Privacy and Confidentiality

Presented by Jon Almquist, ATC, on behalf of
the National Athletic Trainers’ Association (NATA) www.NATA.org

For January 23, 2007

Mr. Chairman and members of the Subcommittee.  On behalf of the National Athletic Trainers’ Association (NATA) and the more than 30,000 licensed and certified athletic trainers it represents, I want to thank you for this opportunity to testify at today’s hearing by the National Committee on Vital and Health Statistics and its subcommittee on Privacy and Confidentiality.

My name is Jon Almquist. I have been a Certified Athletic Trainer for 24 YEARS.  I am currently the Athletic Training Program Specialist for Fairfax County Public Schools (FCPS). It has been my privilege to provide comprehensive athletic healthcare to student athletes and sometimes even faculty and staff for many years.   I was the chairman of the NATA Secondary School Athletic Trainers’ Committee for almost 10 years.  It is with this background that I speak today about the delicate balance between FERPA (Family Educational Rights and Privacy Act) and HIPAA as they impact the student athlete in secondary schools.

My purpose in appearing before you today is to explain some of the challenges that certified athletic trainers face with protecting patient privacy, in this case students who are minors. The line between protecting a patient’s confidentiality and sharing information to protect the student’s health is a fine line.  The NATA does not have a policy that states a preference of which privacy rules athletic trainers should work under.  We willingly abide by the privacy rules by which our employers are regulated.  But along with playing by the designated rules, the health and safety of our student athletes and our professional ethics and judgment are also important.

First a little explanation of who we are:  Certified athletic trainers—or ATCs—are allied health care professionals who are regulated in 44 states.  Athletic trainers hold a national certification, an exam we sit for after completing a bachelor’s or master’s degree.  Athletic trainers are educated in the prevention, assessment, treatment and rehabilitation of musculoskeletal injuries and other illnesses.  About half of NATA members work for secondary schools, colleges and professional sports.  The other 50 percent work in physician offices, clinics, hospitals, corporate wellness and other specialty settings.

Nationally, about 42 percent of public secondary schools have access to an athletic trainer.

First you need to know a little bit about how athletic trainers work across the nation.  There are basically two business models:  full-time employees of the school district and “outreach” employees from the private sector to a school district.

In the first and NATA-preferred model, the athletic trainer works as a full-time employee of the school district.  This is the case in Fairfax County schools.  When this is the model, the athletic trainer’s actions and student medical records fall under FERPA because they are school documents.  Mr. Chairman, I understand that this subcommittee has previously had testimony from school nurses on FERPA so I will not reiterate its details today.  There is a problem we all too often experience in the area of communication when certified athletic trainers attempt communication with other medical professionals, most commonly physicians.  Although the athletic trainers and physician’s are both professionally involved in the care of the student athlete, appropriate communication with the physician’s office is often compromised under the fear of a HIPAA violation.  It would benefit efforts by athletic trainers to provide quality healthcare to student athletes with clearer guidance pertaining to the sharing of information between two healthcare providers regarding the same patient.

In the second and very common business model, the athletic trainer is employed by a physician’s office or outpatient therapy clinic.  In these cases, the athletic trainer works with secondary schools on an “outreach” basis.  Many times, the athletic trainer works in the clinic or office in the morning and then is on-site at the school in the afternoon and evenings for practices and games.  In this model, the student’s medical records that the clinic based employee creates are typically covered under HIPAA unless they have been established a “carved out entity” by their employer.  The multiple compensation models that are present with an outreach athletic trainer in a secondary school such as school districts paying a fee for the athletic trainer directly to the athletic trainer, fees paid to the clinic for the athletic trainer, volunteer services of the athletic trainer to the school further complicate the situation.

There are differences among the school based legal opinions regarding whether the records fall under FERPA or HIPAA for outreached based athletic trainers, and more disturbing is that many have not garnered a ruling from the school system they provide the services to.

You can already see the gray area.  Even though the records kept by the athletic trainer are medically related, they are still subject to FERPA standards, depending on the employer.

It gets more complicated in allowing records to go out beyond the walls of the athletic training clinic.

Obviously parents have something to say about these issues.  Because of their own experiences, many parents believe that their students are covered under HIPAA.  It is the athletic trainer’s responsibility to inform the parent of the FERPA rules, and work with them to achieve an appropriate balance of confidentiality and privacy that protects the health of the student.

Typically, students and their parents are notified during the pre-participation physical process that the medical records can be distributed to coaches and school administrators.  In almost all states, students must have some form of a pre-participation physical in order to play a sport which often includes an acknowledgement of risk statement and confidentiality statement.  This notice allows the athletic trainer to provide sensitive information about an athlete to others who need to know.

As health care providers, athletic trainers must be the locus of student athlete medical records.  We protect the health and safety of our patients.  We must also protect their confidential medical records unless there are real emergency conditions that permit disclosure.  Emergency disclosure information may include criminal acts, incidents involving illegal drugs and crisis situations.

So athletic trainers must be careful of privacy issues.  It is the responsibility of athletic trainers to inform and educate administrators and coaches that, while the information may legally be available under FERPA, withholding medical information from may be in the best interest of the student.

It gets more complicated when a coach or administrator want to know about a student athlete’s medical records.  In these cases, the athletic trainer must determine whether that person has some responsibility for the student’s care.  Sometimes that answer is yes—because even the school bus driver is responsible—and sometimes it is no, the student’s privacy must be respected.  This is when the athletic trainer must rely on his or her professional ethics.

In conclusion, certified athletic trainers in secondary schools work in a complicated environment.  We must balance our professional and ethical obligations, health care practice demands and bridging the gap between FERPA and HIPAA.  NATA does not have a recommendation at this time on whether HIPAA standards should supersede FERPA, but it is pleased to contribute to the discussion today and in the future.

Thank you for taking the time to look at this complex issue, and if the chairman wishes, I will be happy to answer questions.

END