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Protecting the Heath and Health Privacy of Professional Athletes

Thu, 02/21/2019 - 10:36 -- admin25

by Ryan K. McComber

Before investing millions of dollars in a professional athlete, sports teams conduct extensive medical due diligence to see if the athlete has any lingering injuries or medical issues that might limit his effectiveness or cause him to miss playing time. Perhaps the best example is the NFL Combine, where invitees undergo extensive medical exams, the results of which can mean the difference between a multi-million-dollar contract and going undrafted.

Once in a professional sports league, a professional athlete must continue to make medical choices that maximize both her performance and career longevity. If a professional athlete is injured, she may also be subject to league-wide treatment and reporting protocols. For example, most professional sports leagues now have mandatory protocols governing the diagnosis and treatment of concussions, although such protocols can vary by sport.

When making medical decisions, a professional athlete must keep in mind the potential for conflicts of interests that arise when receiving medical treatment from team physicians. Professional athletes must also take steps to safeguard their private health information (PHI) and understand their rights under state and federal privacy laws, as unlawful disclosure of PHI could negatively impact their employability and career earnings. To face these challenges, professional athletes should be properly advised of the following legal and ethical issues:

Inherent Conflicts of Interest

First, receiving medical treatment from team physicians and medical staff, regardless of the sports league, involves an inherent conflict of interest. In this regard, a team physician is not the personal physician of the professional athlete. Unlike a personal physician, a team physician is employed by, and likely has a contractual obligation to maximize, the performance of the entire team—not just the individual athlete. While most of the time the interests of the team and its professional athletes are aligned, conflicts can arise when a professional athlete is injured and is considering competing treatment options—especially where one of the treatment options maximize the short-term success of the team to the detriment of the athlete’s long-term health. For a recent example of the potential for this type of conflict, one need look no further than the reported disputes that arose between Kawhi Leonard’s private physicians and the San Antonio Spurs regarding the best treatment for his 2017 quadriceps injury. Thus, professional athletes should always get a second opinion from a private physician when considering their treatment options for injuries, especially those impacting long-term health.

Protecting PHI and HIPAA

Second, a professional athlete needs to safeguard their PHI by understanding what is and is not protected from unlawful disclosure by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the federal statute that provides data privacy and security provisions for safeguarding medical information. As an initial matter, a professional athlete’s PHI related to his medical treatment by team physicians and medical staff is not protected by HIPAA. Therefore, athletes should avoid providing PHI to team physicians and medical staff unrelated to their treatment or that they do not want shared with coaches and management, as the general confidentiality rules of the doctor-patient relationship may not always apply. Moreover, before providing PHI as part of league treatment protocols, an athlete should question how such PHI will be treated and shared, and what safeguards are in place to prevent such PHI from being disclosed to third-parties.

Moreover, while most professional athletes assume that their PHI from their private physicians is not subject to HIPAA protection, the Department of Health and Human Services (HHS) has made clear that the PHI of professional athletes can only be disclosed if authorized by the athlete. In August of 2002, HHS issued its Standards for Privacy of Individually Identifiable Health Information (the Privacy Rule). In the Privacy Rule, HHS responded to a suggestion by a commenter that PHI related to professional athletes should qualify as an “employment record” and therefore should not be subject to HIPAA protection due to their profession. However, HHS rejected this suggestion. Instead, it found that no class of individuals should be singled out for reduced privacy protections under HIPAA. Nevertheless, HHS noted that nothing prevents an employer, such as a professional sports team, from making an employee’s agreement to disclose PHI a condition of employment. While many professional sports teams do require this as a condition of employment, many do not. Therefore, a professional athlete should take steps to protect her PHI by only authorizing its disclosure to her employer if contractually required.

Ryan K. McComber is a Partner at Figari + Davenport, LLP. He can be reached at ryan.mccomber@figdav.com.

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