The League

Dr. A. Brion Gardner
Orthopedic Surgeon

Dr. A. Brion Gardner

Staff Orthopedic Surgeon at Camp LeJeune

Hiding Behind HIPAA

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The NFL Injury Report policy was created in 1947. It has undergone little in the way of modification. There is great speculation as to why there is an injury report in the first place. Whether it is provided for fair competition, to provide an accurate betting line, or for the fans benefit is up for debate. The one thing not up for debate, is the fact that the NFL and more specifically, individual teams manipulate the policy for their own benefit.

The NFL competition committee has addressed the issue on several occasions and has chosen not to increase the requirements for reporting. Teams are blatantly vague, hiding behind false claims of HIPAA privacy rules.

HIPAA stands for the Health Insurance Portability and Accountability Act. It was created by the government to regulate health insurance and fraud associated with it. There is a section of this act related to patient privacy. The intent of the privacy act was to protect confidential information such as insurance policy numbers, social security numbers, home and work phone numbers, and preexisting conditions. The privacy regulations are often broadly interpreted and enforced. It has nothing to do with disclosing whether or not someone has a knee versus shoulder versus ankle injury. And, more importantly, is totally unrelated to whether or not a football player will participate in Sunday's contest.

So, as a matter of patient privacy, HIPAA has nothing to do with the injury report. It seems only logical to me that each team is as vague as possible to maintain a competitive advantage. The teams are only required to list the anatomic location that is affected, the level of participation in practice and how likely the player is to play in the game. As an orthopedic surgeon and an avid football fan, I would like to know a lot more detail. I would love the NFL to require team physicians to give full disclosure. This however, causes many potential problems with the gambling element associated with the league. (The NFL doesn't officially acknowledge this aspect of football, just as an aside.)

So, for now, the policy looks like it will remain as it is. Until then, we will have to fine tune our ability to decipher the injury report. A recent analysis of the injury report suggests that it is relatively accurate despite outward appearances that teams are sandbagging.

Players listed as "probable" participate in the game 89% of the time; "questionable" -52% of the time; "doubtful"-3% of the time. Whether your favorite injured player will perform at 50,75, or 100% is a totally different question.

By Dr. A. Brion Gardner  |  September 18, 2009; 7:40 AM ET  | Category:  Brett Favre , Cleveland Browns , Coaching , NFL , New York Jets , Roger Goodell Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati  
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As an orthopedic surgeon, I am surprised at the misunderstanding you have over the HIPAA privacy regulations. The privacy rules have nothing to do with "insurance policy numbers, social security numbers, home and work phone numbers". It is specific to Personal Health Information or PHI.
It definitely IS focused on disclosure of whether someone has an ankle or knee injury, broken ribs, appendicitis, etc.
The only real question about whether or not the NFL should be disclosing this information is "Is the NFL a covered entitiy under HIPAA". Since the NFL teams are the health care providers for their players, I am very surprised they are allowed under the law to disclose this information. Unless it is with the consent of the players.

Posted by: dwinns | September 19, 2009 9:30 AM

All I know is that Tom Brady is on the injury report EVERY week, but always plays. Why go through all the paperwork?

Posted by: BMACattack | September 19, 2009 2:57 PM

This is insane... the HIPAA is not just about numbers. It's about protecting health information from other people. It means if you get HIV, you have a right to not advertise that or have others advertise it for you. Now, it may not apply as usefully to sports injuries, but then again if they are not exempted I don't see why it legally wouldn't cover them.

Posted by: ihatelogins | September 19, 2009 4:49 PM

The HIPAA Privacy Rules apply to HIPAA Covered Entities only. The Rules define something called a hybrid covered entity which has a healthcare component; in that case, only the healthcare component is required to abide by the HIPAA Rules. I don't offhand know if the NFL teams would be defined as hybrid covered entities.

In any event, that question is completely moot.

Whether the NFL (or any university sports program) is a HIPAA-covered entity or not, if the player gives authorization for their healthcare status to be released, then the coaches can disclosure the info about the injury all day long and twice on Sunday with no problem at all.

Any expectation that the coach would walk out to the mics and announce that the player has authorized the disclosure should be dimmed. I can see no purpose in disclosing the nature of any injury unless the team believes that it may offer, in some (perhaps minor) way, a strategic advantage against their next opponents. And HIPAA has nothing to do with *that*.

Posted by: lanehatcher | September 19, 2009 7:12 PM

as a healthcare lawyer and HIPAA expert, I will settle this. HIPAA only covers healthcare providers, insurers, and a few other folks, not NFL teams, and only covers information about medical records, medical care, payments, etc, in the hands of such "covered entities." so disclosing the fact of an injury and the probability of suiting up next Sunday is absolutely not covered. Plus, as Lanehatcher points out, the teams can simply require players to authorize disclosure of anything that is covered, such as information in the hands of their doctors so you can get it straight from the doc, as opposed to filtered through the team. so HIPAA is a red herring, but the author does have the reason wrong.

Posted by: JoeT1 | September 19, 2009 7:37 PM

Folks who talk about Covered Entities are correct, all medical practitioners of any sort are Covered Entities. And the law is very clear, they cannot disclose anything-either any patient's ID and numbers OR anything concerning health condition whatever without that patient's written permission.

The coach is not a Covered Entity. However, the team physicians, the physical therapists in the locker room, the EMT's on the sidelines and all the folks at the hospital the player goes to ARE covered entities, and they know it. So either the football player has signed a HIPAA disclosure waiver allowing them to talk to the coach, who is then free to disclose to the public and the NFL, or a waiver hasn't been signed, in which case some team medical folks are violating the HIPAA law. Some enterprising sports writer ought to inquire of football players whether their team requires them to sign a HIPAA disclosure waiver.

Finally, as both a member of the health care community and occasional patient, I don't think HIPAA is a red herring at all here. If the player wants his health information kept confidential, that should be his right. I also agree, I'm more than a little surprised that an orthopedic surgeon would have such a basic misunderstanding of the HIPAA law.

Posted by: whawker | September 19, 2009 10:20 PM

All of the comments are appreciated and well taken. However, this post is not meant to be a thesis on HIPAA. HIPAA is tremendously complex and can't be summarized in a few sentences. My statements are true although very general and generic. Any further discussion about what HIPAA rules are is beyond the scope of the discussion. The discussion is about whether it was a good policy for teams to be so secretive. Bottom line, the NFL teams are not bound by HIPAA. (although the team physicians are, true.) They are secretive for a competitive example.

I commend all who are experts on HIPAA, but this is a forum on football. Or, at least I thought it was.

Posted by: dapgg | September 19, 2009 11:44 PM

http://www.mahercorlabs.com/news/article-20090831.htm

One reason it's hidden, head injury is something that drives down the value of a player and is seen as a weakness. Players who are prone are harder to trade create a liability problem. The NHL's workers compensation provider, CHUBBS, has been working closely with Washington Capitals trainers in the implementation of a mouth guard protocol now recognized in research to reduce concussion. In fact all of the players on the Caps farm team, AHL champs the Hershey Bears, who had concussion the prior year, had none after being evaluated and fitted. This saves the workers comp fund significant costs. Keeping players healthy should be paramount in any league.
Soldiers in Afghanistan who have been fit with this device, have had great results. Compliance in wearing the retainer like appliance is key. Comfort in fit and functionality is paramount in compliance. What good is it if it is not being worn. The Academy of Sports Dentistry's referring journal, the Journal of Dental Traumatology has now confirmed this significant find in a new publication. It will put pressure on the NFL to focus on this new science related to the boxers "Glass Jaw". Mouth guard research only focuses on tooth protection, this splint, addresses jaw joint cartilage issues. This gives reason to the glass jaw syndrome, why do some boxers get ko'd easier than others. An ADA recognized evaluation protocol evaluates imbalances in the jaw joint prior to the construction of a corrective mouth guard. Now is the time for action, the other products on the market are aftercare. This is preseason prior to play or return to play protocol, proven in the NFL for over two decades, to help aide in the prevention of concussion from blows to the jaw. www.mahercor.com

Posted by: Mahercor061 | September 21, 2009 12:48 AM

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