Anyone who has paid attention to my moan-and-groan missives and incessant grousing over the last 2 years with Cheer The Anthem knows that I am one of the most vocal opponents of the “lower body injury” non-disclosure standard. It’s ridiculous, it’s insulting to fans, and it prevents a vitally important function of the media at large: namely, being the watchdog on behalf of the fans and players to ensure that the teams aren’t rushing players back on to the ice before they are fully healed.

When I get a bee in my bonnet like this, I go hunting in search of evidence to support my conclusion — like any hot-headed blogger would do. Don’t confuse me with the facts, my mind is made up! But occasionally, I find out that I’m wrong. This is one of those times.

Under the Health Information Portability and Accountability Act (HIPAA) of 1996, it is a violation of Federal law for a sports team to disclose the health information of one of their players (pronounced: “employees”) to anyone without the employee’s consent.

So if we want full disclosure, guess what? Too bad.

For those of you who are able to endure the lengthy explanation of the specifics, there are some idiosyncrasies about this law as it pertains to sports teams below the jump…

So, Larry Leftwing gets smacked in the noggin. Trainer gets a look at him, says better see the doc. Doc looks at him, tells him the diagnosis — it’s a concussion. So, now what? Under HIPAA, this is a matter between Larry and the team doctor. Now, if this was not a sports team, the doctor would be prevented from discussing this injury with anyone — the trainer, the coach, the GM, anyone. But sports teams have a small modicum of special treatment under the HIPAA law.

Athletes’ jobs are physical, and the ability to complete those physical tasks is a requirement of employment. No NHL team is going to hire Larry if he has no left arm, or is blind, etc. Additionally, the team has a responsibility to Larry to keep his work environment safe for him. If Larry has a broken foot, how do they know to keep him off the ice if they don’t know what’s wrong with him? And also unlike a traditional employer, a sports team and its medical staff are an integral part of a players’ recovery. These factors create a special circumstance that the law does take into account.

So under the HIPAA law, the team is not considered a “covered entity” like any normal employer. This allows them the freedom to make disclosure of Larry’s health records and health information a condition of his employment. If Larry gets hurt, his contract gives explicit permission for any doctor that sees him to disclose his health information to the team.

But that disclosure ends with the team — in other words, Larry is only required to disclose his concussion to the team. That’s as far as it goes. Larry does not have to disclose his injury to anyone else, and the team is forbidden by law from disclosing that information to anyone without Larry’s consent. Now, due to their “covered entity” exemption, instead of being treated as an employer the HIPAA law treats a sports team with the similar restrictions as pertain to a physicians’ office or health insurance company: personal health information of the players is strictly confidential.

There are exceptions to this, one of which being public disclosure by the player, either intentional or otherwise. If Larry posts a status on Facebook saying, “Yeah, just saw the doc, he sez I got a concussion. Sad panda — LOLZ” he has relinquished the right of privacy for that information, and the team is no longer bound by HIPAA privacy rules. The other one is the player giving explicit permission to the team. If Larry tells the trainer or the coach, “Go ahead and tell the media it’s a concussion, I don’t care,” the team is in the clear also. Larry might do this, but the important thing to remember is, the team can’t ask Larry to do this. It’s considered coercion.

The extraordinarily lengthy details of HIPAA privacy rules, as well as the Department of Health and Human Services’ responses to public comments on the law, can be found here. If you search on the word ‘sports’ you’ll be taken directly to the section that explains what I’ve just outlined here. As for the rest of the information on that page, you’re on your own. Made my head hurt.

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With no fewer than 3 Blackhawks currently out of the lineup with what are suspected to be concussions, and two documented instances of players coming back for 1 game and being sidelined again, the topic of how the Blackhawks handle concussions and the overall concussion protocol in the NHL are topics that need further exploration. I hope to put together some information on that in the coming days and/or weeks. Stay tuned…

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