(Editor’s Note: What follows is the excerpt of an article written by Ellen Rugeley for the August issue of Concussion Litigation Reporter)
In a recent podcast, Duane Morris attorneys Kenneth L. Shropshire and Patricia Hofstra discussed the complex communication between trainers, athletes, coaches, parents and physicians, from the NFL down to Pop Warner.
Hofstra typically represents physician groups, which have orthopedic and sports medicine practices that supply athletic trainers to schools and professional teams.
She noted that the legal issues that athletic trainers should be mindful of are implications of kickbacks, the possibility that there’s an inference of payment for referral, and information sharing between the athletic trainer and the athlete’s school, coach, recruiters, and parents.
Hofstra said that these physician practices often employ athletic trainers as part of their sports medicine practice, and rather than recommending them to schools, they “either contract with the schools to provide that athletic trainer component within the school or they donate the athletic trainers services to the school thinking that it’s a great public benefit, it’s great marketing for them, and it’s a great opportunity to further develop business and referrals, and that’s where you can get into some legal issues with the provisions about kickbacks in exchange for referrals.“
If a physician practice supplies an athletic trainer to a school in exchange for hopefully getting referrals from that athletic trainer for follow up procedures and surgeries, that triggers a whole regulatory and legal anti-kickback component, which has to be very carefully structured. There has to be an evaluation of the fair market value (FMV) of the athletic trainer’s services, and while this is often viewed as a community benefit and a community service, some government enforcement agencies look at it as a payment in exchange for a referral.
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