Advisor

For more information on Genesee Valley Region Legal issues, contact our Legal Advisor:

Henry Williams, Jr.

[email protected]

The Region By-laws are
available in PDF format:

1. GVR Bylaws Coverpage
2. 2013 Bylaws
3. 2013 Bylaws Contents

(Updated 03/11/2013)

WHO’S AFRAID OF A HIPAA?

Who’s afraid of a HIPAA? We are ski patrollers; we are faster than a down hill ski racer; we are more powerful than a snow cat; we are able to jump over high mountains in a single bound; then why should we be scared of a HIPAA? HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. It is an Act of Congress whose purpose is to
protect the privacy of an individual’s medical information. The question now presented to patrollers is Adoes this law apply to our patrolling activities? The answer is – do not panic; I
mean, really, do not panic! First, it is very important to understand that the decision of whether a HIPAA applies to your patrolling activities is a decision which must be made by your ski area. It is not an NSP decision. Second, HIPAA probably does not apply to patrolling activities. The primary reason for this conclusion, and good news, is the fact that patrols do not receive compensation for the medical services it renders to injured skiers on the slopes, combined with the fact that patrols generally do not electronically bill for medical services.

Recently, Bruce Reis, our National legal counsel, and our beloved national chairman (come on, you remember – his name is Bill Sachs), wrote an article on HIPAA which was recently printed in Ski Patrol Magazine (see link to the article below). The article should be read carefully. The article represents the official position of NSP.In addition to the article, the lawyers in the Eastern Division Legal Committee have performed their own investigation of HIPAA and, with the help of John Houston, an attorney whose legal practice involves interpreting and applying HIPAA, have come up with the following additional information:

My resort operates a medical clinic that must comply with HIPAA, does this mean that my patrol must also comply with HIPAA? No. But, your patrol should be careful that it distinguishes its operations from those of the clinic. This includes making sure that the clinic is physically separate from the patrol operations (though they can be within a common building), so that the public is able to differentiate between patrol operations and clinic operations. Additionally, the patrol should request that the clinic states within its “Notice of Privacy Practices” (a document that the clinic would provide to each of its patients) that the clinical is separate from and not affiliated with the patrol.

My patrol is not associated with a resort, what should I do? While the recent Ski Patrol Magazine article focused on issues related to “resort associated” patrols, some patrols have no resort association. In this case, the patrol itself may need to assess whether HIPAA applies to it. To do so, you should first ask “does the patrol electronically bill insurance companies for medical services that it renders to injured skiers?” If you answered “no”, then HIPAA simply does not apply.

However, if your patrol provides services to any area, such as a state park, remember that it should find out how the area it patrols has decided to handle HIPAA in that HIPAA decisions remain an area decision and concern, even if the “area” is not a ski resort.

What if my patrol simply charges patients for such things as “ACE” bandages or crutches? If such supplies are provided on a cash basis (or even if you accept credit cards), then HIPAA would not apply. HIPAA only applies to organizations that electronically bill insurance companies for services.

What if my patrol accepts donations from “grateful patients”? Donations are not considered compensation and would not trigger any HIPAA obligation by the patrol.

I have reviewed the above and I believe that HIPAA may apply to my non-resort associated patrol, now what should I do? You should seek further advice from your Region’s Legal Advisor.

So, go ahead and enjoy patrolling. Follow what your ski area says with respect to the application of HIPAA to your patrolling activities and, generally, do not worry; that is not a HIPAA coming down the mountain after you.

John Houston and Bill Cline, both of the Western Appalachian Region, contributed to providing the Division with information on HIPAA. John Houston is a patroller at Seven Springs Ski Area and is also the Director of Information Services, Privacy Officer and Assistant Counsel to the University of Pittsburgh Medical Center. He deals with HIPAA matters in the course of his legal practice. Bill Cline is the Regional legal advisor for the Western Appalachian Region. For their help on this issue, the Division thanks them.

HIPAA: What
Does It Mean to Patrollers?
By Bill Sachs, National Chair, and Bruce Ries, National Legal Counsel

Recently, many patrollers have expressed significant concern about their responsibilities under the Health Insurance Portability and Accountability Act (HIPAA) of 1996, a federal law that includes complex provisions for patient privacy. The reason people are talking about this now is because full compliance with the act was required by April 14, 2003. Since that date passed quietly around the time of many ski areas’ final day last season, many people are looking ahead to the coming season and wondering how HIPAA will affect them. For the rest of the article addressing this issue on the NSP web site, click here:

http://www.nsp.org/nsp2002/whats_new_template.asp?mode=HIPAA

On the Legal Front

There are many risks that we patrollers face in doing our jobs. Some we can prevent by using the ten commandments of skiing or donning rubber gloves. Others require a bit more foresight. For example, we should make sure through our patrol representative that our area has appropriate liability coverage which will provide us with a defense lawyer, if necessary, and money coverage for liability, if any, arising out of our work. This is particularly true of the Nordic patrollers who usually patrol in several areas.

We should talk to our own insurance agent to make sure that our homeowners policy fills any gaps that may exist in coverage provided by our area. There is a memorandum in the ski patrollers manual called “Legal Issues and Risk Management” which has just been rewritten by our new National Chairman, Bill Sachs, and our new National Legal Counsel, Bruce Ries. This deserves your attention. The first two paragraphs talk about the sources of the written material available to you.

The third paragraph begins the substantive part.

If you have any questions about this, give me a ring at 585-889-3000.

Henry W. Williams, Jr.

NSP Member Personal Risk Management

The NSP Board of Directors and the National Legal Committee feel it is very important to continue to provide members with the personal risk management information to assist individuals in assessing and dealing with the possibility of injury or involvement in litigation as a consequence of their patrolling services. This letter will discuss some of the inherent risks in being a patroller and identify some of the risk management resources available to patrollers.

This is not a new subject, suddenly discovered as a consequence of the Kane lawsuit. NSP publications have long provided risk management information for the member. Chapter 6 of the current (fourteenth edition) <i”>Ski Patroller’s Manual is entitled <i”>“Legal
Issues and Risk Management,” and includes discussion of the risks faced by patrollers. The NSP <i”>Polices and Procedures addresses risk management from the standpoint of the NSP (§3.3) and the patroller (§3.3.11). The Spring 1992 issue of <i”>Ski Patrol Magazine contained an article entitled <i”>“Personal Risk Management for the Volunteer,” which is an excellent, and still timely discussion of the legal risks faced by volunteer patrollers. In the Spring/Summer 1999 issue of <i”>Ski Patrol Magazine another excellent article, <i”>“Legal, Insurance Considerations,” discusses current legal risk issues and developments, and various insurance polices from the patroller’s perspective, i.e. homeowner’s insurance, NSP insurance, and ski area insurance (Note: This article currently appears on the NSP web page.) The articles should be required reading for all patrollers and candidates. Many divisions and regions have also addressed risk management issues through presentations by legal or risk management advisors at meetings, refreshers, or in their newsletters. Members are encouraged to avail themselves of local resources as well as the written information noted above if they have questions about personal risk management issues.

In addressing risks involved in patrolling it is helpful to look at the role played
by the NSP and the ski area. The sport of skiing involves risks of injury that are inherent to the sport itself. We see evidence of that every day as part of our patrolling activities, and it is those risks that give rise to the need for patrollers. By skiing, one assumes certain risks of injury inherent to the sport. By patrolling, we expose ourselves to the same inherent risks of skiing, but encounter additional and greater risks because we undertake to provide
emergency care and transport to other injured skiers. While recreational skiing permits a choice of slopes, or even whether to ski, patrolling requires that we ski the run on which the injured skier is found, regardless of difficulty. Snow and weather conditions may drive all but the most hardy off the slopes, yet the patroller must be prepared to respond to an accident as long as the ski area remains open, regardless of the conditions on the hill. Further, we undertake the transport of the injured skier to the next
level of care by running a loaded toboggan down that slope, again without regard
to the weather or snow conditions. By
undertaking this responsibility as patrollers, we assume the risks of injury to
ourselves that can be reduced through training and practice, but not avoided.Those injuries can range from life-threatening to
income-threatening disabilities. The
NSP does not provide insurance that covers such losses.¹ The ski area may, in certain circumstances (or states) provide some
protection through workers compensation insurance. Thus, as part of the decision to patrol, it behooves every patroller to
ask him/herself what they will do to protect themselves from such personal
losses, and whether or how their current insurance policies (health, disability,
and homeowners) or financial resources will address those losses.

The
NSP offers educational programs that provide the training and skills necessary
to ski patrolling. With NSP
credentialed training and skills, NSP members are accepted at ski areas across
the county as members of the local ski area patrol. The NSP provides liability insurance for its approved programs and
training activities which covers members for claims arising out of the approved
program or activity. Liability,
however, is predicated upon negligence, not injury itself. There is no medical expense coverage provided by the NSP. The NSP insurance policy specifically excludes coverage for on-the-hill
patrol operations or related activities undertaken at the direction of, and
under the control of, ski area management.

The
ski area at which you patrol is usually required to provide patrol services as
part of the operation of the ski area. Accordingly,
the ski area is responsible for the operation of the ski patrol, and the
activities of the patrollers on its slopes. This usually means liability insurance will be provided by the ski area
that will respond to claims against patrollers arising out of patrolling
operations. Your area probably has
liability insurance that covers you while patrolling that area, but you should
not assume that is the case. Your
patrol representative should be able to answer questions about liability and
other insurance coverage provided by the ski area. Depending on the response, you may wish to seek additional coverage
through your own insurance resources.

Each
NSP member must evaluate the risks associated with patrolling and how those
risks may affect them individually. The
information in this letter and the written materials referred to earlier are
intended to help members make informed decisions about managing those risks. A personal risk management assessment (and annual reassessment) is an
essential task for every member. As
part of this process, bear in mind the NSP member, the ski area, and the NSP
each assume responsibility for their part in the patrolling experience. It is important that each role be clearly understood and accepted by each
participant.

1- Insurance
policies have been offered to members in the past that would provide limited
coverage for disability and/or medical expenses. The response to the offerings has usually been minimal, such that the
insurance company declines to continue the program.