Legal Interpretation

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LEGAL STATUS OF ATHLETIC TRAINING IN THE STATE OF COLORADO

INTRODUCTION

This report is in response to the request of the Board of Directors of the Colorado Athletic Trainers Association for an analysis of the legal standing of the athletic training profession in that state. The request was made in conjunction with the request of the Governmental Affairs Committee (GAC) of the National Athletic Trainers Association (NATA) for a ‘legal interpretation’ of the laws of each state governing athletic training and will be structured in accordance with the information requested by the GAC.

Since there is no "practice act" pertaining to athletic training in Colorado, analyzing the legal standing of the profession requires reference to statutes and regulations governing the practice of certain other health care professions. While the definition and authorized scope of practice of several other professions could embrace certain aspects of the practice of athletic training, those which are the most significant and all-inclusive are the practices of medicine and physical therapy.

REGULATION OF HEALTH CARE PROFESSIONS

Statutes governing the practice of health care professions in Colorado are contained in Title 12 of the Colorado Revised Statutes (CRS). Statutes relating to insurance coverage and benefits are contained in Title 10 and those relating to the worker’s compensation benefits are contained Title 8. Each statutory section is designated by the title number, the article number, the section number and in many instances a subsection number and/or letter followed by CRS, eg., 12-36-106(1) CRS which defines the practice of medicine and 12-36-106(3) (s) CRS which sets for the athletic training exemption from the medical practice act.

Pursuant to authority granted by the legislature in the practice acts, rules and regulations are promulgated by the state agencies which govern the various health care professions and must be considered in conjunction with the practice acts. Copies of these rules and regulations are available from the relevant state agencies and are simply referred to by numerical designation but include a reference to the statutory section to which they pertain. For example, the Board of Medical Examiners Rules and Regulations Concerning Athletic Trainers, Rule 1 sets forth the types of services that athletic trainers may provide under the provisions of 12-36-106(3.5) CRS.

The board which regulate professions operate under the control of the Division of Regulatory Agencies (DRA). Each individual regulatory agency (or the DRA acting in their behalf) is granted, by statute, certain powers of enforcement of the provisions of the statute by which it is created. These statutes set forth the criteria and procedures by which an agency may discipline members of the profession which it regulates or take action against those who practice the profession unlawfully. Generally, the agency may take its own civil action against the violator, including administrative proceedings by the agency or requesting that a court issue an "injunction" against the violator prohibiting future violations, or it may request criminal action by a prosecuting agency (attorney general or county attorney), or both.

PRACTICE OF MEDICINE

The practice of medicine in Colorado is regulated by the Board of Medical Examiners. It is defined in pertinent part as:

1. Holding out of one’s self to the public as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, pain, injury, deformity, or physical or mental condition, whether by use of drugs, surgery, manipulation, electricity, telemedicine, the interpretation of tests, including primary diagnosis of pathology specimens, images, or photographs, or any physical, mechanical, or other means whatsoever;

2. Suggesting, recommending, prescribing, or administering any form of treatment, operation, or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition, or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever; or

3. The maintenance of an office or other place for the purpose of examining or treating persons afflicted with disease, injury, or defect of body or mind

Clearly this definition applies in may respects to the practice of athletic training.

Engaging in the practice of medicine without being licensed or exempt from licensure is a class 2 misdemeanor which is punishable by imprisonment for a period of three to twelve months and/or a fine of as much as $1,000. A second or subsequent offense is a class 6 felony which is punishable by imprisonment for a period of twelve to eighteen months, followed by a mandatory parole period of one year.

There are a number of exemptions to the provisions of the medical practice act, including the rendering of services by an athletic trainer subject to conditions and limitations set forth in the statute. The most significant provisions are as follows:

1. To qualify for the exemption the services must be rendered by only by qualified athletic trainers, within the scope of practice defined in the statute, and in the course of participation in an educational institution’s sports program, an organized amateur sports organization, a professional sports organization, a recreational program of a county municipal, or special district government, or an organized community sports event;

2. "Athlete" is defined as an individual participating in one of the types of programs set forth in #1 above.

3. "Qualified athletic trainer" is defined as one who has a baccalaureate degree in athletic training or a related field and has completed a certain number of hours of supervised clinical experience or internship training (using the traditional guidelines for certification by the NATABOC, Inc. under either the internship or curriculum method); and

4. The "athletic trainer scope of practice" is defined in a rather precise detail covering the typical professional activities of a certified athletic trainer, referring repeatedly to treatment of "athletes". The Rules and Regulations Concerning Athletic Trainers clarify that the treatment provided may include:

a. The determination of therapeutic goals and objectives

b. The selection of therapeutic modalities and exercise.

c. The evaluating and recording of rehabilitation progress.

d. The development of criteria of progression and return to play.

e. The use of physical modalities, electrotherapy, hydrotherapy, cryotherapy, radiant energy, paraffin, intermittent compression units, massage, and exercise equipment, and other contemporary therapeutic modalities.

f. The use of special supportive and protective equipment and other contemporary immobilization and ambulation devices and techniques

There is however, no provision allowing athletic trainers to employ prescriptive topical agents (analgesics and anesthetics) commonly used in the administration of certain modalities, and the scope of practice specifically excludes "drugs" as a part of therapeutic care.

It is significant that the qualifications for athletic trainers to be exempt include only educational and clinical experience requirements and no requirement of certification or other competency testing or verification Thus, one who fails (or chooses not to take) the NATABOC, Inc. certification exam can lawfully practice in the same manner as any certified athletic trainer.

It is also significant that the statute requires the athletic trainer to practice in conjunction with certain prescribed organizations or entities, and to provide treatment to only a certain defined population, but it does not indicate the types of injuries that can be treated or the circumstance under which they occurred. Thus, as long as the athletic trainer and patient are both participating with one of the defined types of sports organization and the treatment falls within the defined scope of practice, it can be rendered regardless of the type of injury sustained or whether it was sustained during sports or recreational activities.

Finally, the statute specifically states that it does not authorize athletic trainers to practice, or to hold themselves out through advertisement or billing as providing, physical therapy as defined in the physical therapy practice act. Conversely, while the physical therapy practice act prohibits the use of the title "physical therapist" by anyone not licensed to practice that profession, the medical practice act exemption grants no title protection to athletic trainers. Thus, as long as they do not practice medicine as defined above and/or practice in conjunction with their own professional licensure or certification, physical therapist, paramedics, emergency medical technicians and others can all themselves athletic trainers. Even a coach or other lay person who served only as a first aider and provided water, ice and prophylactic taping for athletes could use the title "athletic trainer".

PHYSICIAN EXTENDERS

There is no provision in Colorado law for practicing under the title of "physician extender". There is provision for physician assistants but they must be certified under a specific provision of the medical practice act. This requires meeting certain educational requirements established by the Board and passing the certifying examination of the National Commission on the Certification of Physician’s Assistants.

PRACTICE OF PHYSICAL THERAPY

In Colorado the practice of physical therapy is regulated by the Board of Physical Therapy Examiners. The practice is defined as:

The examination, treatment, or instruction of human beings to detect, assess, prevent, correct, alleviate, or limit physical disability, movement dysfunction, bodily malfunction, or pain from injury, disease or other bodily conditions. It includes:

a. The administration, evaluation, and interpretation of tests and measurements of bodily functions and structures;

b. The planning, administration, evaluation and modification of treatment and instruction;

c. The use of physical agents, measures, activities, and devices for preventive and therapeutic purposes;

d. The administration of topical and aerosol medications consistent with the scope of physical therapy practice; and

e. The provision of consultative, educational, and other advisory services for the purpose of reducing the incidence and severity of physical disability, movement dysfunction, bodily malfunction, and pain.

Again, in several respects this definition applies to the practice of athletic training.

The physical therapy act specifically states that it does not prohibit anyone "registered, certified, or licensed in this state under any other law" from practicing their profession. This exemption does not apply to certified athletic trainers, however, as they are not registered, certified or licensed under Colorado law. The practice of athletic training, then, must be in strict adherence to the provision of the medical practice act or can be deemed a violation of either or both of the medical and physical therapy practice acts.

Violation of the physical therapy practice act is a class 3 misdemeanor punishable by a fine ranging from $50 to $750 and/or imprisonment for up to 6 months. In addition, the DRA can impose fines of up to $1000 upon violators.

PHYSICAL THERAPY EXTENDERS

There is no specific connotation in Colorado law for the title " physical therapy extender". There is a statutory provision for physical therapy assistants but they must meet specific criteria. The statute defines physical therapy assistant as "a person who has successfully completed a physical therapist assistant program that has been approved by the director of the DRA. The Physical Therapy Rules and Regulations provide that they must have graduate from a Physical Therapy Assistant program accredited by the American Physical Therapy Association or an "equivalent" program as determined by the DRA. Although existing educational programs for physical therapy assistants are far less demanding that those for athletic trainers, graduation form an athletic training education program would not necessarily meet this criterion. Individuals who want the DRA to declare their education program to be "equivalent" bear the burden of providing the DRA with information necessary to determine that it is, in fact, equivalent. Absent specific course work pertaining to the activities of a physical therapy assistant, it is questionable whether a program would be declared equivalent, even if it was an accredited curriculum in athletic training.

The statute also allows for the use of unlicensed persons who are not physical therapy assistants. Such individuals must be under the "direct supervision" of a licensed physical therapist, while physical therapy assistants need only be under "responsible direction and supervision". Direct supervision requires that the physical therapist be on the premises, while responsible direction and supervision means that the physical therapist assumes legal accountability for the actions of the physical therapy assistant. A given physical therapist can be responsible for supervising no more than three unlicensed persons, whether or not they are physical therapy assistants.

Obviously certified athletic trainers can practice in a clinical setting under the designation "unlicensed persons", but are limited in their activities to those allowed and directly supervised by a licensed physical therapist. They can not assume responsibility for injury evaluation or for the planning of treatment independently of direct supervision by a physical therapist. If certified athletic trainers can persuade the DRA that their baccalaureate degree was obtained from a program that is equivalent to those accredited by APTA, they can be designated as physical therapy assistants. This will allow them to practice with less supervision but probably no less direction or more independence in performing evaluations or formulating treatment plans. Since physical therapists are "legally responsible" for the actions of the physical therapy assistants they supervise, they can legitimately dictate and limit the circumstances of their practice.

PHARMACY LAWS

Certain sections of the pharmacy article of Title 12 are significant to certified athletic trainers. In pertinent part that chapter provides that it is unlawful:

1. To practice pharmacy without a license;
2. To sell, compound, dispense, give, receive, or possess any drug, controlled substance, or devise except in compliance with this article; or
3. To pack, distribute, sell dispense, or give a drug which bears the trademark, trade name or other identifying mark of any drug manufacturer or producer different than the actual manufacturer or producer of that drug.

The "practice of pharmacy" is defined as including:

1. The participation in drug selection and drug utilization review;
2. The participation in the administration of drugs;
3. Patient counseling and prospective drug review;
4. The advising and providing of information concerning utilization of drugs and devices in the treatment of an injury and the treatment and prevention of disease; and
5. The responsibility for compounding, dispensing, labeling, delivery, storage and distribution of drugs and devices and the maintenance of proper records thereof.

"Controlled substances" are divided into several classifications based on the likelihood that their use will lead to addiction or otherwise cause harm and defined in several statutory sections. They are too numerous to list here but all certified athletic trainers should be aware of the specific items contained in that listing. (It is also important to be aware of federal laws pertaining to the possession and distribution of controlled substances.)

Other pertinent definitions are:

"Delivery"—The actual, constructive or attempted transfer from one person to another of a drug or device.

"Dispense"—To prepare a drug or device pursuant to a lawful prescription order of a practitioner for subsequent administration to or use by a patient or other individual entitled to receive the prescription order.

"Device" – An instrument, apparatus, machine, contrivance, or implant or a similar or related article other than a drug, including any component part of accessory which is:

1. Recognized in the official compendia or any supplement thereto;

2 Intended for use in the diagnosis, treatment, or prevention of disease or other conditions in humans and animals; and

3. Required under federal or state law to be prescribed by a practitioner and dispensed by a pharmacist

 

"Drug" – 1. Substances recognized as drugs in the official United States pharmacopoeia, national formulary, or the official homeopathic pharmacopoeia of the United States, or any supplement to any of them;

2. Substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in individuals or animals;

3. Substances (other than food) intended to affect the structure or any function of the body of individuals or animals; and

4. Substances intended for use as a component of any substance specified in items 1, 2, or 3.

"Practitioner" – A person authorized by law to prescribe any drug or device.

The pharmacy law allows practitioners to "personally compound and dispense for any patient under his care any drug which he is authorized to prescribe and which he deems desirable or necessary in the treatment of any condition being treated by him". Although the medical practice act allows physician assistants to dispense medications pursuant to the physician'’ direction, this provision does not extend to anyone else (eg., a certified athletic trainer) dispensing a drug pursuant to the physician’s direction. Any dispensing of drugs in the athletic training room must be undertaken personally by the physician prescribing the drug.

Violation of the pharmacy act is a class 2 misdemeanor which is punishable by imprisonment for three to twelve months, a fine of $250 to $1000, or both. A second or subsequent offense is a class 6 felony punishable by imprisonment of twelve to eighteen months followed by parole of one year.

THIRD PARTY REIMBURSEMENT

There is no statutory or regulatory provision in Colorado allowing for third party reimbursement of certified athletic trainers for their services. There is, however, a provision in the Colorado Health Care Coverage Act, contained in Title 10, which defines a "provider" of health care services as "any physician, dentist, anesthesiologist, hospital, x-ray, laboratory and ambulance services, or any other person who is licensed or otherwise authorized in this state to furnish health care services". (Emphasis added). This means that any health care policy which provides payment for the type of services that athletic trainers are authorized to render under the medical practice act could be interpreted to require payment for those services, subject to the limitations that they cannot be represented or billed as being "physical therapy". The insurance laws also provide that any benefits or treatment which are to be excluded from coverage must be specifically delineated in the insurance policy with language specified by the statutes.

WORKERS’ COMPENSATION BENEFITS

Title 8 requires all employers in Colorado to "furnish such medical, surgical, dental, nursing, and hospital treatment, medical, hospital, and surgical supplies, crutches, and apparatus as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury". This requirement may be met by obtaining workers’ compensation insurance coverage. The state establishes a fee schedule for medical services rendered but does not specify who may provide services.

Since workers’ compensation, by definition, extends only to employed persons injured on the job, only those athletic trainers who work for professional teams and are treating members of those teams could be paid for services under workers’ compensation law. Subject to that limitation and the provision that they cannot be represented or billed as being physical therapy services, there is no reason that certified athletic trainers cannot be paid for treating athletes in accordance with the athletic training scope of practice outlined in the medical practice act.

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