Our next speaker is Miss Janet Judge. She has more than 30 years of experience in higher education, intercollegiate sport, and labor and employment law. Based in Boston, she was named the 2019 Sports Lawyer of the Year by U.S. News and World Report. Miss Judge is highly knowledgeable on Title IX and is a frequent speaker and instructor on the issue. She has served on the NCAA Board of Governors Commission to Combat Campus Sexual Violence. She is an online instructor for Title IX Coordinator Course for the National Association of College and University Attorneys. She is a co-author for the NCAA Manual on Gender Equity and an editor of its Sexual Violence Prevention Toolkit. At Harvard University, Miss Judge was a three-sport athlete and later coached soccer and basketball while attending law school. She is a board member of the National Association of College and University Attorneys, the Boston Bar-Journal of Board of Editors, and she is a member of the hazingprevention.org, member of both the Massachusetts and Maine Bar Associations. She is serving on AMS' Sexual Violence in Sport Task Force and contributed to the publication Sexual Violence in Sport, the AMS' position statement. It is with pleasure that I can introduce Miss Janet Judge. With her vast accomplishments and experiences, we have an opportunity to learn more about this topic. Thank you. Hello, my name is Janet Judge. I'm a partner at the law firm Apollo Knight where I'm the co-chair of the Intercollegiate Sports Law Group. For the next 20 minutes, I'll be writing an overview of some of the issues facing sports medicine providers seeking to understand their reporting obligations around issues of sexual misconduct. First, a quick shout out to the medical professionals and your heroic efforts to keep us safe and informed during this pandemic. This is a picture of my daughter's math thesis. When I put presentations together, it's a constant reminder to present logically whenever I can when the information is complicated. And navigating the rules, laws, and policies impacting a medical professional's reporting obligations specific to issues of sexual misconduct can be quite complicated. In addition, this is an area that also poses significant overlapping ethical and moral considerations for those who may obtain troubling information in a confidential setting that may limit or prevent disclosure. Today, we'll touch on relevant reporting obligations and exceptions under state and federal law. This is meant to be an overview only and not intended to create legal relationship or provide legal advice. It also may not cover all of the relevant considerations that may impact your reporting obligations because there are many. In this presentation, we will touch on confidentiality, the Safe Sport Act, Title IX, the Clery Act, and the Violence Against Women Act, as well as the Safe Sport Code, the NCAA Sexual Violence Prevention Policy, and the National Athletic Trainers Association's policy statement relative to issues of sexual abuse. As a general rule, patient confidentiality is protected under state law and information shared by a competent adult to a health care provider in their role as a health care provider is generally considered to be confidential unless there are competing federal, state, or tribal laws requiring a disclosure or there is a patient waiver. There are exceptions. As you well know, all states require doctors to report abusive minors, and there is a helpful link to a website which will give you more information about how minor is defined under your state law and what are the kinds of reports that are necessary. State laws may also require medical professionals to report instances of sexual abuse of vulnerable adults as that term may be defined or a similar term may be included in your state law. While most states do not require that doctors report instances of sexual abuse or intimate partner violence outside the bounds of the doctor-patient privilege and against the wishes of the competent adult, there are some related state law exceptions. For example, some states require physicians to report certain spousal or intimate partner violence, non-accidental injuries, violent crimes, criminal behavior, acts that involve the use of a specified weapon or weapons. Because each law has specific reporting provisions, each require careful reading to determine what must be reported and what is not required to be reported. For example, are you required simply to report injuries or are you expected to offer information regarding the suspected behaviors that may have resulted in emotional and or physical injury? For purposes of this presentation, as you might imagine, that distinction is fairly important. In addition to the state law provisions, independent reporting obligations relevant to minors are also embedded in the Safe Sport Act. This federal law requires providers to report minor abuse to law enforcement and to the Center for Safe Sport. For those of you who work with NCAA member schools, you may want to be sure to review the NCAA policy on sexual violence. The NCAA policy requires member schools, presidents, Title IX coordinators, and directors of athletics to attest annually that all athletics department staff and student-athletes have been educated with respect to the school's sexual misconduct policies, procedures, and reporting protocols. In speaking with sports medicine professionals, it appears that team doctors have not always received this training, especially where serving as volunteers or providing contracted services. The NCAA does not mandate reporting of sexual misconduct to the NCAA, but rather provides that member institutions must abide by all federal and state law and that athletics programs must comply and not interfere with all relevant school policies, including a school's grievance procedures under Title IX. The training is important because sports medicine professionals working with student-athletes in the college and university setting may have an obligation to report information obtained outside of a legally recognized privilege under a school's sexual misconduct policy or policies, and in some cases may also be considered to be a campus security authority or a CSA with reporting obligations under the school's Clery Act policies, even where information may be obtained in a privileged setting. The reporting opportunities and obligations of those medical professionals who work under the direct supervision of a sports medicine physician also are important to understand and delineate. As a general rule, Certified Athletics Trainers do not independently have a legally recognized privilege protecting the information they may learn from student-athletes, and the extent that a doctor-patient legal privilege extends to their work should be determined carefully. The legal authority is fairly thin, and schools have generally required Certified Athletics Trainers to report forward all instances of suspected sexual misconduct. The National Athletic Trainers Association, or the NATA, has published a position statement relevant to sexual abuse which contemplates that trainers would not have privilege around such information and provides that Athletic Trainers must report suspected abuse to the appropriate legal authorities. While this is consistent with mandated reports of abuse of minors, schools may take a very different position when it comes to the NATA expectation that Athletic Trainers will report all known instances of sexual abuse to law enforcement, even in instances where a competent adult student-athlete may not want their information shared with law enforcement authorities. All Certified Athletic Trainers that work in the intercollegiate setting should share this position statement with their employer to understand their individual reporting obligations and also understand the position of the institution with regard to mandatory reporting outside of the school's internal process and procedures, including reports to law enforcement. Baseline report information subject to legally recognized privilege or confidentiality only if the patient waives the privilege or if the law authorizes or requires it, otherwise you have a concern around inappropriate disclosure of confidential information. Operates solely within the bounds of the waiver or the legal exception. What exactly has been waived? What exactly is required to be reported per state or federal law? What are the consequences for violating doctor-patient privilege in instances where you believe a report needs to be made or information needs to be shared outside the bounds of the privilege and against the wishes of the patient? Seek legal counsel in these instances. The consequences vary by jurisdiction and can be quite severe. Many medical professionals in the sports context especially are having a renewed focus on what exactly is covered by the doctor-patient confidentiality, what context apply, and what is the privilege, what are the boundaries of the privilege? What about permissive reports in those cases where a legally recognized privilege does not apply or where the information was learned outside the privilege or in the presence of a third party or where the privilege may have been waived? Do you report or not? Do you abide by the wishes of the individual involved? If they do not want you to report, what should you do? In most instances, you will find that you have a mandatory obligation under your employment provisions or the school's policies or procedures if you're working in the education context. Again, it's important to have these discussions up front because there is some misinformation out there about what is the extent of the doctor-patient privilege. Let's turn to what Title IX and the Amateur Sport Act appear to require or permit. For those who provide sports medicine coverage in the K-12 or the college and university setting, it's important to understand your reporting opportunities and obligations under Title IX. In short, Title IX is a federal law that prohibits educational institutions that receive federal funding from discriminating on the basis of sex. Sex discrimination includes sexual harassment, sexual assault, dating, and domestic violence and stalking when such behaviors impact a complainant's access to education, goods, or services. Once a school has actual knowledge of an allegation of prohibited conduct, it must address the complaint promptly and effectively, otherwise it will be deemed to be deliberately indifferent in violation of Title IX. The new Title IX regulations promulgated under the prior administration do not specify who must report instances of covered misconduct, nor do they define who may be a confidential resource. They leave that to the covered institutions. What they do provide is that information protected by a legally recognized privilege or confidentiality must be excluded from the universe of relevant evidence a school may consider in its Title IX proceedings. In this way, the regulations recognize that information obtained within the doctor-patient confidentiality privilege is protected. It's important to note, however, that the regulations are specific to the legal boundaries of the privilege. For example, a school's grant of limited confidentiality without a legally recognized privilege would not be covered. If not confidential, or where confidentiality is waived, medical providers should report known or suspected instances of sexual misconduct to the Title IX office promptly and privately on a need-to-know basis only. The Title IX office is responsible for determining who has need-to-know within the institution. Moreover, you'll be expected to assist in the provision of supportive measures for the complaint, even in cases where the formal complaint triggering the school's Title IX grievance procedures may never be filed. In addition, you may be required to make certain accommodations, for example, in the treatment of a complaint and a respondent to ensure that they are not in the same space at the same time. As we discussed earlier, the Safe Sport Act is a federal law that authorizes the creation of the United States Center for Safe Sport. The Center is charged with safeguarding Olympic and Paralympic amateur athletes against abuse, including sexual abuse in sports, and is responsible for the evaluation and resolution of sexual misconduct complaints. The Center, in turn, drafted a Safe Sport Code, which they update annually, setting forth the Center's policy and process, including its understanding of mandatory reporting responsibilities and obligations of those who participate in the Olympic and Paralympic movement. In short, the Code provides that all participants in the movement are expected to report forward instances of sexual misconduct to the U.S. Center for Safe Sport, including those who have regular contact with minor athletes and those who are otherwise considered within the Olympic or Paralympic governance structure. It's a very broad definition. The Safe Sport Code defines prohibited conduct broadly as well, to include a myriad of sexual misconduct offenses. You'll see they're defined separately, then Title IX, include sexual harassment, non-consensual sexual contact and attempts, non-consensual sexual intercourse and attempts, sexual exploitation, bullying, hazing, and other inappropriate conduct of a sexual nature, including exposure to pornography, willful tolerance, and aiding and abetting of the underlying prohibited conduct. The Code has very specific reporting obligations that should be reviewed carefully by any medical provider in order to fully understand the breadth of the obligations and the prohibited conduct. As discussed by others presenting today, the Center also has helpful training videos available on its website to help participants fully understand their obligations. I offer one caution. While the Code appears to require doctors who treat minor and adult athletes to report forward instances of sexual misconduct, the Safe Sport Act does not appear to go that far. While it does require reports of minor abuse, it does not appear to require that doctors must report misconduct impacting competent adults where the information was obtained within the doctor-patient privilege and where the adult complainant does not consent to disclosure to Safe Sport. If you believe that you have obtained information in a legally privileged setting, carefully consider your full reporting responsibilities and opportunities in those instances and consult with the Center for Safe Sport before filing the report, for example. Where you may have a reporting obligation, it is important to understand whether anonymous reporting will satisfy your responsibility. There's a discussion of anonymous reports on this slide, but in short, the Center for Safe Sport has made clear that anonymous reports may hamper the Center from fully investigating and resolving complaints of sexual misconduct. Secondly, they've been clear that they may not be able to verify that mandatory reporters have made their reports if the report is made anonymously. This slide sets forth a sort of a flowchart that was developed by USA Gymnastics to discuss how all complaints of misconduct may be resolved by the organization. It's just a good example of how individual sport organizations are incorporating the U.S. Center for Safe Sport into their flowchart. The chart on this slide and the next provide a fairly good overview of the respective reporting obligations under Title IX and the Safe Sport Code and are provided for your reference. Again, I note that it's the Safe Sport Code and not the Safe Sport Act. And with that in place, I draw your attention to the types of abuse that need to be reported to Safe Sport. You'll see under the second bullet, it says sexual abuse involving adult participants and that way it goes to the discussion we just had a minute ago. Because if you look at the mandatory reporter description under the Safe Sport Code, it appears to require all participants in the Olympic and Paralympic movement to report instances of sexual misconduct and does not contain any provisions about whether or not that information was obtained in a confidential setting. As we discussed earlier, tread carefully and seek counsel. You'll see under Title IX, the chart provides that an institution can choose who is a mandatory reporter of adult abuse and misconduct. Well, generally that's true. Schools do not have the authority to abrogate an employee's legally recognized privilege, especially if they're putting that employee in that role at the institution. The school policies can often provide that information shared with those who enjoy a legally recognized privilege or confidentiality, need not be reported forward and are protected. In short, what should you do when you're presented with information? Think about how do you know about that information, what role were you serving at the time, and what should you do with what you know? This is a fairly good slide to use as a starting point for having discussions with your medical team. For example, if an athlete tells a team doctor, certified athletic trainer, strength and conditioning coach, nutritionist, sports psychologist, whoever might be part of your medical team that they were sexually assaulted, but then asks that the information remain confidential and in particular not to tell the team coach or law enforcement or any other person, what do you do in those situations? First of all, you're thinking about whether or not the student athlete or the athlete is a minor or competent adult and think about those reporting obligations that we talked about earlier. Are you in the Olympic or Paralympic umbrella? Is this a school setting where you have Title IX responsibilities? You might have responsibilities as a CLERY Act, a certified CSA to report under schools CLERY Act in instances where you're not identifying the individuals involved. What do you do about this don't tell anybody else provision? Mostly, the school's Title IX policies, for example, require individuals to report directly to the Title IX coordinator. Individuals are not supposed to share that information with the team coach or others without the Title IX coordinator saying that they need to know individuals. This is another area that is under discussion at colleges and universities across the country, but the technical letter of the law would say that you go to the Title IX coordinator and then the Title IX coordinator decides who's need to know. Would any of your responses be different if the athlete says that they're the person being accused rather than the person who has experienced a sexual assault while you're still being given information about sexual misconduct and the reporting obligations typically remain the same? Is it different if information was disclosed during team dinner or other non-treatment setting? Of course, this sentence is meant to prompt some discussion among your team about what might be privileged and what might not be privileged and also to have a very good discussion about how far the privilege might go for those who are operating under the direction of a team doctor. And what about if the person making the disclosure is a co-worker? For example, there are there are provisions under the NATA and then under state law that will say if it's another medical provider that there may be requirements to report that information to your organization and under state law. So what are your obligations? We just went through most of this. Are you operating as an employee when you hear this information about another employee? Are you a volunteer? Are you a contractor, provider of medical services? Are the individuals involved minors? Are there adults involved? Is there federal, state, or local laws that are impacting your obligation to report or school policies, organizational policies, club policies, Olympic or Paralympic policies involved? You're thinking about the Safe Sport Act versus the Safe Sport Code and some of the discussions we had about that. Are you a campus security authority on colleges and universities and subject to reporting under the their CSA policy? What are your obligations under the Title IX policy? And again, this is a plug to go in and read those policies so you fully understand what they provide for. And if you don't understand your obligations in any of the roles that you may serve, ask and also make sure that you read the policies and procedures. Also, schools across the country and under the Safe Sport Act are developing chaperone policies. The Safe Sport Act says there should be reasonable procedures to limit one-on-one interactions between minor amateur athletes and a non-legal guardian adult at covered facilities. Schools, colleges, and universities have also started to develop chaperone policies as well when it was found that some of the medical services were being provided in one-on-one settings in hotel rooms just because of the nature of the space requirements and timing and policies and procedures involved in team travel. And then overall, do you understand what are the response and supportive measures that are available to you and things that you have at your disposal to help you support a complainant when they may share information with you? Listen, listen empathetically, and do not investigate. That's pretty important. Individuals who begin investigations without having the proper authorities involved may compromise any of the investigations underlying. Understand your reporting responsibilities and be able to share those, your understanding with the people who may come forward and report to you. Be prepared to provide and explain those reporting options and also be able to assist individuals if they choose to report. Know about the resources, the referrals, and the reports that are available for you within the context that you're providing medical services. Are you able to offer supportive measures and what are they? What do you have at your disposal? And are you able to explain the difference between confidentiality and privacy? So confidentiality, those instances where the information will not go any further than you, versus privacy where you'll share information on a need-to-know basis only. Well, that's a lot of information shared in a short period of time. I appreciate you taking the time to be here with me today. Have a great day.

2nd Edition, CASE 32

2nd Edition

Legal and Ethical

sports law

Title IX

reporting obligations

confidentiality

Safe Sport Act

medical professionals