New BSA Medical Form is a Disaster
Posted: February 19, 2009 Filed under: First Aid, Medical, Release (pre-injury contract not to sue) 11 CommentsSomeone sent me a link to the latest BSA Medical Form.
It is quite interesting, very misleading, has limited additional value and put volunteers are greater risk of litigation. If you are interested here are the issues.
1. The form states that it has a hold harmless/release agreement attached. IT DOES NOT. There is language attempting to create a release and in three or four states it might. However most states require specific language to create a release and it does not exist in this document.
2. It places a requirement on unit leaders to know of and know how to treat the medical needs of the youth in their unit. The first issue is how much medical training is now needed to understand the issues. Worse however is the liability this creates? Example:
A. How about a new unit leader who just started who has not had time to take any first aid training. Kid at a meeting has a medical issue and the unit leader is now facing a lawsuit because he did not know about or know how to treat the kid.
B. What upper limit exists on the training? You have a child who requires advanced medical care. The parent reads the medical form, completes it and sues when her child dies. The unit leader was supposed to know about and know how to deal with the medical issues. In this case, the medical issues required an EMT or physician to deal the medical issues. Yet the mother relied, appropriately so on the medical statement to her detriment.
3. There is a 30 minute medical radius for medical care. This can eliminate most of Colorado as a place where a unit could go with someone who does not meet the medical transportation issues. Other than a few cities, all of Wyoming, Montana and Idaho are now off limits. Large portions of New Mexico, Arizona, Utah and most of Nevada are probably off limit to BSA units.
4. Prescriptions. This section creates a real problem that you need to deal with in writing. If any parent reads this and asks if you will assume the responsibility for any child taking their prescription medications say NO. If anything goes wrong and you have accepted this liability you are now liable. It may have nothing to do with what you have done, but combined with the required level of medical knowledge this is a ticking time bomb.
How to Deal with this?
Write ever parent in your unit and notify them that prescription and non-prescription medications will be their responsibility.
5. Release. The release is a poor start, but at least it is a start.
A. many courts throw out releases that are imbedded in other documents. The release needs to be separate and distinct.
B. The release needs to have a release of negligence. There is no lawsuit without negligence and this release in most states does not release negligence.
C. The medical information release is another good start, but it needs to specifically state what it is trying to do. Example
1. Unit leader takes crew on hike with assistant. Youth is inured and assistant hikes out with injured youth. Based on this release, is the assistant unit leader allowed to provide the medical information to the EMT? No. Medical information is confidential and this document does nothing to help volunteers in this matter.
D. Most importantly now in most states you are liable if you release medical information to anyone without their permission. That means before you can tell the Ambulance Squad attendant about the injury you have to have the parent’s permission to do so.
If the youth has a communicable disease you can’t tell anyone about in several states without their permission.
This medical release fails to provide that protection.
6. Notary. No state requires that a release or medical release be notarized.
Conclusion.
The major issue that will occur is the expectation this will place on parent. I tell my clients that the marketing creates promises that are proven breached in the courtroom. This is similar. The document is creating an expectation in parents that you cannot fulfill in a lot of cases. Failed expectations coupled with an injury are called lawsuits. You may win, but you will cost your homeowners’ insurance a lot of money to do so.
Recreation Law 
From: Hank Hibbard [mailto:hibbardfamily@harbornet.com]
Sent: Sunday, May 10, 2009 12:23 PM
To: Recreation.Law@gmail.com
Subject: BSA
We run a 78 foot USCG licensed vessel with 27 of us up into the San Juan’s and Canada each year. We have no adult leader over forty who can meet the height weight guidelines.
We have a 90 foot Sail boat that does six weeks with out of state troops and they are a little better, they probably have sixty percent of the skippers who pass.The Sail Boat is a nationally certified high adventure camp.
Between USCG, Homeland Security and the BSA it is hard to keep a Unit going. We really do not want to use twenty-five foot sail boats, and neither do our hundred kids and hundred adults.
I try to keep everyone up to date on their training for Scouts. All of us with 100 ton or better licenses have to keep up with HLS nd USCG requirements, but the Coast Guard does not see a problem with us running boats, and while unlike the Jamboree we take kids with all sorts of medical problems including psychiatric problems we don’t have problems with them even though we may be two or three hours from helo evac; and twelve or twenty four hours from roads.
Hank Hibbard, Attorney
WSBA # 4910
Commodore Pacific Harbors Council
820 E. D St.
Tacoma WA 98421
(253)241-3950 (cell)
hibbardfamily@harbornet.com
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Heres my 2C's,
I went for my yearly physical, took my new BSA medical form with me, asked the Doc to check me out in regards to the new form. I had had a hard time hearing him over the howls of laughter. He took the form and tried to make sense of it. We talked and I explained the idea behind it and that there was some small minded sense behind it. I explained about the politically correct weight/height/breadth/mental control police. And how they had determined this form based on the far sighted, all knowing, all seeing, always right basis of hindsight before it happens.
The fact that we as, Venturers, Scouts, Explorer's and so on have always prepared our youth to benefit their community with the skills and knowledge we helped them gain and master. Do we now say to them that only appoved individuals in their communities can be served. This may be the subtle message we are sending.
My Doctor then consulted, hob-nobbed, discoursed, discussed, debated, and otherwise had fun with his fellow wizards, medicine-men, High ranking, nurse's, nabobs, and Grand Poobah.
Their collective wisdom was: some nincompoop fixed something that wasn't broke.
They agreed that the form allows veto power to the power hungry and that it could serve a useful purpose in a small minded way; or you could use it to line a litter box. Either way it made as much sense.
He then thanked me for posing such a wonderfully amusing question at 8:30 in the morning. He then instructed the staff in my hearing to search me for any such silly forms next year.
The moral of the story is: git em' signed or throw em' out.
The fierce old Irishman has spoken (with tongue-in-cheek )
Yours, in Venturing & Scouting Mic O'
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There are ways around the problems created by the form. You do not have to quit or not be a volunteer.
Protection is provided by the Federal and possibly your state Volunteer Immunity Act.
You can use the old form and tell your council why. You can get your council to only use the old form.
You can amend the form and have parents sign the amendments.
If you live in a state that supports this you can have the parents sign a release, releasing you of the obligations of the new form.
If your state supports this you can have parents sign an acknowledgment of risk form outlining what your skills are qualifications are and they accept that.
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This new BSA medical form suggests that BSA Unit leaders have medical and mental health expertise that goes beyond my level knowledge. As such, I have withdrawn as a BSA Scouting Leader.
The potential liability is scary. -steve
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Medical information is governed by state law and common law. HIPAA governors those people who collect and store medical information electronically. So HIPAA has very little to do with the BSA and it’s issues because it is not the job of the BSA to collect nor does it store the info electronically. You are correct HIPAA does not apply. But there are 50 states with laws concerning sharing of medical information, many in enacted long before HIPAA.Many states prohibit sharing medical information without the consent of the patient/victim no matter what. An good example is whether the person has HIV/AIDs. There are loop holes such as if the patient is unconscious, etc.That is the problem. The BSA has opened up a nightmare of issues with this form because it goes places that require legal review in 50 different states that the old forms did not and yet provides not better protection for the BSA. Worse it creates liability for volunteers.
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Regarding the disclosure of medical-related information, isn’t it fair to say that the confidentiality of health information is largely governed by HIPAA, which is directed at health-care organizations and institutions. The Boy Scouts is not a health-care institution, and therefore, should not have to be compliant with HIPAA. I’d be more inclined to think that it would be judged negligent to not share that info with the EMT.Rick
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For my comments on the Notary requirement see my recent post that answers a lot of these questions. “Response to Comments on the New BSA Medical Form”Next time you are at a council or district function check out how many units meet the weight requirements. Either a lot of adults are going to stay home, or more likely, a lot of units are going to camp inside city limits.
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From what I read, the 30 minute limit on ground travel applies only to people who fall outside the height/weight chart. The notary space specifically mentions “if required by your state…”. I’m not familiar with **EVERY** state’s medical form laws, but it seems likely that somebody somewhere has a notarization requirement.I agree with the other legalese-minded interpretations of the wording and intent thereof.Zippy
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To James Moss: The BSA has an activity consent form and release. Is this document any better than the release in the new medical record form?I would also like to hear your view of the older class 1, 2 and 3 medical forms. Is the new form an improvement from a legal perspective?As a Scoutmaster, I am not sure of the best approach. Where can I find a better release and should we use it in our troop?Thank You.
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so if you have people notarize thier release forms, it doesn’t doesn’t matter in a lawsuit. is their any benefit to having those forms notarized?
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What I get from this is the 30 min, requirement, is for part B, which means all scouts will have to have a yearly medical. Becuse there is very few place to do uour door activities that close to a hospital. It used to be only more than 72 hrs. Which ment troops did not need them for week end trips.
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