• • About the Part D Benefit
  • Education and Counseling
  • Medicare Advantage
  • Extra Help
  • General Medicare

Increase Text Size
Decrease Text Size

Part D Counseling: Protecting Counselors from Liability

In This Article:

• Introduction
• Volunteers
• Federal Law
• State Law
• Risk Management in Benefits Counseling Programs

Introduction

A Benefit Counselor’s Worst Nightmare
Mr. Smith has Medicare Part A, but not B. He is 76 years old, lives alone, weighs 328 pounds and is diagnosed with hypertension, deep vein thrombosis (blood clots in his veins), diabetes and peripheral vascular disease. He went to a counselor for information and advice on the Medicare Part D prescription drug benefit.

Join a discussion of this article in our forum

After a long discussion with the counselor, Mr. Smith decides on the PDP because it covers appetite suppressants as well as most of his other prescriptions. The counselor helped him sign up online through the CMS Plan Finder Web site.

Now it's after the Annual Enrollment Period and Mr. Smith is back and furious. He cannot afford the PDP's monthly premium and he got a letter about the "extra help" saying it won't pay for it all either. Not only that, but the medication he takes for his peripheral vascular disease isn't covered by his PDP, or, as he puts it to the counselor, "your %$#@!%$#@! PDP". His doctor has told him he doesn't think health plans should practice medicine but doesn't have the time for even one more fight with a health plan. He has advised Mr. Smith to go to the Emergency Room if he starts feeling really bad.

Mr. Smith wants to know what you are going to do so he doesn't die.

Some Possible Legal Remedies

back to top

Volunteers
To encourage volunteerism, both federal and state law generally protects volunteers from being found liable by a court for adverse consequences resulting from their actions, or their failures to act in the course of their volunteer duties, in suits brought by those they try to help. There are, however, some clear exceptions to these federal and state immunity protections.

Understanding the key points of both federal and state law might help SHIP and ABC Rx coordinators feel more confident in their effort to maximize the use of volunteers in fulfilling the program’s mission to educate their communities about Medicare and respond to the growing need of Medicare beneficiaries for personalized counseling about their Medicare benefits and entitlements.

back to top

Federal Law
The federal law (Public Law 105-19) is usually referred to as the “Volunteer Protection Act of 1997”. It generally provides that volunteers cannot be held liable to the people they strive to help by a court for what they do or fail to do, as long as they are volunteering for a governmental unit or a non-profit organization that has tax-exempt status or that is “organized and conducted for the public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which would constitute a hate crime…”, P.L. 105-19, Section 6(4). (Tax exempt status is usually referred to as “501(c )(3) status”, for the section of tax law that exempts these entities from many forms of federal tax liability).

The Volunteer Protection Act specifically defines who is a volunteer. A volunteer is an individual who performs services for a governmental entity or nonprofit organization and who receives no compensation for the services performed other than reasonable reimbursement of expenses, such as transportation costs, or occasional gifts in lieu of compensation, such as a plaque or attendance at a recognition banquet.

In order to be protected by the federal Volunteer Protection Act, a volunteer must meet four criteria. First, the volunteer must have been:

1. Acting within the scope of her responsibilities to the sponsoring nonprofit or governmental agency. One way to look at this in the context of Part D counseling operations would be to say that the volunteer was engaged in activities such as counseling or community outreach, as directed by the state or local SHIP or ABC Rx sponsor.
2. Properly licensed, authorized or certified by the appropriate authorities to perform the volunteer activities. This means that a volunteer performing professional activities, such as an attorney giving free legal advice about Medicare coverage, or a pharmacist reviewing a beneficiary’s prescriptions against a Part D plan’s formulary, should be properly licensed by the state licensing authority. It could also mean that if a SHIP or ABC Rx lead agency requires volunteers to establish proficiency to be certified as a volunteer, that any volunteer has undergone training and received SHIP certification.

Moreover, the volunteer is not protected from being found liable to anyone harmed as a result of her volunteer activities if she was:

1. Engaging in any willful or criminal misconduct, gross negligence, reckless misconduct or with acting with conscious and flagrant indifference to the rights or safety of the person harmed. Thus, the state or local SHIP or ABC Rx sponsor must know what volunteers are doing in the name of the organization to assure they are properly representing the organization.
2. Operating a car or other vehicle for which the state requires an operator’s license and/or liability insurance.

Certain actions by volunteers are never protected by the Volunteer Protection Act. These include situations in which the volunteer’s action or failure to act:

1. Was a crime of violence or international terrorism under federal law,
2. Constituted a federal hate crime,
3. Involved a sexual offense for which the volunteer was found guilty in court,
4. Was found to have violated a federal or state civil rights law, or
5. Was committed while “under the influence” as determined by applicable state law.

The Volunteer Protection Act expressly does not prevent a court from finding that the sponsoring organization or agency is liable for a volunteer’s actions, or failure to act. Thus offices must still assure that they are properly protected against liability.

back to top

State Law
The Volunteer Protection Act allows states to enact complementary laws that contain similar or more protection for volunteers. The federal law was intended by Congress to serve as a uniform minimal set of protections for volunteers. Any state law that does not provide as much protection as the federal law is not enforceable. This is called “federal preemption.” The Volunteer Protection Act allows states to maintain their own volunteer liability statutes that:

1. Require nonprofits or governmental agencies to use risk management tools, such as required training courses;
2. Make the sponsoring organization liable for the acts of its volunteers just like they are liable for the acts of paid employees;
3. Precludes a limitation on the liability of a volunteer in a civil (not criminal) case brought by a state or local official under state law;
4. Requires nonprofits or governmental agencies to maintain liability insurance to protect volunteers.

See PL 105-19, Section 4 (d).

The Web site of the Nonprofit Risk Management Center (507Kb PDF file), has posted links to the laws of every state. While this compilation of state liability protection laws was recently updated in August 2005, it is always a good idea to check out the actual state statute.

back to top

Risk Management in Benefits Counseling Programs

While the federal and state statutes protect volunteers from being found liable in court under some circumstances, perhaps the more pertinent question is what steps--aside from statutory protections--can a non-profit or governmental benefits counseling organization take to minimize the risk that clients will have a bad experience, allege wrong-doing and sue in court? How can organizations strive to assure the high standards for benefits counselors who are working in pressured, time-sensitive settings?

Volunteers and staff serve as counselors, educators, and outreach workers, and now, of course, are needed more than ever to respond to immense community and individual needs around Medicare prescription drug benefit (Part D). There are many strategies that may be used to minimize the risk of liability as organizations recruit and deploy staff and a volunteer corps.

Consider the following possible strategies. How many of these are currently used? Which of these risk management tools can protect an office or paid and volunteer personnel from liability? Which are reasonable for use in a busy over-burdened environment?

1. A counseling manual of procedures and policies? What policies should be included?
2. Agreed upon position descriptions that staff, volunteers and supervisors keep copies of?
3. Application questionnaires that ask potential counselors about their interests and their qualifications for the volunteer jobs?
4. A volunteer agreement or “contact” specifying the terms and conditions of any volunteer counseling positions?
5. A counseling agreement for counselors and clients to sign and keep to notify clients that they are receiving help from a trained counselor, including what to expect in terms of guidance, and a disclaimer that informs clients that counselors cannot advise them to select one plan instead of another, and that the client is responsible for making decisions?
6. A HIPAA privacy-compliant authorization form to be signed by each individual assisted by a volunteer designating the purposes for which private health information may be given or received?
7. New counselor orientation and periodic refresher training?
8. Counselor progress notes maintained on each matter? Case flow and/or intake forms?
9. Periodic review of the work being undertaken by counselors by a designated supervisor?
10. A counselor certification program with measures of proficiency?
11. Periodic counselor and/or supervisor meetings to review how the work is progressing?
12. Providing coverage through the nonprofit or governmental agency’s liability insurance?

back to top

Back to Articles in "Counseling and Education"