Federal Tort Claims Act and
Health Center Medical Malpractice Liability
Protection
NATIONAL ASSOCIATION OF COMMUNITY HEALTH CENTERS
SEPTEMBER 15, 2008
Susan P. Lewis, RN, COHN-S
Consultant
Triton Group, LLC.
Triton Group, LLC.
HRSA Contract no.232-00-0097
Triton Group
First Source of FTCA Program Information
o Triton Group
o 227 Hamburg.
o Pompton Lakes, NJ 07442
o HRSA Contract No. 232-00-0097
o Martin J. Bree
o 772-873-1865
o 772-873-1695 (fax)
o 856-625-8638 (cell)
o mjbtriton@mac.com
o Roger Fuydal
o 866-FTCA-HELP - Toll Free
o (866-382-2435)
o 973-831-8395 (Fax)
o tritongp@optonline.net
Susan Lewis
727-822-4271
susanlewis@tampabay.rr.com
Marty Hiller (Free Clinics)
216-382-4150
mhiller862@hotmail.com
Triton Group, LLC.
HRSA Contract no.232-00-0097
Federal Tort Claims Act
• A limited waiver of the federal government's
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sovereign immunity when its employees are
negligent within the scope of their employment
Imposes liability on the United States “in the
same manner and to the same extent as a
private individual under like circumstances”
law of the place where the act or omission
occurred applies (except federal procedural law)
Triton Group, LLC.
HRSA Contract no.232-00-0097
Federal Tort Claims Act (cont.)
• Cannot bring suit for intentional torts (e.g.
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assault, battery, false imprisonment, etc.) or
violations of constitutional rights under the
FTCA.
No limitation of liability under FTCA
Provides for judicial as well as administrative
remedy
Punitive damages and prejudgment interest not
allowed
No jury trials
Triton Group, LLC.
HRSA Contract no.232-00-0097
Federal Tort Claims Act (cont.)
• Administrative Claim Requirement – must file a
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claim with agency and give opportunity to the
agency to settle claim before a suit is permitted
If Agency denies, takes no action after six
months, or offers unsatisfactory amount,
claimant may bring suit in against U.S. in federal
district court (within 6 months)
Attorney fees limited to 20% of administrative
settlement and 25% of judgment or compromise
settlement
Triton Group, LLC.
HRSA Contract no.232-00-0097
History of the FSHCAA
(Federally Supported Health Centers Assistance Act)
• Late 1980’s – medical malpractice crisis similar
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to current situation.
Health centers in certain geographic areas
having difficulty finding adequate coverage
Studies commissioned showed health centers
were lower risk for insurers
NACHC plays instrumental role in passage of
the Federally Supported Health Centers
Assistance Act of 1992
Triton Group, LLC.
HRSA Contract no.232-00-0097
History of the FSHCAA (cont.)
• 92 Act unclear in many areas.
• 92 Act set to expire in 1995.
• Congress amends FSHCAA in 1995 to
eliminate gaps and make program
permanent.
Triton Group, LLC.
HRSA Contract no.232-00-0097
How the Program Works
• A scheme that provides immunity from lawsuit.
• Appears similar to an occurrence malpractice
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policy.
Program in existence for 13 years.
Very successful in terms of savings for health
centers and coverage of health centers and
staff.
Triton Group, LLC.
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• Under FSHCAA Health Centers are
eligible to be deemed “federal employees”.
• Provides immunity from lawsuit alleging
medical malpractice.
• Plaintiff’s only remedy is claim under
Federal Tort Claims Act (FTCA).
Triton Group, LLC.
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• Who, what , when where?
– Who is covered - Relationship to Health
Center.
– What is covered – medical malpractice.
– Where is it covered – scope of project.
– When is it covered – scope of employment.
Triton Group, LLC
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• Who is Eligible to be Deemed:
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Community Health Centers [section 330 (e)].
Migrant Health Centers [section 330 (g)].
Health Care for the Homeless [section 330 (h)].
Public Housing Primary Care [section 330 (i)].
Triton Group, LLC
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• Who is covered - people
– Employees.
– Officers.
– Directors.
– Governing board members.
– Contractors (some, not all).
Triton Group, LLC
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• Who is covered - Employees
– All employees, full time or part time.
– Volunteers are not employees.
– Employees get a W-2 at end of year.
Triton Group, LLC
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• Who is covered - Contractors
– Any full time contract provider (over 32 1/2 hours per week).
– Part time contract provider of services in the fields of family
practice, ob-gyn, general internal medicine, or general
pediatrics.
– Contract must be between the deemed health center and the
individual provider.
– Contracts between the deemed health center and a
corporation (including Professional Corporations) are not
covered.
Triton Group, LLC
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• Contractors
– 42 U.S.C. §233(g)(1)(A) “…any contractor of
such an entity who is a physician, or other
licensed or certified health care practitioner”.
– 42 U.S.C. §233 (g)(5) “an individual may be
considered a contractor”.
Triton Group, LLC
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• What is covered?
– Medical malpractice.
– More specifically, medical, surgical, dental
and related activities (if within the scope of
employment and scope of project).
Triton Group, LLC
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• Where is it covered – within the scope of project
– Only incidents that occur within the scope of the project are
covered. (See Policy Information Notice 2008-01).
– Scope of Project are the activities described in the grant
application that are approved by Public Health Service via
Notice of Grant Award.
– An existing Scope of Project cannot be changed in a grant
application. There is a separate process.
– A grant award for a new section 330 activity does change the
Scope of Project.
Triton Group, LLC
HRSA Contract no.232-00-0097
How the Program Works (cont.)
• When is it covered
– Coverage is only for acts that are within the
scope of employment of the covered
individual.
– No Moonlighting.
– Must be acting on behalf of the deemed entity.
Triton Group, LLC
HRSA Contract no.232-00-0097
FTCA Procedures
• Procedure
– Plaintiff files administrative claim against the United
States.
– DHHS reviews claim and may deny it, pay it or offer a
settlement.
– If DHHS denies claim plaintiff may file suit.
– If DHHS does not act on claim within six months
plaintiff may file suit.
– When suit is filed case transferred to DOJ.
– DOJ may attempt to settle suit otherwise it goes into
litigation.
Triton Group, LLC
HRSA Contract no.232-00-0097
FTCA Procedures
• Procedure
– Plaintiffs often file suit in state court.
– What to do:
• Immediately fax complaint and deeming letter to:
Lisa Barsoomian
Department of Health and Human Service
Office of General Counsel (OGC)
202-619-2922 (Fax)
202-619-2155 (Voice)
• Have health center attorney request extension of time to reply.
Triton Group, LLC
HRSA Contract no.232-00-0097
Requests for Testimony
• Touhy Regulation
– Medical Malpractice cases only!
– Affects deemed health centers only.
– Requests for testimony where the United
States, the health center or its providers are
not a party.
– Health center provider must have permission
of HRSA administrator to testify.
Triton Group, LLC
HRSA Contract no.232-00-0097
Requests for Testimony (cont.)
• Touhy Regulation
– Policy Information Notice 2001-19.
– Submit request for deposition or testimony to
DHHS/OGC (fax to 202-619-2922).
– HRSA Administrator will approve or deny.
– If approved representation may be provided
by DOJ.
Triton Group, LLC
HRSA Contract no.232-00-0097
Potential Problems
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Contracts.
Sub-Recipients.
Scope of Project - Sites and Services.
Billing Arrangements.
Americans with Disabilities Act, Rehabilitation
Act, Civil Rights Act.
Nursing Homes
Contracts with Correctional Institutions
Non-Health Center Patients
Triton Group, LLC
HRSA Contract no.232-00-0097
Important issues
– Insurance requirements of hospitals and Health
Maintenance Organizations.
– National Practitioner Data Bank.
– Other Insurance.
– Deeming Applications .
– Credentialing – a critical issue.
– Emergency Response - PIN 2007-16
Triton Group, LLC
HRSA Contract no.232-00-0097
Non-Health Center Patients
• Federal Register Notice September 25, 1995
(Volume 60 Number 185) page 49417 – 49418.
– Hospital On-Call Requirements.
– Cross Coverage Arrangements.
– Community Activities.
• Other situations require a “Particularized
Determination” See 99-08.
Triton Group, LLC
HRSA Contract no.232-00-0097
Insurance Requirements of
Hospitals and HMO’s.
• 42 U.S.C. §233(j) - Remedy for denial of
admitting privileges to certain health care
providers.
• 42 U.S.C. §233(m) - Application of
coverage to managed care plans.
Triton Group, LLC
HRSA Contract no.232-00-0097
National Practitioner Data Bank
(NPDB)
• HRSA Participates in the NPDB.
• 42 U.S.C. §401 – 431.
• Assistant Secretary of Health elects to
require PHS agencies to report – October
1987.
• http://www.npdb-hipdb.com.
Triton Group, LLC
HRSA Contract no.232-00-0097
Other Insurance Needs
• Gap or Wrap-around: covers medical
malpractice not covered by FTCA.
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Volunteers
Outside Scope
Contracts with corporations
Contracts with part time specialists
Tail Insurance
General Liability Insurance
Directors and Officers Liability
Proof of malpractice coverage – Triton Group
Triton Group, LLC
HRSA Contract no.232-00-0097
Deming Applications
• 2009 Policy
– New organizations (never deemed before):
• Submit application found in PAL 2008-05 to BPHC at any
time.
– Redeeming Applications
• Redeeming applications were due July 1, 2008.
– All participating health centers should have received 2008
deeming letters by now, and can anticipate their new 2009 letters
by early December.
• 2010 Policy
– To be determined in CY 2009.
Triton Group, LLC
HRSA Contract no.232-00-0097
Credentialing and Privileging
• PIN 2002-22
• Credentialing and privileging required of all
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licensed or certified health care practitioners.
Process for Licensed Independent
Practitioners (LIPs) generally mimics
JCAHO,with the exception of the BPHC
requirement for recredentialing every TWO
years.
Non-LIPs requires primary source verification
of only license or certification.
Volunteers included.
Triton Group, LLC
HRSA Contract no.232-00-0097
Program Value
Malpractice Premium Savings
• Studies conducted for Triton Group by
Princeton Insurance Company and
Huggins Actuarial Services.
• Premiums calculated for 2002, 2005, 2006
• Used Uniform Data System (UDS) data for
deemed Health Centers
Triton Group, LLC
HRSA Contract no.232-00-0097
Program Value
Malpractice Premium Savings Study
Results
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2002 Savings for deemed centers 2005 Savings for deemed centers 2006 Savings for deemed centers 2007 Savings for deemed centers -
$164,000,000
$180,000,000
$184,000,000
$192,000,000
• Extrapolating from the studies: total savings since 1993
$1.6 billion
Triton Group, LLC
HRSA Contract no.232-00-0097
HRSA FTCA CLAIMS PER FISCAL YEAR
300
250
200
150
100
50
0
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
Triton Group, LLC
HRSA Contract no.232-00-0097
Total Payments in Dollars, 1992-2006
4 – 33 Million
1.1-4.7 Million
2K-1 Million
0
6
Q4FY2006
0
26
Previous
0
3
Equipment
Problems
0
Complaint
14
Referral Issues /
Recurring
16
Facilities
Department
100
Ancillary
1
Communication
150
Availability /
Scheduling
250
Staffing /
350
Documentation
10
27
Training / Lack of
Supervision
400
No Secondary
Factors Found
700
Miscellaneous
Protocols /
Procedures
50
Policies /
Number of Claims
Secondary Factors / System Problems
750
681
650
600
550
500
450
357
394
311
300
200
204
107
56
0
0
1
Risk Management
• Health Centers are expected to use a portion of
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savings to provide risk management services.
(PIN 99-08 Para. XVIII).
NACHC – developing risk management services
for health centers.
Inspector General report on risk management in
health centers.
Triton Group can provide risk management
services.
Triton Group, LLC
HRSA Contract no.232-00-0097
Risk Management
• Credentialing and Privileging
– Competence of providers
• Medical Records
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Legibility
Completeness
Signatures
Availability
• Birth Injuries
– Existence and Proper use of protocols
• Informed Consent
Triton Group, LLC
HRSA Contract no.232-00-0097
Recent Risk Management
Recommendations
• Training/CME:
– Monitoring Pitocin Administration
– Cord prolapse
– GBS testing
– Preceptor needs in labor and delivery
setting
Triton Group, LLC
HRSA Contract no.232-00-0097
Recent Risk Management
Recommendations
• Illegible and/or Inadequate Medical
Record Documentation
– Accurate, complete and legible
– Documentation of scheduled exams
– Training in proper documentation
– Use problem list and flow sheets for lab and
meds
– Encourage use of EMR
Triton Group, LLC
HRSA Contract no.232-00-0097
Recent Risk Management
Recommendations
• Policies/Procedures/Protocols
– Lack of policies/procedure/protocol in 24% of
cases reviewed
– Examples: chest pain, handling of abnormal
test results, adherence to ACOG 30 Minute
“Decision to Incision” guideline.
– Every health center should have its own
customized set of well defined policies and
procedures
Triton Group, LLC
HRSA Contract no.232-00-0097
Loss Prevention Techniques
- Credentialing & privileging standards
- QI/RM program supported by Board
- Current medical record systems
- Continuing education for all staff members
- Systems and processes checklists
- Informed consent process
Triton Group, LLC.
HRSA Contract no.232-00-0097
HIPAA Section 194
Volunteers in Free Clinics
• Provides Med Mal protection to “Volunteers in
“Free Clinics”
– Volunteer and free clinic are specifically defined in the
statute
– Does not cover the free clinic corporation nor the free
clinic employed staff
– Free clinic may not accept any third party
reimbursement
– Must give notice to patients on limitations of liability
Triton Group, LLC
HRSA Contract no.232-00-0097
Triton Group
First Source of FTCA Program Information
o Triton Group
o 227 Hamburg.
o Pompton Lakes, NJ 07442
o HRSA Contract No. 232-00-0097
o Martin J. Bree
o 772-873-1865
o 772-873-1695 (fax)
o 856-625-8638 (cell)
o mjbtriton@mac.com
o Roger Fuydal
o 866-FTCA-HELP - Toll Free
o (866-382-2435)
o 973-831-8395 (Fax)
o tritongp@optonline.net
Susan Lewis
727-822-4271
susanlewis@tampabay.rr.com
Marty Hiller (Free Clinics)
216-382-4150
mhiller862@hotmail.com
Triton Group, LLC
HRSA Contract no.232-00-0097