Triton Group, LLC. HRSA Contract no.232-00-0097 Federal Tort Claims Act and Health Center Medical...

Triton Group, LLC.HRSA Contract no.232-00-0097

Federal Tort Claims Act andHealth Center Medical Malpractice Liability

Protection

NATIONAL ASSOCIATION OF COMMUNITY HEALTH CENTERSSEPTEMBER 15, 2008

Federal Tort Claims Act andHealth Center Medical Malpractice Liability

Protection

NATIONAL ASSOCIATION OF COMMUNITY HEALTH CENTERSSEPTEMBER 15, 2008

Susan P. Lewis, RN, COHN-S

Consultant

Triton Group, LLC.

Susan P. Lewis, RN, COHN-S

Consultant

Triton Group, LLC.

Triton GroupTriton GroupFirst Source of FTCA Program Information

o Triton Groupo 227 Hamburg.o Pompton Lakes, NJ 07442o HRSA Contract No. 232-00-0097

o Martin J. Bree Susan Lewiso 772-873-1865 727-822-4271o 772-873-1695 (fax)

[email protected] 856-625-8638 (cell)o [email protected]

o Roger Fuydalo 866-FTCA-HELP - Toll Free Marty Hiller (Free Clinics)o (866-382-2435) 216-382-4150o 973-831-8395 (Fax) [email protected] [email protected]

First Source of FTCA Program Information






mailto:[email protected]




Federal Tort Claims ActFederal Tort Claims Act

• A limited waiver of the federal government's 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)

• A limited waiver of the federal government's 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)


Federal Tort Claims Act (cont.)Federal Tort Claims Act (cont.)

• Cannot bring suit for intentional torts (e.g. 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

• Cannot bring suit for intentional torts (e.g. 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


Federal Tort Claims Act (cont.)Federal Tort Claims Act (cont.)

• Administrative Claim Requirement – must file a 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

• Administrative Claim Requirement – must file a 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


History of the FSHCAA(Federally Supported Health Centers Assistance Act)

History of the FSHCAA(Federally Supported Health Centers Assistance Act)

• Late 1980’s – medical malpractice crisis similar 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

• Late 1980’s – medical malpractice crisis similar 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


History of the FSHCAA (cont.)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.

• 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.


How the Program WorksHow the Program Works

• A scheme that provides immunity from lawsuit.

• Appears similar to an occurrence malpractice policy.

• Program in existence for 13 years.

• Very successful in terms of savings for health centers and coverage of health centers and staff.

• A scheme that provides immunity from lawsuit.

• Appears similar to an occurrence malpractice policy.

• Program in existence for 13 years.

• Very successful in terms of savings for health centers and coverage of health centers and staff.


How the Program Works (cont.)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).

• 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).



• 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.

• 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, LLCHRSA Contract no.232-00-0097

How the Program Works (cont.)

• Who is Eligible to be Deemed:

• 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)].



• Who is covered - people– Employees.– Officers.– Directors.– Governing board members.– Contractors (some, not all).

• Who is covered - people– Employees.– Officers.– Directors.– Governing board members.– Contractors (some, not all).



• Who is covered - Employees– All employees, full time or part time.– Volunteers are not employees.– Employees get a W-2 at end of year.

• Who is covered - Employees– All employees, full time or part time.– Volunteers are not employees.– Employees get a W-2 at end of year.



• 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.

• 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.



• 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”.

• 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”.



• What is covered?– Medical malpractice.– More specifically, medical, surgical, dental

and related activities (if within the scope of employment and scope of project).



• 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.



• 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.

• 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.


FTCA ProceduresFTCA 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.

• 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.


FTCA ProceduresFTCA 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.

• 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.


Requests for TestimonyRequests 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.

• 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.


Requests for Testimony (cont.)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.

• 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.


Potential ProblemsPotential Problems

• 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

• 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


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


Non-Health Center PatientsNon-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.

• 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.


Insurance Requirements of Hospitals and HMO’s.

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.

• 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.


National Practitioner Data Bank (NPDB)

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.

• 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.


Other Insurance NeedsOther Insurance Needs

• Gap or Wrap-around: covers medical malpractice not covered by FTCA.– 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

• Gap or Wrap-around: covers medical malpractice not covered by FTCA.– 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


Deming ApplicationsDeming 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.

• 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.


Credentialing and PrivilegingCredentialing and Privileging

• PIN 2002-22• Credentialing and privileging required of all

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.

• PIN 2002-22• Credentialing and privileging required of all

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, LLCHRSA Contract no.232-00-

0097

Program ValueMalpractice Premium Savings

Program ValueMalpractice 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

• 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


Program ValueMalpractice Premium Savings Study

Results

Program ValueMalpractice Premium Savings Study

Results• 2002 Savings for deemed centers - $164,000,000• 2005 Savings for deemed centers - $180,000,000• 2006 Savings for deemed centers - $184,000,000• 2007 Savings for deemed centers - $192,000,000

• Extrapolating from the studies: total savings since 1993 $1.6 billion

• 2002 Savings for deemed centers - $164,000,000• 2005 Savings for deemed centers - $180,000,000• 2006 Savings for deemed centers - $184,000,000• 2007 Savings for deemed centers - $192,000,000

• Extrapolating from the studies: total savings since 1993 $1.6 billion


0

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1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

HRSA FTCA CLAIMS PER FISCAL YEAR


Total Payments in Dollars, 1992-2006

4 – 33 Million

1.1-4.7 Million

2K-1 Million

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Risk ManagementRisk Management

• Health Centers are expected to use a portion of 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.

• Health Centers are expected to use a portion of 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.


Risk ManagementRisk Management

• Credentialing and Privileging– Competence of providers

• Medical Records– Legibility– Completeness– Signatures– Availability

• Birth Injuries– Existence and Proper use of protocols

• Informed Consent

• Credentialing and Privileging– Competence of providers

• Medical Records– Legibility– Completeness– Signatures– Availability

• Birth Injuries– Existence and Proper use of protocols

• Informed Consent


Recent Risk Management RecommendationsRecent Risk Management Recommendations

• Training/CME:– Monitoring Pitocin Administration– Cord prolapse– GBS testing– Preceptor needs in labor and delivery

setting

• Training/CME:– Monitoring Pitocin Administration– Cord prolapse– GBS testing– Preceptor needs in labor and delivery

setting



• 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

• 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



• 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

• 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



Loss Prevention TechniquesLoss 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

- 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

HIPAA Section 194Volunteers in Free Clinics

HIPAA Section 194Volunteers 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

• 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 GroupTriton GroupFirst Source of FTCA Program Information





First Source of FTCA Program Information










Triton Group, LLC. HRSA Contract no.232-00-0097 Federal Tort Claims Act and Health Center Medical...

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