America’s Voice for Community Health Care

The NACHC Mission

To promote the provision of high quality, comprehensive and affordable health care that is coordinated, culturally and linguistically competent, and community directed for all medically underserved people.

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FEDERAL TORT CLAIMS ACT MALPRACTICE COVERAGE FOR HEALTH CENTERS: REVIEW

AND UPDATE

Presenter’s Name: Freda Mitchem

Associate Vice President

Policy and Programs

Date: February, 2008

Supported by a Grant/Cooperative Agreement Number U30CS08661 from the Health Resources and Services

Administration, Bureau of Primary Health Care (HRSA/BPHC). Its contents are solely the responsibility of the authors and do not necessarily represent the official views of HRSA/BPHC.

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FEDERAL TORT CLAIMS ACT MALPRACTICE COVERAGE FOR HEALTH CENTERS:

REVIEW AND UPDATE

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FTCA SAVINGS

• COST AVOIDANCE/SAVINGS

– 2007 • AVERAGE COST = $223,320• TOTAL COST = $192.1 MILLION

• TOTAL SAVINGS – SINCE 1993 – ESTIMATED AT $1.5 BILLION

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HISTORY

• FTCA CREATES TORT LIABILITY FOR ACTIONS OF EMPLOYEES OF THE U.S.

• 1992 FEDERALLY SUPPORTED HEALTH CENTERS ASSISTANCE ACT (P.L. 102-501) EXTENDED FTCA COVERAGE TO SECTION 330 GRANTEES

• 1995 FSHCAA (P.L. 104-73) MADE FTCA COVERAGE PERMANENT AND CLARIFIED COVERAGE

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HISTORY (Cont.)

• AS A RESULT OF THESE LAWS, HCs ARE ELIGIBLE TO BE DEEMED FEDERAL EMPLOYEES

• PROVIDES IMMUNITY FROM LAWSUIT ALLEGING MEDICAL MALPRACTICE

• PLAINTIFF’S ONLY REMEDY IS CLAIM UNDER FTCA

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ELIGIBLE ENTITIES

MUST RECEIVE PHS ACT SECTION330 GRANT FOR:

• Community Health Centers 330 (e)• Migrant Health Centers 330 (g)• Health Care for the Homeless Programs

330 (h)• Health Care for Residents of Public

Housing 330 (i)• Not FQHC Look-Alikes

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WHO IS COVERED?

• ANY HC OFFICER, GOVERNING BOARD MEMBER, OR EMPLOYEE. (Volunteers are not employees; Employees get a W-2 at end of the year.)

• ANY HC FULL-TIME CONTRACTOR (Average of 32.5 Hours Per Week)

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WHO IS COVERED? (Cont.)

• PART-TIME CONTRACT PROVIDERS OF SERVICES IN THE FIELDS OF FAMILY PRACTICE, OB/GYN, GENERAL INTERNAL MEDICINE, OR GENERAL PEDIATRICS

• CONTRACTS MUST BE BETWEEN HC AND THE INDIVIDUAL PROVIDER. (See BPHC PIN 2005-01)

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WHO IS NOT COVERED? (Cont.)

• VOLUNTEERS

• RESIDENTS

• PROVIDERS BILLING DIRECTLY (See BPHC PIN 2001-11)

• PART-TIME CONTRACT PROVIDERS NOT IN PRIMARY CARE SPECIALTIES

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WHO IS NOT COVERED? (Cont.)

• CONTRACTS BETWEEN A DEEMED HC AND A CORPORATION (Including PCs)

• SUBGRANTEES

• THIRD PARTIES SEEKING INDEMNIFICATION

• PROVIDERS ACTING OUTSIDE THE HC FEDERAL SCOPE OF PROJECT OR EMPLOYMENT AGREEMENT

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WHAT IS COVERED? (Cont.)

• MEDICAL MALPRACTICE

• ACTIVITIES WITHIN APPROVED SCOPE OF FEDERAL PROJECT ONLY (See BPHC PIN 2002-07)

• ACTIVITIES WITHIN SCOPE OF EMPLOYMENT AGREEMENT OR CONTRACT OR HC DUTIES

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WHAT IS COVERED? (Cont.)

• ACTIVITIES ON OR AFTER DEEMING DATE

• SERVICES TO CERTAIN NON-HEALTH CENTER PATIENTS

- SEEK ‘PARTICULARIZED DETERMINATION’ IF NECESSARY

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SCOPE OF PROJECT

• ONLY INCIDENTS THAT OCCUR WITHIN THE SCOPE OF PROJECT ARE COVERED (See BPHC PIN 2002-07)

• SCOPE OF PROJECT INCLUDES THE ACTIVITIES DESCRIBED IN THE GRANT APPLICATION THAT WERE APPROVED VIA NOTICE OF GRANT AWARD

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SCOPE OF PROJECT (Cont.)

• THERE IS A SEPARATE PROCESS FOR REQUESTING CHANGES IN SCOPE OF PROJECT

• CHANGES IN SITES AND SERVICES REQUIRE PRIOR APPROVAL

• PAY ATTENTION TO SCOPE OF PROJECT!

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OTHER PROVISIONS

• NO DUAL COVERAGE BUT GAP OR WRAP-AROUND INSURANCE IS OKAY

• HOSPITALS AND MANAGED CARE PLANS MUST ACCEPT FTCA COVERAGE

• PROTECTION ONLY FROM PERSONAL INJURY OR DEATH RESULTING FROM PERFORMANCE OF SURGICAL, MEDICAL, DENTAL OR RELATED FUNCTIONS

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CLAIMS PROCESS (BPHC PIN 99-08)

• CLAIMS MUST BE FILED WITH PHS CLAIMS OFFICE USING STANDARD FORM 95

- ADVISE CLAIMANTS TO SUBMIT CLAIMS TO:

General Law Division 330 Independence Avenue,

S.W. Room 4760, Cohen Bldg. Washington, D.C. 20201 Tel. (202) 619-2155

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CLAIMS FILED IN STATE COURT (BPHC PIN 99-08)

• IF A CLAIM IS FILED IN STATE COURT (WRONG VENUE), HC SHOULD SEND CLAIM IMMEDIATELY TO BPHC FTCA PROGRAM

• HC SHOULD ALSO SEND CLAIM TO OFFICE OF GENERAL COUNSEL (Fax) 202-619-2922, (Voice) 202-619-2155

• HAVE HEALTH CENTER ATTORNEY REQUEST EXTENSION OF TIME TO APPLY

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WHAT HEALTH CENTERS MUST SUBMIT WHEN A CLAIM IS FILED

• DEEMING LETTERS

• W-2s OR FORM 1099s

• DECLARATION THAT PRACTITIONER IS LICENSED AND WAS NOT BILLING PRIVATELY

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WHAT HEALTH CENTERS MUST SUBMIT WHEN A CLAIM IS FILED (Cont.)

• MEDICAL RECORDS

• ANY RELATED INSURANCE POLICIES

• A NARRATIVE STATEMENT

• THE COMPLAINT

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HOW A CLAIM IS REVIEWED & RESOLVED

• CLAIM FILED IN STATE COURT (WRONG VENUE) – CONTACT DHHS OGC IMMEDIATELY

• CLAIM FILED WITH DHHS (RIGHT VENUE)

• HC PROVIDES REQUIRED INFORMATION

• CLAIM SENT TO BPHC AND CONTRACTOR

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HOW A CLAIM IS REVIEWED & RESOLVED (Cont.)

• CONTRACTOR PROVIDES EXPERT REVIEW

• CLAIM AND EXPERT REVIEW GO TO QUALITY REVIEW PANEL

• OGC, IN CONSULTATION WITH BPHC, DENIES OR SETTLES CLAIM

• AFTER DENIAL, CLAIMANT CAN FILE SUIT IN FEDERAL DISTRICT COURT

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HOW A CLAIM IS REVIEWED & RESOLVED (Cont.)

• CLAIM IS SENT TO U.S. ATTORNEY FOR APPROPRIATE DISTRICT. (DOJ)

• CASE IS LITIGATED OR SETTLED BY DOJ.

• SETTLEMENTS MUST BE APPROVED BY HRSA/BPHC

• IF LITIGATED, RESULT MAY BE APPEALED BY EITHER PARTY

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TOUHY REGULATION

• REQUESTS FOR TESTIMONY WHERE HC OR PROVIDERS ARE NOT A PARTY (See BPHC PIN 2001-19)

• SUBMIT REQUEST FOR DEPOSITION OR TESTIMONY TO DHHS/OGC (FAX TO 202- 619-2922)

• HRSA WILL DETERMINE HANDLING, WHO ATTENDS

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No. FTCA Medical Malpractice Incidents by Fiscal Year, 1992-2007

0

50

100

150

200

'92 '93 '94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07

Fiscal Year

Number of Incidents

1994 - 2007 CLAIMS STATUS

• OCTOBER 1994 THRU JUNE 2007 – 2121 INCIDENTS

• AVG. COST PER PAID CLAIM ($414,654)

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FTCA Malpractice Incident SummaryNature of Allegation, 1992-2007

Medication Related

10%

Surgical Related

6%

Other11%

Treatment Related

21%

Obstetrics Related

22%

Diagnosis Related

30%

Source: KePRO, Harrisburg, PA, FTCA HC Med Mal Cases, September 30, 2007

THE IMPORTANCE OF RISK MANAGEMENT

• RISK MANAGEMENT INCLUDES

–QUALITY MANAGEMENT

–CREDENTIALING AND PRIVILEGING

–PATIENT RECORDS

–PATIENT COMMUNICATIONS

–INCIDENT TRACKING AND REPORTING

–OTHER27

THE IMPORTANCE OF RISK MANAGEMENT (Cont.)

• RISK MANAGEMENT IS REQUIRED BY

- THE ANNUAL DEEMING APPLICATION

- BPHC PROGRAM EXPECTATIONS

- JCAHO

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THE IMPORTANCE OF RISK MANAGEMENT (Cont.)

• RISK MANAGEMENT IS NEEDED TO

- KEEP FTCA CLAIMS AND PAYOUTS FROM

THE JUDGMENT FUND REASONABLE.

- PRESERVE THE SAVINGS REALIZED BY FTCA COVERAGE AT HCs.

- ENSURE PATIENTS RECEIVE QUALITY CARE

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RISK MANAGEMENT CONCERNS

• USE OF PROTOCOLS

• MEDICAL RECORD DOCUMENTATION

• CREDENTIALING AND PRIVILEGING

• REFERRAL ISSUES

• OB/GYN, PROCEDURES, FAILURE TO DIAGNOSE

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NEW DEVELOPMENTS

• NEW SEPARATE ANNUAL FTCA DEEMING APPLICATION (PAL 2007-02)

• RE-CONFIRMATION OF POLICY THAT CONTRACTS WITH PROVIDERS MUST BE BETWEEN HC AND INDIVIDUAL, NOT A PROFESSIONAL CORPORATION (SEE BPHC PIN 2005-01)

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NEW DEVELOPMENTS (Cont.)

• PILOT PROGRAM (EARLY OFFERS) FOR ALTERNATIVE SETTLEMENT PROCESS FOR CERTAIN ADMINISTRATIVE CLAIMS UNDER FTCA

– OGC IS LEAD

– INCLUDES HC, IHS, COMMISSIONED

– CORPS, ETC

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NEW DEVELOPMENTS (Cont.)

• FTCA COVERAGE FOR “FREE CLINIC” VOLUNTEER HEALTH CARE PROFESSIONALS (SEE BPHC PIN 2004-24)

– DIFFERENT PROGRAM

– NOT FOR HEALTH CENTERS

• NACHC EXPLORING LEGISLATIVE CHANGES IN FTCA TO INCLUDE VOLUNTEERS, FQHC LOOK-ALIKES AND COVERAGE FOR HEALTH CENTERS IN DISASTER/EMERGENCIES IN HC FTCA

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NEW DEVELOPMENTS (Cont.)

• BPHC PIN (2007-16) CLARIFYING FTCA COVERAGE IN EMERGENCIES/DISASTERS JUST ISSUED.

• FTCA CONCERNS RE “GRAY” AREA SCOPE OF PROJECT CHANGE REQUESTS.

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NEW DEVELOPMENTS (Cont.)

• MORE ATTENTION NEEDED TO “SERVICES TO NON-HEALTH CENTER PATIENTS”

-USE “PARTICULARIZED DETERMINATIONS” TOOL

-HAVE AGREEMENTS IN WRITING.

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FTCA ASSISTANCE

• FIRST SOURCE OF FTCA PROGRAM INFORMATION IS:

- 866-FTCA-HELP – TOLL FREE (866-382-2435) 973-831-8395 (Fax)

- Triton Group 227 Hamburg Tpke. Pompton Lakes, NJ 07442

• HRSA/BPHC FTCA CONTACT: - MIKE CHELLIS (301) 594-0818)

• NATIONAL ASSOCIATION OF COMMUNITY HEALTH CENTERS 7200 Wisconsin Ave., Suite 210, Bethesda, MD 20814

- FREDA MITCHEM (301-347-0400) 36