Health Center FTCA Office Hours: Deeming Application and Professional Liability Issues Christopher W. Gibbs, JD, MPH Daretia M. Hawkins, Esq. Department of Health and Human Services Health Resources and Services Administration Bureau of Primary Health Care Office of Quality and Data

HHS, General Law Division Professional Liability Issues for Deemed community health centers and medical staff Daretia M. Hawkins, Esq. Senior Attorney HHS, General Law Division May 8, 2014 ATTORNEY-CLIENT PRIVILEGED DOCUMENT. DO NOT DISTRIBUTE WITHOUT PERMISSION FROM THE HHS OFFICE OF GENERAL COUNSEL

Presentation Outline FTCA Overview Limited Waiver of Sovereign Immunity Applicable Law Covered Employees Intentional Tort Exception, 28 U.S.C. § 2680(h), and Assault and Battery Coverage Under 42 U.S.C. § 233(e) Foreign Country Exception, 28 U.S.C. § 2680(k), Liability Insurance and Indemnification Bivens Constitutional Tort Claims, Immunity Administrative Exhaustion, HHS Claims Processing HRSA’s Role in FTCA Cases National Practitioner Databank and Peer Reviews

Waiver of Sovereign Immunity The federal government is immune from suit unless immunity is waived (“the King can do no wrong”). The Federal Tort Claims Act (FTCA), 28 U.S.C. §1346(b) waives sovereign immunity for: Personal injury, loss of property or wrongful death Caused by negligent or wrongful acts/omissions Of Federal Employees Acting within the scope of employment Waiver is “limited” by a number of exceptions.

What Law Applies? Procedural Issues: Usually apply federal law, e.g., FTCA’s administrative exhaustion requirement, two-year statute of limitations. State law procedures may also apply, e.g., a plaintiff may need a certificate of merit from an expert. Substantive Issues: Apply the “law of the place” (state law) where the negligent/wrongful conduct occurred, e.g., provider’s standard of care, essential elements to prove a medical malpractice case, or comparative negligence.

Who has ftca coverage? Direct-hire federal employees, e.g., HHS Deemed federal entities and employees: community health centers that receive grants through HRSA’s Bureau of Primary Health Care; deemed federal employees hired by health care entities that have FTCA coverage through other statutes, e.g., Federally Supported Health Centers Assistance Act (FSHCAA)(for deemed health centers); Free clinic providers, employees and contractors deemed by FSHCAA. Clinics and employees covered through the Indian Self Determination Education and Assistance Act (HHS, Indian Health Service). Volunteers, but only if covered through a federal statute, e.g., federal student interns.

Contractor Coverage Under fshcaa Qualified contractors qualify for FTCA coverage if work minimum of 32.5 hours per week over the course of the contract. Contractors exempt from 32.5 hours per week: family practice, internal medicine, pediatrics or ob/gyn providers. Need direct contract between contractor and the health center and direct payment.

FTCA Coverage for Assault and Battery Assault and Battery Exception Such claims are generally barred from FTCA coverage under 28 U.S.C. § 2680(h), BUT Under the Public Health Service Act, 42 USC § 233(e), FTCA coverage extends to all PHS providers, including “deemed” providers covered by FSHCAA or the ISDEAA, for assault and battery claims arising within the course of providing medical, surgical, dental or related functions. Sec. 233(e) preempts 28 U.S.C. § 2680(h). See also Levin v. United States, 133 S.Ct. 1224 (2013). E.g., 1: Patient gives consent for surgery on right leg, but doctor mistakenly performs surgery on left. E.g., 2: Patient is sexually assaulted during a dental examination. The dentist would not have FTCA coverage, though the facility may be covered for a claim of negligent supervision.

Foreign Country Exception The FTCA does not apply to injuries arising abroad and the location of the allegedly negligent act or omission is irrelevant because the “law of the place” under §1346(b) must be the law of a U.S. state or territory, or D.C. HOWEVER, 42 U.S.C. § 233(f) authorizes the Secretary to provide liability coverage to PHS employees working abroad and performing duties within the scope of employment.

Bivens Constitutional Law Claims FTCA coverage generally does not apply to claims alleging constitutional torts because FTCA liability is based upon the violation of state, not federal law. Bivens v. Six Unknown Named Agents of Fed’l Bureau of Narcotics, 403 U.S. 388 (1971) held that a federal employee could be sued in an individual capacity for alleged constitutional law violations. TIP: You must sue the employee, not the government.

Bivens Exclusions HOWEVER, a plaintiff cannot always pursue a Bivens claim; a court may strike the claim where: Congress has provided an equally effective alternative remedy; or special factors counsel hesitation in recognizing a Bivens remedy. PHS Act, 42 U.S.C. § 233(a), is an example of a Congressionally-enacted alternative remedy. PHS providers have absolute immunity from Bivens suits for covered activities. Castaneda v. United States, 130 S. Ct. 1845 (2010). 45 C.F.R. § 36.1(a)-(c) also authorizes the Secretary to indemnify HHS employees in the event that an adverse judgment is entered against the employee, or settle the claim.

ADMINISTRATIVE EXHAUSTION REQUIREMENT A claimant must: File a tort claim with HHS before filing an FTCA suit. File within 2 years of the accrual date; equitable tolling usually does not apply. Request a sum certain. Wait 6 months after filing a claim before filing suit. If a claim is denied, a claimant may either file suit in federal court, or a request reconsideration and must file either within 6 months of denial date. Failure to meet the above requirements is a defense to a subsequent lawsuit.

Processing of ftca Claims HHS OGC Claims Office paralegals contact health centers when tort claims are filed and request copies of relevant documents, e.g., health center’s deeming application, renewal letters, W-2s or contracts for providers, practitioner narratives, 3 copies of medical records. Medical reviews are prepared by HRSA’s contractor, Kepro, at the request of OGC, unless there is an FTCA coverage problem. Medical reviews are protected as attorney work product and attorney-client privilege since requested by OGC paralegals for use by HHS counsel in performing a legal evaluation of the claim. They are not shared with anyone else besides HRSA, and the Department of Justice. Once the Claims Office has compiled a tort file, it is assigned to an OGC attorney for legal analysis and recommendation for denial or settlement. Any analysis prepared by HHS counsel is also privileged and therefore not shared outside of HRSA or DoJ.

Health center’s role in ftca cases If HHS OGC finds that a claim should be settled, the assigned HHS attorney contacts the client, HRSA, as well as the Deputy Associate General Counsel for Claims and Employment Law in the HHS General Law Division to request settlement authority. Since OGC’s client is HRSA, OGC does not consult the health center in decisions on the disposition of FTCA claims. The health center risk manager may contact the OGC paralegal for a general status update on the claim. In FTCA litigation in federal court, Assistant U.S. Attorneys from DoJ are trial counsel for all federal agencies, including HHS. Their client, however, is the United States itself, not HHS or any other federal agency. Federal agency employees, or deemed federal employees, may be called as witnesses in FTCA cases, but are not considered to be DoJ’s clients. DoJ trial counsel normally consults only HHS counsel on whether to settle, but may also advise the health center provider of the decision as a courtesy.

The national practitioner databank and health center peer reviews HHS OGC cannot provide advice or assistance with whether a provider will be reported to the National Practitioner Databank (NPDB). General questions about the NPDB or Medical Claims Review Panel process can be directed to the HRSA risk manager. HHS OGC cannot prevent a health center from performing peer review or risk management analysis. If prepared solely for the health center’s purposes, OGC may be unable to assert that the information is privileged from disclosure and there is currently no federal legislation protecting peer review materials prepared by HRSA-deemed community health centers. However, state law may protect peer reviews from disclosure and DoJ can take advantage of any state law protection.

Questions? Daretia M. Hawkins (202) 691-2369 daretia.hawkins@hhs.gov