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. 2

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. 3

FEDERAL TORT CLAIMS ACT MALPRACTICE COVERAGE FOR HEALTH CENTERS: REVIEW AND UPDATE 4

FTCA SAVINGS COST AVOIDANCE/SAVINGS – 2007 AVERAGE COST = $223,320 TOTAL COST = $192.1 MILLION TOTAL SAVINGS – SINCE 1993 – ESTIMATED AT $1.5 BILLION 5

HISTORY FTCA CREATES TORT LIABILITY FOR ACTIONS OF EMPLOYEES OF THE U.S FEDERALLY SUPPORTED HEALTH CENTERS ASSISTANCE ACT (P.L ) EXTENDED FTCA COVERAGE TO SECTION 330 GRANTEES 1995 FSHCAA (P.L ) MADE FTCA COVERAGE PERMANENT AND CLARIFIED COVERAGE 6

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 7

ELIGIBLE ENTITIES MUST RECEIVE PHS ACT SECTION 330 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 8

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) 9

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 ) 10

WHO IS NOT COVERED? (Cont.) VOLUNTEERS RESIDENTS PROVIDERS BILLING DIRECTLY (See BPHC PIN ) PART-TIME CONTRACT PROVIDERS NOT IN PRIMARY CARE SPECIALTIES 11

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 12

WHAT IS COVERED? (Cont.) MEDICAL MALPRACTICE ACTIVITIES WITHIN APPROVED SCOPE OF FEDERAL PROJECT ONLY (See BPHC PIN ) ACTIVITIES WITHIN SCOPE OF EMPLOYMENT AGREEMENT OR CONTRACT OR HC DUTIES 13

WHAT IS COVERED? (Cont.) ACTIVITIES ON OR AFTER DEEMING DATE SERVICES TO CERTAIN NON-HEALTH CENTER PATIENTS -SEEK ‘ PARTICULARIZED DETERMINATION ’ IF NECESSARY 14

SCOPE OF PROJECT ONLY INCIDENTS THAT OCCUR WITHIN THE SCOPE OF PROJECT ARE COVERED (See BPHC PIN ) SCOPE OF PROJECT INCLUDES THE ACTIVITIES DESCRIBED IN THE GRANT APPLICATION THAT WERE APPROVED VIA NOTICE OF GRANT AWARD 15

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! 16

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 17

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 Tel. (202)

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) , (Voice) HAVE HEALTH CENTER ATTORNEY REQUEST EXTENSION OF TIME TO APPLY 19

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 20

WHAT HEALTH CENTERS MUST SUBMIT WHEN A CLAIM IS FILED (Cont.) MEDICAL RECORDS ANY RELATED INSURANCE POLICIES A NARRATIVE STATEMENT THE COMPLAINT 21

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 22

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 23

HOW A CLAIM IS REVIEWED & RESOLVED (Cont.) CLAIM IS SENT TO U.S. ATTORNEY FOR APPROPRIATE DISTRICT. (DO J ) CASE IS LITIGATED OR SETTLED BY DO J. SETTLEMENTS MUST BE APPROVED BY HRSA/BPHC IF LITIGATED, RESULT MAY BE APPEALED BY EITHER PARTY 24

TOUHY REGULATION REQUESTS FOR TESTIMONY WHERE HC OR PROVIDERS ARE NOT A PARTY (See BPHC PIN ) SUBMIT REQUEST FOR DEPOSITION OR TESTIMONY TO DHHS/OGC (FAX TO ) HRSA WILL DETERMINE HANDLING, WHO ATTENDS 25

No. FTCA Medical Malpractice Incidents by Fiscal Year,

CLAIMS STATUS OCTOBER 1994 THRU JUNE 2007 – 2121 INCIDENTS AVG. COST PER PAID CLAIM ($414,654) 26

FTCA Malpractice Incident Summary Nature of Allegation, 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 – OTHER 27

THE IMPORTANCE OF RISK MANAGEMENT (Cont.) RISK MANAGEMENT IS REQUIRED BY - THE ANNUAL DEEMING APPLICATION - BPHC PROGRAM EXPECTATIONS - JCAHO 28

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 29

RISK MANAGEMENT CONCERNS USE OF PROTOCOLS MEDICAL RECORD DOCUMENTATION CREDENTIALING AND PRIVILEGING REFERRAL ISSUES OB/GYN, PROCEDURES, FAILURE TO DIAGNOSE 30

NEW DEVELOPMENTS NEW SEPARATE ANNUAL FTCA DEEMING APPLICATION (PAL ) RE-CONFIRMATION OF POLICY THAT CONTRACTS WITH PROVIDERS MUST BE BETWEEN HC AND INDIVIDUAL, NOT A PROFESSIONAL CORPORATION (SEE BPHC PIN ) 31

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 32

NEW DEVELOPMENTS (Cont.) FTCA COVERAGE FOR “ FREE CLINIC ” VOLUNTEER HEALTH CARE PROFESSIONALS (SEE BPHC PIN ) – 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 33

NEW DEVELOPMENTS (Cont.) BPHC PIN ( ) CLARIFYING FTCA COVERAGE IN EMERGENCIES/DISASTERS JUST ISSUED. FTCA CONCERNS RE “ GRAY ” AREA SCOPE OF PROJECT CHANGE REQUESTS. 34

NEW DEVELOPMENTS (Cont.) MORE ATTENTION NEEDED TO “SERVICES TO NON-HEALTH CENTER PATIENTS” -USE “PARTICULARIZED DETERMINATIONS” TOOL -HAVE AGREEMENTS IN WRITING. 35

FTCA ASSISTANCE FIRST SOURCE OF FTCA PROGRAM INFORMATION IS: FTCA-HELP – TOLL FREE ( ) (Fax) - Triton Group 227 Hamburg Tpke. Pompton Lakes, NJ HRSA/BPHC FTCA CONTACT: - MIKE CHELLIS (301) ) NATIONAL ASSOCIATION OF COMMUNITY HEALTH CENTERS 7200 Wisconsin Ave., Suite 210, Bethesda, MD FREDA MITCHEM ( ) 36