1. Martin J. Bree Senior Partner Triton Group, LLC.
FTCA Update/Lessons Learned 12th Annual 2005 Region IX Management Training Conference Burbank, California September 27, 2005
Martin J. Bree
Senior Partner
Triton Group, LLC.
September 19, 2018

2. Triton Group First Source of FTCA Program Information Triton Group
227 Hamburg.
Pompton Lakes, NJ
HRSA Contract No
Roger Fuydal
866-FTCA-HELP - Toll Free
( ) Marty Hiller (Free Clinics)
(Fax)
Martin J. Bree
(fax)
(cell)
September 19, 2018

3. Today’s workshop will cover:
Medical Malpractice 2005
How the Program Works for Health Centers
Limitations of Coverage
Credentialing and Privileging
Program Value
Claim Status
Risk Management
HIPAA Section 194
Questions
September 19, 2018

4. Medical Malpractice 2005 Med Mal premiums increase
40%
37%
Average Indemnity Payments (per PIAA)
$196,392
$223,167
$232,178
$253,479
$285,354
$295,610
$309,381
2003 – $328,757
September 19, 2018

5. Medical Malpractice 2005 (cont.)
Increased premiums particularly affect:
Radiology
Obstetrics/gynecology
Neurosurgery
Emergency Medicine
The percentage of indemnity payments over $1 million has doubled since 1997 reaching 2.9% in 2003
Med Mal losses have been increasing 19 times faster than other tort losses (AIG)
September 19, 2018

6. Medical Malpractice 2005 Obstetrics Claims
Most paid claims of any specialty – 36% of closed claims result in payment
Highest % of paid claims over $1 million – 27%
Average indemnity for 2001 – 2003 was $440,658
Neurologically impaired newborns second most prevalent medical condition resulting in a claim after breast cancer
September 19, 2018

7. Medical Malpractice 2005 (cont.)
General and Family Practice for
27% of closed claims result in payment
Average indemnity $276,171
Internal Medicine for
25% of closed claims result in payment
Average indemnity $307,024
Pediatrics for 2001 – 2003
31% of closed claims result in payment
Average indemnity $389,658
September 19, 2018

8. Medical Malpractice 2005 (cont.)
Proposed solutions
Caps on non-economic damages
Limitations on venue shopping
Requiring “Certificates of Merit”
Better underwriting
September 19, 2018

9. How the Program Works for Health Centers
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.
September 19, 2018

10. How the Program Works for Health Centers (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).
September 19, 2018

11. How the Program Works for Health Centers (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.
September 19, 2018

12. How the Program Works for Health Centers (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)].
School-based Health Centers [Section 330].
September 19, 2018

13. How the Program Works for Health Centers (cont.)
Who is covered - people
Employees.
Officers.
Directors.
Governing board members.
Contractors (some, not all).
September 19, 2018

14. How the Program Works for Health Centers (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.
September 19, 2018

15. How the Program Works for Health Centers (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.
September 19, 2018

16. How the Program Works for Health Centers (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”.
El Rio Case
September 19, 2018

17. How the Program Works for Health Centers (cont.)
What is covered?
Medical malpractice.
More specifically, medical, surgical, dental and related activities (if within the scope of employment and scope of project).
September 19, 2018

18. How the Program Works for Health Centers (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 ).
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.
September 19, 2018

19. How the Program Works for Health Centers (cont.)
When is it covered
Coverage is only for acts that are within the scope of employment of the covered individual
No Moonlighting
Acting on behalf of the deemed entity
September 19, 2018

20. How the Program Works for Health Centers (cont.)
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.
September 19, 2018

21. How the Program Works for Health Centers (cont.)
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) (Fax)
(Voice)
Have health center attorney request extension of time to reply.
September 19, 2018

22. How the Program Works for Health Centers (cont.)
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.
September 19, 2018

23. How the Program Works for Health Centers (cont.)
Touhy Regulation
Policy Information Notice
Submit request for deposition or testimony to DHHS/OGC (fax to ).
HRSA Administrator will approve or deny.
If approved representation may be provided by DOJ.
September 19, 2018

24. How the Program Works for Health Centers (cont.) – Potential Problems
Contracts.
Sub-Recipients.
Scope of Project.
Billing Arrangements.
Americans with Disabilities Act, Rehabilitation Act, Civil Rights Act.
September 19, 2018

25. How the Program Works for Health Centers (cont.)
Important Issues
Non-health center patients – a potential problem.
Insurance requirements of hospitals and Health Maintenance Organizations.
National Practitioner Data Bank.
Deeming Renewal .
Credentialing – a critical issue.
September 19, 2018

26. Non-Health Center Patients
Federal Register Notice September 25, 1995 (Volume 60 Number 185) page –
Hospital On-Call Requirements.
Cross Coverage Arrangements.
Community Activities.
Other situations require a “Particularized Determination” See
September 19, 2018

27. 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.
September 19, 2018

28. 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.
September 19, 2018

29. Other Insurance
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
September 19, 2018

30. Deming Applications New organizations (never deemed before):
Submit application found in PIN to BPHC (currently Susan Lewis in Philadelphia).
Deemed entities at end of project period (competing continuations):
Deemed entities at end of budget period (non-competing continuations):
Application is part of single grant application.
September 19, 2018

31. Program Value Malpractice Premium Savings
Study conducted by Princeton Insurance Company.
Premiums calculated for 2002
Used Uniform Data System (UDS) data for deemed Health Centers
September 19, 2018

32. Program Value Malpractice Premium Savings Study Methodology
Used Occurrence Premiums with $1m/3m limits.
Premiums include 25% for taxes, profits, commissions, etc.
Each deemed Health Center rated by its specific territory.
Rates based on Full Time Equivalents by specialty.
Premium increased by 10% to cover corporation and allied personnel.
September 19, 2018

33. Program Value Malpractice Premium Savings Study Results
2002 Savings for deemed centers - $164,000,000
Extrapolating from 2002 and 1999 studies: total savings since 1993
$1 billion
September 19, 2018

34. Claim Status - National
Oct thru Dec Claims filed against the United States.
Closed Claims - approximately 55% of total.
Paid Claims – approximately 30% of closed claims.
Avg. cost per paid claim - $370,000.*
Avg. cost per closed claim - $114,000*
September 19, 2018

35. Health Center Claims per Month
September 19, 2018

36. Health Center Loses per Year
September 19, 2018

37. National Health Center Data
September 19, 2018

38. National Health Center Data
Frequency of Adverse Outcome by Region 20 40 60 80
100
120
140
160
180
200
220
240
Death
Loss of/damage to organ
Exacerbation of disease/condition
Loss of/damage to limb
Brain damage
Skin/tissue/muscle injury
Fetal death
Other nerve damage
Delay in recovery
Emotional only
Infection
Reduced life expectancy
Skeletal injury
Loss/damage to tooth/dental prosthes
Blindness/Ophthalmic injury
All Others Combined
Adverse Outcome
# of Claims (Frequency)
Region 01
Region 02
Region 03
Region 04
Region 05
Region 06
Region 07
Region 08
Region 09
Region 10
September 19, 2018

39. National Health Center Data
Frequency of Specialty by Region 30 60 90
120
150
OBSTETRICS-GYNECOLOGY
FAMILY PHYSICIANS (PRACTICE)
INTERNAL MEDICINE-MINOR SURGERY
DENTISTS
PEDIATRICS
OTHER SPECIALISTS
GENERAL PRACTITIONERS
SPECIALTY NOT IDENTIFIED
GENERAL SURGERY
Physician Specialty
# of Claims (Frequency)
Region 01
Region 02
Region 03
Region 04
Region 05
Region 06
Region 07
Region 08
Region 09
Region 10
September 19, 2018

40. Health Center National Data
September 19, 2018

41. Health Center National Data
September 19, 2018

42. Health Center National Data
September 19, 2018

43. Health Center National Data
September 19, 2018

44. Health Center National Data
September 19, 2018

45. Health Center National Data
September 19, 2018

46. Risk Management
Health Centers are expected to use a portion of savings to provide risk management services. (PIN Para. XVIII).
NACHC – Risk Management Technical Assistance line –
Inspector General report on risk management in health centers.
Triton Group – can assist you in finding appropriate risk management services – 866-FTCA-HELP.
September 19, 2018

47. Risk Management Credentialing and Privileging Medical Records
Informed Consent
Birth Injuries
Tracking Systems
September 19, 2018

48. Credentialing and Privileging
PIN
Credentialing and privileging required of all licensed or certified health care practitioners.
Process for Licensed Independent Practitioners (LIPs) generally mimics JCAHO.
Non-LIPs requires primary source verification of only license or certification.
Volunteers included.
September 19, 2018

49. Credentialing and Privileging
Verification of the education, training, and experience of provider.
Privileging
“The process of authorizing a licensed or certified health care practitioners specific scope and content of patient care services” or
Assessment of the clinical competence of the provider to do the job expected..
September 19, 2018

50. Medical Records Legibility Completeness Organization
Permanent archive of patient’s treatment.
Communication tool between providers.
Legal defense tool.
Completeness
More is better than less.
Organization
Chronological.
Dividers.
Medication summary sheets/problem lists.
September 19, 2018

51. Medical Records Security Signatures Storage. Correction.
Release of information.
Signatures
September 19, 2018

52. Informed Consent
Your don’t “give” informed consent. You “get” informed consent.
It is a communication process, not a form that the patient signs.
Components
Competency.
Information.
Written (in appropriate language).
September 19, 2018

53. Birth Injuries
Biggest component of losses under Health Center FTCA program.
Utilize protocols.
Shoulder Dystocia Drills.
Clinical competencies.
VBACs?
September 19, 2018

54. Tracking Systems For all tests? Why not. Electronic vs. manual.
System should be redundant.
QI testing of systems.
How do we track referrals?
Telephone calls.
September 19, 2018

55. 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
September 19, 2018

56. Federal Staff Aida Stark, FTCA Program Director Susan Lewis
Susan Lewis
(fax)
September 19, 2018

57. FTCA HELP Triton Group Martin J. Bree Roger Fuydal 215-861-4373
(fax)
Roger Fuydal
866-FTCA-HELP (toll free)
227 Hamburg Tpke.
Pompton Lakes, NJ
September 19, 2018