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With
increasing frequency, physicians and other employees
of health centers deemed eligible for medical
malpractice coverage under the Federal Tort
Claims Act (FTCA) are being requested to provide
testimony in litigation in which they are not
currently a party. This happens primarily in
the following two situations:
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The health center and/or the physician being
subpoenaed were named as defendants in a medical
malpractice law suit. After the Office of
the General Counsel determined that the FTCA
applied and the suit removed to Federal court,
the center and/or physician were dismissed
from that suit because the plaintiff failed
to exhaust the required administrative remedies
under the FTCA. While the FTCA administrative
claim is pending, the State lawsuit continues
against other defendants, such as a local
hospital and non-health center physicians.
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Neither the health center nor the physician
being subpoenaed has been made a defendant
in the medical malpractice suit to date. However,
the physician likely will be asked to testify
about health care that he or she provided
to the injured plaintiff, who may then decide
to include the physician and health center
as new defendants.
In
either situation, the health center and subpoenaed
employee should have legal representation, and
the Federal Government may have a strong interest
in participating in that representation.
The Touhy regulation (45 CFR Part 2) forbids
Federal employees from giving testimony without
prior approval by the appropriate “Agency
head” (in this case the Administrator
of the Health Resources and
Services Administration (HRSA)).
In order to determine if the Touhy regulation
applies to the health center provider, and to
facilitate representation by the Department
of Justice in appropriate cases, please immediately
fax subpoenas and any other requests for testimony
of health center employees (including contractors
whom you believe may qualify for FTCA coverage)
to:
Chief, Litigation Branch
Business and Administrative Law Division
DHHS Office of the General Counsel
330 Independence Ave., SW, Room 5362
Washington, D.C. 20201
Fax: (202) 619-2922
Attention:
Request for Testimony
The Office of the General Counsel will conduct
a “scoping” of the case, that is,
an inquiry into the matter to determine whether
the subpoenaed individual was a covered employee
acting within the scope of employment and within
the scope of the grant during the applicable
time period. Accordingly, the Office of the
General Counsel will respond to your inquiry
by asking you to provide supporting documentation
for the scoping determination, if you have not
done so already in the case (as you would have
done in situation “1" above).
If the Office of the General Counsel determines
that the subpoenaed employee is covered by the
FTCA, that employee is also covered by the “Touhy
regulation.” The Office of the General
Counsel will notify the health center and/or
provider of its determination and make a recommendation
to the Administrator. If the Administrator determines
that the request for testimony is proper and
the testimony is authorized, the Office of the
General Counsel will contact the appropriate
United States Attorney to arrange representation
of the health center provider. If the Administrator
of HRSA denies approval to comply with a subpoena
for testimony, or if the Administrator of HRSA
has not acted by the return date, the health
center provider should appear at the stated
time and place (unless advised by the Office
of the General Counsel that responding to the
subpoena would be inappropriate), produce a
copy of the Touhy regulations, and respectfully
decline to testify or produce any documents
on the basis of the regulations.
TITLE 45--PUBLIC WELFARE AND HUMAN SERVICES
PART 2--TESTIMONY BY EMPLOYEES AND PRODUCTION
OF DOCUMENTS IN
PROCEEDINGS WHERE THE UNITED STATES IS NOT A
PARTY
Table
of Contents
Sec.
2.1 Scope, purpose, and applicability
2.2 Definitions
2.3 Policy on presentation
of testimony and production of documents.
2.4 Procedures when voluntary
testimony is requested or when an employee is
subpoenaed.
2.5 Subpoenas duces tecum.
2.6 Certification and authentication
of records.
Sec. 2.1
1
Scope, purpose, and applicability.
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This part sets forth rules to be followed
when a Department of Health and Human Services
employee, other than an employee of the Food
and Drug Administration, is requested or subpoenaed
to provide testimony, in a deposition, trial,
or other similar proceeding, concerning information
acquired in the course of performing official
duties or because of the employee's official
capacity. This part also sets forth procedures
for the handling of subpoenas duces tecum
and other requests for any document in the
possession of the Department of Health and
Human Services other than the Food and Drug
Administration, and to requests for certification
of copies of documents. Separate regulations,
21 CFR part 20 and 20 CFR part 401, govern
the Food and Drug Administration and requests
for certain information maintained by the
Social Security Administration, and those
regulations are not affected by this part.
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It is the policy of the Department of Health
and Human Services to provide information,
data, and records to non-federal litigants
to the same extent and in the same manner
that they are available to the general public.
The availability of Department of Health and
Human Services' employees to testify in litigation
not involving Federal parties is governed
by the Department of Health and Human Services'
policy on maintaining strict
impartiality with respect to private litigants
and to minimize the disruption of official
duties.
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This part applies to state and local court,
administrative, and legislative proceedings
and Federal court and administrative proceedings.
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This part does not apply to:
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Any civil or criminal proceedings where
the United States, the Department of Health
and Human Services, and any agency thereof,
or any other Federal agency is a party.
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Congressional requests or subpoenas for
testimony or documents.
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Consultative services and technical assistance
provided by the Department of Health and
Human Services, or any agency thereof,
in carrying out its normal program activities.
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Employees serving as expert witnesses
in connection with professional and consultative
services as approved outside activities
in accordance with 45 CFR 73.735- 704
and 73.735-708. (In cases where employees
are providing such outside services, they
must state for the record that the testimony
represents their own views and does not
necessarily represent the official position
of the Department of Health and Human
Services.)
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Employees making appearances in their
private capacity in legal or administrative
proceedings that do not relate to the
Department of Health and Human Services
(such as cases arising out of traffic
accidents, crimes, domestic relations,
etc.) and not involving professional and
consultative services. (6) Any matters
covered in 21 CFR part 20, involving the
Food and Drug Administration, and 20 CFR
part 401, involving the Social Security
Administration.
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Any civil or criminal proceedings in State
court brought on behalf of the Department
of Health and Human Services.
Sec. 2.2 Definitions.
Agency Head refers to the head of the relevant
operating division or other major component
of the Department of Health and Human Services,
or his or her delegatees. For each component
of the Department, the Agency Head for the purposes
of this part is as follows:
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Office of the Secretary--Assistant Secretary
for Management and Budget;
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Office of Human Development Services--Assistant
Secretary for Human Development Services;
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Public Health Service--Assistant Secretary
for Health;
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Health Care Financing Administration--Administrator;
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Family Support Administration--Assistant Secretary
for Family Support;
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Social Security Administration--Commissioner;
and
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Office of the Inspector General--Inspector
General.
Employee includes commissioned officers in the
Public Health Service Commissioned Corps, as
well as regular and special Department of Health
and Human Services employees (except employees
of the Food and Drug Administration), and any
employees of health insurance intermediaries
and carriers performing functions under agreements
entered into pursuant to sections 1816 and 1842
of the Social Security Act, 42 U.S.C. 1395h,
1395u.
Testify and testimony includes both in-person,
oral statements before a court, legislative
or administrative body and statements made pursuant
to depositions, interrogatories, declarations,
affidavits, or other formal participation.
Sec. 2.
3 Policy on presentation of testimony
and production of documents.
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No Department of Health and Human Services
employee may provide testimony or produce
documents in any proceedings to which this
part applies concerning information acquired
in the course of performing official duties
or because of the employee's official relationship
with the Department of Health and Human Services
unless authorized by the Agency head pursuant
to this part based on a determination by the
Agency head, after consultation with the Office
of the General Counsel, that compliance with
the request would promote the objectives of
the Department of Health and Human Services.
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The Office of the General Counsel will request
the assistance of the Department of Justice
where necessary to represent the interests
of the Department of Health and Human Services
and its employees under this part.
Sec. 2.
4 Procedures when voluntary testimony
is requested or when an employee is subpoenaed.
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All requests for testimony by a Department
of Health and Human Services employee in his
or her official capacity and not subject to
the exceptions set forth in Sec. 2.1(d), of
this part, must be in writing and must state
the nature of the requested testimony, why
the information sought is unavailable by any
other means, and the reasons why the testimony
would be in the interests of the Department
of Health and Human Services or the Federal
Government.
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If the Agency head denies approval to comply
with a subpoena for testimony, or if the Agency
head has not acted by the return date, the
employee will appear at the stated time and
place, unless advised by the Office of the
General Counsel that responding to the subpoena
would be inappropriate (in such circumstances
as, for example, an instance where the subpoena
was not validly issued or served, where the
subpoena has been
withdrawn, or where discovery has been stayed),
produce a copy of these regulations, and
respectfully decline to testify or produce
any documents on the basis of these regulations.
Sec. 2.
5 Subpoenas duces tecum.
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Subpoenas duces tecum for records of the Department
of Health and Human Services shall be deemed
a request for records under the Freedom of
Information Act and shall be handled pursuant
to the rules governing public disclosure established
in 45 CFR
Part 5.
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Whenever a subpoena duces tecum, in appropriate
form, has been lawfully served upon a Department
of Health and Human Services' employee commanding
the production of any record, such employee,
after consultation with the Office of the
General Counsel, shall appear in response
thereto, respectfully decline to produce the
record(s) on the ground that it is prohibited
by this section, and state that the production
of the record(s) involved will be handled
by the procedures and disclosure rules established
in 45 CFR
Part 5.
Sec. 2.
6 Certification and authentication of records.
Upon request, Department of Health and Human
Services' agencies will certify the authenticity
of copies of records that are to be disclosed
pursuant to 45 CFR Part 5 and will authenticate
copies of records previously disclosed. Fees
for such certification are set forth in 45 CFR
5.43(e).
[52
FR 37146, Oct. 5, 1987, as amended at 55 FR
4611, Feb. 9, 1990]
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