Purpose

This Program Assistance Letter provides additional information, in the form of questions and answers (see enclosure), on Federal Tort Claims Act coverage for Health Centers.

If you have any questions, please contact CAPT Martin Bree, Director, Center for Risk Management at (215) 861-4373 or Mbree@hrsa.gov.

Marilyn H. Gaston, M.D.
Assistant Surgeon General
Associate Administrator

Enclosure         

FTCA QUESTIONS & ANSWERS

1. Q.   How do mergers affect Federal Tort Claims Act   (FTCA) deeming?
   
   A.   When two or more Health Centers are merging and forming a new, completely different corporation, that new corporation will need to apply for FTCA coverage.  No employee, contractor, or officer of the new corporation will have FTCA coverage until a deeming application from the new corporation is approved.
   
   
2. Q.    If two Health Centers merge and one corporation is deemed and the other is not, how does that affect deeming? 
   
   A.    If the deemed corporation is absorbed by one that is not deemed, (i.e., the legal entity remaining after the merger is the same legal entity that was not deemed) the staff from the deemed corporation will no longer be covered under FTCA (they are now employees or  contractors of a non-deemed corporation).  If the             opposite happens (i.e., the deemed corporation absorbs a non-deemed Health Center), the staff from the non-deemed center will be covered under FTCA if they  meet all deeming requirements.  Check with your Field Office FTCA Coordinator to discuss your particular case (see Attachment 1).
   
   
3. Q.    Is medical supervision of non-Health Center staff covered?  For example, a physician employed by a deemed Health Center is the medical director of a local nursing home?
   
   A.   In this example, the Federally Supported Health Centers Assistance Acts of 1992 and 1995 do not permit coverage of the supervision of non-Health Center employees or contractors.  Therefore the service as a medical director of a nursing home would not be covered.
   
   
4. Q.   A deemed Health Center has an arrangement with their physicians that permits the physician to bill the patient or third party directly for services provided by the physician when the patient is hospitalized.  The physician receives the reimbursement.  Is this physician covered under the FTCA for this activity?
   

   A.   Historically, some Health Centers have allowed its providers to bill directly for services to hospitalized patients and receive and keep that reimbursement.  This was a method to allow the physician to gain extra compensation and was viewed as a means to help retain physicians.  However, if a provider bills for services and receives payment from the patient or the third party payer then the activity giving rise to the payment would not be covered under FTCA.

   However, there are situations when a Health Center does not have a contract with a health plan yet one or more of their providers are credentialed by that health plan.  In these situations a Health Center may bill the health plan in the name of the credentialed provider and the reimbursement is received by the Health Center.  This activity will be covered under the FTCA.

5. Q.   When being Aredeemed@ through the project period renewal grant application, will a new deeming letter be issued?

   A.   No, a new deeming letter will not be issued.  However, there will be a remark in the Health Center=s Notice of Grant Award regarding Aredeeming.@  Health Centers that expect to be Aredeemed@ should look for the remark on their Notice of Grant Award.

6. Q.   If a provider of a deemed Health Center sees Health Center patients in a Nursing Home, is he/she covered under the FTCA for these encounters?

   A.   Nursing home rounds that are routinely done for Health Center patients and for whom the Health Center bills and receives payment are covered under the FTCA provided that this activity is within the approved scope of project.

7. Q.   Is a Health Center covered when it provides ongoing, routine health care to inmates in a correctional facility. 

   A.   The Health Center is covered if it does this under a contract with the correctional facility and it is part of the approved scope of project.

8. Q.   A managed care contract calls for the Health Center to indemnify and hold the managed care organization harmless from all claims, losses or suits relating to activities under this Agreement.  Is the Health Center covered for this? 

   A.   No, the FTCA will not indemnify other parties.  The Health Center needs to have this language removed from the contract because FTCA does not afford other parties such coverage.

9. Q.   Is a deemed Health Center covered for events when the patient is not yet registered with the Health Center but is intended to be registered?  For example, a patient not previously known to the Health Center calls complaining of nausea and is given an appointment for the next day.  In the interim the patient dies from a myocardial infarction with atypical symptoms and the family alleges poor triage by the Center staff.

   A.   The Health Center is covered for this triage activity.  Even though there will be no formal medical record of the encounter, the patient provider relationship has been established.  Triaging and making appointments are clearly within the scope of center activities.  However, Health Centers should keep a record or log of all telephone triage activities that, at a minimum, shows the patients name, complaint, and action taken.

10. Q.   What is the Bureau of Primary Health Care (BPHC) position on querying the National Practitioner Data Bank (NPDB)? 

    A.   The BPHC recognizes the value of NPDB queries as part of a credentialing system.  The Health Resources and Services Administration has determined that Health Centers are eligible entities for the purpose of querying the NPDB and, therefore, NPDB queries should be an established part of the Health Centers credentialing system.

11.   Q.   Will the BPHC issue retroactive deeming letters? 

    A.   No, the BPHC will not issue deeming letters that predate the date the application is received in the Field Office.

12. Q.   Have plaintiff attorneys been successful in challenging the deeming process? 

    A.   There have been no instances where plaintiffs attorney has successfully challenged the deeming process.

13. Q.   What should a Health Center do if it is not satisfied with the representation being received by the Department of Justice?  
    
    A.   Cases filed under the FTCA are brought against the United States, not the Health Center.  The defense of these cases is handled by the Assistant United States Attorney for the particular district.  If there are perceived problems the Health Center should contact its Field Office FTCA Coordinator (Attachment 1).
    
14. Q.   Must a Health Center have a full-time medical director to participate in the FTCA program?

    A.   There is no requirement in the Federally Supported Health Centers Assistance Acts of 1992 or 1995 for a medical director who works a specific number of hours.  Therefore, lack of a full-time medical director would not disqualify the Health Center from FTCA coverage.

15. Q.   Would an anesthesiologist who works as a family practitioner at a deemed Health Center be covered?

    A.   Yes, the anesthesiologist would be covered so long as he meets all other requirements (i.e., is an employee or full-time contractor or part-time contractor providing family practice, pediatric, internal medicine, or ob/gyn services, and is working within the scope of the project).  The anesthesiologist, however, must be credentialed by the Health Center to provide family practice services.

16. Q.   A deemed Health Center employs a family practitioner who is doing some minor surgery.  Are the family practitioner and the Health Center covered? 

    A.   The question of coverage for the family practitioner who is performing surgery follows the traditional analysis.  Is the surgery being performed within the scope of the Health Center project?  Is the family practitioner either employed or a full-time contractor or a part-time contractor providing family practice, pediatric, internal medicine, or ob/gyn services?  If he/she is a part time contractor the surgical services outside the realm of family practice would not be covered while the family practice services would be covered.

17. Q.   Does the FTCA cover the malpractice exposure of an employed social worker? 
    

    A.   The FTCA covers the medical malpractice exposure of all employees including the social worker who is an employee of the Health Center and working within the Health Center=s scope of project.

18. Q.   A Health Center on a United States border provides services to its patients in a nursing home across the border.  Is this covered by the FTCA?

    A.   No, services provided outside of the United States are not covered by FTCA.

19. Q.   Has Congress appropriated funds for the Medical Volunteers Act?

    A.   Congress has not yet appropriated funds for payments authorized by the "Medical Volunteers Act" Public Law  104-191, 42 U.S.C. 233 (o).  Therefore, this Act has not been implemented.

20. Q.   A Health Center physician is interested in joining an international clinical trial comparing two pharmacotherapy strategies to control hypertension.  The patients in his part of the study would be Health Center patients.  Experimental drugs would not be used, just a calcium vs. a non-calcium antagonist.  Is this covered? 

    A.   Yes, but not for any non-Health Center patients being treated by the provider as part of the protocol.

21. Q.   A Health Center contracts staff out to other organizations.  Is this covered under the FTCA?  For example, a Health Center provides a psychiatrist to a local agency 2 days a month to expand mental health services in the Health Center=s service area.  The psychiatrist is employed by the Health Center. 

    A.   This activity would be covered so long as the care that is provided at the other site is within the Health Centers scope of project.  The psychiatrist must be paid by the Health Center for this activity.  This activity should be incorporated into the Health Center's Quality Assurance program.  The contract with the other agency should stipulate that if a malpractice claim is filed against this physician, the agency must release all necessary records to and cooperate with the United States in the defense the claim.

22. Q.   A Health Center physician volunteers to serve on the sidelines at local high school football games.  Is this covered by the FTCA? 
    

    A.   This activity is voluntary and not part of the physician=s scope of employment with the Health Center.  Therefore, it would not be covered by the FTCA.  If Health Centers want their providers to participate in this type of activity, the Health Center should enter into an agreement with the school or league for these services and seek to have them included in their scope of project.

23. Q.   Are Americorps members working at a deemed Health Center covered under the FTCA?

    A.   Although Health Centers may be sponsoring sites for Americorps members, the National and Community Service Trust Act of 1993, in its definition of an Americorps member states, "A participant shall not be considered an employee of the program in which the participant is enrolled."  Consequently, Americorps members are not covered under the FTCA.

24. Q.   If a provider at a deemed Health Center leaves the Health Center for employment elsewhere, will he/she remain covered under the FTCA for the time they were employed at the deemed Health Center?

    A.   The provider of a deemed Health Center who leaves the center is covered for all acts or omissions of medical malpractice that occurred while he/she was employed by the deemed Health Center.  The FTCA coverage is analogous to an Aoccurrence@ form of malpractice insurance.

25. Q.   Who should I contact if I have any questions on FTCA coverage?

    A.   The first source of information is your HRSA Field Office FTCA Coordinator.  See Attachment 1.

    
    

    Attachment 1

    HRSA FIELD OFFICES

    FTCA COORDINATORS

    Ed Leeds HRSA John F. Kennedy Federal Bldg. Boston, MA 02203 Phone:  617-565-4825 FAX:    617-565-1162 Eleeds@hrsa.gov	Carol Sherman, DMD HRSA 1301 Young St.  Rm. 1040 Dallas, TX 75202 Phone:  214-767-3942 FAX:    214-767-3902 Csherman@hrsa.gov
    Gil Cardona, M.D. HRSA 26 Federal Plaza New York, NY 10278 Phone:  212-264-2771 FAX:    212-264-2673 Gcardona@hrsa.gov	Herb Takashima, M.D. HRSA 601 East 12th Street Kansas City, MO 64106 Phone:  816-426-5226 FAX:    816-426-3633 Htakashi@hrsa.gov
    Susan Little, R.N. HRSA Public Ledger Bldg.  Suite 1172 150 S. Independence Mall West Philadelphia, PA 19106-3499 Phone: 215-861-4364 FAX:   215-861-4385 Slittle@hrsa.gov	Tricia Trinité HRSA Federal Office Building 1961 Stout Street Denver, CO 80294 Phone: 303-844-3204 X208 FAX:   303-844-0002 Ttrinité@hrsa.gov
    Kim Willard-Jelks, MD, MPH HRSA 61 Forsyth St.  Suite 3M60 Atlanta Federal Center Atlanta, GA 30303-8909 Phone:  404-562-4110 FAX:    404-562-4119 Eberzins@hrsa.gov	Barbara Lee HRSA 50 United Nations Plaza San Francisco, CA 94102 Phone: 415-437-8130 FAX:   415-437-8052 Blee@hrsa.gov
    Nancy Egbert, R.N. HRSA 105 West Adams Street  17th Fl Chicago, IL 60603 Phone:  312-353-4204 FAX:    312-886-3173 Negbert@hrsa.gov	Beryl Cochran, JD HRSA Mailstop RX 23 2201 6th Ave. Seattle, WA 98121 Phone:  206-615-2264 FAX:    206-615-2500 Bcochran@hrsa.gov