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:

1. 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.
2. 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.

1. 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.
   
2. 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.
   
3. This part applies to state and local court, administrative, and legislative proceedings and Federal court and administrative proceedings.
   
4. This part does not apply to:
   
   1. 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.
   2. Congressional requests or subpoenas for testimony or documents.
   3. 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.
   4. 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.)
   5. 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.
   6. 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:

1. Office of the Secretary--Assistant Secretary for Management and Budget;
2. Office of Human Development Services--Assistant Secretary for Human Development Services;
3. Public Health Service--Assistant Secretary for Health;
4. Health Care Financing Administration--Administrator;
5. Family Support Administration--Assistant Secretary for Family Support;
6. Social Security Administration--Commissioner; and
7. 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.

1. 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.
2. 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.

1. 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.
2. 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.

1. 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.
2. 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]