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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
- 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.
- 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).
- 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.
- 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.
-
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.
-
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.
-
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.
-
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.
-
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.
-
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.
-
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.
-
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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
-
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.
- 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.
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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.
- 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.
-
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.
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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.
-
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
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Herb Takashima, M.D.
HRSA
601 East 12th Street
Kansas City, MO 64106
Phone: 816-426-5226
FAX: 816-426-3633
Htakashi@hrsa.gov
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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
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Tricia
Trinité
HRSA
Federal Office Building
1961 Stout Street
Denver, CO 80294
Phone: 303-844-3204 X208
FAX: 303-844-0002
Ttrinité@hrsa.gov
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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
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Barbara
Lee
HRSA
50 United Nations Plaza
San Francisco, CA 94102
Phone: 415-437-8130
FAX: 415-437-8052
Blee@hrsa.gov
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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
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Beryl
Cochran, JD
HRSA
Mailstop RX 23
2201 6th Ave.
Seattle, WA 98121
Phone: 206-615-2264
FAX: 206-615-2500
Bcochran@hrsa.gov
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