Transcript Federal Tort Claims Act - National Association Of

Federal Tort Claims Act and
Health Center Medical Malpractice Liability
Protection
Southeast Atlantic Health Disparities Collaboratives
2008 Annual Transformation Teams summit/Reunion
March 28, 2008
Nashville, TN
Martin Bree
Triton Group, LLC.
July 17, 2015
Triton Group
First Source of FTCA Program Information
o Triton Group
o 227 Hamburg.
o Pompton Lakes, NJ 07442
o HRSA Contract No. 232-00-0097
o Martin J. Bree
o 772-873-1865
o 772-873-1695 (fax)
o 856-625-8638 (cell)
o [email protected]
o Roger Fuydal
o 866-FTCA-HELP - Toll Free
o (866-382-2435)
o 973-831-8395 (Fax)
o [email protected]
July 17, 2015
Susan Lewis
727-822-4271
[email protected]
Marty Hiller (Free Clinics)
216-382-4150
[email protected]
Triton Group, LLC
How the Program Works
• A scheme that provides immunity from lawsuit.
• Appears similar to an occurrence malpractice
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policy.
Program in existence for 13 years.
Very successful in terms of savings for health
centers and coverage of health centers and
staff.
July 17, 2015
Triton Group, LLC
How the Program Works (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).
July 17, 2015
Triton Group, LLC
How the Program Works (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.
July 17, 2015
Triton Group, LLC
How the Program Works (cont.)
• Who is Eligible to be Deemed:
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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)].
Triton Group, LLC
How the Program Works (cont.)
• Who is covered - people
– Employees.
– Officers.
– Directors.
– Governing board members.
– Contractors (some, not all).
July 17, 2015
Triton Group, LLC
How the Program Works (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.
July 17, 2015
Triton Group, LLC
How the Program Works (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.
July 17, 2015
Triton Group, LLC
How the Program Works (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
July 17, 2015
Triton Group, LLC
How the Program Works (cont.)
• What is covered?
– Medical malpractice.
– More specifically, medical, surgical, dental
and related activities (if within the scope of
employment and scope of project).
July 17, 2015
Triton Group, LLC
How the Program Works (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 2008-01).
– 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.
July 17, 2015
Triton Group, LLC
How the Program Works (cont.)
• When is it covered
– Coverage is only for acts that are within the
scope of employment of the covered
individual.
– No Moonlighting.
– Must be acting on behalf of the deemed
entity.
July 17, 2015
Triton Group, LLC
FTCA Procedures
• 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.
July 17, 2015
Triton Group, LLC
FTCA Procedures
• 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)
202-619-2922 (Fax)
202-619-2155 (Voice)
• Have health center attorney request extension of time to reply.
July 17, 2015
Triton Group, LLC
Potential Problems
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Contracts.
Sub-Recipients.
Scope of Project - Sites and Services.
Billing Arrangements.
Americans with Disabilities Act, Rehabilitation
Act, Civil Rights Act.
Nursing Homes
Contracts with Correctional Institutions
Non-Health Center Patients
July 17, 2015
Triton Group, LLC
Scope of Project
New Policy - PIN 2008-01
Baseline Scope Verification
Process - PAL 2008-01
July 17, 2015
Important issues
– Insurance requirements of hospitals and Health
Maintenance Organizations.
– National Practitioner Data Bank.
– Other Insurance.
– Deeming Applications .
– Credentialing – a critical issue.
– Emergency Response - PIN 2007-16
July 17, 2015
Triton Group, LLC
Non-Health Center Patients
• Federal Register Notice September 25, 1995
(Volume 60 Number 185) page 49417 – 49418.
– Hospital On-Call Requirements.
– Cross Coverage Arrangements.
– Community Activities.
• Other situations require a “Particularized
Determination” See 99-08.
July 17, 2015
Triton Group, LLC
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.
• http://www.npdb-hipdb.com.
July 17, 2015
Triton Group, LLC
Other Insurance Needs
• Gap or Wrap-around: covers medical
malpractice not covered by FTCA.
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Volunteers
Outside Scope of project
Contracts with corporations
Contracts with part time specialists
Peer review (maybe)
• Tail Insurance
• General Liability Insurance
• Directors and Officers Liability
•July Proof
of malpractice coverage – Triton Group
17, 2015
Triton Group, LLC
Deeming Applications
• 2007 Policy
– New organizations (never deemed before):
• Submit application found in PIN 99-08 to BPHC.
– Previously deemed entities
• Submit application found in PAL 2007-02 to BPHC.
• Due July 1, 2007.
– All participating health centers should have received 2008
deeming letters by now.
• 2008 Policy
– Tentative due date June 1, 2008. (Look for a Program
Assistance Letter around Mid April.)
July 17, 2015
Triton Group, LLC
Program Value
Malpractice Premium Savings
• Studies conducted for Triton Group by
Princeton Insurance Company and
Huggins Actuarial Services.
• Premiums calculated for 2002, 2005, 2006
• Used Uniform Data System (UDS) data for
deemed Health Centers
July 17, 2015
Triton Group, LLC
Program Value
Malpractice Premium Savings
Study Methodology
• Used Occurrence Premiums with $1m/3m limits.
• Premiums include 25% for taxes, profits,
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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.
July 17, 2015
Triton Group, LLC
Program Value
Malpractice Premium Savings Study
Results
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2002 Savings for deemed centers 2005 Savings for deemed centers 2006 Savings for deemed centers 2007 Savings for deemed centers -
$164,000,000
$180,000,000
$184,000,000
$192,000,000
• Extrapolating from the studies: total savings since 1993
$1.6 billion
July 17, 2015
Triton Group, LLC
HRSA FTCA CLAIMS PER FISCAL YEAR
300
250
200
150
100
50
0
1994
1995
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1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
Triton Group, LLC
FTCA Losses Per Year
Health Centers
60,000,000
50,000,000
40,000,000
30,000,000
20,000,000
10,000,000
0
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
Year
July 17, 2015
Triton Group, LLC
Incident Status Summary
Health Center FTCA Malpractice
Incidents
Oct 1994 – Jun 30, 2006
• 1,456 Medical Incidents
– 412 Deemed Health Centers (DHCs)
– 51 States/Territories
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• 60% w/ final disposition
283 Obstetrics Related Claims
– 151 DHCs
– 36 States/Territories
July 17, 2015
Triton Group, LLC
Severity of Injuries Resulting
from Malpractice Incidents
% of total
0
10
20
30
40
50
Emoti onal
Insi gnific ant
MnrT emporary
MjrT emporary
MnrPermanent
Sig Permanent
Maj Permanent
Quad, BrainDmg
Death
Unknown
NATIONAL N=1,456
July 17, 2015
Triton Group, LLC
Nature of Occurrence
Previously
Reported
1Q07
2Q07
3Q07
4Q07
Previous/Total
Obstetrics Related
15
10
12
5
305/347
Diagnosis Related
16
14
13
15
418/474
Treatment Related
7
11
16
10
284/328
Medication Related
5
7
8
5
126/151
Surgery Related
2
3
1
3
83/92
Other Miscellaneous
0
0
1
0
125/126
Monitoring Related
2
0
0
0
16/18
Equipment/Product
Related
0
0
0
1
8/9
Anesthesia Related
0
0
0
0
7/7
IV & Blood Products
Related
0
0
0
0
4/4
July 17, 2015
Triton Group, LLC
July 17, 2015
0
Q4FY2006
6
0
26
0
3
Equi pment
Problems
14
Referral Issues /
Recurri ng
Complaint
16
Facil ities
Department
100
Ancill ary
150
Communication
1
Availabi li ty /
Schedul ing
250
Staffing /
350
Documentati on
10
27
Trai ni ng / Lack of
Supervisi on
400
No Secondary
Factors Found
700
Mi scell aneous
50
Protocol s /
Procedures
Pol ici es /
Number of Claims
Secondary Factors / System Problems
750
681
650
600
550
500
450
357
394
311
300
204
200
107
56
0
0
1
Previous
Triton Group, LLC
Risk Management
• Health Centers are expected to use a portion of
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savings to provide risk management services.
(PIN 99-08 Para. XVIII).
NACHC –risk management training for groups of
health centers.
Inspector General report on risk management in
health centers.
Triton Group can provide risk management
services.
July 17, 2015
Triton Group, LLC
Credentialing and Privileging
• PIN 2002-22
• Credentialing and privileging required of all
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July 17, 2015
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.
Triton Group, LLC
Risk Management Findings from
Health Center Claims
• Credentialing and Privileging
– Competence of providers
• Medical Records
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Legibility
Completeness
Signatures
Availability
• Birth Injuries
– Existence and Proper use of protocols
• Informed Consent
July 17, 2015
Triton Group, LLC
Recent Risk Management
Recommendations (from HRSA Contractor -
Keystone Peer Review Organization)
• Training/CME:
– Monitoring Pitocin Administration
– Cord prolapse
– GBS testing
• Preceptor needs in labor and delivery setting
July 17, 2015
Triton Group, LLC
Recent Risk Management
Recommendations
• Illegible and/or Inadequate Medical Record
Documentation
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Accurate, complete and legible
Documentation of scheduled exams
Training in proper documentation
Use problem list and flow sheets for lab and meds
Encourage use of EMR
Documentation of conversations with patients or
specialists
July 17, 2015
Triton Group, LLC
Recent Risk Management
Recommendations
• Policies/Procedures/Protocols
– Lack of policies/procedure/protocol in 32% of cases
reviewed
– Examples: chest pain, handling of abnormal test
results, adherence to ACOG 30 Minute “Decision to
Incision” guideline.
– Every health center should have its own customized
set of well defined policies and procedures
– Lack of algorithm for DVT/Pulmonary embolism
prophylaxis
– Lack of vaccine schedule for high-risk patients
July 17, 2015
Triton Group, LLC
Recent Risk Management
Recommendations
•Training:
•Shoulder Dystocia Drills
•Other
•Lack of effective communication in
29% of cases:
•Failure to communicate plan of care
with patients
July 17, 2015
Triton Group, LLC
Triton Group
First Source of FTCA Program Information
o Triton Group
o 227 Hamburg.
o Pompton Lakes, NJ 07442
o HRSA Contract No. 232-00-0097
o Martin J. Bree
o 772-873-1865
o 772-873-1695 (fax)
o 856-625-8638 (cell)
o [email protected]
o Roger Fuydal
o 866-FTCA-HELP - Toll Free
o (866-382-2435)
o 973-831-8395 (Fax)
o [email protected]
July 17, 2015
Susan Lewis
727-822-4271
[email protected]
Marty Hiller (Free Clinics)
216-382-4150
[email protected]
Triton Group, LLC