Transcript Federal Tort Claims Act - Community Health Centers of

Federal Tort Claims Act
and Risk Management
Community Health Centers of Arkansas
June 14, 2010
Little Rock, AR
Martin Bree
Triton Group, LLC
Triton Group
First Source of FTCA Program Information
o
o
o
o
Triton Group
227 Hamburg.
Pompton Lakes, NJ 07442
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]
Susan Lewis
727-822-4271
[email protected]
Marty Hiller (Free Clinics)
216-382-4150
[email protected]
Triton Group, LLC.
7/20/2015
Federal Tort Claims Act
A limited waiver of the federal government's
sovereign immunity when its employees are
negligent within the scope of their
employment
Imposes liability on the United States “in the
same manner and to the same extent as a
private individual under like circumstances”
law of the place where the act or omission
occurred applies (except federal procedural
law)
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Federal Tort Claims Act (cont.)
Cannot bring suit for intentional torts (e.g.
assault, battery, false imprisonment, etc.) or
violations of constitutional rights under the
FTCA.
No limitation of liability under FTCA
Provides for judicial as well as administrative
remedy
Punitive damages and prejudgment interest
not allowed
No jury trials
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Federal Tort Claims Act (cont.)
Administrative Claim Requirement – must file
a claim with agency and give opportunity to
the agency to settle claim before a suit is
permitted
If Agency denies, takes no action after six
months, or offers unsatisfactory amount,
claimant may bring suit in against U.S. in
federal district court (within 6 months)
Attorney fees limited to 20% of
administrative settlement and 25% of
judgment or compromise settlement
Triton Group, LLC.
7/20/2015
Federally Supported Health
Centers Assistance Act
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).
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FSHCAA (cont.)
A scheme that provides immunity from
lawsuit.
Appears similar to an occurrence malpractice
policy.
Program in existence for 17 years.
Very successful in terms of savings for health
centers and coverage of health centers and
staff.
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Triton Group, LLC.
FSHCAA (cont.)
 Who is Eligible to be Deemed:
 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
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FSHCAA (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.
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FSHCAA (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.
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FSHCAA (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”.
Triton Group, LLC
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What is Covered
Medical malpractice.
More specifically, medical, surgical, dental
and related activities (if within the scope of
employment and scope of project).
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Scope of Project
Very Important
 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.
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Scope of Employment
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.
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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.
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Triton Group, LLC
FTCA Procedures
 Procedure
 Plaintiffs often file suit in state court.
 What to do:
 Immediately fax complaint and deeming letter to:
Meredith Torres
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.
Triton Group, LLC
7/20/2015
Potential Problems
Contracts.
Co-Applicants
Sub-Recipients.
Scope of Project - Sites and Services.
Billing Arrangements.
Employment Contract Language.
Nursing Homes.
Contracts with Correctional Institutions.
Non-Health Center Patients.
Triton Group, LLC
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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.
Triton Group, LLC
7/20/2015
Hospital On-call Requirements
September 25 FRN states that the
Secretary has determined that coverage
extends to:
“Periodic hospital call or hospital emergency
room coverage, as required by the hospital as
a condition for obtaining hospital admitting
privileges. There must be documentation for
the particular health care provider that this
coverage is a condition of employment at the
health center.”
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Cross Coverage Activities
September 25 FRN states that the
Secretary has determined that coverage
extends to the following situation:
“As part of a health centers arrangement with
local community providers for after-hours
coverage of its patients, the health center’s
providers are required by their employment
contract to provide periodic or occasional
cross-coverage for patients of these
providers.”
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Community Wide
Interventions
School-Based Clinics.
School-Linked Clinics.
Health Fairs.
Immunization Campaign.
Migrant Camp Outreach.
Homeless Outreach.
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Particularized Determination
A Particularized Determination is a request
for prior approval of FTCA coverage for
care to a non-health center patient.
The Sept 25, 1995 FRN states “If any
element of the activity or arrangement in
question does not fit squarely into the
examples below, a particularized
determination on coverage should be
sought.”
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Important issues
Insurance requirements of hospitals and Health
Maintenance Organizations.
National Practitioner Data Bank.
Other Insurance.
Deeming Applications .
Credentialing – a critical issue.
Specialty Care.
Emergency Response - PIN 2007-16
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Insurance Requirements of
Hospitals and HMO’s.
42 U.S.C. §233(j) - Remedy for denial
of admitting privileges to certain health
care providers.
42 U.S.C. §233(m) - Application of
coverage to managed care plans.
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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.
Triton Group, LLC
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Other Insurance Needs
Gap or Wrap-around: covers medical
malpractice not covered by FTCA.
Volunteers
Outside Scope
Contracts with corporations
Contracts with part time specialists
Tail Insurance
General Liability Insurance
Directors and Officers Liability
Proof of malpractice coverage – Triton Group
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Triton Group, LLC
Deeming Applications
2011 Policy (for deeming beginning
January 2011)
PAL 2010-06
Applications will be due on July 16, 2010.
Electronic application, similar to grant application.
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Triton Group, LLC
Deeming Application Issues
Quality Assurance Plans (with governing
board approval within 3 years)
Staff Lists
Claim History
Signatures
Program Value
Malpractice Premium Savings
Studies conducted for Triton Group by
Princeton Insurance Company and Huggins
Actuarial Services.
Premiums calculated for 2002, 2005, 2006,
2007, 2008.
Used Uniform Data System (UDS) data for
deemed Health Centers
Triton Group, LLC
7/20/2015
Program Value
Malpractice Premium Savings
Study Methodology
 Used Occurrence Premiums with $1m/3m limits.
 Premiums include 25% for taxes, profits,
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.
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Program Value
Malpractice Premium Savings Study
Results
 2002
 2005
 2006
 2007
 2008
Savings
Savings
Savings
Savings
Savings
for
for
for
for
for
deemed
deemed
deemed
deemed
deemed
centers
centers
centers
centers
centers
-
$164,000,000
$180,000,000
$184,000,000
$192,000,000
$204,000,000
 Extrapolating from the studies: total savings since
1993
$1.75 billion
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Claim Status - National
Oct. 1994 thru Dec. 2009 - 2824.
Closed Claims - approximately 65% of total.
Paid Claims – approximately 33% of total
claims, 50% of closed claims
Avg. cost per paid claim - $400,000.
Avg. cost per closed claim - $210,000
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Triton Group, LLC
HRSA FTCA CLAIMS PER FISCAL YEAR
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Triton Group, LLC
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Triton Group, LLC
Credentialing and Privileging
PIN 2002-22
Credentialing and privileging required of all
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.
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Triton Group, LLC
Risk Management
Health Centers are expected to use a portion
of savings to provide risk management
services. (PIN 99-08 Para. XVIII).
Inspector General report on risk management
in health centers.
Triton Group can provide risk management
services.
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Triton Group, LLC
HRSA Risk Management
Requirements
 Active Quality Improvement Program
 Appropriate use of clinical protocols
 Clear communication with patients
 Comprehensive patient medical records
 Credentialing and privileging of health care professionals
 Formal patient grievance mechanism
 Regular patient satisfaction survey
 Regular staff training on risk management
 Up to date policies and procedures on risk management
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Risk Management Issues in
Health Centers
(based on filed claims)
Credentialing and Privileging
Competence of providers
Medical Records
Legibility
Completeness
Signatures
Availability
Birth Injuries
Existence and Proper use of protocols
Informed Consent
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Triton Group, LLC
HIPAA Section 194
Volunteers in Free Clinics
Provides Med Mal protection to “Volunteers in
“Free Clinics”
Volunteer and free clinic are specifically defined in
the statute
Does not cover the free clinic corporation nor the
free clinic employed staff
Free clinic may not accept any third party
reimbursement
Must give notice to patients on limitations of
liability
7/20/2015
Triton Group, LLC
Triton Group
First Source of FTCA Program Information
o
o
o
o
Triton Group
227 Hamburg.
Pompton Lakes, NJ 07442
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]
Susan Lewis
727-822-4271
[email protected]
Marty Hiller (Free Clinics)
216-382-4150
[email protected]
Triton Group, LLC
7/20/2015