THE NUTS AND BOLTS OF FTCA JUNE 6, 2013

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1 AMERICA S HEALTH CENTERS THE NUTS AND BOLTS OF FTCA JUNE 6, 2013 Dr. Keith Horwood, Salt Lake City, Utah Dr. Ron Yee, Parlier, California

2 Disclaimer The presentation and materials for this Interactive Conference Call were prepared by the National Association of Community Health Centers, Inc. ( NACHC ). They are designed to provide accurate and authoritative information in regard to the subject matter covered. However, they are being made available with the understanding that neither NACHC nor the authors nor the presenters are engaged in rendering legal or other professional advice and that the information presented does not constitute, and is not a substitute for, specific legal, professional or other expert advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought after this Call. 2

3 Federal Tort Claims Act (FTCA): Background History of Medical Malpractice Coverage Commercial insurance Malpractice crisis of 1980s Return of commercial market in 1990s Hardened market in 2000 State by state crisis

4 FTCA Background (cont'd) Traditional Malpractice Insurance Claims Made Tail Coverage Occurrence Gap Coverage 4

5 FTCA: History FTCA creates tort liability for actions of employees of U.S Federally Supported Health Centers Assistance Act (P.L ) extended FTCA coverage to section 330 grantees who submit an FTCA application and meet statutory requirements 1995 FSHCAA (P.L ) made FTCA coverage permanent and clarified coverage 5

6 FTCA: 330 Grantees Covered Eligible Entities (330 funded) Migrant Health Centers Community Health Centers Health Care for the Homeless Programs Health Services in Public Housing School-Based Health Centers 6

7 FTCA: History (cont'd) As a result of these laws, health center employees deemed as federal employees Provides immunity from lawsuits alleging medical malpractice Plaintiffs only remedy is claim under FTCA If a claim is paid, case is sent to the Medical Claims Review Panel (MCRP) 7

8 FTCA: Who is Covered? Health center officers, governing board members, or employees (volunteers are not employees; employees who get a W- 2 at year-end) Full-time contractors (average of 32.5 hours or more per week) Part-time contract providers of services (<32.5 hours/week): Primary Care: Family Practice, OB/GYN, General Internal Medicine, or General Pediatrics Contracts must be between the health center and the individual provider (1099) 8

9 FTCA: Who Is Not Covered? Volunteers Residents Providers billing directly (See BPHC PIN ) Part-time contract providers not in primary care specialties Health professional students 9

10 FTCA: Who Is Not Covered? (cont'd) Contracts between a deemed health center and a corporation (including PCs) Third parties seeking indemnification Providers acting outside the health center federal scope of project or employment agreement Sub-grantees* *A sub-grantee can apply to be deemed through its grantee and therefore have FTCA coverage 10

11 FTCA: What Is Covered? Medical malpractice Activities within approved scope of federal project only (see BPHC PIN ) Activities within scope of employment agreement or contract or health center duties 11

12 FTCA: What Is Covered? (cont'd) Activities on or after deeming date Services to certain non-health center patients Request Particularized Determination of services to non-patients from HHS, if necessary 12

13 FTCA: Scope Of Project Covers only incidents that occur within the scope of project (see BPHC PIN ) Scope of project refers to activities described in the grant application that was approved via notice of grant award Includes any changes in scope of project approved after the original notice of grant award. Sites and services are key elements of scope of project 13

14 14 FTCA: Scope of Project (cont'd) Separate process for requesting changes in scope of project Changes in sites and services require prior approval Pay attention to scope of project!

15 15 FTCA: Other Provisions No dual coverage; gap or wrap-around insurance acceptable Hospitals and managed care plans must accept FTCA coverage Protection only from personal injury or death resulting from performance of surgical, medical, dental or related functions

16 FTCA: Deeming Importance By eliminating CHC malpractice insurance premiums, more dollars are available for: Increasing the number of patients served Enabling services like Health Education, Case Management and Transportation Reducing financial, geographic, cultural/linguistic barriers to care QI/RM programs Permanent coverage for CHC health services 16

17 FTCA: Deeming Importance Studies conducted by Princeton Insurance Company and Huggins Actuarial Services Savings of $88M for 500 CHCs studied Average of $175,000 saved per deemed CHC Average paid claim of $415,000 Almost $2B in total savings since inception in 1992 As a CHC clinician, no worry about coverage now and into the future for any patient cared for while working at a CHC (including OB/NBs for 21 years+) 17

18 FTCA: Deeming Advantages to Health Centers No cost to individual centers No dollar limit on liability Decreases frivolous lawsuits HHS Review the claims that are filed before a lawsuit is permitted Plaintiff s attorneys prefer Jury vs. Federal Judge 18

19 FTCA: Deeming Calendar Year 2014 Requirements for FTCA Medical Malpractice Coverage for Health Centers PAL Link: The Health Center Program: PIN : Federal Tort Claims Act (FTCA) Health Center Policy Manual Link: s/pin html Ineligible Entities: FQHC Look-Alikes 19

20 FTCA: Deeming Requirements: Credentialing and privileging of all licensed or certified health care providers (see BPHC PINS , , ) Applies to all health center practitioners (employed or contracted, w/ 1099 or W2), volunteers (not covered), contractors or locum tenens (not covered unless directly contracted) Querying National Practitioner Data Bank (NPDB) 20

21 FTCA: Deeming Applications All health centers must apply to participate in FTCA program Applications are submitted via EHB New applicants may submit for initial deeming status at any time. Same requirements and process as Re-deeming Re-deeming applications have been recently moved to be due in May (opened 3/28/13, due by 5/5/13 this year) 21

22 FTCA Deeming Requirements 1. QI/QA Plan, board approved in last 3 years (minutes) 2. Minutes of last 6 QI/QA committee meetings 3. CHC Committee reports that further evidence QI/QA activities 4. Minutes of last 6 board meetings reflecting approval of QI/QA activities (make standing BOD agenda item) 5. Credentialing and Privileging policy/procedure 6. Excel List of all licensed and certified staff members, employed or contracted practitioners and locum tenens with evidence of credentialing in last 2Y 7. Policies and procedures for tracking 1) referrals 2) hospitalization 3) Diagnostic testing (lab, x-ray) 8. Statement of malpractice claims in last 5 years 9. ED/CEO electronic signature under penalty of perjury 22

23 FTCA Deeming Notice 23

24 Notice of Intent: State 24

25 Federal Notice A copy of a Federal Notice will be saved here soon. 25

26 What do I do When I Receive Notice? tions/policies/pin html 26

27 Subpoena duces tecum 27

28 Protecting your Quality Process M&M CQI Attorney Client Privilege 28

29 Contracts FTCA: Areas to Review Critical document: legal, expectations, protections Recitals: formal ID of entity (CHC) and clinician relationship Agreement: Term, Duties, Availability, Outside Employment, Professional Services, Compensation/Benefits, Termination, Confidentiality, Medial Records, Non-discrimination, Dispute Resolution Exhibit A or Compensation page Base salary, productivity bonus/incentive, moving expenses, signing bonus, retirement plan, hospital services, legal fees, etc. 29

30 FTCA: Areas to Review Credentialing & Privileging (PIN ) NACHC 5/13 Webinar Human Resources Insights: Tips for Health Center Credentialing and Privileging Important for patient safety, RM, QI, FTCA/HRSA requirements, state laws, & accreditation organizations No provider should be allowed to begin employment until Credentialing & Privileging is complete Temporary C&P allowed for 30D, max 120D Done initially, then every 2 years Peer review/qi, CME, BOD approval before 2 nd year Credentialing and Privileging PIN

31 Credentialing FTCA: Areas to Review Verifying the qualifications of a health care professional who provides hand-on care All health care LIP s (Licensed Independent Practitioners): employed, contracted, volunteers and locum tenens need to be credentialed. Other Licensed or Certified Practitioners (OLCP) Verifications: board certification, education, training, current competency and health fitness, government issued photo ID, DEA, IZ/PPD status, life support Primary (original) Source Verification & Secondary NPDB and PDS (Proactive Disclosure System) 31

32 Privileging FTCA: Areas to Review Authorizing a professional to perform each service they will provide at the CHC and at a particular location(s) Must be included in the Scope of Services of FQHC BOD must grant LIP s privileges with review and recommendation of the Medical/Dental Director OLCP s not approved by BOD; supervisor reviewed Different for each discipline and specialty Format Columns: 1. Service requested 2. Not requested 3. Service approved 4. Not approved 32

33 Moonlighting FTCA: Areas to Review Defined a engaging in professional activities outside of covered entity employment responsibilities and is not within the covered entity s approved scope of project Neither the covered entity nor the moonlighting provider receives FTCA coverage for moonlighting activities FTCA Health Center Policy Manual (PIN ), page 8 33

34 State by State Issues Practicing under the supervision Other LIP s Notice of Intent 34

35 State by State Issues Do you need legal counsel? 35

36 Touhy Regulation HHS Touhy regulation (45 CFR Part 2)(2008) prohibits Federal employees from giving testimony without prior approval from the HRSA Administrator Applies to current & former employees and qualified contractors (covered under FTCA) regarding testimony for medical malpractice Information acquired in the course of performing official duties or because of the person's official capacity PIN

37 Touhy Regulation Does not apply to: civil or criminal proceedings (personal or against DHHS), traffic accidents, crimes, domestic relations not involving professional services Determination transmit subpoenas and requests for testimony to HHS OGC GLD HRSA Administrator (Mary Wakefield) will arrange DOJ representation or will deny request for testimony 37

38 Touhy Regulation If HRSA denies or does not meet deadline: Appear at stated time and place Produce Touhy regulations Respectfully decline to testify PIN FTCA Manual, Pages Subpoenas and requests for testimony: DHHS OGC GLD Phone: Fax:

39 Key Link FTCA Policies Application Process Particularized Determination Health Center Claims FTCA for Health Center FAQs Risk Management Resources 39

40 QUESTION AND ANSWER

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