Credentialing, Privileging, and FTCA: Federal Tort Claims Act and Health Centers

Transcription

1 Credentialing, Privileging, and FTCA: Federal Tort Claims Act and Health Centers Pennsylvania Primary Care Association October 21, 2010 Felicia B. Eshragh, JD, MPH Christopher Gibbs, JD, MPH Department of Health and Human Services Health Resources and Services Administration Bureau of Primary Health Care

2 Overview of Presentation Purpose FTCA Background FTCA Policies Deeming Process FTCA Coverage Claims Process Credentialing and Privileging Questions and Answers 2

3 Purpose To provide a background on the Health Center Federal Tort Claims Act (FTCA) program as well as FTCA policies and coverage. To provide tips for creating/revising a health center s Privileging and Credentialing plan 3

4 FTCA Background FTCA provides medical malpractice coverage This protection extended by the Federally Supported Health Centers Assistance Act (FSHCAA) of 1992 and Now found in 224 of the Public Health Service (PHS) Act Extends to Community Health Centers, Migrant Health Centers, Health Care for the Homeless, Public Health Primary Care and Free Clinics. 4

5 FTCA Program History and Results Congressional Study In 1992, Congress determined that in Fiscal Year (FY) 1989, health centers had paid over 40M in malpractice insurance premiums while less than 10 percent of that amount had been paid in claims on their behalf Federally Supported Health Centers Assistance Act/FTCA provides free malpractice coverage for health centers increases the availability of funds for providing primary health care services reduces the expenditure of grant funds for malpractice insurance premiums establishes the act of making the staff of deemed health centers Federal employees for the purpose of medical malpractice established a no-year appropriation - Judgment Fund $Millions $250 $200 $150 $100 $50 $0 FTCA Premium Savings and Paid Claims in Millions $192 $204 $204 $61.20 $37.90 $45.50 FY 2007 FY 2008 FY 2009 Year Prem Svings (Mil) Paid Claims (Mil) 5

6 Benefits of Coverage Supports patient access by offering medical malpractice liability protection to health centers Avoids the need to purchase coverage in the commercial marketplace for sites and services within the scope of the grant project Eliminates the cost of premiums and allows health centers to redirect the cost avoidance to support their programs and patients Supports the ability to attract and recruit workforce by offering malpractice coverage thus expanding access for vulnerable populations Reduces burden by avoiding costs associated with securing an individual occurrence policy Limitless monetary coverage per incident and in aggregate Provides coverage of costs associated litigation Eliminates the need for tail coverage for protection during the period of employment at the health center Provides specific protections when providing services on behalf of the health center 6

7 FTCA Background The Legal Jargon - Eligible Health Centers apply to be deemed federal employees for the purposes of providing coverage of suits seeking damages for personal injury, including death, resulting from the performance of medical surgical, dental, or related functions by employees acting within the scope of employment. 7

8 FTCA Policy Manual Consolidated Health Center FTCA policies into one manual Not intended to provide new policies Consolidated and clarified existing statutes, regulations, and policies Comment period ended in August 14 Health Centers, 3 PCAs, 1 consulting group, NACHC commented Final manual out by end of year 8

9 Deeming Process CY2011 Deeming Process 950+ Health Centers submitted redeeming applications 30 Health Centers submitted initial deeming applications 450 Health Centers already have their NDAs Added a Completeness and Accuracy step to the review process 9

10 Deeming Process Specific Areas for Review: QA/QI Plans Continuing process of development Look for key elements Personnel and Responsibilities Relationship between QI and Risk Management Utilize databases, benchmarks, etc. in implementing improvement strategies Risk Management procedures Reporting Schedule 10

11 Deeming Process Specific Areas for Review (cont.) Liability History Health Center response to claims Risk Management Credentialing & Privileging Each center should have own plan Follow PIN More Later 11

12 FTCA Coverage Coverage split into groups Covered Individuals Who is covered Officers Governing Board Members Employees Contractors Covered Activities What is covered Scope of Practice and Project Care of Health Center Patients 12

13 Covered Individuals Employees Full Time or Part Time Should have a W-2 Contractors Licensed/certified individual health care practitioners with individual contract Full Time (32.5 hrs/week average) ALL Part Time only family practice, general internal medicine, general pediatrics, and obstetrics & gynecology 13

14 Covered Activities Coverage is for acts or omissions of a covered entity that are within the scope of employment of a covered individual Be within the approved scope of project (forms 5-A, 5-B, and 5-C) Be within requirements of job description Occur during the provision of services to the covered entity s patients Covers care to health center patients and limited cases of non-patients 14

15 Covered Activities Specific areas of coverage related to services provided to individuals who are not patients of a covered entity set forth in a Federal Register Notice (FRN) on September 25, specific examples/situations If outside these, a Particularized Determination may be granted 15

16 FRN Examples Community-Wide Interventions School-Based Clinics School-Linked Clinics Health Fairs Immunization Campaign Migrant Camp Outreach Homeless Outreach 16

17 FRN Examples Hospital-Related Activities Periodic hospital call or ER coverage as required for privileges Coverage-Related Activities Occasional cross-coverage as required by employment for after-hours coverage All other cases Particularize Determination needed See Policy Manual for requirements for requests 17

18 Claims Process Claims process involves the HHS Office of the General Counsel (OGC) and the Department of Justice (DOJ) First step is an HHS administrative hearing presenting case to OGC If claim denied, can file in federal court Case then defended by DOJ Two year statute of limitation No punitive damages allowed under FTCA 18

19 Claims Process For FTCA coverage the OGC and DOJ verify that: 1. The entity and individual are covered by the Act 2. The covered individual was acting within the scope of employment; 3. The act or omission giving rise to the claim was within the approved scope of project of the covered entity; and 4. The act or omission giving rise to the claim occurred during the provision of services to covered entity patients and certain, limited nonhealth center patients 19

20 Credentialing and Privileging Credentialing Process of assessing and confirming the qualifications Verify licensure, certification, registration, and other forms of qualification Privileging Process of authorizing the specific scope and content of patient care services Done along with evaluation of health care practitioner s clinical qualifications

21 Credentialing and Privileging Primary Source Verification (PSV) Verification of a practitioner's qualification by the original source or an approved agent. E.g. Credentials verification organizations (CVOs) Secondary Source Verification (SSV) Other methods not considered primary source. E.g. View original credential 21

22 Credentialing and Privileging Credentialing Examples Verify Licensure (psv) Education, training (psv) Ability to perform job (psv) Identification (ssv) DEA registration (ssv) Hospital privileges (ssv) Immunization (ssv) Query National Practitioner Data Bank Privileging Examples Verify and Assess Competence in: Course of training required to perform defined procedures Particular procedures and protocols needed for position

23 Why Are Credentialing and Privileging Important? Standardized Knowledge Base - Ensures that all licensed employees share a common understanding of the best practices for their industry. Quality Assurance - Ensure that professionals have the education, knowledge, and competence needed to perform their Objective Qualifications - Gives employers objective criteria with which to evaluate prospective employees' qualifications. Litigation Proper credentialing helps to minimize negligent credentialing claims 23

24 Liability Concerns Duty- Doctrine of Corporate Negligence Hospital/Health Center and medical staff are required to exercise reasonable care to make sure that providers applying to the medical staff or seeking reappointment are currently and continuously competent and qualified to exercise the requested clinical privileges. 24

25 Examples of Breach Of Duty It may be determined that a Health Center breached its duty (is liable) when: It failed to adopt or follow state licensing requirements It failed to adopt or follow accreditation standards It failed to adopt or follow its medical staff bylaws, rules and regulations, policies, core privileging criteria, etc. It reappointed physicians without taking into account their accumulated quality or performance improvement data 25

26 Breach of Duty (cont.) A Health Center can be liable if it: It appointed/reappointed physician without any restrictions even though they had a history of malpractice settlements/judgments, disciplinary actions, insurance gaps, licensure problems, pattern of substandard care which has not improved despite medical staff intervention, current history or evidence of impairment, etc. It reappointed physicians even though they have not performed any procedures at hospital over the past two years and/or never produced adequate documentation that the procedures were performed successfully elsewhere 26

27 Peer Review Practices Great quality and risk management tool and is considered privileged from litigation proceedings Pennsylvania privileges not only the proceedings and records of peer review organizations from civil liability, but also provides immunity to participants in these proceedings as long as they use due care and do not act with malice. Citation: 63 P.S. section

28 Credentialing and Privileging Plans PIN just a starting point Each Health Center should have its own policy as part of its QI/QA and Risk Management plan This is an area of general liability Do not just focus on credentialing Many past claims are based on privileging Very untested area of law 28

29 QUESTIONS? 29

30 FTCA Program Contact Information Mailing Address BPHC Helpline FTCA Program Bureau of Primary Health Care/OQD 5600 Fishers Lane, Room 15C-26 Rockville, MD BPHC ( ) FTCA Website: 30

31 Contact Information Christopher Gibbs Felicia Eshragh Office of Quality and Data Bureau of Primary Health Care