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Susan P. Lewis, RN, COHN-S Consultant Triton Group, LLC.

Federal Tort Claims Act and Health Center Medical Malpractice Liability Protection NATIONAL ASSOCIATION OF COMMUNITY HEALTH CENTERS SEPTEMBER 15, 2008. Susan P. Lewis, RN, COHN-S Consultant Triton Group, LLC. Triton Group. First Source of FTCA Program Information Triton Group 227 Hamburg.

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Susan P. Lewis, RN, COHN-S Consultant Triton Group, LLC.

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  1. Federal Tort Claims Act andHealth Center Medical Malpractice Liability ProtectionNATIONAL ASSOCIATION OF COMMUNITY HEALTH CENTERSSEPTEMBER 15, 2008 Susan P. Lewis, RN, COHN-S Consultant Triton Group, LLC.

  2. Triton Group First Source of FTCA Program Information • Triton Group • 227 Hamburg. • Pompton Lakes, NJ 07442 • HRSA Contract No. 232-00-0097 • Martin J. Bree Susan Lewis • 772-873-1865 727-822-4271 • 772-873-1695 (fax) susanlewis@tampabay.rr.com • 856-625-8638 (cell) • mjbtriton@mac.com • Roger Fuydal • 866-FTCA-HELP - Toll Free Marty Hiller (Free Clinics) • (866-382-2435) 216-382-4150 • 973-831-8395 (Fax) mhiller862@hotmail.com • tritongp@optonline.net Triton Group, LLC. HRSA Contract no.232-00-0097

  3. 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) Triton Group, LLC. HRSA Contract no.232-00-0097

  4. 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 Triton Group, LLC. HRSA Contract no.232-00-0097

  5. 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. HRSA Contract no.232-00-0097

  6. History of the FSHCAA(Federally Supported Health Centers Assistance Act) • Late 1980’s – medical malpractice crisis similar to current situation. • Health centers in certain geographic areas having difficulty finding adequate coverage • Studies commissioned showed health centers were lower risk for insurers • NACHC plays instrumental role in passage of the Federally Supported Health Centers Assistance Act of 1992 Triton Group, LLC. HRSA Contract no.232-00-0097

  7. History of the FSHCAA (cont.) • 92 Act unclear in many areas. • 92 Act set to expire in 1995. • Congress amends FSHCAA in 1995 to eliminate gaps and make program permanent. Triton Group, LLC. HRSA Contract no.232-00-0097

  8. How the Program Works • A scheme that provides immunity from lawsuit. • Appears similar to an occurrence malpractice policy. • Program in existence for 13 years. • Very successful in terms of savings for health centers and coverage of health centers and staff. Triton Group, LLC. HRSA Contract no.232-00-0097

  9. 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). Triton Group, LLC. HRSA Contract no.232-00-0097

  10. 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. Triton Group, LLC HRSA Contract no.232-00-0097

  11. How the Program Works (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 HRSA Contract no.232-00-0097

  12. How the Program Works (cont.) • Who is covered - people • Employees. • Officers. • Directors. • Governing board members. • Contractors (some, not all). Triton Group, LLC HRSA Contract no.232-00-0097

  13. 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. Triton Group, LLC HRSA Contract no.232-00-0097

  14. 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. Triton Group, LLC HRSA Contract no.232-00-0097

  15. 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”. Triton Group, LLC HRSA Contract no.232-00-0097

  16. 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). Triton Group, LLC HRSA Contract no.232-00-0097

  17. 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. Triton Group, LLC HRSA Contract no.232-00-0097

  18. 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. Triton Group, LLC HRSA Contract no.232-00-0097

  19. 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. Triton Group, LLC HRSA Contract no.232-00-0097

  20. 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. Triton Group, LLC HRSA Contract no.232-00-0097

  21. Requests for Testimony • Touhy Regulation • Medical Malpractice cases only! • Affects deemed health centers only. • Requests for testimony where the United States, the health center or its providers are not a party. • Health center provider must have permission of HRSA administrator to testify. Triton Group, LLC HRSA Contract no.232-00-0097

  22. Requests for Testimony (cont.) • Touhy Regulation • Policy Information Notice 2001-19. • Submit request for deposition or testimony to DHHS/OGC (fax to 202-619-2922). • HRSA Administrator will approve or deny. • If approved representation may be provided by DOJ. Triton Group, LLC HRSA Contract no.232-00-0097

  23. Potential Problems • 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 Triton Group, LLC HRSA Contract no.232-00-0097

  24. 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 Triton Group, LLC HRSA Contract no.232-00-0097

  25. 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 HRSA Contract no.232-00-0097

  26. 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. Triton Group, LLC HRSA Contract no.232-00-0097

  27. 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 HRSA Contract no.232-00-0097

  28. 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 Triton Group, LLC HRSA Contract no.232-00-0097

  29. Deming Applications • 2009 Policy • New organizations (never deemed before): • Submit application found in PAL 2008-05 to BPHC at any time. • Redeeming Applications • Redeeming applications were due July 1, 2008. • All participating health centers should have received 2008 deeming letters by now, and can anticipate their new 2009 letters by early December. • 2010 Policy • To be determined in CY 2009. Triton Group, LLC HRSA Contract no.232-00-0097

  30. 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,with the exception of the BPHC requirement for recredentialing every TWO years. Non-LIPs requires primary source verification of only license or certification. Volunteers included. Triton Group, LLC HRSA Contract no.232-00-0097

  31. Program ValueMalpractice 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 Triton Group, LLC HRSA Contract no.232-00-0097

  32. Program ValueMalpractice Premium Savings Study Results • 2002 Savings for deemed centers - $164,000,000 • 2005 Savings for deemed centers - $180,000,000 • 2006 Savings for deemed centers - $184,000,000 • 2007 Savings for deemed centers - $192,000,000 • Extrapolating from the studies: total savings since 1993 $1.6 billion Triton Group, LLC HRSA Contract no.232-00-0097

  33. HRSA FTCA CLAIMS PER FISCAL YEAR Triton Group, LLC HRSA Contract no.232-00-0097

  34. Total Payments in Dollars, 1992-2006 4 – 33 Million 1.1-4.7 Million 2K-1 Million 0 Triton Group, LLC HRSA Contract no.232-00-0097

  35. Risk Management • Health Centers are expected to use a portion of savings to provide risk management services. (PIN 99-08 Para. XVIII). • NACHC – developing risk management services for health centers. • Inspector General report on risk management in health centers. • Triton Group can provide risk management services. Triton Group, LLC HRSA Contract no.232-00-0097

  36. Risk Management • Credentialing and Privileging • Competence of providers • Medical Records • Legibility • Completeness • Signatures • Availability • Birth Injuries • Existence and Proper use of protocols • Informed Consent Triton Group, LLC HRSA Contract no.232-00-0097

  37. Recent Risk Management Recommendations • Training/CME: • Monitoring Pitocin Administration • Cord prolapse • GBS testing • Preceptor needs in labor and delivery setting Triton Group, LLC HRSA Contract no.232-00-0097

  38. Recent Risk Management Recommendations • Illegible and/or Inadequate Medical Record Documentation • 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 Triton Group, LLC HRSA Contract no.232-00-0097

  39. Recent Risk Management Recommendations • Policies/Procedures/Protocols • Lack of policies/procedure/protocol in 24% 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 Triton Group, LLC HRSA Contract no.232-00-0097

  40. Loss Prevention Techniques - Credentialing & privileging standards - QI/RM program supported by Board - Current medical record systems - Continuing education for all staff members - Systems and processes checklists - Informed consent process

  41. HIPAA Section 194Volunteers 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 Triton Group, LLC HRSA Contract no.232-00-0097

  42. Triton Group First Source of FTCA Program Information • Triton Group • 227 Hamburg. • Pompton Lakes, NJ 07442 • HRSA Contract No. 232-00-0097 • Martin J. Bree Susan Lewis • 772-873-1865 727-822-4271 • 772-873-1695 (fax) susanlewis@tampabay.rr.com • 856-625-8638 (cell) • mjbtriton@mac.com • Roger Fuydal • 866-FTCA-HELP - Toll Free Marty Hiller (Free Clinics) • (866-382-2435) 216-382-4150 • 973-831-8395 (Fax) mhiller862@hotmail.com • tritongp@optonline.net Triton Group, LLC HRSA Contract no.232-00-0097

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