Federal Tort Claims Act and Risk Management

1. Federal Tort Claims Act and Risk Management Community Health Centers of Arkansas June 14, 2010 Little Rock, AR Martin Bree 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.

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.

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.

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.

6. 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). Triton Group, LLC.

7. 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. Triton Group, LLC.

8. 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

9. 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. Triton Group, LLC

10. 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. Triton Group, LLC

11. 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

12. 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

13. 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. Triton Group, LLC

14. 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. Triton Group, LLC

15. 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

16. 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

17. 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

18. 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

19. 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.”

20. 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.”

21. Community Wide Interventions School-Based Clinics. School-Linked Clinics. Health Fairs. Immunization Campaign. Migrant Camp Outreach. Homeless Outreach.

22. 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.”

23. 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 Triton Group, LLC

24. 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

25. 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

26. 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

27. 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. Triton Group, LLC

28. Deeming Application Issues • Quality Assurance Plans (with governing board approval within 3 years) • Staff Lists • Claim History • Signatures

29. Program ValueMalpractice 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

30. Program ValueMalpractice 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. Triton Group, LLC

31. 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 2008 Savings for deemed centers - $204,000,000 Extrapolating from the studies: total savings since 1993 $1.75 billion Triton Group, LLC

32. 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 Triton Group, LLC

33. HRSA FTCA CLAIMS PER FISCAL YEAR Triton Group, LLC

34. Triton Group, LLC

35. 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. Triton Group, LLC

36. 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. Triton Group, LLC

37. 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

38. 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 Triton Group, LLC

40. 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

41. 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