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A Local Health Department and Federally Qualified Health Center: The Public Entity Ninth Annual Rural Public Health Institute March 5-7, 2013. Gerald “Jud” E. DeLoss Popovits & Robinson jud@popovitslaw.com (708) 479-3230. Legal Issues Confronting the FQHC and Public Health Department. 2.

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A Local Health Department and Federally Qualified Health Center: The Public Entity

Ninth Annual Rural Public Health Institute

March 5-7, 2013

Gerald “Jud” E. DeLoss

Popovits & Robinson

jud@popovitslaw.com

(708) 479-3230

Popovits & Robinson

slide2

Legal Issues Confronting the FQHC and

Public Health Department

2

Popovits & Robinson

Popovits & Robinson

federal tort claims act
Federal Tort Claims Act
  • Under the Public Health Service Act, employees of eligible FQHCs may be deemed to be federal employees qualified for protection under the FTCA
  • There is no cost to participating FQHCs or their providers, and they are not liable for any settlements or judgments
  • The FQHC, their employees, and eligible contractors are considered federal employees immune from suit for medical malpractice claims while acting within the scope of their employment

Popovits & Robinson

federal tort claims act1
Federal Tort Claims Act
  • Deemed FQHC grantees are immune from medical malpractice lawsuits resulting from:
    • Medical
    • Surgical
    • Dental
    • Related functions
    • Within the approved scope of project

Popovits & Robinson

federal tort claims act2
Federal Tort Claims Act
  • Eligible FQHCs must submit an original deeming and annual renewal deeming applications
  • A patient who alleges acts of medical malpractice by a deemed FQHC cannot sue the center or the provider directly, but must file the claim against the US Government
  • These claims are reviewed and/or litigated by HHS Office of the General Counsel and DOJ

Popovits & Robinson

ftca eligibility
FTCA - Eligibility
  • FTCA Grantees eligible to be deemed are:
    • Community Health Centers (CHC)
    • Migrant Health Centers (MHC)
    • Health Care for the Homeless (HCH) Health Centers
    • Public Housing Primary Care (PHPC) Health Centers
    • Subrecipients eligible for FTCA coverage

Popovits & Robinson

ftca subrecipient
FTCA - Subrecipient
  • What is a subrecipient?
    • Defined as an entity (not an individual contractor) that receives a grant or a contract from a deemed FQHC
    • Provides the full range of health services on behalf of the deemed FQHC
    • Only for those services under the scope of the project
  • Contractual relationships with other entities for individual services (e.g., laboratory, pharmacy, physician services) are not subject to FTCA coverage

Popovits & Robinson

ftca coverage
FTCA - Coverage
  • FTCA is only available for:
    • FQHC
    • Full or part-time FQHC employees
    • Individually contracted providers who furnish services in the fields of:
      • General internal medicine
      • Family practice
      • General pediatrics
      • OB/GYN
    • Individually contracted providers who furnish services in other fields of practices on full-time basis
    • A contract between a FQHC and a provider's corporation does not confer FTCA coverage on the provider

Popovits & Robinson

ftca coverage1
FTCA - Coverage
  • Coverage/Protection for Covered individuals
    • FTCA similar tooccurrence insurance policy
    • Do not need to purchase tail coverage
  • Non-Covered Individuals
    • Individuals who do not meet the statutory requirements for covered individuals
    • Examples include:
      • Volunteer physicians
      • Part-time (less than 32.5 hours) contract dentists
    • The FQHC remains covered, while the individual is not

Popovits & Robinson

ftca specific situations
FTCA – Specific Situations
  • Indemnification of Other Entities
    • FTCA coverage does not extend to indemnification or hold harmless of other entities
  • Governing Board Members and Officers
    • The governing board members and officers are covered under the FTCA only for medical malpractice

Popovits & Robinson

ftca coverage2
FTCA - Coverage
  • Covered Activities
    • FTCA coverage is restricted to scope of employment
    • For actions to be within the scope of employment, they must occur during the provision of services to the FQHC’s patients and, in certain circumstances, to non-FQHC patients
  • The FQHC is responsible to maintain current records

Popovits & Robinson

ftca coverage3
FTCA - Coverage
  • Scope of Employment
    • Includes performance under a contract
    • All covered individuals should have current, written job descriptions
    • FTCA matters may come to litigation, so job descriptions play a key role in demonstrating scope of employment and FTCA coverage
    • Moonlighting is not within the scope of project

Popovits & Robinson

ftca coverage4
FTCA - Coverage
  • Scope of Project
    • FTCA coverage is limited to the performance of medical, surgical, dental, or related functions
    • New services and sites are dependent on approval of a change in the scope of the project
  • A request for a change in scope should be submitted to HRSA/BPHC for approval

Popovits & Robinson

ftca coverage5
FTCA - Coverage
  • Services to FQHC Patients
    • A patient-provider relationship must be established
  • For purposes of FTCA coverage, the patient-provider relationship is established when:
    • Individuals access care for initial or follow-up visits at approved sites
    • Individuals access care at approved sites even if not permanent residents
    • Triage services are provided by telephone or in person, even if patient is not yet registered but is intended to be registered

Popovits & Robinson

ftca coverage6
FTCA – Coverage
  • FTCA coverage for services to non-FQHC patients is available in certain situations
  • Examples of Covered Services to Non-FQHC Patients:
    • Community-Wide Intervention School-Based Clinics
    • School-Linked Clinics
    • Health Fairs

Popovits & Robinson

ftca particularized determination
FTCA – Particularized Determination
  • Other examples of Covered Services to Non-FQHC Patients:
    • Immunization Campaigns
    • Migrant Camp Outreach
    • Homeless Outreach
    • Hospital-Related Activities
    • Coverage-Related Activities

Popovits & Robinson

ftca particularized determination1
FTCA – Particularized Determination
  • Acts and omissions related to services for non-FQHC patients may be covered if approved particularized determination of FTCA coverage
  • The application for a particularized determination must provide:
    • Services to non-FQHC patients will benefit FQHC patients and general populations
    • Services to non-FQHC patients facilitates the provision of services to FQHC patients
    • Such services are otherwise contractually-required
  • Request for a particularized determination of FTCA coverage must include sufficient detail

Popovits & Robinson

ftca coverage7
FTCA - Coverage
  • Continuity of care
    • Covered individual may follow FQHC patient to non-FQHC site to maintain continuity of care
  • Supervision of non-FQHC staff
  • Supervision of Students and Medical Residents
  • Activities under other grant funding
  • Clinical research
  • Assisting with community events

Popovits & Robinson

ftca coverage under alternate billing
FTCA – Coverage Under Alternate Billing

FQHC providers may bill directly for services provided to FQHC facility patients

If employee or contract provider, meeting all other FTCA requirements bills for a service delivered at a location not within its scope of project, FTCA coverage will apply to the provider

Popovits & Robinson

ftca coverage in emergencies
FTCA – Coverage in Emergencies

Emergency situations

FTCA coverage will apply to the performance of medical, surgical, dental, or related functions at temporary locations

If covered individuals volunteer in their individual capacity to respond to an emergency, they will not be protected under FTCA

Patients served by covered individuals at temporary locations are considered the FQHC’s patients

Popovits & Robinson

ftca coverage in emergencies1
FTCA – Coverage in Emergencies

In rare cases emergency may impact an entire region or State

If site of FQHC in the impacted area is destroyed or unable to operate, FQHC may submit a request for prior approval to temporarily change its scope of project

If covered individuals volunteer in their individual capacity to respond to an emergency they will not be protected under FTCA

Popovits & Robinson

ftca coverage in emergencies2
FTCA – Coverage in Emergencies
  • In emergency situations, FQHCs that are not directly impacted by the emergency may:
    • Assist at temporary sites within the FQHC’s own service area and within neighboring counties, parishes, or political subdivisions
    • Operate temporary sites within the service area and within neighboring counties, parishes, or political subdivisions by including the temporary locations within the scope of project

Popovits & Robinson

ftca public health department
FTCA – Public Health Department
  • FTCA coverage is available only to the FQHC and individuals identified above
  • Cannot be extended to the Health Department or its employees
    • Unless they are individually contracted to the FQHC
    • Satisfy the above-mentioned criteria for individual coverage

Popovits & Robinson

ftca acceptance by hospitals and managed care plans
FTCA – Acceptance by Hospitals andManaged Care Plans

Covered individual cannot be denied hospital privileges solely because malpractice protection is FTCA

Managed care plans, including HMOs and similar entities, must accept FTCA coverage as meeting malpractice insurance coverage requirements

Hospitals or managed care plans that fail to comply in jeopardy of losing ability to collect payment under Medicare and Medicaid

Popovits & Robinson

ftca insurance
FTCA - Insurance
  • FQHC has option to meet malpractice liability through FTCA or private insurance
  • FQHCs not applied for, or have terminated FTCA, may use Federal grant funds for private malpractice insurance
  • Dual coverage (i.e., both FTCA and private malpractice insurance covering the same activities) is not permitted
  • US Government may subrogate claims where FQHC has private coverage and payment is made under FTCA
  • Gap Coverage non-covered activities or non-covered individuals
  • Even with FTCA coverage, FQHCs will continue to need other types of insurance:
    • Non-medical/dental professional liability coverage
    • General liability coverage
    • D & O coverage
    • Automobile and collision
    • Fire and theft coverage
  • FQHC applying for initial FTCA deeming, should have private malpractice insurance in place until deemed

Popovits & Robinson

ftca legal claim procedure1
FTCA – Legal Claim Procedure

Statute of Limitations

Claim must be presented within two years after the claim accrues

Generally, accrual occurs on the date of the injury

However, also incorporates a discovery rule

State statute of limitations periods do not apply to claims filed under the FTCA.

Popovits & Robinson

ftca deeming
FTCA - Deeming
  • To be deemed, a grantee or subrecipient must complete an application that demonstrates that it:
    • Risk management policies and procedures
    • Credentialing and privileging system
    • Has no history of claims or, if such a history exists, has fully cooperated with DOJ
    • Cooperate to provide information related to a claim

Popovits & Robinson

ftca deeming process tips
FTCA – Deeming Process Tips
  • Deeming applicants must:
    • Submit FTCA application materials in a timely manner
    • Respond in a timely manner to all requests from HRSA
    • Demonstrate implementation of the required policies
    • Accurately present all material facts
  • HRSA’s goal to support all FQHCs in successfully demonstrating compliance with and implementation of these requirements

Popovits & Robinson

ftca deeming process tips1
FTCA – Deeming Process Tips

Due to the number of applications, application requirements, and potential for incomplete application submissions, grantees should request FTCA coverage at least 90 days in advance

HRSA will conduct its review within 30 days

If additional information or clarification is needed, HRSA will notify the grantee through the EHB, and the grantee will be given 10 business days to provide the requested information

Should the requested information not be submitted within 10 business days of notification, the applicant will be required to submit a new application

Popovits & Robinson

ftca additional requirements
FTCA – Additional Requirements
  • Health Center policies and procedures for the following must be included:
    • Referral tracking
    • Hospitalization tracking
    • Diagnostic tracking
  • Statement verifying that any professional liability claims were internally analyzed
  • Statement should include the following for each claim filed within the last five years:
    • Name of provider(s) involved
    • Area of practice/Specialty
    • Date of occurrence
    • Summary of allegations
    • Status and outcome of claim

Popovits & Robinson

ftca additional requirements1
FTCA – Additional Requirements
  • Electronic Signature of the Executive Director
  • Deeming Applications for any subrecipient(s)
    • Considered part of the deeming application of the grantee
  • Deeming applications by eligible entities must be submitted in the form and manner prescribed by HRSA and must demonstrate that the entity seeking FTCA coverage has successfully implemented all deeming requirements set forth in law

Popovits & Robinson

ftca annual renewal
FTCA – Annual Renewal

All currently deemed grantees must submit a FTCA renewal application for themselves and any subrecipients

If additional information or clarification is needed to support the application, HRSA will notify the grantee and the grantee will be given ten (10) business days to provide the additional information

Popovits & Robinson

ftca site visits
FTCA – Site Visits
  • HRSA may elect to conduct a site visit at any point during the application review process and/or as part of its oversight responsibilities
  • Factors that may prompt a site visit include, but are not limited to:
    • Submission of an initial FTCA deeming application
    • Unresolved questions identified during the review of the FQHC’s application
    • Need for follow-up based on prior site visit findings or other identified issues
    • History of repeated pertinent conditions
    • History of claims

Popovits & Robinson

ftca site visits1
FTCA – Site Visits
  • Site visit reviewers will assess whether applicant:
    • Risk management policies and procedures
    • Credentialed and privileged its physicians and other licensed or certified health care practitioners
    • Has history of claims, then may validate that the grantee has fully cooperated with the Attorney General in defending against any such claims and has taken necessary corrective steps to assure against future claims

Popovits & Robinson

ftca risk management
FTCA - Risk Management

PHS Act requires as condition of deeming, to determine that the entity has implemented “appropriate policies and procedures to reduce the risk of malpractice and the risk of lawsuits arising out of any health or health-related functions performed by the entity

Popovits & Robinson

risk management program
Risk Management Program
  • Risk management program is critical:
    • Promote safe and effective patient care practices
    • Maintain a safe working environment
    • Protect FQHC’s financial resources

Popovits & Robinson

risk management program1
Risk Management Program
  • Effective program can:
    • Identify and mitigate liability exposures
    • Prevent and reduce the severity of adverse events
    • Improve patient experience
    • Increase provider and staff satisfaction

Popovits & Robinson

risk management program2
Risk Management Program
  • Value to FQHC:
    • Secure commitment to improve
    • Review injuries, adverse events, and near misses to prevent re-occurrence
    • Promote system improvement
    • Reduce liability exposure
    • Encourage open communication among providers and staff
    • Establish a culture of safety

Popovits & Robinson

risk management program3
Risk Management Program
  • Key principles of the program include:
    • Claims management
    • Complaint resolution
    • Confidentiality and release of patient information
    • Event investigation, root-cause analysis, and follow-up
    • Failure mode and effects analysis
    • Provider and staff education, competency validation, and credentialing requirements
    • Reporting and management of adverse events and near misses
    • Trend analysis of events, near misses, and claims

Popovits & Robinson

risk management program4
Risk Management Program

Risk management program should be administered through the Risk Manager who reports to the administrator/CEO

Risk Manager should interact with administration, staff, medical providers, and other professionals

Risk Manager should chair the Risk Management Committee

Popovits & Robinson

ftca credentialing and privileging
FTCA – Credentialing and Privileging

Entity must review and verify “the professional credentials, references, claims history, fitness, professional review organization findings, and license status of its physicians and other licensed or certified health care practitioners ….”

Popovits & Robinson

ftca credentialing details
FTCA – Credentialing Details
  • Credentialing of Licensed Independent Practitioners (LIPs) requires primary source verification of:
    • Current licensure
    • Relevant education, training, or experience
    • Current competence
    • Health fitness, or the ability to perform the requested privileges
  • Credentialing of LIPs requires secondary source verification of:
    • Government issued ID
    • DEA registration
    • Hospital privileges
    • Immunization and PPD status
    • Life support training
    • Query of the National Practitioner Data Bank (NPDB)
  • Determination that LIP meets credentialing requirements by FQHC’s governing board

Popovits & Robinson

ftca credentialing details1
FTCA – Credentialing Details
  • Credentialing of other health care practitioners requires primary source verification of:
    • License, registration, or certification
    • Education and training may be verified by secondary source verification
    • Verification of current competence through review of clinical qualifications and performance
  • Credentialing of other health care practitioners requires secondary source verification of the following:
    • Government issued ID
    • Immunization and PPD status
    • DEA registration
    • Hospital admitting privileges
    • Life support training

Popovits & Robinson

ftca credentialing and privileging1
FTCA – Credentialing and Privileging
  • Licensed and certified staff members at all FQHC sites including employed or contracted practitioners, volunteers and locum tenems, must include evidence of credentialing and privileging within the last two years
  • Credentialing list must include the following:
    • Name and Professional Designation (e.g., MD/DO, RN, CNM, DDS, LPN, PA, MA, NP, etc.)
    • Title/Position
    • Specialty
    • Employment Status (full-time employee, part-time employee, contractor or volunteer)
    • Hire Date
    • Current Credentialing Date (must be within past two years)
    • Next Expected Credentialing Date (if known)

Popovits & Robinson

ftca privileging
FTCA - Privileging
  • Revision or renewal of a privileges at least every 2 years
  • Include synopsis of peer review results for the 2 year period and/or any relevant performance improvement information
  • Approval of subsequent privileges vested in the board
  • The FQHC should have an appeal process LIPs
  • Appeal process is optional for other licensed or certified health care practitioners.
  • NOTE: FTCA requirements may not be the same as accreditation-related standards
    • FQHCs that are accredited or seeking accreditation should also review the applicable accreditation body standards

Popovits & Robinson

credentialing privileging board
Credentialing & Privileging - Board

FQHC’s credentialing and privileging policies and procedures must include documentation of Board approval

Credentialing and privileging policies and procedures must be approved, signed and dated by the Board

Popovits & Robinson

ftca quality improvement quality assurance
FTCA - Quality Improvement/Quality Assurance
  • Initial or renewal application must contain Quality Improvement/Quality Assurance (QI/QA) Plan
    • Clear documentation that the Board reviewed and approved the plan within three (3) years of the date of submission
    • QI/QA plan must be approved, dated, and contain the appropriate signature(s) of the Board of Directors

Popovits & Robinson

ftca quality improvement quality assurance1
FTCA - Quality Improvement/Quality Assurance

Minutes from any six Board meetings evidencing oversight of QI/QA activities - must provide an explanation if less than six sets of minutes are provided

Popovits & Robinson

quality improvement quality assurance
Quality Improvement/Quality Assurance
  • FQHC has an ongoing Quality Improvement/Quality Assurance (QI/QA) which must include:
    • Clinical director
    • Periodic assessment of the appropriateness of the utilization of services and the quality of services provided
    • Conducted by physicians or by other licensed health professionals under the supervision of physicians
    • Based on the systematic collection and evaluation of patient records
    • Identify and document the necessity for change in the provision of services by the FQHC

Popovits & Robinson

quality improvement quality assurance1
Quality Improvement/Quality Assurance
  • The clinical director must have clear responsibility for conducting QI/QA assessments/activities
    • May be full or part time staff, and should have appropriate training/background (MD, RN, MPH, etc.), as determined by the needs/size of the FQHC
  • Plan must measure and evaluate patient satisfaction
  • The FQHC must have clinical information systems in place for key performance data
  • The findings of the QI/QA process are used to improve organizational performance

Popovits & Robinson

state tort immunity
State Tort Immunity

Illinois provides limited immunity from tort lawsuits

Local Governmental and Governmental Employees Tort Immunity Act

Provides for coverage for medical facilities, public health clinic, and physicians

Coverage available for certain injuries and claims

Each entity must make its own specific determination of whether it falls under the protections of the Act and/or whether the FQHC/Health Department is immunized for its actions/inactions

Popovits & Robinson

state tort immunity1
State Tort Immunity
  • Many public and local hospitals and medical centers are protected from medical malpractice claims by the Act
  • Generally, failure to diagnose or treat a patient at a public health facility is immunized by the Act
  • However, public medical personnel and entities are not immune from:
    • Negligently or wrongfully prescribing treatment
    • Negligence, wrongful act, or omission in administering the prescribed treatment
  • The Act may not immunize actions or omissions by “independent contractors”, who are not deemed “employees”

Popovits & Robinson

governance
Governance

Organizations must have a governing body which assumes full authority and oversight responsibility for the FQHC

The governing board must maintain an acceptable size, composition, and meeting schedule

The board must have the authority to control the FQHC's budget and major resource decisions, set center policies, and approve the selection and dismissal of the FQHC program director or chief executive officer

Popovits & Robinson

governance1
Governance
  • FQHC must have governing body which:
    • Meets at least once a month, selects the services to be provided by the center, schedules the hours during which services will be provided, approves the center's annual budget, approves the selection of a director for the center, and, except in the case of a public center (as defined in the second sentence of this paragraph), establishes general policy for the center
    • In the case of the application for a second or subsequent grant for a public center, has approved the application or, if the governing body has not approved the application, the failure of the governing body to approve the application was unreasonable

Popovits & Robinson

governance public entities
Governance – Public Entities
  • Public entities operating FQHC programs may meet the governance requirement in either of two ways
    • The public entity's board may meet FQHC board composition requirements including having a consumer majority
    • When the public entity's board does not meet FQHC composition requirements, a separate FQHC governing board may be established
  • FQHC board can be a formally incorporated entity and it and the public entity board are co-applicants for the FQHC program
  • When there are two boards, each board's responsibilities must be specified in writing so that the responsibilities for carrying out the governance functions are clearly understood.
  • Upon showing of good cause the Secretary may waive all or part of the requirements

Popovits & Robinson

governance2
Governance

Public centers with co-applicant boards must meet all the membership requirements and perform all the responsibilities expected of governing boards

Except co-applicant board is permitted to retain authority for establishing general policies (fiscal and personnel policies)

Popovits & Robinson

governance3
Governance
  • FQHC’s board:
    • Meets monthly
    • FQHCs with approved waivers ONLY may have appropriate strategies in place to ensure regular oversight, if the board does not meet monthly
    • Reviews and approves the annual FQHC (renewal) application and budget
    • Conducts an annual review of the CEO’s performance

Popovits & Robinson

governance4
Governance
  • FQHC’s board:
    • Reviews and approves the services to be provided and the FQHC’s hours of operation
    • Measures and evaluates the FQHC’s progress in meeting annual and long term clinical and financial goals
    • Engages in strategic and/or long term planning for the FQHC

Popovits & Robinson

governance5
Governance
  • FQHC’s board:
    • Reviews mission and bylaws on a periodic basis
    • Receives appropriate information that enables it to evaluate FQHC patient satisfaction, organizational assets, and performance
    • Establishes the general policies, including:
      • Personnel
      • Health care
      • Fiscal and quality assurance/improvement
      • With the exception of fiscal and personnel policies in the case of a public agency grantee in a co-applicant arrangement

Popovits & Robinson

governance public health department
Governance - Public Health Department
  • For Public Center Grantees with Co-Applicant Arrangements only—Public center grantee has a formal co-applicant agreement:
    • Roles, responsibilities, and the delegation of authorities
    • Any shared/split responsibilities between the public center and co-applicant board

Popovits & Robinson

governance6
Governance

The FQHC governing board must be composed of individuals, a majority of whom are being served by the center and, this majority as a group, represent the individuals being served by the center in terms of demographic factors such as race, ethnicity, and sex

Governing board has at least 9 but no more than 25 members

The remaining non-consumer members of the board shall be representative of the community

No more than one half (50%) of the non-consumer board members may derive more than 10% of their annual income from the health care industry

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governance7
Governance

A majority (at least 51%) of the board members receive services (i.e., are patients) at the FQHC

There is no established ratio for board members to population served; however, board composition must be reasonably representative of the populations being served

FQHCs with approved waivers only–appropriate strategies are in place to ensure consumer/patient participation and input from the target population

Popovits & Robinson

governance8
Governance

FQHC bylaws or written corporate board approved policy include provisions that prohibit conflict of interest by board members, employees, consultants, and those who furnish goods or services

No board member shall be an employee of the FQHC or an immediate family member of an employee

CEO may serve only as a non-voting ex-officio member of the board

Popovits & Robinson

governance9
Governance
  • The FQHC’s conflict of interest policy must address:
    • Disclosure of business and personal relationships, including nepotism
    • Extent to which a board member can participate in board decisions where the member has a personal or financial interest
    • Using board members to provide services to the center
    • Expense reimbursement policies
    • Acceptance of gifts and gratuities
    • Personal political activities of board members
    • Consequences for violating the conflict policy
    • Written standards of conduct governing the performance of its employees engaged in the award and administration of contracts

Popovits & Robinson

governance10
Governance
  • Options to assist the FQHC in its assessment of health service needs of special populations:
    • Inclusion on the board of persons who previously have been FQHC consumers, but no longer receive services
    • Use of an advisory board
    • Focus groups comprised of FQHC consumers
    • Representatives of other service organizations and/or local advocacy groups

Popovits & Robinson

relationship between fqhc and public health department
Relationship Between FQHC andPublic Health Department
  • Relationship Models:
    • One organization refers its patients to the other organization for services (referral arrangement)
    • One organization co-locates to the other organization’s facility (co-location arrangement)
    • FQHC purchases services and/or capacity from the health department (purchase of services arrangement)

Popovits & Robinson

relationship between fqhc and public health department1
Relationship Between FQHC andPublic Health Department

Referral Arrangement Considerations

Under a referral arrangement, both the FQHC and the health department typically continue to perform the same scope of services

All services provided within an FQHC’s scope of project via referral to another provider must be provided through a formal referral arrangement

Popovits & Robinson

relationship between fqhc and public health department2
Relationship Between FQHC andPublic Health Department

Under referral arrangement, the FQHC and the health department maintain their own employees and contractors

Credentialing requirements, by-laws and clinical policies of the organization providing services govern

FTCA coverage is available to the FQHC if it is the referral provider

FTCA coverage is not available for the health department or its contracted or employed health care professionals

Popovits & Robinson

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Relationship Between FQHC andPublic Health Department

Co-Location Arrangements

Relationship under which a provider agrees to treat patients who are referred to it by another provider

Maintains its own practice and control over the provision of the referral services and is legally and financially responsible for the referral services

Health care professional furnishing the referral services is physically located at the other organization’s site

Popovits & Robinson

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Relationship Between FQHC andPublic Health Department

Co-Location Agreement

Patients are simply referred to the health department as they would be under a standard referral relationship

If FQHC establishes a site within the health department, the FQHC must obtain prior approval from HRSA to add the site to its scope of project

Popovits & Robinson

relationship between fqhc and public health department5
Relationship Between FQHC andPublic Health Department

Lease of Space and/or Equipment

FQHC and health department should execute a lease covering the space, equipment, utilities, supplies, and support personnel that will be utilized by the co-located provider, as well as other associated costs

Popovits & Robinson

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Relationship Between FQHC andPublic Health Department

Co-Location Agreement should contain assurances from the co-located provider regarding professional qualifications, licensure, certification, insurance, eligibility to participate in federal programs with regard to the other organization and its professionals

Popovits & Robinson

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Relationship Between FQHC andPublic Health Department

FTCA coverage is available if the FQHC co-locates to an health department facility, adds the site to its scope of project, and provides services within its scope of project

Under the co-location arrangement, FTCA coverage is not available for the health department, its employees and its contracted health care professionals

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Relationship Between FQHC andPublic Health Department

Purchase of Services Arrangements

One organization purchases services from the other organization, which provides such services as a vendor and on behalf of the other “purchasing” organization

FQHCs and health departments may enter into arrangements for the purchase of administrative services

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Relationship Between FQHC andPublic Health Department

The purchasing organization is the provider of record for the contracted services rendered to patients

Services provided by the vendor organization may be provided at either the purchasing organization’s facility or at the vendor organization’s facility

FQHC and health department remain separate entities

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Relationship Between FQHC andPublic Health Department

Purchase of Services Agreement

If the service(s) provided to FQHC patients by the contracted health department health care professional(s) are not within the FQHC’s scope of project, then the FQHC must request and obtain prior approval from HRSA to add the services

FQHC must confirm that the location qualifies as a “site”

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Relationship Between FQHC andPublic Health Department
  • Reimbursement from Payors and Patients
    • Patients served under this arrangement would be considered FQHC patients for all services provided and, the FQHC would bill appropriate third party payors and collect any fees from patients

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Relationship Between FQHC andPublic Health Department

Purchase of Services Agreement should include provisions to ensure that the health department health care professional provides services to the FQHC patients in the same manner as if the FQHC was providing the services directly

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Relationship Between FQHC andPublic Health Department

Agreement must be directly between the FQHC and the individual health professional providing services

Agreement between the FQHC and health department will not extend FTCA coverage to the individual health professional who is an health department employee

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Relationship Between FQHC andPublic Health Department
  • Additional legal issues that should be addressed in structuring FQHC-health department partnerships:
    • Federal tax considerations
    • Federal fraud and abuse law (e.g., anti-kickback, false claims)
    • Federal physician self-referral law (Stark)
    • Federal Antitrust law
    • HIPAA and 42 CFR Part 2
    • HHS Uniform Administrative Requirements
    • State counterparts to federal laws, including fraud, abuse, and self-referral
    • Clinic licensure and certificate of need laws
    • Professional licensure, certification and/or other authorization to render services
    • Zoning laws
    • Corporation/LLC statutes
    • Privacy of patient health information
    • Insurance
    • Scope of practice (including supervision requirements for non-physician providers

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questions follow up
Questions/Follow-up

Gerald “Jud” E. DeLoss

Popovits & Robinson

jud@popovitslaw.com

(708) 479-3230

www.popovitslaw.com

Popovits & Robinson