Attention Health Centers Applying for FTCA Deeming Renewal or for Initial FTCA Deeming
Earlier this month, HRSA issued Program Assistance Letter 2008-05 notifying centers seeking to renew their Federal Tort Claims Act (FTCA) coverage that they must file a deeming renewal application no later than July 11, 2008. Renewal applicants and centers seeking FTCA coverage for the first time are urged to read the NACHC Alert referenced below and to read with particular care Section V of Attachment I to the FTCA deeming application regarding services to non-health center patients. Note, also, that in the PAL, HRSA “strongly recommends” that health centers electronically submit their applications in order to streamline processing. Link to PAL: http://www.bphc.hrsa.gov/policy/pal0805.htm
NACHC is aware of several recent instances in which Federal Tort Claims Act (“FTCA”) coverage was denied to a health center provider who treated a non-health center patient as part of the provider’s usual and customary medical practice activities. In each case, the health center clinician was on site at a hospital for the purpose of caring for a health center patient, which activity was within the health center’s approved scope of project and within the provider’s scope of employment, but the clinician was asked to treat, or to assist in treatment of, a person who was not a registered health center patient. In each case, the provision of care was in keeping with the standard of practice in the community in that providers customarily respond to requests to assist another provider or to provide necessary patient care when no other provider is available. Indeed, NACHC believes that this type of reciprocity among and between health care providers (who are otherwise qualified to provide the requested care) is a recognized standard of medical practice. However, FTCA coverage was denied in these cases, apparently because the situation did not fit squarely within one of the emergency room call coverage or after-hours call coverage examples in the FTCA regulations (42 C.F.R. Part 6).
NACHC believes that reciprocity of this nature among community providers should be, and indeed is, covered under FTCA, provided that the underlying service (e.g., hospital visits) and the provider are within the health center’s approved scope of project, that the center has been “deemed,” and that all other FTCA eligibility requirements are met. The FTCA regulations extend FTCA coverage to services provided to non-health center patients if the service benefits the health center’s patients and the population served by the health center, or the provision of services facilitates provision of services to the health center’s patients (42 C.F.R. § 6.6(d)). Clearly it benefits health centers patients if health center clinicians participate in reciprocal arrangements that are intended to assure that health center patients will get needed care even if a health center provider is not immediately available.
NACHC has urged BPHC/HRSA to recognize explicitly that FTCA coverage eligibility extends to hospital reciprocal care, such as by issuing a “particularized determination” to provide FTCA coverage eligibility in those situations and/or through a Federal Register notice. NACHC is hopeful that BPHC/HRSA will respond favorably. NACHC will continue to work with BPHC/HRSA to that end and will continue to advise health centers on this issue (including the future publishing of a more comprehensive Information Bulletin).
However, because this type of care reciprocity is common in the practice of medicine and, therefore, is likely widespread among health centers, NACHC strongly recommends that health centers consider immediate steps to document compliance with all requirements to establish and maintain FTCA coverage for care delivered by a health center provider to a non-health center patient in a reciprocity situation. The following recommendations are not intended to be a comprehensive guide. While NACHC cannot assure that following these recommendations – in the absence of definitive guidance from BPHC/HRSA – will secure FTCA coverage in all reciprocal care cases, the recommendations do reflect feedback that BPHC/HRSA has provided to NACHC on the issue.
1. Ensure that the health center’s approved scope of project is up to date and accurately reflects the current scope of all health center operations. (See BPHC PIN 98-01 regarding Scope of Project and requests for changes of scope.)
2. Ensure that all provider employment agreements and contracts clearly address expectations and limitations concerning the provision of care to non-health center patients (including assisting or filling in for other providers at a hospital, i.e., reciprocal care expectations) and contain all terms necessary to meet HRSA requirements for FTCA coverage eligibility.
3. Confirm that the health center’s medical bylaws (if applicable) and, if appropriate, the hospital’s staff bylaws clearly state expectations concerning privileging criteria and call/emergency/reciprocal coverage obligations.
4. Ensure that health center affiliation agreements and, in particular, agreements with hospitals, clearly address expectations and limitations concerning the provision of care to non-health center patients.
5. Ensure that individually contracted clinicians who otherwise meet FTCA eligibility requirements (apart from family practice, general internal medicine, general pediatrics, and ob/gyn) provide services to health center patients at the health center site for the minimum hours required for FTCA eligibility – on average 32½ hours a week (i.e., on a full-time basis).
6. Ensure health center operating policies clearly define when an individual needing or seeking care becomes a patient (including partners of patients in appropriate cases).
7. Implement and maintain appropriate policies and procedures required to obtain and maintain deemed status, including:
• Policies and procedures to reduce the risk of malpractice and lawsuits arising out of any health or health-related functions performed by the health center, and
• Systems to verify and review professional credentials, references, claims history, fitness, professional review organization findings, and licensure status of its providers.
8. Consider whether commercial malpractice insurance, i.e., “gap” coverage, policies may be required to cover the health center’s risks not covered by FTCA. Health centers are cautioned that the need for and coverage limitations of “gap” insurance requires a health center to make an individualized determination, taking into account all factors pertinent to its practice risk areas.
9. Review applicable guidance for FTCA coverage eligibility, including: 42 C.F.R. Part 6; HRSA PAL 99-15, and PINs 99-08 and 2001-11 (discussing the requirements for health center coverage eligibility under the FTCA); PIN 2008-01 (Scope of Project guidance); and PINs 2001-16 and 2002-22 (discussing FQHC credentialing and privileging requirements for health center FTCA coverage eligibility). These and several other related references are available at: http://www.bphc.hrsa.gov/ftca.
If you have questions about the contents of this Alert and/or wish to talk with NACHC staff knowledgeable on this issue, contact Roger Schwartz, at 202-296-0158 / RSchwartz@nachc.com – however, please understand that comments and advice offered by NACHC staff do not constitute legal advice, and, most important, any opinion offered by NACHC on whether a certain service activity or inactivity is likely to be covered under FTCA is not at all binding on the BPHC/HRSA. NACHC does request, however, that you report to us any difficulties your health center has had with respect to FTCA coverage for non-health center patients in reciprocal care situations. This information will be useful to NACHC in working with BPHC/HRSA to address the problem and in responding to requests from Congressional staff members who may be following the issue.