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FTCA Update/Lessons Learned 12 th Annual 2005 Region IX Management Training Conference Burbank, California September 2

FTCA Update/Lessons Learned 12 th Annual 2005 Region IX Management Training Conference Burbank, California September 27, 2005. Martin J. Bree Senior Partner Triton Group, LLC. Triton Group. First Source of FTCA Program Information Triton Group 227 Hamburg. Pompton Lakes, NJ 07442

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FTCA Update/Lessons Learned 12 th Annual 2005 Region IX Management Training Conference Burbank, California September 2

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  1. FTCA Update/Lessons Learned 12th Annual 2005 Region IXManagement Training ConferenceBurbank, CaliforniaSeptember 27, 2005 Martin J. Bree Senior Partner 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 • Roger Fuydal • 866-FTCA-HELP - Toll Free • (866-382-2435) Marty Hiller (Free Clinics) • 973-831-8395 (Fax) 216-382-4150 • tritongp@optonline.net mhiller862@hotmail.com • Martin J. Bree • 215-861-4373 • 215-861-4391 (fax) • 856-625-8638 (cell) • mbree@hrsa.gov.

  3. Today’s workshop will cover: • Medical Malpractice 2005 • How the Program Works for Health Centers • Limitations of Coverage • Credentialing and Privileging • Program Value • Claim Status • Risk Management • HIPAA Section 194 • Questions

  4. Medical Malpractice 2005 • Med Mal premiums increase • 40% 2002-2003 • 37% 2003-2004 • Average Indemnity Payments (per PIAA) • 1996 - $196,392 • 1997 - $223,167 • 1998 - $232,178 • 1999 - $253,479 • 2000 - $285,354 • 2001 - $295,610 • 2002 - $309,381 • 2003 – $328,757

  5. Medical Malpractice 2005 (cont.) • Increased premiums particularly affect: • Radiology • Obstetrics/gynecology • Neurosurgery • Emergency Medicine • The percentage of indemnity payments over $1 million has doubled since 1997 reaching 2.9% in 2003 • Med Mal losses have been increasing 19 times faster than other tort losses (AIG)

  6. Medical Malpractice 2005 • Obstetrics Claims • Most paid claims of any specialty – 36% of closed claims result in payment • Highest % of paid claims over $1 million – 27% • Average indemnity for 2001 – 2003 was $440,658 • Neurologically impaired newborns second most prevalent medical condition resulting in a claim after breast cancer

  7. Medical Malpractice 2005 (cont.) • General and Family Practice for 2001 - 2003 • 27% of closed claims result in payment • Average indemnity $276,171 • Internal Medicine for 2001 - 2003 • 25% of closed claims result in payment • Average indemnity $307,024 • Pediatrics for 2001 – 2003 • 31% of closed claims result in payment • Average indemnity $389,658

  8. Medical Malpractice 2005 (cont.) • Proposed solutions • Caps on non-economic damages • Limitations on venue shopping • Requiring “Certificates of Merit” • Better underwriting

  9. How the Program Works for Health Centers • 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.

  10. How the Program Works for Health Centers (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).

  11. How the Program Works for Health Centers (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.

  12. How the Program Works for Health Centers (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)]. • School-based Health Centers [Section 330].

  13. How the Program Works for Health Centers (cont.) • Who is covered - people • Employees. • Officers. • Directors. • Governing board members. • Contractors (some, not all).

  14. How the Program Works for Health Centers (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.

  15. How the Program Works for Health Centers (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.

  16. How the Program Works for Health Centers (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”. • El Rio Case

  17. How the Program Works for Health Centers (cont.) • What is covered? • Medical malpractice. • More specifically, medical, surgical, dental and related activities (if within the scope of employment and scope of project).

  18. How the Program Works for Health Centers (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 2002 - 07). • 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.

  19. How the Program Works for Health Centers (cont.) • When is it covered • Coverage is only for acts that are within the scope of employment of the covered individual • No Moonlighting • Acting on behalf of the deemed entity

  20. How the Program Works for Health Centers (cont.) • 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.

  21. How the Program Works for Health Centers (cont.) • 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.

  22. How the Program Works for Health Centers (cont.) • 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.

  23. How the Program Works for Health Centers (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.

  24. How the Program Works for Health Centers (cont.) – Potential Problems • Contracts. • Sub-Recipients. • Scope of Project. • Billing Arrangements. • Americans with Disabilities Act, Rehabilitation Act, Civil Rights Act.

  25. How the Program Works for Health Centers (cont.) • Important Issues • Non-health center patients – a potential problem. • Insurance requirements of hospitals and Health Maintenance Organizations. • National Practitioner Data Bank. • Deeming Renewal . • Credentialing – a critical issue.

  26. 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.

  27. 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.

  28. 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.

  29. Other Insurance • 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

  30. Deming Applications • New organizations (never deemed before): • Submit application found in PIN 99-08 to BPHC (currently Susan Lewis in Philadelphia). • Deemed entities at end of project period (competing continuations): • Submit application found in PIN 99-08 to BPHC (currently Susan Lewis in Philadelphia). • Deemed entities at end of budget period (non-competing continuations): • Application is part of single grant application.

  31. Program ValueMalpractice Premium Savings • Study conducted by Princeton Insurance Company. • Premiums calculated for 2002 • Used Uniform Data System (UDS) data for deemed Health Centers

  32. 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.

  33. Program ValueMalpractice Premium Savings Study Results • 2002 Savings for deemed centers - $164,000,000 • Extrapolating from 2002 and 1999 studies: total savings since 1993 $1 billion

  34. Claim Status - National • Oct. 1994 thru Dec. 2004 - 1546 Claims filed against the United States. • Closed Claims - approximately 55% of total. • Paid Claims – approximately 30% of closed claims. • Avg. cost per paid claim - $370,000.* • Avg. cost per closed claim - $114,000*

  35. Health Center Claims per Month

  36. Health Center Loses per Year

  37. National Health Center Data

  38. Frequency of Adverse Outcome by Region All Others Combined Blindness/Ophthalmic injury Region 01 Loss/damage to tooth/dental prosthes Region 02 Skeletal injury Region 03 Reduced life expectancy Region 04 Infection Region 05 Emotional only Adverse Outcome Region 06 Delay in recovery Other nerve damage Region 07 Fetal death Region 08 Skin/tissue/muscle injury Region 09 Brain damage Region 10 Loss of/damage to limb Exacerbation of disease/condition Loss of/damage to organ Death 0 20 40 60 80 100 120 140 160 180 200 220 240 # of Claims (Frequency) National Health Center Data

  39. Frequency of Specialty by Region GENERAL SURGERY Region 01 Region 02 SPECIALTY NOT IDENTIFIED Region 03 Region 04 GENERAL PRACTITIONERS Region 05 OTHER SPECIALISTS Region 06 Region 07 Physician Specialty PEDIATRICS Region 08 DENTISTS Region 09 Region 10 INTERNAL MEDICINE-MINOR SURGERY FAMILY PHYSICIANS (PRACTICE) OBSTETRICS-GYNECOLOGY 0 30 60 90 120 150 # of Claims (Frequency) National Health Center Data

  40. Health Center National Data

  41. Health Center National Data

  42. Health Center National Data

  43. Health Center National Data

  44. Health Center National Data

  45. Health Center National Data

  46. Risk Management • Health Centers are expected to use a portion of savings to provide risk management services. (PIN 99-08 Para. XVIII). • NACHC – Risk Management Technical Assistance line – 517-703-8464. • Inspector General report on risk management in health centers. • Triton Group – can assist you in finding appropriate risk management services – 866-FTCA-HELP.

  47. Risk Management • Credentialing and Privileging • Medical Records • Informed Consent • Birth Injuries • Tracking Systems

  48. 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.

  49. Credentialing and Privileging • Verification of the education, training, and experience of provider. • Privileging • “The process of authorizing a licensed or certified health care practitioners specific scope and content of patient care services” or • Assessment of the clinical competence of the provider to do the job expected..

  50. Medical Records • Legibility • Permanent archive of patient’s treatment. • Communication tool between providers. • Legal defense tool. • Completeness • More is better than less. • Organization • Chronological. • Dividers. • Medication summary sheets/problem lists.

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