U.S. Department of Health and Human Services
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RISK MANAGEMENT

MEMORANDUM

TO: Area Directors
Area Chief Medical Officers
Area Executive Officers

FROM: Susan V. Karol, M.D.
Chief Medical Officer

DATE: November 18, 2008

SUBJECT: Federal Tort Claims Act Coverage for Health Services Performed in Community Settings

A workgroup comprised of Indian Health Service (IHS) program staff from IHS Headquarters, Area Offices, and Service Units, with support from the Office of General Counsel (OGC), has been examining issues related to Federal Tort Claims Act (FTCA) coverage for clinical activities performed in community settings by IHS clinicians assigned to Agency hospitals and clinics. The discussion started by looking at the more narrow issue of whether lHS providers treating students on the sidelines at the Department of Interior’s Bureau of Indian Affairs (BIA) school sporting events would be covered under the FTCA. The topic has since been broadened to examine the provision of healthcare services in all community settings by IHS clinicians. As the amount and the categories of care provided in community settings by IHS staff increase, FTCA coverage for health services provided in these locations is essential to meeting the IHS mission.

Before the Federal Government accepts liability for injuries incurred through the acts or omissions of an individual identified in a tort claim, the Department of Justice (DOJ) determines that an individual is a Federal employee, or otherwise covered by the FICA, and that the individual was acting within the scope of his or her employment. If a question arises as to whether an individual is acting within the scope of his or her employment, the DOJ reviews the individual’s position description (PD) for guidance.

Health and Human Services OGC attorneys reviewed PDs submitted from several IHS Areas/regions and involving several types of providers. They determined that the PDs varied considerably with regard to whether or not the jobs described were facility-based, meaning that they narrowly stated that healthcare services would be provided only within the IHS facility, or were broader indicating that care would also be provided in community settings. For example, the PDs of public health nurses indicate that care would be provided in the community. However, out of the 20 physician PDs reviewed about 40 percent state that the physicians would only provide services within IHS health care facilities or other specifically identified health facilities. As we all know, physicians and other clinicians may deliver patient care services in a host of settings outside of Agency-owned or managed facilities, including BIA schools, immunization fairs, chapter houses or other community centers, wellness centers, nursing homes, BIA/Tribal jails, patients’ homes, or at BIA school sporting events.

To ensure that Agency clinical staff are acting within the scope of their employment while in community settings, and as such, would be eligible for FTCA coverage, the following plan to address these issues was developed. However, as always, determinations of FTCA coverage are made on a case-by-case basis:

  1. Standardized language by provider type (see attachment) has been developed to put into each clinical provider’s personnel file stating that he/she may deliver care in a variety of settings outside IHS facilities. These are meant to be general, not inclusive of all possible locations.
  2. Human Resources (HR) staff will attach the standardized language by provider type to PDs starting with those most at risk for a tort claims—physicians, dentists, nurse practitioners, physician assistants, etc. The Director, Division of Human Resources, IHS, will provide written guidance to Regional HR Officers on how the standardized language will be added to existing PDs and incorporated into new PDs.
  3. If staff are providing community-based services, the procedures that follow need to be implemented at Service Units to ensure FTCA coverage:
    1. Without Indian Health Care Improvement Act, Section 813 Joint Determination approval, only eligible beneficiaries can be served. For example, if a provider is assigned by IHS management to provide health care services on the sidelines of a BIA school football game, the players, opposing team, coaches, game officials, and parents need to be explicitly informed, in advance, that IHS staff can only provide healthcare services for IHS-eligible individuals, except to stabilize an individual in an emergency situation. Emergency care beyond stabilization to non-IHS beneficiaries would come under the State’s Good Samaritan laws.
    2. For healthcare services provided in certain settings, e.g., a BIA school clinic, a written interagency agreement should be developed. This will not only clarify the roles and responsibilities of each organization, but strengthen the evidence that a provider is acting within the scope of his or her employment if an FTCA claim is filed concerning the medical care delivered.
    3. Entries must be made in an individual’s medical record to document care by IHS providers at any location or site. This is absolutely necessary in order to defend a FTCA claim and ensure continuity of care.
    4. In order for a service or activity to be covered by the FTCA, the service or activity must be clearly directed and supported by IHS management. Providers who volunteer at community functions are not covered by the FTCA.

Please disseminate this memorandum widely to Service Unit Chief Executive Officers, Clinical Directors, and other clinical staff with a need to know. If you have questions, please contact Richard Olson, M.D., M.P.H., Acting Director, Office of Clinical and Preventive Services, IHS Headquarters, at (301) 443–4644 or via e-mail at richard.olson@ihs.gov.

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