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Memorandum - IHS Memo to Area Directors and Chief Medical Officers, 2004

Area Directors
Chief Medical Officers

Charles W. Grim, D.D.S., M.H.S.A.
Assistant Surgeon General
Director, Indian Health Service

DATE: January 22, 2004

SUBJECT: Federal Tort Claims Act—INFORMATION

Recently, my staff has received several questions regarding the extent of protection offered by the Federal Tort Claims Act (FTCA). In response to these questions, I want to clarify the extent of FTCA protection for Federal employees as well as for Tribes and their employees. I have sent a letter to the Tribal Leaders discussing how the FTCA applies to the Indian Self-Determination and Education Assistance Act (ISDEAA) contracts and compacts. I am asking you to distribute the attached letter regarding the FTCA directly to Federal health professionals, including people assigned to Tribes and Tribal organizations under the Intergovernmental Personnel Act (IPA) and commissioned officers detailed under memoranda of agreement. This memorandum summarizes the information shared with the health professionals and with the Tribes.

For tort claims filed against a Federal employee acting within the scope of his/her employment, the FTCA calls for the substitution of the United States for the Federal employee in the legal action. Attorneys at the Department of Justice (DOJ) defend the action against the United States. It is generally understood that negligent acts or omissions committed by Federal employees acting within the scope of their official duties are covered under the FTCA. Any Federal employee assigned to a self-determination contractor under the IPA or commissioned officer detailed under a memorandum of agreement pursuant to Section 214 of the Public Health Service Act is protected by FTCA as if they worked directly for a Federal agency. A personal service contractor under contract with the Indian Health Service (IHS) may also be covered by the FTCA if the contract creates a de facto employer/employee relationship and the services provided are within the scope of employment pursuant to the personal services contract. Alternatively, under 25 United States Code (U.S.C.) 1638c, the personal services contractor may be covered if the services are provided within IHS facilities.

I have been advised by the Office of the General Counsel that FTCA protection will apply to any Federal employee acting within the scope of his or her official duties. Even when faced with a questionable situation about the applicability of FTCA protection, the DOJ consistently has given Federal employees the benefit of the doubt.
For Tribal employees, the legal analysis is different. Tribal employees are deemed to be Federal employees for the purposes of FTCA coverage while acting within the scope of their employment in “carrying out” contracts/compacts under the ISDEAA (25 U.S.C. § 450f(d) and 25 U.S.C. 458aaa–15). The ISDEAA also extends FTCA coverage to an individual under a personal services contract with the Tribe if the individual is acting within the scope of his/her employment pursuant to the Tribe's ISDEAA contract and the services are provided in a facility owned, operated, or constructed under the jurisdiction of the IHS. As a general rule, a facility operated under the jurisdiction of the IHS would include a Tribal facility operated under an ISDEAA contract/compact. There is more information about how the FTCA covers Tribal employees when carrying out self-determination contracts/compacts and how Tribal FTCA claims are processed in the regulations at 25 Code of Federal Regulations, Part 900, subpart M.

It is important to understand that the decision about whether or not an individual is protected from liability by the FTCA is a factual determination made on a case-by-case basis by the Department of Health and Human Services, the DOJ, and ultimately by the courts. Neither my office nor anyone in the Area Offices or the service units has the authority to make definitive advance assurances of FTCA protection.

Recently, an order from a Federal district court judge in the case of Armb v. United States, Case No. A00-31 CV (2003), called into question the extent of FTCA coverage when an individual provides ongoing treatment outside of an ISDEAA contract, e.g., to non-IHS beneficiaries. Specifically, the judge’s order indicates that when providing non-emergency medical services to non-IHS beneficiaries, a Tribal entity is deemed part of the Public Health Service only when it is providing these services in circumstances permitted by Federal law while carrying out its contract. The judge found nothing in the ISDEAA contract demonstrating that the Tribe and the IHS had made a joint determination under 25 U.S.C. I 680c(b) to provide nonemergency medical services to non-IHS beneficiaries. Thus, the judge concluded that the Tribe was not carrying out its ISDEAA contract when providing non-emergency medical services to a non-IHS beneficiary, and FTCA was not applicable.

This order is not a final decision in this ongoing case. While the order may not have significant precedential effect outside of Alaska, it does merit your consideration. To the extent that Tribal employees are tasked with duties outside of the scope of an ISDEAA contract/compact, the Tribe may want to consult with its legal counselor consider purchasing appropriate insurance. The Tribe may also wish to work with the Area to clarify whether non-emergency services to non-beneficiaries would be authorized under 25 U.S.C. 1680c, including entering into a joint determination.

I hope this information is helpful. If you have any questions, please contact your regional attorney or the Division of Regulatory and Legal Affairs at (301) 443–1116.