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Memorandum - IHS Memo to Healthcare Providers 2004

Indian Health Service Health Care Providers

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, I have received several questions regarding the extent of protection offered by the Federal Tort Claims Act (FTCA). The purpose of this memorandum is to clarify your personal liability risk as a Federal employee.

It is generally understood that the 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 Intergovernmental Personnel Act or commissioned officer detailed under a memorandum of agreement pursuant to section 214 of the Public Health Service Act is protected by the FTCA as if they worked directly for a Federal agency.

When a tort claim is filed against an 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. 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. Whether the employee was acting within the scope of his/her employment is determined under the law of the State where the care was provided. The factors to be considered are: (1) whether the employee was doing the kind of work he/she was employed to do (as set forth in the position description or billet); (2) whether the work occurred at the expected time or place; and (3) whether the work was undertaken to serve the Indian Health Service (IHS). 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.

It is important to understand that any final decision about whether or not an individual is protected from personal 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 authority to make definitive advance assurances of FTCA protection.

You may have heard that a judge issued an order questioning whether FTCA protection applied when a Tribal employee provided non-emergency care to a non-IHS beneficiary. That case concerned a Tribal employee, not a Federal employee. The legal extent of FTCA protection differs for Tribal employees. To be covered by the FTCA, Tribal employees must be acting within the scope of their employment and within the scope of the Tribe’s contract/compact with the IHS. A separate letter is being sent to Tribal Leaders about FTCA protection for Tribal employees.

I hope this information is helpful. If you have any questions, please contact your Area Chief Medical Officer.