1. FTCA: Reducing Exposure for Common “Gap” Areas NACHC’s Policy and Issues Forum March 27, 2009 Roger Schwartz Associate Vice President for Executive Branch Liaison National Association of Community Health Centers National Association of Community Health Centers 1

2. FTCA: Reducing Exposure for Common “Gap” Areas FTCA Coverage for Services Provided to Non-Health Center Patients and/or at Non-Health Center Sites. –General rule – no coverage –Regulatory exceptions that do not require obtaining HRSA clarification or a particularized determination: 42 CFR. Section 6.6(e); 60 Fed. Reg. 49417(9/25/95); see www.bphc.hrsa.gov/policy/ www.bphc.hrsa.gov/policy/ –All requirements of the regulatory exception must be met –Activity must be listed and described on health center’s scope form (Form 5 – Part C) National Association of Community Health Centers 2

3. FTCA: Reducing Exposure for Common “Gap” Areas –Pre-approved regulatory exceptions: –Hospital or emergency room on-call arrangements –After-hours cross coverage arrangements with community providers –School-based or school-linked clinics –Immunization and health fairs –Outreach for homeless persons or migrant and seasonal farm-workers National Association of Community Health Centers 3

4. FTCA: Reducing Exposure for Common “Gap” Areas Potential FTCA Coverage Gaps 1. Hospital or emergency room on-call not required for privileges: –Put it in physician employment agreement, job description or employee handbook –Document it in the health center’s grant narrative and applicable scope form. –Written agreement between the health center and the hospital. National Association of Community Health Centers 4

5. FTCA: Reducing Exposure for Common “Gap” Areas 2. Cross coverage arrangements with community providers not limited to after- hours –Provider employment agreement, job description or employee handbook –Health center’s grant application –Written agreement between health center and the cross coverage partner National Association of Community Health Centers 5

6. FTCA: Reducing Exposure for Common “Gap” Areas 3. Hospital Reciprocity Care –Ensure that arrangement is included in health center’s approved scope of project –Require participation in the reciprocity care arrangement as a condition of employment –Include in provider’s employment agreement, job description or at a minimum in employee handbook –Ensure there is adequate and appropriate documentation to support performance. –See NACHC 4/21/08 News Release regarding FTCA deeming renewal or initial FTCA deeming. National Association of Community Health Centers 6

7. FTCA: Reducing Exposure for Common “Gap” Areas Bivens-type cases and their potential impact on health centers providing services at correctional institutions –Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) –Carlson v. Green, 446 U.S. 1(1980) – extends Bivens liability to federal prison employees. –Castaneda v. U.S. (9 th Cir., 2008), and others –Same problem with private insurance coverage? National Association of Community Health Centers 7