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Free Clinic FAQs

What is the Federal Tort Claims Act and how does it apply to my free clinic?

The Federal Tort Claims Act (FTCA), enacted in 1946, provides the legal mechanism for compensating people who have suffered personal injury due to the alleged negligent or wrongful action of employees of the U.S. government. Through the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Congress extended the ability for volunteer health professionals at qualifying free clinics to be deemed as federal employees for purposes of medical malpractice liability coverage under the FTCA. Money was later appropriated for this program in the 2004, and the first set of free clinic volunteers was deemed in 2005. In 2010, the Affordable Care Act expanded the availability of deeming to employees, officers, board members, and contractors of qualifying free clinics. 

The Free Clinics FTCA Program extends medical malpractice liability coverage under the FTCA to individuals who meet Program and statutory requirements and are deemed as federal employees for such purposes. This saves free clinics the money used on medical malpractice insurance premiums and allows clinics to invest more in health care services and fund quality improvement activities.

Program Requirements

Who is eligible for FTCA coverage?

The Free Clinics FTCA Program is authorized by section 224(o) of the Public Health Service (PHS) Act, codified at 42 U.S.C. 233(o). The eligibility criteria set forth requires that the sponsoring free clinic be operated by a nonprofit private entity meeting the following requirements:

• Does not, in providing health services through the facility, accept reimbursement from any third-party payor (including reimbursement under any insurance policy or health plan, or under any Federal or State health benefits program)(but may accept voluntary donations for the provision of services);
• In providing health services through the facility, either does not impose charges on the individuals to whom services are being provided, or imposes a charge according to the ability of the individual involved to pay the charge;
• Is licensed or certified in accordance with applicable law regarding the provision of health services.

1. Provide services to patients at a free clinic or through offsite programs or events carried out by the free clinic;
2. Be sponsored by the free clinic, as “sponsorship” is further defined by the statute;
3. Provide a qualifying health service (i.e., any medical assistance required or authorized to be provided under Title XIX of the Social Security Act (42 U.S.C. §1396, et seq.)) without regard to whether the medical assistance is included in the plan submitted under this program by the State in which the health care practitioner provides the service;
4. Does not receive compensation (and neither does the free clinic) for provided services from patients directly or from any third-party payor (including reimbursement from any insurance policy, health plan, or under any Federal or State health benefits program);
5. May receive repayment from a free clinic for reasonable expenses incurred in service provision to patients;
6. Is licensed or certified to provide health care services at the time of service provision in accordance with applicable law; and
7. Provides patients with written notification before service provision of the extent to which his/her legal liability is limited pursuant to the PHS Act if his/her associated free clinic has not already provided such notification

For more information on FTCA eligibility, see Section III: Covered Individuals of the Free Clinics FTCA Program Policy Guide.

The Free Clinics FTCA Program has four major program requirements that are based on statutory requirements:

• Credentialing and privileging system,
• Quality Improvement/Quality Assurance (QI/QA) program, including a risk management (RM) system,
• Disclosure of medical malpractice claims and professional disciplinary actions, and
• Annual data reporting.

For more information and specific components of the program requirements, please see Section V: Program Requirements in the Free Clinics FTCA Program Policy Guide.

All FTCA covered providers must be both credentialed and privileged either by their sponsoring free clinic or a contracted credentials verification organization (CVO). Credentialing is a process of verifying education, licensure, and ability through a mix of primary source verification and secondary source verification. Providers must also be privileged by their sponsoring free clinic. After initial credentialing and privileging is completed, re-credentialing and re-privileging must occur every two years.

For more information on credentialing and privileging requirements, please see Section V(A): Credentialing and Privileging in the Free Clinics FTCA Program Policy Guide.

The Free Clinic FTCA Program provides protection against allegations of medical malpractice for volunteer free clinic health professionals, board members, officers, employees and/or individuals who have been deemed to be PHS employees. Other free clinic personnel and the free clinic entity or corporation are not eligible to be covered under FTCA. Additionally, the Program does not provide protection for anything beyond medical malpractice coverage, for instance, it does not cover incidents normally protected by general liability, directors’ or officers’ insurance policies. Free clinics should consult with their insurance agents to determine their needs for protection beyond the Program.

Application

All applications are submitted through email. A complete application must contain an EXCEL application form, a board approved (signed and dated) Quality Assurance/Quality Improvement (QA/QI) or Risk Management plan, copy of the clinic’s non-profit designation, and the signature page from PAL 2010-11. All files should be emailed as attachments. Please note that the application form should be emailed as an EXCEL file, not as a scanned PDF file.

There are two applications for the Free Clinic FTCA Program. The first is the deeming application. This application is used as both an initial application as well as for the annual deeming application. All deeming applications must include the deeming application form, QA/QI or Risk Management plan, copy of the non-profit designation, and the signature page.

The second application is the supplemental application. This application is used to add providers off-cycle throughout the year. For example, if a free clinic brings in a new Nurse Practitioner in March, a supplemental application would need to be filed for that person in order for them to be deemed under the FTCA. Supplemental applications only require a completed supplemental application form and signature page.

All applications should be emailed to FreeclinicsFTCA@hrsa.gov.

Credentialing

Credentialing and privileging providers is an important aspect of quality assurance and risk management. It is important for each free clinic to maintain a level of professionalism and quality in their providers. In order to ensure that each provider is properly licensed and is able to competently perform every procedure expected of them, providers need to be credentialed and privileged every two (2) years.

Claims

Under the FTCA, a claimant may not file suit before presenting an administrative claim to the Department. The administrative claim must be presented to the Department of Health and Human Services (HHS) Office of the General Counsel (OGC), at the following address:

U.S. Department of Health and Human Services
Office of the General Counsel
General Law Division
Department of Health & Human Services
330 Independence Ave., S.W.,
Mail Stop: Capitol Place
Washington, D.C. 20201
Phone: (202) 233-0233
Fax: (202) 233-0227
E-mail: gcgl@hhs.gov

Under the FTCA, if the claim is denied or an administrative settlement is not reached within six months of such presentment, the claimant can sue the United States in the appropriate Federal district court. Alternatively, a claimant may request reconsideration of the denial of an administrative tort claim within six months after issuance of the denial.

Once an administrative claim (or a reconsideration request, if applicable) has been denied by HHS, the claimant who opts to pursue the suit must file within six months in the appropriate Federal district court or the action will be barred. Cases are heard in Federal district court without a jury, and are defended by the Department of Justice (DOJ) with the assistance of HHS OGC.

Individuals who have been deemed as PHS employees for purposes of FTCA coverage and who are notified that a lawsuit has been filed against them should promptly fax copies of the relevant documentation (including summons and complaint) to HHS OGC at the information above.

For more information about claims, see Section VI: Claims Process in the Free Clinics FTCA Program Policy Guide.

As soon as a free clinic or deemed individual receives a legal document regarding a future or pending claim, please contact the Office of the General Counsel, General Law Division, Claims and Employment Law Branch.

U.S. Department of Health and Human Services
Office of the General Counsel
General Law Division
330 Independence Ave., S.W.,
Mail Stop: Capitol Place
Washington, D.C. 20201
Phone: (202) 233-0233
Fax: (202) 233-0227
E-mail: gcgl@hhs.gov

Other Questions

There are no minimum hours that an individual must work to be deemed a PHS employee for FTCA coverage. However, all such individuals must comply with all Program and applicable legal requirements.

Only individual contractors of the free clinic are eligible for deeming under the Free Clinics FTCA program. The contract cannot be with an organization or corporation, but must be with the individual providing services. For example, a contract with John Smith, Inc., does not provide a basis for coverage, even if John Smith is the only employee of John Smith, Inc. The contract needs to be with John Smith, individually.

Please be aware that the Free Clinic FTCA program only provides coverage for medical malpractice (i.e., the performance of medical, dental, surgical, and related functions). Therefore it is unnecessary to add administrative or janitorial staff to the deeming application.

Disclaimer