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FTCA Frequently Asked Questions

If the answer to your question is not located here, please submit it through Health Center Program Support online and select "Health Center" as the question type and Federal Tort Claims Act (FTCA) or Free Clinics as the category, or call 877-464-4772, option 1, 8 a.m. to 5:30 p.m. ET, Monday-Friday (except federal holidays).

FAQ Topics: Program Requirements | How to Apply | Volunteers | FTCA Site Visits | Emergencies | Telehealth | Claims and Lawsuits | Technical Assistance Resources

Program Requirements

Health Centers

What is the Federal Tort Claims Act?

In 1946, the Federal Tort Claims Act (FTCA) was enacted, which waived the sovereign immunity of the United States for certain acts or omissions by federal employees occurring within the scope of their employment. The FTCA provides a limited waiver of the United States’ immunity from suit, allowing claims “for damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b).

Does the Federal Tort Claims Act apply to health center employees?

Yes, in certain circumstances. Under section 224 of the Public Health Service (PHS) Act (42 U.S.C. § 233), as amended by the Federally Supported Health Centers Assistance Act of 1992 and 1995, employees of eligible health centers may be deemed as federal employees for the purposes of liability protections under the FTCA for acts or omissions in the performance of medical, surgical, dental, or related functions resulting in personal injury, including death, and occurring within the scope of employment (including within the approved scope of project). When FTCA matters become the subject of litigation, the Department of Justice and the federal courts may assume significant roles in certifying or determining whether or not a given activity falls within the scope of employment for purposes of FTCA coverage.

What are the benefits of FTCA coverage for a health center?

Congress extended eligibility for FTCA protections to health centers in order to increase the availability of funds for health centers to provide primary health care services by reducing or eliminating health centers’ malpractice insurance premiums. The Health Center FTCA Program saves Health Center Program grantees millions of dollars yearly that they can then invest in the provision of quality primary health care services.

In addition, eligible health centers and covered individuals (i.e., governing board members, officers, employees, and certain individual contractors) are immune from civil lawsuits when they have been deemed as federal employees for the purposes of FTCA liability protections when the act or omission is the performance of medical, surgical, dental, or related functions resulting in personal injury, including death, and occurring within the scope of employment (including within the approved scope of project). In qualifying circumstances, the Department of Justice, rather than private counsel, defends lawsuits that are within the criteria for coverage.

Do FTCA deemed health centers and FTCA covered individuals need to purchase "tail insurance" for their FTCA covered activities at the health center after they leave the FTCA deemed health center?

Eligibility for FTCA liability protections is not dependent on whether the covered individual is working at or under contract with the health center at the time suit is filed. Therefore, as long as the claim alleges a negligent act or omission in the performance of medical, surgical, dental, or related functions resulting in personal injury, including death, and occurring within the scope of employment (including within the approved scope of project) for the deemed health center, an officer, governing board member, employee, or qualified individual contractor of the deemed health center is eligible for FTCA liability protections. In addition, under an extension of liability protections in 2016 which will no longer be in effect on October 1, 2022, health center volunteer health professionals who have been individually deemed as PHS employees are also eligible for these liability protections. Eligibility for FTCA liability protections is contingent upon the covered individual meeting all of the requirements for coverage in FSHCAA.

What services are covered under the FTCA Program?

Deemed Health Center Program grantees and covered individuals (i.e., governing board members, officers, employees, and certain individual contractors), as well as individually deemed health center volunteer health professionals, are eligible for FTCA protections for alleged negligent acts or omissions in the performance of medical, surgical, dental, or related functions resulting in personal injury, including death, and occurring within the scope of employment (including within the approved scope of project).

Free Clinics

May a free clinic sponsor individuals for FTCA deeming?

Through the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Congress extended eligibility for FTCA liability protections for the performance of medical, surgical, dental, or related functions to volunteer health professionals (VHP) at qualifying free clinics when the free clinic sponsors the VHP for deeming, the VHP meets the required standards, and the activity meets the criteria for coverage. Funds to support the program were appropriated in 2004, and the first free clinic volunteer health professionals were deemed in 2005. In 2010, the Affordable Care Act expanded eligibility for FTCA liability protections to employees, officers, board members, and contractors of qualifying free clinics. 

The Free Clinics FTCA Program enables free clinics to apply for deeming for eligible individuals who meet Program and statutory requirements. The extension of eligibility for FTCA liability protections to free clinics increases the availability of funds for free clinics to provide health care by reducing or eliminating free clinics’ malpractice insurance premiums.

What are the requirements for Free Clinic FTCA deeming?

To be eligible for deemed Public Health Service status, sponsoring free clinics must sponsor licensed or certified individuals for deeming, and the sponsorship application must satisfy statutory and Program deeming requirements. There are four major program requirements that are required by statute to establish eligibility for deeming:

  • 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.

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Eligibility

Health Centers

Is my health center eligible for FTCA coverage?

The Federally Supported Health Centers Assistance Acts (FSHCAA) of 1992 (Pub. L. 102-501) and 1995 (Pub. L. 104- 73) extend Federal Tort Claims Act (FTCA) liability protections to eligible health centers funded under the Health Center Program pursuant to section 330 of the Public Health Service (PHS) Act (42 U.S.C. 254b), as amended. The following types of health centers are eligible for such FTCA protections: Community Health Centers (CHC), funded under section 330(e); Migrant Health Centers (MHC), funded under section 330(g); Health Care for the Homeless (HCH) Health Centers, funded under section 330(h); and Public Housing Primary Care (PHPC) Health Centers, funded under section 330(i). Health centers funded under section 330 of the PHS Act must submit deeming applications to HRSA annually in order to establish eligibility for FTCA liability protections. If approved, the health center is then eligible for FTCA liability protections for the performance of medical, surgical, dental, or related functions within the scope of employment, including within the scope of project.

I work at a health center; am I eligible for FTCA coverage?

If the health center is eligible for FTCA coverage and HRSA has approved its deeming application, all governing board members, officers, employees, and certain individual contractors of the deemed health center are automatically eligible for FTCA liability protections for the alleged negligent performance of medical, surgical, dental, or related functions within the scope of employment, including within the scope of project. For health center volunteer health professionals (VHPs), the eligible health center must submit a sponsorship deeming application specifically identifying VHPs for whom deeming is sought. If the application is granted, then the identified VHPs are also eligible for FTCA liability protections for the alleged negligent performance of medical, surgical, dental, or related functions within the scope of employment, including within the scope of project.

Free Clinics

Is my free clinic eligible to sponsor individuals for FTCA deeming?

The Free Clinics FTCA Program is authorized by section 224(o) of the Public Health Service (PHS) Act (42 U.S.C. 233(o)) and extends FTCA liability protections to eligible volunteer health professionals who are sponsored for deeming by a qualifying free clinic when providing a qualifying health service, as well as officers, governing board members, employees, or contractors when providing services for qualifying free clinics. The eligibility for FTCA liability protections does not extend to the free clinic entity itself.

To be eligible for the Program, a free clinic must be a health care facility operated by a nonprofit private entity that:

  • 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; however, it may accept voluntary donations for the provision of services); and
  • In providing health services through the facility, either does not impose charges on the individuals to whom the services are provided, or imposes a charge according to the ability of the individual involved to pay the charge; and
  • Is licensed or certified in accordance with applicable law regarding the provision of health services.

I’m a volunteer health professional at a qualifying free clinic; am I eligible for FTCA coverage?

In providing a health service to an individual, a free clinic health care practitioner will be considered a free clinic health professional eligible for FTCA liability protections if the following conditions are met:

  1. The service is provided to patients at a free clinic or through offsite programs or events carried out by the free clinic;
  2. The free clinic is sponsoring the health care practitioner (“sponsorship” is further defined by the statute);
  3. The service is a qualifying health service (i.e., any medical assistance required or authorized to be provided in the program 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. Neither the health care practitioner nor the free clinic receives any compensation 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.

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How to Apply

Health Centers

How does a health center apply for the FTCA program?

An annual deeming PAL contains instructions for applying for the FTCA Program. Eligible health centers must submit an initial deeming application and annual renewal deeming applications to the U.S. Department of Health and Human Services, Health Resources and Services Administration (HRSA), Bureau of Primary Health Care (BPHC). Information on how to apply can be found in Health Center Application Process.

Where do I find the link to begin the FTCA application?

The “FTCA Program” link will be available in your H80 grant handbook. Log into EHB. After successfully logging in, choose the “view portfolio” on the left side. Then choose the “open grant handbook” under the H80 grant handbook. You will see the “FTCA Program” link on the lower right side of the page.

Who will be able to view the FTCA Program link?

Everyone who has the H80 grant in their EHB portfolio will be able to view the FTCA Program link.

Will everyone with access to the H80 grant be able to begin working on the application?

No. Initially, only the H80 Project Director (PD) has the appropriate level of permission to work on the FTCA application. The PD may choose to add additional permissions to allow others to work on the FTCA application.

I am a PD and I want to delegate someone else to work on the FTCA application. How do I do that?

Open the “Grant Handbook” under your portfolio.
Choose the “New/Existing Users” under the “Administer” on the left hand side.
Search for the user who you wish to grant the additional privileges.
Once you have identified the user, choose to “update privileges” for the user.
You will have the option to provide various levels of FTCA access for this user and save it.

What can I do if the system incorrectly states that my organization is submitting an initial deeming application (or vice versa)?

You have the ability to change the system default value (e.g., from initial to redeeming) and provide justification from the “Select Application Type” page when you begin working on your FTCA application.

What health center providers must be credentialed?

All licensed or certified health care providers, including volunteers and locum tenens providers who work or volunteer in the health center, must undergo a credentialing and privileging process in accordance with Chapter 5: Clinical Staffing of the Health Center Program Compliance Manual.

Which subrecipients are eligible for FTCA coverage?

According to the Federal Tort Claims Act Health Center Policy Manual (PDF - 406 KB), “Subrecipients eligible for FTCA coverage are entities that receive a grant or a contract from a covered entity to provide the full range of health services on behalf of the covered entity.” 42 C.F.R. § 6.3 explains that for purposes of eligibility for FTCA coverage, “[e]ntities that are subrecipients of grant funds . . . are eligible for coverage only if they provide a full range of health care services on behalf of an eligible grantee and only for those services carried out under the grant funded project.” A subrecipient must also be identified as a part of the health center’s approved scope of project.

How do subrecipients apply for deeming?

To ensure the completeness of application processing and review, health centers will be required to submit a separate deeming application on behalf of any subrecipient identified on their most recent Form 5B that is seeking FTCA coverage. Subrecipient organizations will be required to submit their applications and supporting documentation in accordance with the deeming guidance specified within the annual deeming Program Assistance Letter (PAL). Please see the Health Center Application Process.

To submit the QI/QA Plan should health centers attach the entire document?

Yes. Please attach the entire QI/QA Plan document.

How often should the QI/QA Plan be reviewed and approved?

The health center’s governing Board must approve the QI/QA Plan at least every 3 years and the QI/QA plan should include the Board-approved date along with a signature from the Board President or Secretary.

I am a newly funded health center applying for initial FTCA deeming, should I have private malpractice insurance in place until I become deemed?

Eligibility for FTCA coverage is not effective until a deeming application has been reviewed and approved and a deeming letter is issued by the Health Resources and Services Administration (HRSA) to the organization. In addition, health centers decide whether they wish to obtain other liability insurance in addition to FTCA coverage. FTCA coverage is comparable to an occurrence form of malpractice insurance and applies to covered activities performed by covered individuals (or deemed volunteer health professionals) where such actions were eligible for FTCA coverage at the time they occurred. If there is any question about whether all activities would be considered covered, purchasing other insurance coverage should be considered; health centers may consult with private legal counsel to evaluate this option.

Does my organization need to be accredited?

The FTCA application process requires applicants to disclose whether or not they are accredited; and if so, by whom. There is no requirement for health centers to be accredited in order to participate in the FTCA program. Although accreditation may be expensive, Health Center Program grant funding may be available for use for expenses associated with pursuing accreditation if health centers wish to pursue it. In addition, the Health Center Program makes available accreditation TA resources. The free clinic application does not currently address accreditation.

For additional information, learn how to apply for accreditation.

Free Clinics

How does a Free Clinic apply for the FTCA Program?

An annual deeming PAL contains instructions for applying for the FTCA Program. All applications are submitted through HRSA EHB. A complete application must contain a completed 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 Affirmation signatures (entered as electronic signatures) by the Chief Executive Officer and Medical Director of the sponsoring free clinic. All attachments should be attached in the appropriate sections in the EHB.

Which deeming application should a Free Clinic complete?

There are three application types for the Free Clinics FTCA Program. The first is the initial deeming application. Free clinics that do not currently sponsor any deemed individuals must submit an initial deeming application. All initial deeming applications must include a completed application form in addition to: QA/QI or Risk Management plan, copy of the non-profit designation, medical malpractice documentation (where applicable) and Affirmation signatures (entered as electronic signatures) by the Chief Executive Officer and Medical Director of the sponsoring free clinic.

The second application is the redeeming application. Free clinics that currently sponsor deemed individuals must reapply annually for continued FTCA coverage.  All redeeming applications must include a completed application form in addition to: QA/QI or Risk Management plan, medical malpractice documentation (where applicable) and Affirmation signatures (entered as electronic signatures) by the Chief Executive Officer and Medical Director of the sponsoring free clinic. 

The third is the supplemental application. This application is used to add providers off-cycle throughout the year. For example, if a free clinic wishes to bring in a new Nurse Practitioner in April, a supplemental application would need to be filed for that person in order for them to be deemed under the FTCA. 

What are the Program credentialing and privileging requirements for Free Clinics?

Credentialing and privileging providers is an important aspect of quality assurance and risk management and, as such, is a requirement for eligibility for FTCA liability protections. 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.

All providers eligible for FTCA liability protections 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 and also see the current Free Clinic deeming Program Assistance Letter (PAL) on the FTCA website for updated requirements.

What other insurance needs should a Free Clinic consider?

The Federally Supported Health Centers Assistance Act (FSHCAA), as amended, provides liability protections against claims for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions within the scope of employment for volunteer free clinic health professionals, officers, governing board members, employees or contractors of a free clinic who have been deemed to be PHS employees. Other free clinic personnel and the free clinic entity or corporation are not eligible for liability protections under the FTCA. Additionally, the Program does not provide protection for other actions. For instance, it does not cover incidents normally protected by general liability, directors’ or officers’ insurance policies. Free clinics should consult with appropriate professionals to determine their insurance needs beyond those afforded by the Free Clinics FTCA Program.

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Volunteers

Health Centers

Can volunteer providers at a health center receive liability protections under the Health Center FTCA Program?

Yes, the 21st Century Cures Act (Pub. L. 114-255) (codified at 42 U.S.C. § 233(q)), extended eligibility for FTCA liability protections to Volunteer Health Professionals (VHPs) at health centers for the alleged negligent performance of medical, surgical, dental, and related functions when providing a health service to an individual within the scope of employment (including within the scope of the grant). To be eligible, the volunteer health care practitioner must meet the following criteria:

  1. The service is provided to the individual at the facilities of a deemed health center, or through offsite programs or events carried out by the entity.
  2. The deemed health center is sponsoring the health care practitioner.
  3. The health care practitioner does not receive any compensation for the service from the individual, the deemed health center, or any third-party payer (including reimbursement under any insurance policy or health plan, or under any Federal or State health benefits program), except that the health care practitioner may receive repayment from deemed health center for reasonable expenses incurred by the health care practitioner in the provision of the service to the individual, which may include travel expenses to or from the site of services.
  4. Before the service is provided, the health care practitioner or the deemed health center posts a clear and conspicuous notice at the site where the service is provided of the extent to which the legal liability of the health care practitioner is limited pursuant to this subsection.
  5. At the time the service is provided, the health care practitioner is licensed or certified in accordance with applicable Federal and State laws regarding the provision of the service.
  6. At the time the service is provided, the deemed health center maintains relevant documentation certifying that the health care practitioner meets the requirements of this subsection.

Examples of licensed or certified practitioners include Licensed Practical Nurses (LPNs) and Medical Assistants (MAs) who are licensed or certified. Volunteers who are not licensed or certified are not eligible for VHP coverage.

VHPs are not automatically eligible for liability protections under the Health Center FTCA Program. Deemed health centers must apply for such protections for individual volunteers through a VHP deeming sponsorship application. See Program Assistance Letter (PAL) 2021-02: Calendar Year - 2022 Volunteer Health Professional Federal Tort Claims Act (FTCA) Deeming Sponsorship Application Instructions (PDF - 222 KB). The deemed health center must submit to HRSA and receive approval of a VHP deeming sponsorship application for each individual volunteer.

How does a health center submit a VHP deeming sponsorship application?

Health centers can complete a VHP deeming sponsorship application by accessing the Electronic Handbooks (EHBs) and going to the FTCA application section. The EHBs allow sponsoring health centers to submit multiple VHPs in one application submission. For assistance with this process, please contact Health Center Program Support online or call for FTCA assistance at 877-464-4772, 8:00 a.m. to 5:30 p.m. ET, Monday-Friday (except federal holidays).

Applications for VHP deeming must be submitted by the health center's Authorized Official. However, health centers may seek technical assistance in preparing and submitting such applications from PCAs and other third parties.

Can someone who is employed by one deemed health center volunteer at another deemed health center and be eligible for FTCA liability protections for those volunteer activities?

Yes, so long as the person fulfills the requirements to be eligible for FTCA liability protections as a volunteer health professional, including sponsorship by the deemed health center at which the health care professional provides volunteer services. Please note, however, health centers and their providers are strongly encouraged to exercise caution, as FTCA liability protections may be placed at risk when a provider acts on behalf of more than one entity under circumstances that do not make it clear in what capacity the individual was acting at the time of an event that becomes the subject of a claim or lawsuit. Health centers are reminded that when FTCA matters become the subject of litigation, the U.S. Department of Justice and the federal courts assume significant roles in certifying or determining whether a given activity falls within the scope of employment for purposes of FTCA coverage. Health centers and providers are encouraged to consult with private counsel and/or consider the purchase of private malpractice insurance when individual providers wish to undertake activities on behalf of multiple entities and/or in multiple capacities.

Free Clinics

Are there minimum hours for Free Clinic volunteers or contractors?

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

Who is considered a Free Clinic contractor?

Only contractors of the free clinic who are individuals providing services are eligible for deeming under the Free Clinics FTCA program. The contract cannot be between the free clinic and 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.

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FTCA Site Visits

Health Centers

Where do I find resources to prepare for an FTCA Site Visit?

To prepare for an upcoming FTCA Site Visit, health centers may visit the FTCA Site Visit Protocol page for resource guides and checklists.

How has the COVID-19 public health emergency impacted FTCA site visits?

Site visits are a critical part of the oversight and compliance process for deemed health centers. In response to the COVID-19 public health emergency, HRSA has suspended in-person site visits temporarily, and will conduct virtual site visits as part of a pilot program that began in November 2020. FTCA virtual site visits will be comparable to the in-person site visit process, but will include technological platforms such as secure file sharing and video conferencing to accommodate the virtual environment. Health centers selected for this pilot have been contacted by HRSA staff. For additional information and resources, please visit the FTCA webpage. For questions, please email the FTCA site visit team at BPHCFTCASiteVisit@hrsa.gov, or contact Health Center Program Support online  or by phone at, 877-464-4772, option 1.

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Emergencies

Health Centers

How does the COVID-19 pandemic impact FTCA coverage?

The HHS Secretary issued a declaration of a national public health emergency regarding COVID-19 on January 31, 2020, effective January 27, 2020. As detailed in PAL 2020-05: Requesting a Change in Scope to Add Temporary Service Sites in Response to Emergency Events (PDF - 184 KB): "HRSA recognizes that during an emergency, health centers are likely to participate in an organized state or local response, including by providing primary or preventive care services at temporary locations." Health centers may set up temporary sites that are “within the health center's service area or a county, parish, or other political subdivision adjacent to the health center's service area" (for in-scope services) with notification made to BPHC within 15 days. PAL 2020-05 (PDF - 184 KB) includes full details and requirements to ensure that the emergency response at temporary locations is considered part of the center's scope of project.

“For purposes of FTCA coverage, patients served by covered individuals at temporary locations included in the covered entity's scope of project are considered the covered entity's patients. As such, the covered entity and its providers are covered by FTCA for services provided during the emergency at temporary locations." (See the FTCA Health Center Policy Manual (PDF - 406 KB) Section (I) F: A record of the services provided for each patient should be maintained.)

In addition, please see: Section (I) C.3 of the FTCA Health Center Policy Manual (PDF - 406 KB), Provision of Services to Health Center Patients, which states in part: "To meet the FTCA requirement of providing services to health center patients, a patient-provider relationship must be established. For the purposes of FSHCAA/FTCA coverage, the patient-provider relationship is established when: … Health center triage services are provided by telephone or in person, even when the patient is not yet registered with the covered entity but is intended to be registered."

Please also see the FTCA Health Center Policy Manual (PDF - 406 KB) Section (I) C.4 regarding Coverage in Certain Individual Emergencies.

Additionally, please visit PAL 2017-07: Temporary Privileging of Clinical Providers by Federal Tort Claims Act (FTCA) Deemed Health Centers in Response to Certain Declared Emergency Situations (PDF - 286 KB).

For additional questions about FTCA as it relates to the COVID-19 pandemic, please visit the COVID-19 FAQ’s.

For other questions about FTCA as it relates to emergency events, please contact Health Center Program Support online HRSA BPHC exit disclaimer or call for FTCA assistance at 877-464-4772, 8:00 a.m. to 5:30 p.m. ET, Monday-Friday (except federal holidays).

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Telehealth

Health Centers

During the declared COVID-19 emergency, do FTCA protections apply to health center providers who provide telehealth services to health center patients located across state lines?

Health Center FTCA Program regulations at 42 CFR Part 6 provide that coverage applies to “grant-related activities.” Therefore, a key determinant for FTCA coverage is whether the covered entity is providing services within the health center’s scope of project, under the Health Center Program authorizing statute.

PAL 2020-01: Telehealth and Health Center Scope of Project (PDF - 176 KB) highlights some of the relevant considerations for health centers in providing in-scope services through telehealth. Among other things, all providers must comply with applicable state requirements. If they do not—for example, if a provider uses a state license to provide services in a different state where doing so is unlawful under applicable state law—this may jeopardize eligibility for FTCA liability protection. However, some states may have temporarily amended their requirements for providing health care through telehealth to address the needs of the COVID-19 public health emergency.

Health centers that are uncertain of the applicable legal requirements for the provision of health services through telehealth across state lines should consult their private counsel for advice. HRSA cannot provide general assurance of FTCA coverage in all situations, as such determinations are fact-specific. As stated in the FTCA Health Center Policy Manual (PDF - 406 KB), “[w]hen FTCA matters become the subject of litigation, the Department of Justice and the federal courts assume significant roles in certifying or determining whether or not a given activity falls within the scope of employment for purposes of FTCA coverage.”

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Claims and Lawsuits

Health Centers

What process applies when an individual files a claim against a health center or its provider?

In circumstances where FTCA liability protections apply, a claimant may not file suit before presenting an administrative claim to the Department of Health and Human Services (HHS). The claimant must present the administrative claim to the HHS Office of the General Counsel (OGC). Within OGC, such claims should be presented to the General Law Division, Claims and Employment Branch (GLD/CELB) at the following address:

U.S. Dept. of Health and Human Services
Office of the General Counsel
General Law Division
Claims and Employment Law Branch
330 C Street, SW
Attention: CLAIMS
Switzer Building, Suite 2100
Washington, D.C., 20201
Fax No.: 202-619-2922
HHS-FTCA-Claims@hhs.gov

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, a claimant who opts to pursue 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 or email copies of the relevant documentation (including summons and complaint) to the GLD/CELB at the above-referenced fax number or email address.

For more information about claims, see Section II: Claims and Lawsuits in the FTCA Health Center Policy Manual.

Can an individual file suit against an FTCA-covered health center or health center employee?

In circumstances where FTCA liability protections apply, the patient cannot sue the health center or the provider directly in state court, but must instead name the United States as the defendant in federal district court after following the required administrative tort claim process. See What process applies when an individual files a claim against a health center or its provider?.

What should a health center do if its provider is sued in state court?

If a plaintiff’s attorney files an action against a deemed health center or its provider in state court in circumstances where FTCA liability protections apply, the health center should take the following steps:

Step 1

Immediately upon receipt, send all state court complaints, notices of intent and other documentation by fax or email to:

U.S. Department of Health and Human Services
Office of the General Counsel 
General Law Division
Claims and Employment Law Branch
330 C Street, SW
Attention: CLAIMS
Switzer Building, Suite 2100
Washington, DC 20201
Fax No.: 202-619-2922
HHS-FTCA-Claims@hhs.gov

If a plaintiff or plaintiff’s attorney contacts the health center regarding this issue, the health center should instruct the plaintiff or plaintiff’s attorney to submit the SF-95, Claim for Damage, Injury, or Death, by mail to the above address.

Step 2 

After an initial review, the HHS Office of the General Counsel, General Law Division, Claims and Employment Law Branch (GLD/CELB) may instruct the health center to send three copies of the following documents to the above address.

  • Deeming Letters for the year(s) of the alleged incident.
  • Wage and Tax Forms: W-2 forms for each individual involved in the incident who was working for the health center at the time of the alleged negligence. If the individual was a contractor, please send the 1099 form and an employment contract covering the period of the alleged negligence. If the individual was a volunteer health professional, please send a copy of the individual’s volunteer agreement with the health center. If the health center does not store W-2 or 1099 forms, then the health center must retrieve and provide them to verify the status of the individual.
  • Declaration: A declaration signed by the practitioner that the practitioner is licensed to practice medicine and that the practitioner was not billing privately. It should include the statement, "I certify this is true under penalty of perjury," but it need not be notarized. A separate declaration must be signed by each practitioner named in the SF-95, complaint or in the notice of intent to file suit. If the employee is no longer working at a health center, then the health center must provide a separate statement that (a) it has made a good faith attempt to locate the employee, (b) they are unable to do so, and (c) that to the best of the health center's knowledge, the employee did not bill privately for treatment.
  • Medical Records: All of the plaintiff's medical records from the health center and any private facility that might be involved.
  • Insurance Policies: The declaration page of any professional (including "gap" or "wrap-around"), general, and directors and officers liability insurance policies. If the health center does not have any of these policies please provide a separate statement to that effect.
  • Narrative Statement: A narrative statement regarding the facts of the alleged incident, by the practitioner or the medical director.

The health center is strongly encouraged to make arrangements through private counsel to obtain at least a 60-day extension from the state court to answer the complaint.

How can I receive a claims history?

HRSA and HHS OGC do not maintain a claims history for individual providers. We encourage you to carefully review both FTCA and relevant Health Center Program guidance found in Health Center Program Policies, including the Federal Tort Claims Act Health Center Policy Manual (PDF - 406 KB), Section II. Please check the National Practitioner Data Bank (NPDB) website for information regarding medical malpractice payments and certain adverse actions related to health care practitioners, providers, and suppliers that may be obtained from the NPDB. Questions can be directed to: HealthCenterSupport@hrsa.gov.

Free Clinics

What process applies when an individual files a claim against a free clinic provider?

In circumstances where FTCA liability protections apply, a claimant may not file suit before presenting an administrative claim to the Department of Health and Human Services (HHS). The claimant must present the administrative claim to the HHS Office of the General Counsel (OGC). Within OGC, such claims should be presented to the General Law Division, Claims and Employment Branch (GLD/CLEB), at the following address:

U.S. Dept. of Health and Human Services
Office of the General Counsel
General Law Division
Claims and Employment Law Branch
330 C Street, SW
Attention: CLAIMS
Switzer Building, Suite 2100
Washington, D.C., 20201
Fax No.: 202-619-2922
HHS-FTCA-Claims@hhs.gov

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, a claimant who opts to pursue 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 or email copies of the relevant documentation (including summons and complaint) to the GLD/CELB at the above referenced fax number or email address.

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

What should a free clinic do if its deemed provider is sued in state court?

If a plaintiff’s attorney files an action against a free clinic provider in state court in circumstances where FTCA liability protections apply, the free clinic should take the following steps:

Step 1

Immediately upon receipt, send all state court complaints and other documentation by fax or email to:

U.S. Department of Health and Human Services
Office of the General Counsel 
General Law Division
Claims and Employment Law Branch
330 C Street, SW
Attention: CLAIMS
Switzer Building, Suite 2100
Washington, DC 20201
Fax No.: 202-619-2922
HHS-FTCA-Claims@hhs.gov

If a plaintiff or plaintiff’s attorney contacts the free clinic regarding this issue, the free clinic should instruct the plaintiff or plaintiff’s attorney to submit the SF-95, Claim for Damage, Injury, or Death, by mail to the above address.

The free clinic is strongly encouraged to make arrangements through private counsel to obtain at least a 60-day extension from the state court to answer the complaint.

Step 2 

After an initial review, the GLD/CELB may instruct the free clinic to send three copies of the following documents to the above address.

  • Deeming Letters for the year(s) of the alleged incident.
  • Wage and Tax Forms: W-2 forms for each individual involved in the incident who was working for the free clinic at the time of the alleged negligence. If the individual was a contractor, please send the 1099 form and an employment contract covering the period of the alleged negligence. If the individual was a volunteer health professional, please send a copy of the individual’s volunteer agreement with the health center. If the free clinic does not store W-2 or 1099 forms, then the free clinic must retrieve and provide them to verify the status of the individual.
  • Declaration: A declaration signed by the practitioner that the practitioner is licensed to practice medicine and that the practitioner was not billing privately. It should include the statement, "I certify this is true under penalty of perjury," but it need not be notarized. A separate declaration must be signed by each practitioner named in the SF-95, complaint, or in the notice of intent to file suit. If the employee is no longer working at a free clinic, then the free clinic must provide a separate statement that (a) it has made a good faith attempt to locate the employee, (b) they are unable to do so, and (c) that to the best of the free clinic’s knowledge, the employee did not bill privately for treatment.
  • Medical Records: All of the plaintiff's medical records from the free clinic and any private facility that might be involved.
  • Insurance Policies: The declaration page of any professional (including "gap" or "wrap-around"), general, and directors and officers liability insurance policies. If the free clinic does not have any of these policies please provide a separate statement to that effect.
  • Narrative Statement: A narrative statement regarding the facts of the alleged incident, by the practitioner or the medical director.

The free clinic is strongly encouraged to make arrangements through private counsel to obtain at least a 60-day extension from the state court to answer the complaint.

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Technical Assistance Resources

Health Centers

How can verification of FTCA coverage for individual providers be established?

HRSA does not provide such written confirmation for covered individuals. Health centers are provided a Notice of Deeming Action (NDA) in the name of the deemed entity. Together with documentation confirming a covered individual's employment or contractor status with the deemed entity, such documentation may be used to show liability coverage for damage for personal injury, including death, resulting from the alleged negligent performance of medical, surgical, dental, or related functions while acting within the scope of employment, including within the scope of project.

NEW What resources are available to reference when completing the Health Center Application?

Technical Assistance

Risk Management

Credentialing and Privileging

NEW What resources are available to reference when completing the Health Center VHP Application?

Free Clinics

NEW What resources are available to reference when completing the Free Clinic Application?

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Disclaimer

This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice or a determination of coverage for a specific factual situation. Deemed health centers should be aware that the Department of Justice and the federal courts may assume significant roles in certifying or determining whether or not a given activity falls within the scope of employment, for purposes of FTCA coverage.

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