Law, Science & Public Health Home

Public Health

Coastal Adaptation

Table of Contents

Courses

Search


 


42 USC Sec. 233. Civil actions or proceedings against commissioned officers or employees

From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
  January 7, 2003 and February 12, 2003]
[CITE: 42USC233]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                    CHAPTER 6A--PUBLIC HEALTH SERVICE
 
        SUBCHAPTER I--ADMINISTRATION AND MISCELLANEOUS PROVISIONS
 
                         Part A--Administration
 
Sec. 233. Civil actions or proceedings against commissioned 
        officers or employees
        

(a) Exclusiveness of remedy

    The remedy against the United States provided by sections 1346(b) 
and 2672 of title 28, or by alternative benefits provided by the United 
States where the availability of such benefits precludes a remedy under 
section 1346(b) of title 28, for damage for personal injury, including 
death, resulting from the performance of medical, surgical, dental, or 
related functions, including the conduct of clinical studies or 
investigation, by any commissioned officer or employee of the Public 
Health Service while acting within the scope of his office or 
employment, shall be exclusive of any other civil action or proceeding 
by reason of the same subject-matter against the officer or employee (or 
his estate) whose act or omission gave rise to the claim.

(b) Attorney General to defend action or proceeding; delivery of process 
        to designated official; furnishing of copies of pleading and 
        process to United States attorney, Attorney General, and 
        Secretary

    The Attorney General shall defend any civil action or proceeding 
brought in any court against any person referred to in subsection (a) of 
this section (or his estate) for any such damage or injury. Any such 
person against whom such civil action or proceeding is brought shall 
deliver within such time after date of service or knowledge of service 
as determined by the Attorney General, all process served upon him or an 
attested true copy thereof to his immediate superior or to whomever was 
designated by the Secretary to receive such papers and such person shall 
promptly furnish copies of the pleading and process therein to the 
United States attorney for the district embracing the place wherein the 
proceeding is brought, to the Attorney General, and to the Secretary.

(c) Removal to United States district court; procedure; proceeding upon 
        removal deemed a tort action against United States; hearing on 
        motion to remand to determine availability of remedy against 
        United States; remand to State court or dismissal

    Upon a certification by the Attorney General that the defendant was 
acting in the scope of his employment at the time of the incident out of 
which the suit arose, any such civil action or proceeding commenced in a 
State court shall be removed without bond at any time before trial by 
the Attorney General to the district court of the United States of the 
district and division embracing the place wherein it is pending and the 
proceeding deemed a tort action brought against the United States under 
the provisions of title 28 and all references thereto. Should a United 
States district court determine on a hearing on a motion to remand held 
before a trial on the merit that the case so removed is one in which a 
remedy by suit within the meaning of subsection (a) of this section is 
not available against the United States, the case shall be remanded to 
the State Court: Provided, That where such a remedy is precluded because 
of the availability of a remedy through proceedings for compensation or 
other benefits from the United States as provided by any other law, the 
case shall be dismissed, but in the event the running of any limitation 
of time for commencing, or filing an application or claim in, such 
proceedings for compensation or other benefits shall be deemed to have 
been suspended during the pendency of the civil action or proceeding 
under this section.

(d) Compromise or settlement of claim by Attorney General

    The Attorney General may compromise or settle any claim asserted in 
such civil action or proceeding in the manner provided in section 2677 
of title 28 and with the same effect.

(e) Assault or battery

    For purposes of this section, the provisions of section 2680(h) of 
title 28 shall not apply to assault or battery arising out of negligence 
in the performance of medical, surgical, dental, or related functions, 
including the conduct of clinical studies or investigations.

(f) Authority of Secretary or designee to hold harmless or provide 
        liability insurance for assigned or detailed employees

    The Secretary or his designee may, to the extent that he deems 
appropriate, hold harmless or provide liability insurance for any 
officer or employee of the Public Health Service for damage for personal 
injury, including death, negligently caused by such officer or employee 
while acting within the scope of his office or employment and as a 
result of the performance of medical, surgical, dental, or related 
functions, including the conduct of clinical studies or investigations, 
if such employee is assigned to a foreign country or detailed to a State 
or political subdivision thereof or to a non-profit institution, and if 
the circumstances are such as are likely to preclude the remedies of 
third persons against the United States described in section 2679(b) of 
title 28, for such damage or injury.

(g) Exclusivity of remedy against United States for entities deemed 
        Public Health Service employees; coverage for services furnished 
        to individuals other than center patients; application process; 
        subrogation of medical malpractice claims; applicable period; 
        entity and contractor defined

    (1)(A) For purposes of this section and subject to the approval by 
the Secretary of an application under subparagraph (D), an entity 
described in paragraph (4), and any officer, governing board member, or 
employee of such an entity, and any contractor of such an entity who is 
a physician or other licensed or certified health care practitioner 
(subject to paragraph (5)), shall be deemed to be an employee of the 
Public Health Service for a calendar year that begins during a fiscal 
year for which a transfer was made under subsection (k)(3) of this 
section (subject to paragraph (3)). The remedy against the United States 
for an entity described in paragraph (4) and any officer, governing 
board member, employee, or contractor (subject to paragraph (5)) of such 
an entity who is deemed to be an employee of the Public Health Service 
pursuant to this paragraph shall be exclusive of any other civil action 
or proceeding to the same extent as the remedy against the United States 
is exclusive pursuant to subsection (a) of this section.
    (B) The deeming of any entity or officer, governing board member, 
employee, or contractor of the entity to be an employee of the Public 
Health Service for purposes of this section shall apply with respect to 
services provided--
        (i) to all patients of the entity, and
        (ii) subject to subparagraph (C), to individuals who are not 
    patients of the entity.

    (C) Subparagraph (B)(ii) applies to services provided to individuals 
who are not patients of an entity if the Secretary determines, after 
reviewing an application submitted under subparagraph (D), that the 
provision of the services to such individuals--
        (i) benefits patients of the entity and general populations that 
    could be served by the entity through community-wide intervention 
    efforts within the communities served by such entity;
        (ii) facilitates the provision of services to patients of the 
    entity; or
        (iii) are otherwise required under an employment contract (or 
    similar arrangement) between the entity and an officer, governing 
    board member, employee, or contractor of the entity.

    (D) The Secretary may not under subparagraph (A) deem an entity or 
an officer, governing board member, employee, or contractor of the 
entity to be an employee of the Public Health Service for purposes of 
this section, and may not apply such deeming to services described in 
subparagraph (B)(ii), unless the entity has submitted an application for 
such deeming to the Secretary in such form and such manner as the 
Secretary shall prescribe. The application shall contain detailed 
information, along with supporting documentation, to verify that the 
entity, and the officer, governing board member, employee, or contractor 
of the entity, as the case may be, meets the requirements of 
subparagraphs (B) and (C) of this paragraph and that the entity meets 
the requirements of paragraphs (1) through (4) of subsection (h) of this 
section.
    (E) The Secretary shall make a determination of whether an entity or 
an officer, governing board member, employee, or contractor of the 
entity is deemed to be an employee of the Public Health Service for 
purposes of this section within 30 days after the receipt of an 
application under subparagraph (D). The determination of the Secretary 
that an entity or an officer, governing board member, employee, or 
contractor of the entity is deemed to be an employee of the Public 
Health Service for purposes of this section shall apply for the period 
specified by the Secretary under subparagraph (A).
    (F) Once the Secretary makes a determination that an entity or an 
officer, governing board member, employee, or contractor of an entity is 
deemed to be an employee of the Public Health Service for purposes of 
this section, the determination shall be final and binding upon the 
Secretary and the Attorney General and other parties to any civil action 
or proceeding. Except as provided in subsection (i) of this section, the 
Secretary and the Attorney General may not determine that the provision 
of services which are the subject of such a determination are not 
covered under this section.
    (G) In the case of an entity described in paragraph (4) that has not 
submitted an application under subparagraph (D):
        (i) The Secretary may not consider the entity in making 
    estimates under subsection (k)(1) of this section.
        (ii) This section does not affect any authority of the entity to 
    purchase medical malpractice liability insurance coverage with 
    Federal funds provided to the entity under section 254b, 254c, 256, 
    or 256a of this title.\1\
---------------------------------------------------------------------------
    \1\ See References in Text notes below.

    (H) In the case of an entity described in paragraph (4) for which an 
application under subparagraph (D) is in effect, the entity may, through 
notifying the Secretary in writing, elect to terminate the applicability 
of this subsection to the entity. With respect to such election by the 
entity:
        (i) The election is effective upon the expiration of the 30-day 
    period beginning on the date on which the entity submits such 
    notification.
        (ii) Upon taking effect, the election terminates the 
    applicability of this subsection to the entity and each officer, 
    governing board member, employee, and contractor of the entity.
        (iii) Upon the effective date for the election, clauses (i) and 
    (ii) of subparagraph (G) apply to the entity to the same extent and 
    in the same manner as such clauses apply to an entity that has not 
    submitted an application under subparagraph (D).
        (iv) If after making the election the entity submits an 
    application under subparagraph (D), the election does not preclude 
    the Secretary from approving the application ( \2\ and thereby 
    restoring the applicability of this subsection to the entity and 
    each officer, governing board member, employee, and contractor of 
    the entity, subject to the provisions of this subsection and the 
    subsequent provisions of this section.
---------------------------------------------------------------------------
    \2\ So in original. There is no closing parenthesis.

    (2) If, with respect to an entity or person deemed to be an employee 
for purposes of paragraph (1), a cause of action is instituted against 
the United States pursuant to this section, any claim of the entity or 
person for benefits under an insurance policy with respect to medical 
malpractice relating to such cause of action shall be subrogated to the 
United States.
    (3) This subsection shall apply with respect to a cause of action 
arising from an act or omission which occurs on or after January 1, 
1993.
    (4) An entity described in this paragraph is a public or non-profit 
private entity receiving Federal funds under section 254b of this title.
    (5) For purposes of paragraph (1), an individual may be considered a 
contractor of an entity described in paragraph (4) only if--
        (A) the individual normally performs on average at least 32\1/2\ 
    hours of service per week for the entity for the period of the 
    contract; or
        (B) in the case of an individual who normally performs an 
    average of less than 32\1/2\ hours of services per week for the 
    entity for the period of the contract, the individual is a licensed 
    or certified provider of services in the fields of family practice, 
    general internal medicine, general pediatrics, or obstetrics and 
    gynecology.

(h) Qualifications for designation as Public Health Service employee

    The Secretary may not approve an application under subsection 
(g)(1)(D) of this section unless the Secretary determines that the 
entity--
        (1) has implemented appropriate policies and procedures to 
    reduce the risk of malpractice and the risk of lawsuits arising out 
    of any health or health-related functions performed by the entity;
        (2) has reviewed and verified the professional credentials, 
    references, claims history, fitness, professional review 
    organization findings, and license status of its physicians and 
    other licensed or certified health care practitioners, and, where 
    necessary, has obtained the permission from these individuals to 
    gain access to this information;
        (3) has no history of claims having been filed against the 
    United States as a result of the application of this section to the 
    entity or its officers, employees, or contractors as provided for 
    under this section, or, if such a history exists, has fully 
    cooperated with the Attorney General in defending against any such 
    claims and either has taken, or will take, any necessary corrective 
    steps to assure against such claims in the future; and
        (4) will fully cooperate with the Attorney General in providing 
    information relating to an estimate described under subsection (k) 
    of this section.

(i) Authority of Attorney General to exclude health care professionals 
        from coverage

    (1) Notwithstanding subsection (g)(1) of this section, the Attorney 
General, in consultation with the Secretary, may on the record 
determine, after notice and opportunity for a full and fair hearing, 
that an individual physician or other licensed or certified health care 
practitioner who is an officer, employee, or contractor of an entity 
described in subsection (g)(4) of this section shall not be deemed to be 
an employee of the Public Health Service for purposes of this section, 
if treating such individual as such an employee would expose the 
Government to an unreasonably high degree of risk of loss because such 
individual--
        (A) does not comply with the policies and procedures that the 
    entity has implemented pursuant to subsection (h)(1) of this 
    section;
        (B) has a history of claims filed against him or her as provided 
    for under this section that is outside the norm for licensed or 
    certified health care practitioners within the same specialty;
        (C) refused to reasonably cooperate with the Attorney General in 
    defending against any such claim;
        (D) provided false information relevant to the individual's 
    performance of his or her duties to the Secretary, the Attorney 
    General, or an applicant for or recipient of funds under this 
    chapter; or
        (E) was the subject of disciplinary action taken by a State 
    medical licensing authority or a State or national professional 
    society.

    (2) A final determination by the Attorney General under this 
subsection that an individual physician or other licensed or certified 
health care professional shall not be deemed to be an employee of the 
Public Health Service shall be effective upon receipt by the entity 
employing such individual of notice of such determination, and shall 
apply only to acts or omissions occurring after the date such notice is 
received.

(j) Remedy for denial of hospital admitting privileges to certain health 
        care providers

    In the case of a health care provider who is an officer, employee, 
or contractor of an entity described in subsection (g)(4) of this 
section, section 254h(e) of this title shall apply with respect to the 
provider to the same extent and in the same manner as such section 
applies to any member of the National Health Service Corps.

(k) Estimate of annual claims by Attorney General; criteria; 
        establishment of fund; transfer of funds to Treasury accounts

    (1)(A) For each fiscal year, the Attorney General, in consultation 
with the Secretary, shall estimate by the beginning of the year the 
amount of all claims which are expected to arise under this section 
(together with related fees and expenses of witnesses) for which payment 
is expected to be made in accordance with section 1346 and chapter 171 
of title 28 from the acts or omissions, during the calendar year that 
begins during that fiscal year, of entities described in subsection 
(g)(4) of this section and of officers, employees, or contractors 
(subject to subsection (g)(5) of this section) of such entities.
    (B) The estimate under subparagraph (A) shall take into account--
        (i) the value and frequency of all claims for damage for 
    personal injury, including death, resulting from the performance of 
    medical, surgical, dental, or related functions by entities 
    described in subsection (g)(4) of this section or by officers, 
    employees, or contractors (subject to subsection (g)(5) of this 
    section) of such entities who are deemed to be employees of the 
    Public Health Service under subsection (g)(1) of this section that, 
    during the preceding 5-year period, are filed under this section or, 
    with respect to years occurring before this subsection takes effect, 
    are filed against persons other than the United States,
        (ii) the amounts paid during that 5-year period on all claims 
    described in clause (i), regardless of when such claims were filed, 
    adjusted to reflect payments which would not be permitted under 
    section 1346 and chapter 171 of title 28, and
        (iii) amounts in the fund established under paragraph (2) but 
    unspent from prior fiscal years.

    (2) Subject to appropriations, for each fiscal year, the Secretary 
shall establish a fund of an amount equal to the amount estimated under 
paragraph (1) that is attributable to entities receiving funds under 
each of the grant programs described in paragraph (4) of subsection (g) 
of this section, but not to exceed a total of $10,000,000 for each such 
fiscal year. Appropriations for purposes of this paragraph shall be made 
separate from appropriations made for purposes of sections 254b, 254c, 
256, and 256a of this title.\1\
    (3) In order for payments to be made for judgments against the 
United States (together with related fees and expenses of witnesses) 
pursuant to this section arising from the acts or omissions of entities 
described in subsection (g)(4) of this section and of officers, 
governing board member,\3\ employees, or contractors (subject to 
subsection (g)(5) of this section) of such entities, the total amount 
contained within the fund established by the Secretary under paragraph 
(2) for a fiscal year shall be transferred not later than the December 
31 that occurs during the fiscal year to the appropriate accounts in the 
Treasury.
---------------------------------------------------------------------------
    \3\ So in original. Probably should be ``members,''.
---------------------------------------------------------------------------

(l) Timely response to filing of action or proceeding

    (1) If a civil action or proceeding is filed in a State court 
against any entity described in subsection (g)(4) of this section or any 
officer, governing board member, employee, or any contractor of such an 
entity for damages described in subsection (a) of this section, the 
Attorney General, within 15 days after being notified of such filing, 
shall make an appearance in such court and advise such court as to 
whether the Secretary has determined under subsections (g) and (h) of 
this section, that such entity, officer, governing board member, 
employee, or contractor of the entity is deemed to be an employee of the 
Public Health Service for purposes of this section with respect to the 
actions or omissions that are the subject of such civil action or 
proceeding. Such advice shall be deemed to satisfy the provisions of 
subsection (c) of this section that the Attorney General certify that an 
entity, officer, governing board member, employee, or contractor of the 
entity was acting within the scope of their employment or 
responsibility.
    (2) If the Attorney General fails to appear in State court within 
the time period prescribed under paragraph (1), upon petition of any 
entity or officer, governing board member, employee, or contractor of 
the entity named, the civil action or proceeding shall be removed to the 
appropriate United States district court. The civil action or proceeding 
shall be stayed in such court until such court conducts a hearing, and 
makes a determination, as to the appropriate forum or procedure for the 
assertion of the claim for damages described in subsection (a) of this 
section and issues an order consistent with such determination.

(m) Application of coverage to managed care plans

    (1) An entity or officer, governing board member, employee, or 
contractor of an entity described in subsection (g)(1) of this section 
shall, for purposes of this section, be deemed to be an employee of the 
Public Health Service with respect to services provided to individuals 
who are enrollees of a managed care plan if the entity contracts with 
such managed care plan for the provision of services.
    (2) Each managed care plan which enters into a contract with an 
entity described in subsection (g)(4) of this section shall deem the 
entity and any officer, governing board member, employee, or contractor 
of the entity as meeting whatever malpractice coverage requirements such 
plan may require of contracting providers for a calendar year if such 
entity or officer, governing board member, employee, or contractor of 
the entity has been deemed to be an employee of the Public Health 
Service for purposes of this section for such calendar year. Any plan 
which is found by the Secretary on the record, after notice and an 
opportunity for a full and fair hearing, to have violated this 
subsection shall upon such finding cease, for a period to be determined 
by the Secretary, to receive and to be eligible to receive any Federal 
funds under titles XVIII or XIX of the Social Security Act [42 U.S.C. 
1395 et seq., 1396 et seq.].
    (3) For purposes of this subsection, the term ``managed care plan'' 
shall mean health maintenance organizations and similar entities that 
contract at-risk with payors for the provision of health services or 
plan enrollees and which contract with providers (such as entities 
described in subsection (g)(4) of this section) for the delivery of such 
services to plan enrollees.

(n) Report on risk exposure of covered entities

    (1) Not later than one year after December 26, 1995, the Comptroller 
General of the United States shall submit to the Congress a report on 
the following:
        (A) The medical malpractice liability claims experience of 
    entities that have been deemed to be employees for purposes of this 
    section.
        (B) The risk exposure of such entities.
        (C) The value of private sector risk-management services, and 
    the value of risk-management services and procedures required as a 
    condition of receiving a grant under section 254b, 254c, 256, or 
    256a of this title.\4\
---------------------------------------------------------------------------
    \4\ See References in Text notes below.
---------------------------------------------------------------------------
        (D) A comparison of the costs and the benefits to taxpayers of 
    maintaining medical malpractice liability coverage for such entities 
    pursuant to this section, taking into account--
            (i) a comparison of the costs of premiums paid by such 
        entities for private medical malpractice liability insurance 
        with the cost of coverage pursuant to this section; and
            (ii) an analysis of whether the cost of premiums for private 
        medical malpractice liability insurance coverage is consistent 
        with the liability claims experience of such entities.

    (2) The report under paragraph (1) shall include the following:
        (A) A comparison of--
            (i) an estimate of the aggregate amounts that such entities 
        (together with the officers, governing board members, employees, 
        and contractors of such entities who have been deemed to be 
        employees for purposes of this section) would have directly or 
        indirectly paid in premiums to obtain medical malpractice 
        liability insurance coverage if this section were not in effect; 
        with
            (ii) the aggregate amounts by which the grants received by 
        such entities under this chapter were reduced pursuant to 
        subsection (k)(2) of this section.

        (B) A comparison of--
            (i) an estimate of the amount of privately offered such 
        insurance that such entities (together with the officers, 
        governing board members, employees, and contractors of such 
        entities who have been deemed to be employees for purposes of 
        this section) purchased during the three-year period beginning 
        on January 1, 1993; with
            (ii) an estimate of the amount of such insurance that such 
        entities (together with the officers, governing board members, 
        employees, and contractors of such entities who have been deemed 
        to be employees for purposes of this section) will purchase 
        after December 26, 1995.

        (C) An estimate of the medical malpractice liability loss 
    history of such entities for the 10-year period preceding October 1, 
    1996, including but not limited to the following:
            (i) Claims that have been paid and that are estimated to be 
        paid, and legal expenses to handle such claims that have been 
        paid and that are estimated to be paid, by the Federal 
        Government pursuant to deeming entities as employees for 
        purposes of this section.
            (ii) Claims that have been paid and that are estimated to be 
        paid, and legal expenses to handle such claims that have been 
        paid and that are estimated to be paid, by private medical 
        malpractice liability insurance.

        (D) An analysis of whether the cost of premiums for private 
    medical malpractice liability insurance coverage is consistent with 
    the liability claims experience of entities that have been deemed as 
    employees for purposes of this section.

    (3) In preparing the report under paragraph (1), the Comptroller 
General of the United States shall consult with public and private 
entities with expertise on the matters with which the report is 
concerned.

(o) Volunteer services provided by health professionals at free clinics

    (1) For purposes of this section, a free clinic health professional 
shall in providing a qualifying health service to an individual be 
deemed to be an employee of the Public Health Service for a calendar 
year that begins during a fiscal year for which a transfer was made 
under paragraph (6)(D). The preceding sentence is subject to the 
provisions of this subsection.
    (2) In providing a health service to an individual, a health care 
practitioner shall for purposes of this subsection be considered to be a 
free clinic health professional if the following conditions are met:
        (A) The service is provided to the individual at a free clinic, 
    or through offsite programs or events carried out by the free 
    clinic.
        (B) The free clinic is sponsoring the health care practitioner 
    pursuant to paragraph (5)(C).
        (C) The service is a qualifying health service (as defined in 
    paragraph (4)).
        (D) Neither the health care practitioner nor the free clinic 
    receives any compensation for the service from the individual or 
    from any third-party payor (including reimbursement under any 
    insurance policy or health plan, or under any Federal or State 
    health benefits program). With respect to compliance with such 
    condition:
            (i) The health care practitioner may receive repayment from 
        the free clinic for reasonable expenses incurred by the health 
        care practitioner in the provision of the service to the 
        individual.
            (ii) The free clinic may accept voluntary donations for the 
        provision of the service by the health care practitioner to the 
        individual.

        (E) Before the service is provided, the health care practitioner 
    or the free clinic provides written notice to the individual of the 
    extent to which the legal liability of the health care practitioner 
    is limited pursuant to this subsection (or in the case of an 
    emergency, the written notice is provided to the individual as soon 
    after the emergency as is practicable). If the individual is a minor 
    or is otherwise legally incompetent, the condition under this 
    subparagraph is that the written notice be provided to a legal 
    guardian or other person with legal responsibility for the care of 
    the individual.
        (F) At the time the service is provided, the health care 
    practitioner is licensed or certified in accordance with applicable 
    law regarding the provision of the service.

    (3)(A) For purposes of this subsection, the term ``free clinic'' 
means a health care facility operated by a nonprofit private entity 
meeting the following requirements:
        (i) The entity 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).
        (ii) The entity, 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.
        (iii) The entity is licensed or certified in accordance with 
    applicable law regarding the provision of health services.

    (B) With respect to compliance with the conditions under 
subparagraph (A), the entity involved may accept voluntary donations for 
the provision of services.
    (4) For purposes of this subsection, the term ``qualifying health 
service'' means 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 such program by the State in 
which the health care practitioner involved provides the medical 
assistance. References in the preceding sentence to such program shall 
as applicable be considered to be references to any successor to such 
program.
    (5) Subsection (g) of this section (other than paragraphs (3) 
through (5)) and subsections (h), (i), and (l) of this section apply to 
a health care practitioner for purposes of this subsection to the same 
extent and in the same manner as such subsections apply to an officer, 
governing board member, employee, or contractor of an entity described 
in subsection (g)(4) of this section, subject to paragraph (6) and 
subject to the following:
        (A) The first sentence of paragraph (1) applies in lieu of the 
    first sentence of subsection (g)(1)(A) of this section.
        (B) This subsection may not be construed as deeming any free 
    clinic to be an employee of the Public Health Service for purposes 
    of this section.
        (C) With respect to a free clinic, a health care practitioner is 
    not a free clinic health professional unless the free clinic 
    sponsors the health care practitioner. For purposes of this 
    subsection, the free clinic shall be considered to be sponsoring the 
    health care practitioner if--
            (i) with respect to the health care practitioner, the free 
        clinic submits to the Secretary an application meeting the 
        requirements of subsection (g)(1)(D) of this section; and
            (ii) the Secretary, pursuant to subsection (g)(1)(E) of this 
        section, determines that the health care practitioner is deemed 
        to be an employee of the Public Health Service.

        (D) In the case of a health care practitioner who is determined 
    by the Secretary pursuant to subsection (g)(1)(E) of this section to 
    be a free clinic health professional, this subsection applies to the 
    health care practitioner (with respect to the free clinic sponsoring 
    the health care practitioner pursuant to subparagraph (C)) for any 
    cause of action arising from an act or omission of the health care 
    practitioner occurring on or after the date on which the Secretary 
    makes such determination.
        (E) Subsection (g)(1)(F) of this section applies to a health 
    care practitioner for purposes of this subsection only to the extent 
    that, in providing health services to an individual, each of the 
    conditions specified in paragraph (2) is met.

    (6)(A) For purposes of making payments for judgments against the 
United States (together with related fees and expenses of witnesses) 
pursuant to this section arising from the acts or omissions of free 
clinic health professionals, there is authorized to be appropriated 
$10,000,000 for each fiscal year.
    (B) The Secretary shall establish a fund for purposes of this 
subsection. Each fiscal year amounts appropriated under subparagraph (A) 
shall be deposited in such fund.
    (C) Not later than May 1 of each fiscal year, the Attorney General, 
in consultation with the Secretary, shall submit to the Congress a 
report providing an estimate of the amount of claims (together with 
related fees and expenses of witnesses) that, by reason of the acts or 
omissions of free clinic health professionals, will be paid pursuant to 
this section during the calendar year that begins in the following 
fiscal year. Subsection (k)(1)(B) of this section applies to the 
estimate under the preceding sentence regarding free clinic health 
professionals to the same extent and in the same manner as such 
subsection applies to the estimate under such subsection regarding 
officers, governing board members, employees, and contractors of 
entities described in subsection (g)(4) of this section.
    (D) Not later than December 31 of each fiscal year, the Secretary 
shall transfer from the fund under subparagraph (B) to the appropriate 
accounts in the Treasury an amount equal to the estimate made under 
subparagraph (C) for the calendar year beginning in such fiscal year, 
subject to the extent of amounts in the fund.
    (7)(A) This subsection takes effect on the date of the enactment of 
the first appropriations Act that makes an appropriation under paragraph 
(6)(A), except as provided in subparagraph (B)(i).
    (B)(i) Effective on August 21, 1996--
        (I) the Secretary may issue regulations for carrying out this 
    subsection, and the Secretary may accept and consider applications 
    submitted pursuant to paragraph (5)(C); and
        (II) reports under paragraph (6)(C) may be submitted to the 
    Congress.

    (ii) For the first fiscal year for which an appropriation is made 
under subparagraph (A) of paragraph (6), if an estimate under 
subparagraph (C) of such paragraph has not been made for the calendar 
year beginning in such fiscal year, the transfer under subparagraph (D) 
of such paragraph shall be made notwithstanding the lack of the 
estimate, and the transfer shall be made in an amount equal to the 
amount of such appropriation.

(July 1, 1944, ch. 373, title II, Sec. 224, formerly Sec. 223, as added 
Pub. L. 91-623, Sec. 4, Dec. 31, 1970, 84 Stat. 1870; renumbered 
Sec. 224, Pub. L. 92-157, title III, Sec. 301(c), Nov. 18, 1971, 85 
Stat. 463; amended Pub. L. 102-501, Secs. 2-4, Oct. 24, 1992, 106 Stat. 
3268-3270; Pub. L. 103-183, title VII, Sec. 706(a), Dec. 14, 1993, 107 
Stat. 2241; Pub. L. 104-73, Secs. 2-5(b), 6-11, Dec. 26, 1995, 109 Stat. 
777-781; Pub. L. 104-191, title I, Sec. 194, Aug. 21, 1996, 110 Stat. 
1988; Pub. L. 104-299, Sec. 4(a)(1), Oct. 11, 1996, 110 Stat. 3644.)

                       References in Text

    Sections 254b and 254c of this title, referred to in subsecs. 
(g)(1)(G), (k)(2), and (n)(1)(C), were in the original references to 
sections 329 and 330, meaning sections 329 and 330 of act July 1, 1944, 
which were omitted in the general amendment of subpart I (Sec. 254b et 
seq.) of part D of subchapter II of this chapter by Pub. L. 104-299, 
Sec. 2, Oct. 11, 1996, 110 Stat. 3626. Sections 2 and 3(a) of Pub. L. 
104-299 enacted new sections 330 and 330A of act July 1, 1944, which are 
classified, respectively, to sections 254b and 254c of this title.
    Sections 256 and 256a of this title, referred to in subsecs. 
(g)(1)(G), (k)(2), and (n)(1)(C), were repealed by Pub. L. 104-299, 
Sec. 4(a)(3), Oct. 11, 1996, 110 Stat. 3645.
    The Social Security Act, referred to in subsecs. (m)(2) and (o)(4), 
is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles XVIII 
and XIX of the Act are classified generally to subchapters XVIII 
(Sec. 1395 et seq.) and XIX (Sec. 1396 et seq.), respectively, of 
chapter 7 of this title. For complete classification of this Act to the 
Code, see section 1305 of this title and Tables.


                               Amendments

    1996--Subsec. (g)(4). Pub. L. 104-299 substituted ``under section 
254b of this title.'' for ``under any of the following grant programs:'' 
and struck out subpars. (A) to (D) which read as follows:
    ``(A) Section 254b of this title (relating to grants for migrant 
health centers).
    ``(B) Section 254c of this title (relating to grants for community 
health centers).
    ``(C) Section 256 of this title (relating to grants for health 
services for the homeless).
    ``(D) Section 256a of this title (relating to grants for health 
services for residents of public housing).''
    Subsec. (o). Pub. L. 104-191 added subsec. (o).
    1995--Subsec. (g)(1). Pub. L. 104-73, Secs. 3(1), 4, 5(a), 
designated existing provisions as subpar. (A), inserted ``and subject to 
the approval by the Secretary of an application under subparagraph (D)'' 
after ``For purposes of this section'', substituted ``an entity 
described in paragraph (4), and any officer, governing board member, or 
employee of such an entity, and any contractor of such an entity who is 
a physician or other licensed or certified health care practitioner 
(subject to paragraph (5)), shall be deemed to be an employee of the 
Public Health Service for a calendar year that begins during a fiscal 
year for which a transfer was made under subsection (k)(3) of this 
section (subject to paragraph (3)). The remedy against the United States 
for an entity described in paragraph (4) and any officer, governing 
board member, employee, or contractor'' for ``, an entity described in 
paragraph (4) and any officer, employee, or contractor (subject to 
paragraph (5)) of such an entity who is a physician or other licensed or 
certified health care practitioner shall be deemed to be an employee of 
the Public Health Service for a calendar year that begins during a 
fiscal year for which a transfer of the full amount estimated under 
subsection (k)(1)(A) of this section was made under subsection (k)(3) of 
this section (subject to paragraph (3)). The remedy against the United 
States for an entity described in paragraph (4) and any officer, 
employee, or contractor'', and added subpars. (B) to (H).
    Subsec. (g)(3). Pub. L. 104-73, Sec. 2(a), struck out at end ``This 
subsection shall not apply with respect to a cause of action arising 
from an act or omission which occurs on or after January 1, 1996.''
    Subsec. (g)(5)(B). Pub. L. 104-73, Sec. 8, amended subpar. (B) 
generally. Prior to amendment, subpar. (B) read as follows: ``in the 
case of an individual who normally performs on average less than 32\1/2\ 
hours of services per week for the entity for the period of the contract 
and is a licensed or certified provider of obstetrical services--
        ``(i) the individual's medical malpractice liability insurance 
    coverage does not extend to services performed by the individual for 
    the entity under the contract, or
        ``(ii) the Secretary finds that patients to whom the entity 
    furnishes services will be deprived of obstetrical services if such 
    individual is not considered a contractor of the entity for purposes 
    of paragraph (1).''
    Subsec. (h). Pub. L. 104-73, Sec. 5(b)(1), in introductory 
provisions substituted ``The Secretary may not approve an application 
under subsection (g)(1)(D) of this section unless the Secretary 
determines that the entity--'' for ``Notwithstanding subsection (g)(1) 
of this section, the Secretary, in consultation with the Attorney 
General, may not deem an entity described in subsection (g)(4) of this 
section to be an employee of the Public Health Service Act for purposes 
of this section unless the entity--''.
    Subsec. (h)(4). Pub. L. 104-73, Sec. 5(b)(2), substituted ``will 
fully cooperate'' for ``has fully cooperated''.
    Subsec. (i)(1). Pub. L. 104-73, Sec. 9, substituted ``may on the 
record determine, after notice and opportunity for a full and fair 
hearing'' for ``may determine, after notice and opportunity for a 
hearing''.
    Subsec. (k)(1)(A). Pub. L. 104-73, Sec. 2(b)(1), substituted ``For 
each fiscal year'' for ``For each of the fiscal years 1993, 1994, and 
1995'' and struck out ``(except that an estimate shall be made for 
fiscal year 1993 by December 31, 1992, subject to an adjustment within 
90 days thereafter)'' after ``beginning of the year''.
    Subsec. (k)(2). Pub. L. 104-73, Secs. 2(b)(2), 10, substituted ``for 
each fiscal year'' for ``for each of the fiscal years 1993, 1994, and 
1995'' and ``$10,000,000'' for ``$30,000,000''.
    Subsec. (k)(3). Pub. L. 104-73, Sec. 3(2), which directed amendment 
of subsec. (k)(3) by inserting ``governing board member,'' after 
``officer,'', was executed by inserting such language after 
``officers,'' to reflect the probable intent of Congress.
    Subsec. (l). Pub. L. 104-73, Sec. 6, added subsec. (l).
    Subsec. (m). Pub. L. 104-73, Sec. 7, added subsec. (m).
    Subsec. (n). Pub. L. 104-73, Sec. 11, added subsec. (n).
    1993--Subsec. (k)(2). Pub. L. 103-183 inserted at end 
``Appropriations for purposes of this paragraph shall be made separate 
from appropriations made for purposes of sections 254b, 254c, 256, and 
256a of this title.''
    1992--Subsecs. (g) to (k). Pub. L. 102-501 added subsecs. (g) to 
(k).


                    Effective Date of 1996 Amendment

    Section 5 of Pub. L. 104-299, as amended by Pub. L. 104-208, div. A, 
title I, Sec. 101(e) [title V, Sec. 521], Sept. 30, 1996, 110 Stat. 
3009-233, 3009-275, provided that: ``This Act [enacting sections 254b 
and 254c of this title, amending this section and sections 256c, 1395x, 
and 1396d of this title, repealing sections 256 and 256a of this title, 
and enacting provisions set out as notes under sections 201 and 254b of 
this title] and the amendments made by this Act shall become effective 
on October 1, 1996.''
    [Section 101(e) [title V, Sec. 521] of Pub. L. 104-208 provided that 
the amendment made by that section is effective on the day after Oct. 
11, 1996.]


                    Effective Date of 1995 Amendment

    Section 5(c) of Pub. L. 104-73 provided that: ``If, on the day 
before the date of the enactment of this Act [Dec. 26, 1995], an entity 
was deemed to be an employee of the Public Health Service for purposes 
of section 224(g) of the Public Health Service Act [subsec. (g) of this 
section], the condition under paragraph (1)(D) of such section (as added 
by subsection (a) of this section) that an application be approved with 
respect to the entity does not apply until the expiration of the 180-day 
period beginning on such date.''


                    Effective Date of 1992 Amendment

    Section 6 of Pub. L. 102-501 provided that: ``The amendments made by 
this Act [amending this section] shall take effect on the date of the 
enactment of this Act [Oct. 24, 1992].''


               Report on Risk Exposure of Covered Entities

    Section 5 of Pub. L. 102-501 provided that:
    ``(a) In General.--Not later than April 1, 1995, the Attorney 
General, in consultation with the Secretary of Health and Human Services 
(hereafter referred to as the `Secretary'), shall submit a report to 
Congress on the medical malpractice liability claims experience of 
entities subject to section 224(g) of the Public Health Service Act [42 
U.S.C. 233(g)] (as added by section 2(a)) and the risk exposure 
associated with such entities.
    ``(b) Effect of Liability Protections on Costs Incurred by Covered 
Entities.--The Attorney General's report under subsection (a) shall 
include an analysis by the Secretary comparing--
        ``(1) the Secretary's estimate of the aggregate amounts that 
    such entities (together with the officers, employees, and 
    contractors of such entities who are subject to section 224(g) of 
    such Act) would have directly or indirectly paid to obtain medical 
    malpractice liability insurance coverage had section 224(g) of the 
    Public Health Service Act not been enacted into law, with
        ``(2) the aggregate amounts by which the grants received by such 
    entities under the Public Health Service Act [this chapter] were 
    reduced as a result of the enactment of section 224(k)(2) of such 
    Act [42 U.S.C. 233(k)(2)].''

                  Section Referred to in Other Sections

    This section is referred to in sections 218a, 238q, 254h-1 of this 
title; title 25 section 450f.


 

 

The Law, Science & Public Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation

See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster