Community Health Centers
The federal government provides primary medical care services to certain populations that may not be able to obtain them from private sources. One such program is the Community Health Center Program. The Federally Supported Health Centers Assistance Act of 1992, Pub. L. No. 102-501, made certain community health centers and employees eligible for FTCA coverage for their medical and related functions. 42 U.S.C. § 233(g) (1992). In 1995, Congress extended this FTCA coverage indefinitely. Pub. L. No. 104-73. Therefore, if a health center is deemed to be a part of the Public Health Service (PHS), the FTCA is the exclusive remedy for injured plaintiffs against the health center and its physicians. Congress afforded this FTCA protection to community health centers and physicians in order to reduce providers' fears of expensive malpractice litigation. FTCA coverage acts as a de facto malpractice policy and reduces the need for community health centers and physicians to buy private malpractice insurance.[also see: Community Health Centers ]]
Those who may qualify for FTCA coverage under this act include "any officer, governing board member, or employee of such entity, and any contractor who is a physician or other licensed or certified medical care practitioner." 42 U.S.C. § 233(g). Yet the analysis for individual physician coverage under the FTCA is a bit trickier. If the physician is an employee of the covered facility, he or she is also covered. If the physician is not a full-time employee of the covered facility, he or she may still be protected as a contractor. To achieve contractor status, the physician must, among other things, work an average of 32.5 hours per week at the facility. 42 U.S.C. § 233(g)(5)(A).
Not every institution that receives federal dollars is afforded FTCA liability protection. The entity must take certain affirmative steps to receive FTCA coverage. 42 U.S.C. § 233. The facility must apply to the Secretary of Health and Human Services for determination of whether the facility meets the requirements to be deemed a PHS employee. The factors considered by the Secretary in making this determination are: the facility's policies and procedures for reducing the risk of malpractice; the credentials of its physicians and other practitioners; whether the facility has filed claims against the United States as a result of this Act, and if so, whether it has cooperated fully with the Attorney General and taken steps to assure that such claims will not arise again; whether the facility provides information that will help the Attorney General estimate the amount of claims that will arise during the year. 42 U.S.C. § 233(h)(1)-(4).
If the facility or physician is considered a PHS employee and afforded FTCA coverage, certain limitations must be noted. First, the coverage is not retroactive. Therefore, the facility must have the Secretary's approval of PHS employee status and FTCA coverage at the time of the injury. An entity's belief that it is covered is not enough, regardless of the amount of federal funding it receives. Metcalf v. West Suburban Hospital, 912 F. Supp. 382 (N.D. Ill. 1996).
Another important limitation is that FTCA protection extends only to acts within the scope of the facility's grant. The facility does not get FTCA coverage for activities that fall outside its grant. If the entity is unsure whether an injury arises under an activity within the scope of the federal grant, the facility should appeal to the Director of the Bureau of Primary Health Care for a determination.