Federal Tort Claims Act
Information Related to Implications of Extending Coverage to Volunteers at HRSA-Funded Health Centers Gao ID: GAO-09-693R June 24, 2009The Federal Tort Claims Act (FTCA) was enacted in 1946 and permits individuals injured by the wrongful or negligent acts or omissions of federal employees, including medical malpractice, to seek and receive compensation from the federal government through an administrative process and, ultimately, through the federal courts. The FTCA, with few exceptions, provides the exclusive means by which individuals can seek compensation when injured by federal employees acting within the scope of their work for the federal government; in effect, the FTCA largely immunizes federal government employees from tort liability, including medical malpractice. In 1993, medical malpractice coverage under FTCA was first extended to grantees of the Department of Health and Human Services' (HHS) Health Resources and Services Administration's (HRSA) Health Center Program. The centers funded by this program, referred to in this report as Health Centers, are designed to increase access to primary care for medically underserved populations. While FTCA coverage is available to the approximately 1,100 Health Centers and their employees nationwide, it does not extend to health care providers who volunteer services at the 78 Health Centers currently using volunteers. The Health Care Safety Net Act of 2008 requires that GAO study the implications of extending FTCA coverage to health care providers who volunteer services to patients at Health Centers. As agreed with the committees of jurisdiction, for this report we describe (1) existing information on claims and lawsuits paid under current FTCA coverage for Health Centers, (2) existing information on the potential financial implications of extending FTCA coverage to volunteers in Health Centers, (3) how such an extension could have an impact on volunteerism at Health Centers, and (4) other selected federal and state efforts to protect health care volunteers.
About $298 million has been paid for 639 resolved claims or lawsuits that arose from claims under Health Centers' existing FTCA coverage for the centers and their employees, from fiscal year 1993 through early fiscal year 2009. The number of claims and lawsuits filed has generally grown since the start of the program. As of March 2009, a total of 2,594 administrative claims and 890 federal lawsuits had been filed. Of these filed claims and lawsuits, HHS had settled 185 claims through the administrative process and DOJ had settled or tried 454 lawsuits filed in federal court--a total of 639 resolved claims and lawsuits. Of the remaining claims, 646 were disallowed during the administrative review process and the rest have not yet been resolved. CBO estimated that an additional $6 million would be paid in claims and lawsuits from fiscal years 2009 through 2013 if FTCA coverage were expanded to Health Center volunteers. CBO estimated that the expansion would result in claim and lawsuit costs of less than $500,000 in fiscal year 2009, $1 million in each of fiscal years 2010 and 2011, and $2 million in each of fiscal years 2012 and 2013. While FTCA coverage for Health Centers currently does not extend to volunteer health care providers, there are multiple federal and state efforts intended to protect health care volunteers. However, information on the impact of these efforts is limited. Two federal efforts may protect volunteer health care providers. First, FTCA medical malpractice coverage has been extended to volunteers at free clinics, which are nonprofit volunteer-based health care organizations that are not part of the HRSA Health Center Program. Since 2004, just over 100 of the approximately 1,200 free clinics have pursued the option to apply to HRSA to have volunteers covered--or "deemed"--by FTCA and, as of April 2009, approximately 3,300 free clinic volunteers were covered under FTCA. As of April 2009, only one malpractice claim, for approximately $5 million, had been filed against a deemed free clinic volunteer. Second, the Volunteer Protection Act of 1997 (VPA) may also provide volunteers with some protection from liability. VPA generally provides liability protection from ordinary negligence to individuals who volunteer for government entities and nonprofit organizations--including Health Centers--for actions occurring during the course of their volunteer work. Additionally, at the federal level, because defenses available to private individuals are applicable under FTCA, VPA's protection against liability for ordinary negligence may be applicable for claims and suits involving volunteers at Health Centers. In addition to these federal efforts, experts and state officials we spoke with identified several efforts made by states and other entities to encourage the provision of health care services by volunteers. According to one 2007 analysis of state laws, 43 states had enacted laws granting volunteers some level of immunity from liability associated with their volunteer activities, and 35 of these states specifically referenced volunteer health care providers. Another review of state laws published in 2004 found that 10 states substitute the state as the defendant in place of the volunteer provider. States and other entities have also developed other mechanisms to assist health centers and clinics to secure medical malpractice coverage, such as allowing providers to purchase malpractice coverage for volunteers through the state or providing volunteers the option of purchasing discounted liability coverage.
GAO-09-693R, Federal Tort Claims Act: Information Related to Implications of Extending Coverage to Volunteers at HRSA-Funded Health Centers
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GAO-09-693R:
United States Government Accountability Office:
Washington, DC 20548:
June 24, 2009:
Congressional Committees:
Subject: Federal Tort Claims Act: Information Related to Implications
of Extending Coverage to Volunteers at HRSA-Funded Health Centers:
The Federal Tort Claims Act (FTCA)[Footnote 1] was enacted in 1946 and
permits individuals injured by the wrongful or negligent acts or
omissions of federal employees, including medical malpractice, to seek
and receive compensation from the federal government through an
administrative process and, ultimately, through the federal courts.
[Footnote 2] The FTCA, with few exceptions, provides the exclusive
means by which individuals can seek compensation when injured by
federal employees acting within the scope of their work for the federal
government; in effect, the FTCA largely immunizes federal government
employees from tort liability, including medical malpractice.[Footnote
3] In 1993, medical malpractice coverage under FTCA was first extended
to grantees of the Department of Health and Human Services' (HHS)
Health Resources and Services Administration's (HRSA) Health Center
Program.[Footnote 4] The centers funded by this program, referred to in
this report as Health Centers, are designed to increase access to
primary care for medically underserved populations.[Footnote 5] While
FTCA coverage is available to the approximately 1,100 Health Centers
and their employees nationwide, it does not extend to health care
providers who volunteer services at the 78 Health Centers currently
using volunteers.[Footnote 6]
The Health Care Safety Net Act of 2008 requires that GAO study the
implications of extending FTCA coverage to health care providers who
volunteer services to patients at Health Centers.[Footnote 7] As agreed
with the committees of jurisdiction, for this report we describe (1)
existing information on claims and lawsuits paid under current FTCA
coverage for Health Centers, (2) existing information on the potential
financial implications of extending FTCA coverage to volunteers in
Health Centers, (3) how such an extension could have an impact on
volunteerism at Health Centers, and (4) other selected federal and
state efforts to protect health care volunteers. We briefed the
committee staff on this work on April 6, 2009, and April 7, 2009.
To describe existing information on claims made under current FTCA
coverage for Health Centers, we reviewed data on the number of Health
Centers currently covered under FTCA, the number and amount of claims
filed, the number of claims negotiated and resolved, the number of
federal lawsuits filed, and the amount of paid claims and lawsuits. We
also interviewed officials from HHS and the Department of Justice (DOJ)
about the claims process for FTCA-covered Health Centers and about
Health Centers' claims experience under FTCA. To describe existing
information on the potential financial implications of extending FTCA
coverage to volunteers in Health Centers, we interviewed officials from
the Congressional Budget Office (CBO) about their estimate of the
claims and lawsuits that might be paid in association with the
expansion of FTCA to Health Center volunteers. To obtain information
about the potential impact of an expansion of FTCA on volunteerism at
Health Centers, including perceived barriers to provider volunteerism,
we interviewed officials from HHS, DOJ, and provider and professional
associations and experts. (See the enclosure for a full list of
provider and professional associations that provided us with
information.) Finally, to obtain information on other selected federal
and state efforts to extend medical malpractice coverage to volunteer
health care providers, which may include those volunteering at Health
Centers, and the effect of these efforts on provider volunteerism, we
interviewed experts, officials from provider and professional
associations, and officials from state agencies. We identified these
state agencies through interviews with experts and a review of relevant
literature. We did not conduct a state-by-state review of all laws
related to medical malpractice protections for volunteer health care
providers. We conducted our work from January 2009 through June 2009 in
accordance with all sections of GAO's Quality Assurance Framework that
are relevant to our objectives. The framework requires that we plan and
perform the engagement to obtain sufficient and appropriate evidence to
meet our stated objectives and to discuss any limitations in our work.
We believe that the information and data obtained, and the analysis
conducted, provide a reasonable basis for any findings and conclusions.
Results in Brief:
About $298 million has been paid for 639 resolved claims or lawsuits
that arose from claims under Health Centers' existing FTCA coverage for
the centers and their employees, from fiscal year 1993 through early
fiscal year 2009. The number of claims and lawsuits filed has generally
grown since the start of the program. As of March 2009, a total of
2,594 administrative claims and 890 federal lawsuits had been filed. Of
these filed claims and lawsuits, HHS had settled 185 claims through the
administrative process and DOJ had settled or tried 454 lawsuits filed
in federal court--a total of 639 resolved claims and lawsuits. Of the
remaining claims, 646 were disallowed during the administrative review
process and the rest have not yet been resolved.
CBO estimated that an additional $6 million would be paid in claims and
lawsuits from fiscal years 2009 through 2013 if FTCA coverage were
expanded to Health Center volunteers. CBO estimated that the expansion
would result in claim and lawsuit costs of less than $500,000 in fiscal
year 2009, $1 million in each of fiscal years 2010 and 2011, and $2
million in each of fiscal years 2012 and 2013.
Most provider association officials, federal officials, and experts we
spoke with stated that expanding FTCA coverage to health care providers
could increase the number of volunteers at Health Centers, noting that
the lack of medical malpractice coverage is a somewhat significant
barrier or very significant barrier to volunteerism. However, they
could not estimate the actual number of providers who might volunteer
or the volume of additional services that could be provided at Health
Centers by these volunteers. Associations suggested that retired
providers would be the most likely types of volunteers at Health
Centers if FTCA coverage were extended. While experts agreed that the
extension of FTCA coverage to Health Center volunteers would address
the medical malpractice barrier to volunteerism in Health Centers,
other barriers to volunteerism would remain that could limit the effect
of FTCA coverage expansion on volunteerism. Provider and professional
associations, experts, and federal agency officials identified
additional barriers to provider volunteerism, including provider issues
such as lack of time, licensure costs, and misperceptions about
litigiousness. Other barriers included the capacity of Health Centers
to recruit, retain, and effectively use volunteers.
While FTCA coverage for Health Centers currently does not extend to
volunteer health care providers, there are multiple federal and state
efforts intended to protect health care volunteers. However,
information on the impact of these efforts is limited. Two federal
efforts may protect volunteer health care providers. First, FTCA
medical malpractice coverage has been extended to volunteers at free
clinics, which are nonprofit volunteer-based health care organizations
that are not part of the HRSA Health Center Program. Since 2004, just
over 100 of the approximately 1,200 free clinics have pursued the
option to apply to HRSA to have volunteers covered--or "deemed"--by
FTCA and, as of April 2009, approximately 3,300 free clinic volunteers
were covered under FTCA. As of April 2009, only one malpractice claim,
for approximately $5 million, had been filed against a deemed free
clinic volunteer. Second, the Volunteer Protection Act of 1997 (VPA)
may also provide volunteers with some protection from liability. VPA
generally provides liability protection from ordinary negligence to
individuals who volunteer for government entities and nonprofit
organizations--including Health Centers--for actions occurring during
the course of their volunteer work. Additionally, at the federal level,
because defenses available to private individuals are applicable under
FTCA, VPA's protection against liability for ordinary negligence may be
applicable for claims and suits involving volunteers at Health Centers.
In addition to these federal efforts, experts and state officials we
spoke with identified several efforts made by states and other entities
to encourage the provision of health care services by volunteers.
According to one 2007 analysis of state laws, 43 states had enacted
laws granting volunteers some level of immunity from liability
associated with their volunteer activities, and 35 of these states
specifically referenced volunteer health care providers. Another review
of state laws published in 2004 found that 10 states substitute the
state as the defendant in place of the volunteer provider. States and
other entities have also developed other mechanisms to assist health
centers and clinics to secure medical malpractice coverage, such as
allowing providers to purchase malpractice coverage for volunteers
through the state or providing volunteers the option of purchasing
discounted liability coverage.
HHS and DOJ reviewed a draft of this report and provided technical
comments, which we incorporated as appropriate.
Background:
Health Centers provide a range of health care services to underserved
populations. Health Centers may opt for FTCA coverage for malpractice
claims or private insurance. When Health Centers opt for FTCA coverage,
claims against them for medical malpractice are resolved differently
than when they opt for private malpractice insurance.
Health Center Services and Malpractice Coverage:
Health Centers provide comprehensive primary health care to medically
underserved populations and areas, including preventive, diagnostic,
treatment, and emergency services as well as referrals to specialty
care.[Footnote 8] These services may include behavioral and oral health
care as well as transportation and translation services designed to
facilitate access to health care. In 2007, more than 100,000 Health
Center employees--including clinical staff, such as physicians, nurses,
dentists, and mental health providers--served more than 16 million
patients. Like patients who receive care elsewhere, those receiving
care from Health Centers may seek compensation for medical malpractice
if they believe the treatment they receive does not meet an acceptable
standard of care. Patients[Footnote 9] may seek payment for economic
losses, such as medical bills, rehabilitation costs, and lost income,
and noneconomic losses, such as pain, suffering, and anguish. To obtain
protection against malpractice claims before FTCA coverage became
available, most Health Centers purchased private comprehensive
malpractice insurance.[Footnote 10]
FTCA Coverage for Health Centers:
FTCA coverage, which is provided at no cost to Health Centers, is an
alternative to private comprehensive malpractice insurance and is
designed to allow centers to redirect the funds that would otherwise be
spent on this insurance to the provision of health services. While
centers opting for FTCA coverage may also decide to purchase a
supplemental or "gap" policy to cover events not covered by FTCA, HRSA
estimates that centers spend less on insurance than they would if they
had continued to purchase comprehensive coverage, saving $203.6 million
in 2008.[Footnote 11]
Health Centers must apply to HRSA to be covered, or "deemed," as
organizations that together with their employees, are recognized as
federal employees under FTCA for the purposes of claims for medical
malpractice. As part of this application process, Health Centers must
demonstrate that they have policies and procedures in place to minimize
the risk of malpractice. In addition, Health Centers must provide HRSA
with information on the initial and most recent credentialing and
privileging[Footnote 12] dates of all licensed and certified employed
health care providers. Health Centers must credential and privilege
newly employed licensed and certified health care providers and then
again every 2 years or sooner. FTCA coverage for Health Center
providers covers only personal injury caused by negligent or wrongful
acts or omissions within their scope of employment[Footnote 13] and
within a Health Center's scope of project. As of December 2008, 85
percent of all Health Centers (915 of 1,082) were deemed by HRSA for
FTCA medical malpractice protection. According to HRSA, the remaining
Health Centers include those Health Center grantees that have not yet
applied for coverage or Health Centers that have other liability
protections under state law.
Claims Process for FTCA-Covered Health Centers:
Malpractice claims against FTCA-covered Health Centers are resolved
differently from those filed against centers with private malpractice
insurance. In a Health Center not covered by FTCA, patients or their
representatives file a malpractice claim with the private carrier
insuring the provider. Insurers are generally responsible for
investigating claims, defending the provider, and paying any successful
claims, up to a stated policy limit. If not resolved by the insurer, a
claim could result in a lawsuit filed in state court.
For an entity or provider covered by FTCA, the claim is made against
the United States rather than against the provider.[Footnote 14] A
patient of an FTCA-covered Health Centers must first file an
administrative claim with HHS within 2 years after the patient has
discovered, or reasonably should have discovered, the injury and its
cause. (Figure 1 provides details about the claims process.) After
reviewing the claim, HHS may attempt to negotiate a financial
settlement or, if it finds the case to be without merit, it may deny
the claim. If HHS formally denies a claim or if HHS and the patient
fail to reach a final settlement within 6 months of filing, claims may
be filed in federal district court.[Footnote 15] At this point, if a
claim results in the filing of a medical malpractice suit, DOJ
litigates the case and either settles or defends the case during a
trial. At a trial, the case is heard in a federal district court
without a jury; punitive damages cannot be awarded under FTCA.[Footnote
16] Payments to patients either as part of an HHS or DOJ settlement or
from a court judgment are paid out of the Health Center Judgment Fund,
a fund that is financed by congressional appropriations. Appropriations
for the Health Center Judgment Fund began in fiscal year 1993 with a $1
million appropriation, according to HRSA officials. During fiscal year
2008, approximately $44 million was appropriated to pay claims
involving care provided by covered Health Center providers.
Figure 1: Federal Tort Claims Process for Deemed HRSA-Funded Health
Centers:
[Refer to PDF for image: illustration]
Heath Center patient submits claim to HHS:
Administrative claims:
1) HHS gathers medical records and coverage information and conducts a
medical review.
2) HHS makes a final determination on the claim:
* Settlement letter is sent and accepted, process ends; or;
* Denial letter is sent, patient does not pursue further review of
claim within 6 months, process ends; or;
* Denial letter is sent or no settlement is reached, process may
continue:
- Health Center patient may request that HHS reconsider the denial,
initiating a new cycle of the process.
3) Health Center patient files a lawsuit in federal court.
Federal court:
4) HHS transfers all files to DOJ.
5) DOJ defends the case:
* Settlement is reached, process ends; or;
* Lawsuit is litigated and decided by federal judge without a jury; or;
* Case is dismissed before trial without settlement.
Source: GAO analysis of HRSA and DOJ data.
Note: FTCA coverage only applies to Health Centers that receive funding
under Section 330 of the Public Health Service Act (codified at 42
U.S.C. § 254b) and to the employees, board members, and contractors who
are deemed "employees" of the Public Health Service under the Federally
Supported Health Centers Assistance Act.
[End of figure]
In prior work, we noted that while FTCA coverage may reduce Health
Centers' insurance costs, it imposes a potentially significant
liability on the federal government because FTCA, unlike private
policies generally, does not limit the amount for which the government
can be held liable.[Footnote 17] At that time, at the recommendation of
HHS's Office of Inspector General, HRSA developed a legislative
proposal that would limit the federal government's liability to $1
million for claims filed against FTCA-covered centers. According to
current HRSA officials, this proposal was never reviewed outside the
agency.
Claims and Lawsuits Paid under Current FTCA Coverage Totaled about $298
Million from Fiscal Year 1993 through Early Fiscal Year 2009:
As of March 2009, about $298 million from 639 resolved claims and
lawsuits that arose from claims has been paid since the extension of
FTCA coverage to Health Centers and their employees in 1993. As of
March 2009, 2,594 administrative claims have been filed, totaling
approximately $66 billion.[Footnote 18] In addition, 890 federal
lawsuits totaling $8.9 billion were filed in federal court. The number
of claims and lawsuits filed has generally grown since the start of the
program.[Footnote 19] (See figure 2.)
Figure 2: Number of New Claims and Lawsuits, Fiscal Years 1993-2008:
[Refer to PDF for image: multiple line graph]
Fiscal year: 1993;
Number of FTCA administrative claims: 0;
Number of FTCA federal lawsuits: 0.
Fiscal year: 1994;
Number of FTCA administrative claims: 4;
Number of FTCA federal lawsuits: 1.
Fiscal year: 1995;
Number of FTCA administrative claims: 18;
Number of FTCA federal lawsuits: 1.
Fiscal year: 1996;
Number of FTCA administrative claims: 76;
Number of FTCA federal lawsuits: 8.
Fiscal year: 1997;
Number of FTCA administrative claims: 90;
Number of FTCA federal lawsuits: 32.
Fiscal year: 1998;
Number of FTCA administrative claims: 129;
Number of FTCA federal lawsuits: 28.
Fiscal year: 1999;
Number of FTCA administrative claims: 207;
Number of FTCA federal lawsuits: 49.
Fiscal year: 2000;
Number of FTCA administrative claims: 138;
Number of FTCA federal lawsuits: 77.
Fiscal year: 2001;
Number of FTCA administrative claims: 176;
Number of FTCA federal lawsuits: 73.
Fiscal year: 2002;
Number of FTCA administrative claims: 192;
Number of FTCA federal lawsuits: 67.
Fiscal year: 2003;
Number of FTCA administrative claims: 240;
Number of FTCA federal lawsuits: 80.
Fiscal year: 2004;
Number of FTCA administrative claims: 236;
Number of FTCA federal lawsuits: 73.
Fiscal year: 2005;
Number of FTCA administrative claims: 205;
Number of FTCA federal lawsuits: 91.
Fiscal year: 2006;
Number of FTCA administrative claims: 223;
Number of FTCA federal lawsuits: 80.
Fiscal year: 2007;
Number of FTCA administrative claims: 239;
Number of FTCA federal lawsuits: 96.
Fiscal year: 2008;
Number of FTCA administrative claims: 299;
Number of FTCA federal lawsuits: 84.
Source: GAO analysis of HHS and DOJ data.
Note: As of March 13, 2009, 122 administrative claims and 50 federal
lawsuits have been filed for fiscal year 2009.
[End of figure]
Of the 639 resolved claims, HHS settled 185 claims through the
administrative process, and DOJ settled or tried 454 lawsuits that are
the result of claims filed in federal court after the administrative
process. The remaining claims were either disallowed by HHS during the
administrative review process (646 claims) or have not yet been
resolved.
HRSA and DOJ do not have readily available information on Health Center-
related FTCA claims that would allow the agencies to identify any
common characteristics of Health Centers involved in FTCA claims, such
as facility size, location, or types of Health Center providers most
commonly cited in claims paid under FTCA.[Footnote 20]
CBO Estimates the Costs for Claim and Lawsuit Payments for Expanding
FTCA Coverage to Volunteers at $6 Million from Fiscal Year 2009 through
Fiscal Year 2013:
In 2008, CBO estimated that payments for claims and lawsuits associated
with the expansion of FTCA to Health Center volunteers, if implemented,
would be $6 million from fiscal years 2009 through 2013. CBO estimated
that the expansion would result in claim and lawsuit costs of less than
$500,000 in fiscal year 2009, $1 million in each of fiscal years 2010
and 2011, and $2 million in each of fiscal years 2012 and 2013. In its
estimate, CBO assumed that Health Centers could use volunteers to fill
unfilled positions and based its estimate on 2006 data[Footnote 21]
about such unfilled positions as well as expenditures for existing FTCA
protections for Health Center employees. In addition, CBO assumed that
funds would not be appropriated until later in the fiscal year and time
would be needed for program implementation.
Extending FTCA Coverage Could Increase Volunteerism, but Barriers May
Limit Its Effect:
Most provider association officials, federal officials, and experts we
spoke with stated that expanding FTCA coverage to health care providers
could increase the number of volunteers at Health Centers, noting that
the lack of medical malpractice coverage is a somewhat significant
barrier or very significant barrier to volunteerism.[Footnote 22] Based
on Health Center applications, relatively few Health Centers currently
have volunteers providing services--in fiscal year 2009, 78 of the
approximately 1,100 Health Centers reported using about 126 full-time
equivalent volunteers.[Footnote 23] The provider associations could
neither quantify the number of their members currently volunteering in
Health Centers or other health care settings nor estimate the actual
number of providers who might volunteer if FTCA coverage were extended.
As a result, the volume of additional services that could be provided
at Health Centers also could not be estimated.
While associations could not quantify the number of providers who might
volunteer, certain providers were identified as being more likely to
volunteer if FTCA coverage were extended to Health Center volunteers.
Retired providers were identified as the provider type most likely to
volunteer at Health Centers if FTCA coverage were extended. However,
experts and associations noted that while retirees often have the time
to volunteer, they may be inhibited from volunteering because they may
not maintain medical malpractice coverage, may not be willing to pay
for this coverage, and are not currently covered by FTCA. Provider and
professional associations also identified other potential volunteers,
such as actively employed practitioners whose malpractice would not
extend to volunteer activities or providers who work part-time.
Extending FTCA coverage may reduce the barrier for these providers who
would have to purchase their own malpractice coverage to volunteer.
One professional association and an expert we spoke with noted that
providers in private practice who have their own medical malpractice
insurance, which may cover their activities regardless of the setting,
may be more willing to provide volunteer services. However,
associations and an expert noted that even providers with their own
medical malpractice insurance may be cautious about possible risk to
their personal malpractice coverage, such as an increase in premiums,
from a medical malpractice claim resulting from their volunteer
activities.
While experts agreed that the extension of FTCA coverage to Health
Center volunteers would address the medical malpractice barrier to
volunteerism in Health Centers, other barriers to volunteerism would
remain that could limit the effect of FTCA coverage expansion on
volunteerism. Provider and professional associations, experts, and
federal agency officials identified additional barriers to provider
volunteerism, including provider issues such as lack of time, provider
costs, lack of awareness of Health Center need for volunteers,
location, and misperceptions about litigiousness. Other barriers are
related to Health Centers, including their capacity to recruit, retain,
and effectively use volunteers and limited resources and ability to use
specialists.
Lack of time: According to experts and association officials, many
providers do not have time to volunteer their services at Health
Centers. For example, provider associations noted that employed nurses
often work significant amounts of overtime, limiting the time they have
available to volunteer, while obstetricians typically have
unpredictable schedules that make it hard to coordinate volunteerism
with the schedule of a Health Center. According to an American Academy
of Pediatrics 2007 survey of its members, almost 83 percent of
pediatricians identified lack of time as a reason for not volunteering,
making it the most frequently identified barrier to their participation
in volunteer opportunities in community-based settings.
Provider costs: According to federal officials, as well as a provider
association and an expert, the costs of providing care, such as
licensure or required continuing medical education requirements, can
also be a barrier to health care volunteers. This may be particularly
true for providers who no longer maintain their licensure, such as
retirees.
Lack of awareness of Health Center need for volunteers: Provider and
professional associations reported that providers interested in
volunteering may not be aware of Health Centers as a possible volunteer
location. Because Health Centers receive federal funding and may be
considered an integrated part of a community's health delivery system,
providers may believe that the centers do not need volunteers as much
as other locations, such as free clinics.
Location: Experts and provider associations reported that providers may
have concerns about their safety in some areas in which Health Centers
are located. Other Health Centers may be in locations where, according
to experts, there simply may not be enough providers available to act
as volunteers. One expert noted that in rural areas facilities may have
a hard time recruiting staff--volunteer or permanent--because finding
housing for providers is a problem.[Footnote 24]
Misperceptions about litigiousness: Two associations reported that many
providers believe that patients served in Health Centers or similar
settings are more likely to sue than other patients. Both associations
noted that their experience indicated that this was an incorrect
perception, but providers still may need to be reassured.
Capacity to recruit, retain, and effectively use volunteers: According
to provider associations, Health Centers may still have difficulty
recruiting and retaining volunteers. Experts and professional
associations noted that effectively recruiting and using volunteers can
be difficult and time and labor intensive. They expressed concern that
Health Centers would have to address their capacity to recruit, retain,
and recognize volunteers--all key elements to a successful volunteer
program. Officials from one association stated that Health Centers
would need to develop a system that can accommodate the constantly
changing population of volunteers, building in rewards and recognition
for ongoing involvement, in an effort to maintain volunteerism, which
these officials said represented a different organizational dynamic
than that currently used by Health Centers. They also noted that Health
Centers would still need to address their organizational capacity to
use volunteers, such as developing scheduling systems to effectively
combine volunteers, who may have irregular hours with varied frequency,
with regular full-and part-time staff.
Limited resources and ability to use specialists: Provider and
professional associations reported that providers may be used to
providing care in settings with more resources and may find it
difficult to provide care in settings with limited resources, such as
less laboratory testing capacity or limited ability to refer patients
for specialty care. There may be barriers related to equipment used by
some providers. For example, one expert noted that a dentist may not be
able to volunteer to provide services unless specialized equipment is
available at volunteer locations. In addition, federal officials and
experts also noted that Health Centers, which focus on providing
preventive and primary care, may not be able to use some specialists in
their areas of expertise.
Multiple Federal and State Efforts Aim to Protect Health Care
Volunteers, but Information on the Impact of These Efforts Is Limited:
Two federal efforts may protect volunteer health care providers. The
first effort is the extension of FTCA medical malpractice coverage to
volunteers at free clinics. This coverage protects volunteer health
providers providing certain services at free clinics.[Footnote 25] Free
clinics are nonprofit volunteer-based health care organizations--
typically with annual budgets of less than $250,000--that do not accept
reimbursement from third-party payers and typically do not charge
individuals to whom they provide care or charge a nominal fee.[Footnote
26] Unlike Health Centers, free clinics are not part of the HRSA Health
Center Program. While the application to be covered under FTCA and the
claims process is similar to that of Health Centers, only the actual
volunteer is covered under FTCA, not the free clinic itself. However,
for a provider to be deemed under FTCA, the free clinic must submit an
application on behalf of that provider. The volunteer provider must be
licensed or certified in accordance with applicable law and patients
must be provided with notice that FTCA limits the provider's liability.
Once deemed, the requirements related to credentialing and privileging
free clinic volunteers covered by FTCA are similar to those of
employees at Health Centers. For example, like Health Centers, free
clinics must, among other things, verify volunteer providers'
licensure, certification, and registration; review prior malpractice
claims; and obtain evidence of providers' ability to perform the
requested duties.
Since 2004, just over 100 of the approximately 1,200 free clinics have
pursued the option to sponsor volunteers for FTCA deeming and, as of
April 2009, approximately 3,300 free clinic volunteers were covered
under FTCA. As of April 2009, only one malpractice claim, for $5
million, had been filed against a deemed free clinic volunteer.
According to officials there may be several reasons why so few free
clinics have chosen to sponsor volunteers for FTCA deeming. Officials
noted that because free clinic employees are not eligible for FTCA
coverage, free clinics may choose to simply extend the coverage
purchased for employees to their volunteers, avoiding the FTCA deeming
application process. In addition, free clinics have historically been
more informally structured, without formal policies and processes and
with limited administrative support. Because of this, experts stated
that the initial FTCA application process may be difficult for free
clinics.
A second federal statute--VPA--may also provide volunteers with some
protection from liability.[Footnote 27] VPA generally protects
individuals who volunteer for government entities and nonprofit
organizations--including Health Centers--from liability for ordinary
negligence[Footnote 28] occurring during the course of their volunteer
work, with some exceptions.[Footnote 29] VPA does not affect the
liability of the organization for the actions of its volunteers or an
organization's ability to file an action against its volunteers. VPA
requires that volunteers be appropriately licensed in accordance with
state law and does not protect volunteers from liability for acts that
constitute "willful or criminal conduct, gross negligence, reckless
misconduct, or a conscious, flagrant indifference to the rights or
safety of the individual harmed by the volunteer." Additionally, VPA
preempts existing state laws to the extent that they are inconsistent
with VPA, but state law may provide additional protections to
volunteers. Also, VPA permits states to make laws declaring VPA
inapplicable in state court cases in which all parties to the case are
citizens of the same state. As of May 2009, only New Hampshire has
taken this step. According to a DOJ official, at the federal level,
because defenses available to private individuals are applicable under
FTCA, VPA's protection against liability for ordinary negligence may be
applicable in claims and suits against volunteers at Health Centers.
While VPA may provide some protection to volunteer health care
providers, provider associations and experts stated that relatively few
providers or clinics, including Health Centers, were aware of VPA and
the protections it offers to volunteers. In addition, groups noted that
because of providers' legal expenses of proving in court that an action
was not gross negligence--which is not covered by VPA--VPA may not be
sufficient to encourage volunteerism. Agency officials and an expert
also reported that because providers see VPA as largely untested in the
courts, which means that there is little case law related to VPA and
medical malpractice, they are not willing to rely on it as a source of
protection.
In addition to these federal efforts, multiple state efforts are
intended to protect volunteer health care providers. Experts and state
officials we spoke with identified several efforts made by states and
other entities to encourage the provision of health care services by
volunteers, though limited data are available on the effect of these
efforts.
Grant immunity from liability. According to a 2007 review of state laws
conducted by the American Medical Association, 43 states have enacted
laws granting volunteers some level of immunity from liability
associated with their volunteer activities, and 35 of these states
specifically reference volunteer health care providers.[Footnote 30]
Some states, such as Arizona and Arkansas, grant providers immunity
from claims of ordinary negligence, but hold them responsible for
claims of gross negligence.
Substitute state as defendant: A 2004 review of state laws found that
10 states substitute the state as the defendant in place of the
volunteer provider.[Footnote 31] For example, through the Florida
Department of Health's Chapter 110 Volunteer Program, licensed
providers approved by the department may be eligible for coverage under
the state's sovereign immunity. Limited data are available on the
effect of the states' efforts though Florida has collected data on both
the number of overall volunteers participating in its program and the
value of goods and services donated. From July 2007 to June 2008, 9,278
volunteers participated in the program. Florida officials estimate that
the value of donated goods and services totaled $41.15 million.
Other state-level efforts: States and other entities have also
developed other mechanisms to assist health centers and clinics to
secure medical malpractice coverage, such as allowing providers to
purchase malpractice coverage for volunteers through the state or
providing volunteers the option of purchasing discounted liability
coverage. For example, Virginia offers free or low-cost liability
coverage through a state-run self-insured risk pool that includes
clinics that provide free health care and health care practitioners who
volunteer their services at facilities that the state designates as
volunteer or free clinics. Medical Mutual Insurance Company of North
Carolina, a professional liability company owned and operated by
physicians, offers discounted medical malpractice coverage--$100 per
year--for retired health care providers interested in providing
volunteer health care services.
Many states require certain conditions to be met in order for clinics
and providers to receive coverage under state programs. These
conditions may include restrictions on the setting in which the health
care can be delivered, restrictions on the type of care provided,
patient notification of liability limitations, or limits on the amount
that can be recovered by a patient through a lawsuit.
Agency Comments:
HHS and DOJ reviewed a draft of this report and provided technical
comments, which we incorporated as appropriate.
We are sending copies of this report to the Secretary of Health and
Human Services, the Attorney General, and other interested parties. The
report also is available at no charge on the GAO Web site at
[hyperlink, http://www.gao.gov].
If you or your staff have any questions regarding this report, please
contact me at (202) 512-7114 or bascettac@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. Key contributions to this report were
made by Karen Doran, Assistant Director; Emily Gamble Gardiner; Dawn D.
Nelson; Timothy Walker; and Jennifer Whitworth.
Signed by:
Cynthia A. Bascetta:
Director, Health Care:
Enclosure:
List of Committees:
The Honorable Edward M. Kennedy:
Chairman:
The Honorable Michael B. Enzi:
Ranking Member:
Committee on Health, Education, Labor, and Pensions:
United States Senate:
The Honorable Tom Harkin:
Chairman:
The Honorable Thad Cochran:
Ranking Member:
Subcommittee on Labor, Health and Human Services, Education, and
Related Agencies:
Committee on Appropriations:
United States Senate:
The Honorable Henry A. Waxman:
Chairman:
The Honorable Joe Barton:
Ranking Member:
Committee on Energy and Commerce:
House of Representatives:
The Honorable David R. Obey:
Chairman:
The Honorable Todd Tiahrt:
Ranking Member:
Subcommittee on Labor, Health and Human Services, Education, and
Related Agencies:
Committee on Appropriations :
House of Representatives:
[End of section]
Enclosure: Associations from Which Information Was Obtained for This
Report:
American Academy of Nurse Practitioners:
American Academy of Pediatrics:
American Dental Association:
American Medical Association:
American Nurses Association:
National Association of Community Health Centers:
National Association of Free Clinics:
National Association of Social Workers:
Additional associations were contacted but either did not respond or
declined to participate, in some cases because they had no information
on the implications of extending Federal Tort Claims Act (FTCA)
coverage to volunteers at Health Centers. We identified professional
associations to contact regarding expanding FTCA coverage to Health
Centers using research that provided information on unfilled medical
personnel positions at Health Centers.[Footnote 32] We used these data
to identify volunteer provider types Health Centers might use to fill
unfilled positions.
[End of section]
Footnotes:
[1] 28 U.S.C. §§ 1346(b), 2671-2680.
[2] FTCA provides a limited waiver of the federal government's
sovereign immunity--that is, the common law doctrine that a government
cannot be sued in its own courts without its consent. By enacting FTCA,
the Congress waived sovereign immunity for some tort suits.
[3] FTCA settlements and judgments in medical malpractice cases are
paid by the federal government, which, in effect, becomes the primary
source of providers' insurance for those claims.
[4] The Congress initially enacted the Federally Supported Health
Centers Assistance Act of 1992 (Pub. L. No. 102-501, 106 Stat. 3268) to
provide FTCA medical malpractice coverage to the Health Center Program
for a 3-year period. This coverage was made permanent by the Federally
Supported Health Centers Assistance Act of 1995 (Pub. L. No. 104-73,
109 Stat. 777, codified at 42 U.S.C. § 233(g)-(n)). FTCA coverage only
applies to Health Centers that receive funding under Section 330 of the
Public Health Service Act (codified at 42 U.S.C. § 254b) and to the
employees, board members, and contractors who are deemed "employees" of
the Public Health Service under the Federally Supported Health Centers
Assistance Act. The Health Center Program includes community health
centers, health centers for homeless and migrant populations, and
health centers in public housing complexes.
[5] HRSA's Health Center Program (Section 330 of the Public Health
Service Act) includes Health Centers supported by federal grants,
centers that have been determined to meet the definition of a health
center but do not receive funds under the Health Center Program, and
outpatient health programs and facilities operated by tribal
organizations. However, FTCA coverage is only available to Health
Centers funded under the Health Center Program. Because of this, the
scope of our work is limited to these funded Health Centers.
[6] FTCA coverage for Health Centers also applies to Health Center
officers and board members, as well as certain licensed or certified
health care providers who are contractors. 42 U.S.C. § 233(g)(5). For
the purposes of this report, we use "employees" to refer to all Health
Center individuals covered by FTCA. Volunteers are those who provide
services without compensation and are not employees or contractors.
[7] Pub. L. No. 110-355, § 2(b)(5), 122 Stat. 3988, 3991-92.
[8] While referral to specialty services is a required service, in
limited circumstances Health Centers may also directly provide
specialty services.
[9] Throughout this report, we use "patient" to encompass both patients
and claimants, that is, patients who have filed claims under FTCA or
had claims filed on their behalf.
[10] Health Centers may use grant funds from HRSA's Health Center
Program to purchase medical malpractice liability insurance coverage.
[11] Gap coverage may include services provided by a Health Center that
are outside its scope of project. The scope of project defines the
"approved service sites, services, providers, service area(s) and
target populations(s) which are supported (wholly or in part)" by funds
from HRSA's Health Center Program.
[12] According to HRSA, credentialing is the process of assessing and
confirming the qualifications of a health care provider, while
privileging is the process that health care organizations use to
authorize health care providers to provide specific services to their
patients.
[13] Whether an act or omission falls within the scope of employment
may be determined, in part, by evaluating whether the conduct was
performed on behalf of the employer.
[14] Claims are first submitted to the relevant agency, in this case
HHS. Once suit is filed, the defendant is the United States; if the
suit incorrectly names the medical care provider, the United States
will move to be substituted for the individual.
[15] Patients dissatisfied with HHS's denial have 6 months to file a
lawsuit against the United States government in federal district court.
[16] Punitive damages, awarded in addition to the damages awarded for
proven losses, are intended to punish reckless, malicious, or deceitful
behavior.
[17] See GAO, Medical Malpractice: Federal Tort Claims Act Coverage
Could Reduce Health Centers' Costs, [hyperlink,
http://www.gao.gov/products/GAO/HEHS-97-57] (Washington, D.C.: Apr. 14,
1997).
[18] HRSA officials stated that the claim amounts requested are higher
than typically paid because generally the amount of the claim filed
acts as a ceiling to the payment amount. In February 2009, two claims
totaling $50 billion were filed for the same incident. According to
HRSA officials, these claims are unprecedented, as the program has
never had a claim that sought such a high damage amount.
[19] The program has also experienced significant growth in the number
of providers and patients served since 1993.
[20] HRSA's FTCA claims data set contains basic identifier information
on health center organizations and providers, such as location (region,
state, city) and provider specialty. Health center data related to
broader demographic characteristics are collected through HRSA's
Uniform Data System (UDS) and other grant-reporting requirements. FTCA
claims data could be linked with the UDS data or other data for the
purpose of identifying common characteristics, HRSA officials said. A
DOJ official said that because DOJ does not manage the Health Center
Program, the agency would not collect these data.
[21] R.A. Rosenblatt, C.H.A. Andrilla, T. Curtin, and L.G. Hart,
"Shortages of Medical Personnel at Community Health Centers:
Implications for Planned Expansion," Journal of the American Medical
Association, vol. 295, no. 9 (2006).
[22] Some provider associations noted that the lack of medical
malpractice may be less of a barrier for some providers, such as
nurses, who have not traditionally been the focus of medical
malpractice cases.
[23] For the purposes of the Health Center Program, HRSA defines a
"full-time equivalent" (FTE) of 1.0 to mean that a person worked full-
time for 1 year. For example, if a physician is hired full-time and
works 40 hours per week, that physician is a 1.0 FTE while a physician
who works 20 hours per week in that Health Center would be considered a
0.5 FTE. Each Health Center defines the number of hours for full-time
work.
[24] Other reasons rural communities have difficulty in attracting and
retaining providers include concerns about isolation, limited health
facilities, or a lack of employment and educational opportunities for
their families. See the Institute of Medicine of the National
Academies, Committee on the Future of Rural Health Care, Board on
Health Care Services, "Quality Through Collaboration: The Future of
Rural Health Care" (Washington, D.C., 2005).
[25] The Health Insurance Portability and Accountability Act of 1996
(Pub. L. No. 104-191, title I § 194, 110 Stat. 1936, 1988-91) amended
Section 224 of the Public Health Service Act (codified at 42 U.S.C. §
233) by adding a provision extending FTCA coverage to free clinic
volunteers effective upon the date appropriations were first made for
the provision. The Consolidated Appropriations Act, 2004 (Pub. L. No.
108-199, div. E, title II, 118 Stat. 3, 237) made the first
appropriation for FTCA coverage of free clinic volunteers. FTCA
coverage for volunteers at free clinics is for limited medical
assistance services, such as preventive services, dental services, or
prescription drugs, and is limited to medical malpractice. In addition,
unlike coverage at Health Centers, coverage at free clinics does not
include employees or the free clinics themselves.
[26] To obtain FTCA coverage for their volunteers through HRSA, free
clinics cannot accept reimbursement from third-party payers and cannot
impose any charges on individuals to whom they provide care, including
charges on a sliding scale.
[27] Pub. L. No. 105-19, 111 Stat. 218 (codified at 42 U.S.C. §§ 14501-
05).
[28] Generally, ordinary negligence may be defined as failure to
exercise ordinary care, and gross negligence may be defined as failure
to take the simplest precautions against harm. What acts or omissions
constitute gross or ordinary negligence vary across states.
[29] Exceptions would include a volunteer acting under the influence of
alcohol, among other things.
[30] American Medical Association, "Table of State Licensing and
Liability Laws for Volunteer Physicians," [hyperlink, http://www.ama-
assn.org/ama/pub/about-ama/our-people/member-groups-sections/senior-
physicians-group/physician-volunteers.shtml] (accessed Feb. 26, 2009).
[31] P.A. Hattis, "Overcoming Barriers to Physician Volunteerism:
Summary of State Laws Providing Reduced Malpractice Liability Exposure
for Clinician Volunteers," University of Illinois Law Review, vol.
2004, no. 1 (2004).
[32] R.A. Rosenblatt, C.H.A. Andrilla, T. Curtin, and L.G. Hart,
"Shortages of Medical Personnel at Community Health Centers:
Implications for Planned Expansion," Journal of the American Medical
Association, vol. 295, no. 9 (2006).
[End of section]
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