FTCA Protection for Health Center Volunteers is On the Way
Thursday, February 23, 2017

Section: TPCA & Beyond, February 2017

(from Feldesman, Tucker, Leifer & Fidell)

On December 13, 2016, President Obama signed the 21st Century Cures Act.  While the law affects many aspects of the health care industry, including reforms to federal policy on mental health care, drug approvals, and increased funding for medical research, the most important change for many federally qualified health centers is the expansion of Federal Tort Claims Act (FTCA) coverage to include coverage for volunteers.  Specifically, Section 9025 of the Act amends the Public Health Services Act to expand FTCA coverage to health professional volunteers at federally qualified health centers.

Background on the Public Health Service Act and FTCA coverage

Section 224 of the Public Health Service Act provides immunity from lawsuits to Section 330-funded health centers and their officers, directors, employees and certain full-time and part-time contracted clinicians when the health center applies for and is deemed to be a Public Health Service (“PHS”) employee by the Health Resources and Services Administration (“HRSA”).  For purposes of professional liability protection (i.e. medical malpractice protection), these individuals and entities are treated as PHS employees.  Deemed health centers and their employees and covered contractors are immune from malpractice lawsuits against them. Instead of suing the health center or provider in a malpractice suit, the patient must file an administrative claim against the United States according to the requirements of the Federal Tort Claims Act.

Volunteers under the 21st Century Cures Act

With the passage of the 21st Century Cures Act, health professional volunteers at deemed health centers may also be deemed to be employees of the PHS and may receive FTCA coverage.

As described in the law, a person is considered a “volunteer” if:

•    The services are provided at health center facilities or off-site programs or events carried out by the health center;
•    The health center “sponsors” the practitioner;
•    The health care practitioner does not receive any compensation from the health center, patient or any third-party payer;
•    Before providing any service, the health center is required to post a notice at the site where the service is provided detailing the extent of the limitations of liability of the practitioner;
•    At the time the service is provided, the practitioner is licensed and certified as required by state and federal law; and,
•    At the time service is provided, the health center maintains relevant documentation that the practitioner meets the requirements to be a volunteer.

In order to “sponsor” a volunteer, the health center must submit an application to HRSA.  Upon approval of the application, FTCA protection would provide coverage for the volunteer providing a health professional service eligible for funding under Section 330.

Next steps

Until HRSA provides guidance on the implementation of this new protection for volunteers, health centers should not assume that volunteers at their centers are protected by the FTCA.  Once guidance is issued by HRSA, it will take health centers some time to submit volunteer sponsorship applications, receive approval from HRSA and come into compliance with the other requirements related to volunteers.
We will be monitoring the implementation of this statute and keep you informed of the development of this new FTCA protection for volunteers at health centers.  If you have any questions, please contact Martin Bree at mbree@ftlf.com or 202-466-8960.

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