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“THE FEDERALLY SUPPORTED HEALTH CENTERS ASSISTANCE ACT OF 1995” mentioning the U.S. Dept. of Justice was published in the Extensions of Remarks section on pages E1149-E1151 on May 26, 1995.
The publication is reproduced in full below:
THE FEDERALLY SUPPORTED HEALTH CENTERS ASSISTANCE ACT OF 1995
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HON. NANCY L. JOHNSON
of connecticut
in the house of representatives
Thursday, May 25, 1995
Mrs. JOHNSON of Connecticut. Mr. Speaker, I plan to introduce shortly, with Congressman Wyden of Oregon, the Federally Supported Health Centers Assistance Act of 1995 and commend the following background and summary of the legislation to the House of Representatives.The Federally Supported Health Centers Assistance Act of 1995
Extending Malpractice Coverage for Health Centers Under the Federal
Tort Claims Act
Background
Community, migrant and homeless health centers are eligible for coverage for medical malpractice under the Federal Tort Claims Act [FTCA]. Health centers were brought under the FTCA in 1993 by the Federally Supported Health Centers Assistance Act of 1992. Health centers are covered for malpractice claims in the same manner as employees of the Public Health Service who provide medical care. The law provided this coverage for health centers for a three-year
``demonstration'' period, which expires December 31, 1995.
Private malpractice insurance is a significant expense for health centers. Prior to the enactment of FTCA coverage, health centers spent $60 million of their federal grant funds each year for private malpractice coverage. Health centers covered under the FTCA has saved an estimated $14.3 million in malpractice insurance costs over the past two years--funds which were channelled back into patient care to serve an estimated 75,000 additional clients.
During the last two years, FTCA coverage for health centers has been only partially implemented. Final regulations were only recently issued on May 8, 1995. This lengthy period of uncertainty regarding the law's scope has made it necessary for many health centers to continue their private malpractice coverage. To date, 542 health centers have been ``deemed'' by HHS for malpractice coverage under FTCA, and 119
[[Page E1150]] health centers have dropped private malpractice insurance for one or more of their clinician. Only 29 percent of health center clinicians are currently covered by FTCA.
The number of claims against health centers under FTCA is remarkably low. Since autumn of 1993, only eight claims have been filed nationwide against the 542 health centers approved for FTCA coverage. This low rate of malpractice claims is consistent with the low rate of claims filed against health centers under private insurance. To date, a total of $11 million of health center appropriations have been set aside over the last three years for FTCA judgment costs. None of these funds have been obligated or expended thus far.
Summary of Legislation
H.R. makes malpractice coverage for health centers under the FTCA permanent. Based on information gained during the demonstration period, H.R. makes several clarifications and procedural modifications in the law to improve the efficiency and operation of the program. The bill:
Codifies provisions of the final regulations defining the coverage of officers, employees and contractors of health centers under FTCA, and clarifies that health center governing board members are also covered.
Provides for coverage under FTCA of part-time health center clinicians who practice in the primary care ares of family practice, general internal medicine, general pediatrics, and obstetrics and gynecology.
Codifies provisions of the final regulations which clarify that FTCA malpractice coverage applies to certain health services health center clinicians may provide to patients who are not registered with the center. For example, health center practitioners participating in community-wide immunization efforts will have FTCA coverage when providing immunizations.
Establishes procedures for health centers to apply for and receive malpractice coverage under FTCA. Clarifies that once an application for coverage under FTCA is approved, the coverage applies to claims for services provided during the period for which the coverage determination has been made and is binding on all parties to a malpractice claim.
Provides for a full and fair hearing on the record before a health center can be decertified from previously approved FTCA coverage.
Provides for timely action by the Department of Justice to remove a malpractice case filed in state court when the case is covered under FTCA.
Applies FTCA coverage to health services provided by centers to enrollees of managed care plans who have chosen the managed care plan as their provider. Establishes that FTCA coverage must be accepted by managed care plans as meeting the requirements for malpractice coverage for health centers who contract to be providers for managed care plans.
Sets the maximum amount that may be held aside from health center grant appropriations for the FTCA malpractice claim reserve fund at $10 million annually.
H.R. --
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,SECTION 1. SHORT TITLE; REFERENCE.
(a) Short Title.--This Act may be cited as the ``Federally Supported Health Centers Assistance Act of 1995''.
(b) Reference.--Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Public Health Service Act.
SEC. 2. PERMANENT EXTENSION OF PROGRAM.
(a) In General.--Section 224(g) (42 U.S.C. 233(g)) is amended by striking the last sentence of paragraph (3).
(b) Conforming Amendments.--
(1) Section 224(k)(1)(A) (42 U.S.C. 233(k)(1)(A)) is amended by striking ``each of the fiscal years 1993, 1994, and 1995'' and inserting ``each fiscal year''.
(2) Section 224(k)(2) (42 U.S.C. 233(k)(2)) is amended by striking ``each of the fiscal years 1993, 1994, and 1995'' and inserting ``each fiscal year''.
SEC. 3. CLARIFICATION OF COVERAGE.
Section 224(g)(1) (42 U.S.C. 233(g)(1)) is amended--
(1) in the first sentence, by striking ``officer, employee, or contractor'' and inserting ``officer, governing board member, or employee of such an entity, and any contractor''; and
(2) in the second sentence, by inserting after ``officer,'' the following``governing board member,''.
SEC. 4. COVERAGE FOR SERVICES FURNISHED TO INDIVIDUALS OTHER
THAN CENTER PATIENTS.
Section 224(g)(1) (42 U.S.C. 233(g)) is amended--
(1) by redesignating paragraph (1) as paragraph (1)(A); and
(2) by adding at the end thereof the following:
``(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 under subparagraph (A) 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.''.
SEC. 5. APPLICATION PROCESS.
(a) Application Requirement.--Section 224(g)(1) (42 U.S.C. 233(g)(1)) (as amended by section 4) is further amended--
(1) in subparagraph (A), by inserting ``and subject to the approval by the Secretary of an application under subparagraph (D)'' after ``For purposes of this section''; and
(2) by adding at the end thereof the following:
``(D) The Secretary may not deem an entity or an officer, governing board member, employee, or contractor of the entity to be an employee of the Public Health Service under subparagraph (A), 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).
``(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), 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 or are not within the scope of employment or responsibility of the entity or its officers, governing board members, employees, or contractors.
``(G) The Secretary, for good cause shown, may reverse a determination under subparagraph (E). The decision of the Secretary to reverse such a determination shall be made on the record after opportunity for a full and fair hearing. Any such reversal by the Secretary shall apply only after the entity receives notice of such reversal and shall only apply to acts and omissions occurring after the date on which such notice was received.''.
(b) Approval Process.--Section 224(h) (42 U.S.C. 233(h)) is amended--
(1) by striking the matter preceding paragraph (1) and inserting the following: ``The Secretary may not approve an application under subsection (g)(1)(D) unless the Secretary determines that the entity--''; and
(2) by striking ``has fully cooperated'' in paragraph (4) and inserting ``will fully cooperate''.
SEC. 6. TIMELY RESPONSE TO FILING OF ACTION OR PROCEEDING.
Section 224 (42 U.S.C. 233) is amended by adding at the end thereof the following:
``(l)(1) If a civil action or proceeding is filed in a State court against any entity described in subsection (g)(4) or any officer, governing board member, employee, or any contractor of such an entity for damages described in subsection (a), 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), 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) 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 [[Page E1151]] 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) and issues an order consistent with such determination.''.
SEC. 7. APPLICATION OF COVERAGE TO MANAGED CARE PLANS.
Section 224 (42 U.S.C. 223) (as amended by section 6) is amended by adding at the end the following:
``(m)(1) An entity or officer, governing board member, employee, or contractor of an entity described in subsection
(g)(1) 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) 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.
``(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)) for the delivery of such services to plan enrollees.''.
SEC. 8. COVERAGE FOR PART-TIME PROVIDERS UNDER CONTRACTS.
Section 224(g)(5)(B) (42 U.S.C. 223(g)(5)(B)) is amended to read as follows:
``(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.''.
SEC. 9. DUE PROCESS FOR LOSS OF COVERAGE.
Section 224(i)(1) (42 U.S.C. 233(i)(1)) is amended by striking ``may determine, after notice and opportunity for a hearing'' and inserting ``may on the record determine, after notice and opportunity for a full and fair hearing''.
SEC. 10. AMOUNT OF RESERVE FUND.
Section 224(k)(2) (42 U.S.C. 223(k)(2)) is amended by striking ``$30,000,000'' and inserting ``$10,000,000''.
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