Federal Tort Claims Act:

Issues Affecting Coverage for Tribal Self-Determination Contracts

RCED-00-169: Published: Jul 5, 2000. Publicly Released: Jul 5, 2000.

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Pursuant to a congressional request, GAO reviewed the Federal Tort Claims Act (FTCA) coverage to tribal contractors under the Indian Self-Determination and Education Assistance Act, focusing on: (1) the process for implementing FTCA coverage for tribal self-determination contracts; (2) the FTCA claims history for tribal self-determination contracts for fiscal years (FY) 1997 through 1999; and (3) FTCA coverage issues that are unique to tribal contractors.

GAO noted that: (1) federal regulations implementing FTCA prescribe the process that federal agencies must follow in resolving claims arising from the negligent or wrongful acts of federal employees; (2) with the extension of FTCA coverage to tribal contractors, tribal employees under a self-determination contract are considered federal employees for the purpose of FTCA coverage; (3) according to FTCA regulations, claims are subject first to an administrative review and determination by the federal agency whose actions gave rise to the claim; (4) at the administrative level, the Departments of the Interior and of Health and Human Services (HHS) handle these claims; (5) if a claim is not resolved administratively, a lawsuit may be filed in federal court, where the Department of Justice would defend it; (6) in response to GAO's request for claims data, Interior and HHS identified 342 claims, filed from FY 1997 through FY 1999, that arose from programs contracted from the Bureau of Indian Affairs and the Indian Health Service; (7) at both agencies, these claims involved a small number of tribes, and the damages claimed totalled about $700 million; (8) about two-thirds of these claims involved Bureau programs, most notably law enforcement; (9) the remaining one-third of these claims involved Health Service programs, of which about one-half involved patient care activities; (10) although some of these claims remain open, about 70 percent of the claims have been brought to closure at a cost of more than $2 million; (11) GAO's review identified a number of issues unique to FTCA coverage for tribal contractors; (12) on the administrative side, the U.S. government may be paying more than necessary to resolve claims involving tribal contractors; (13) to the extent that tribes use federal funds to purchase private liability insurance, it is possible that the federal government is paying twice--once for tribes' insurance premiums and once to settle tribal FTCA claims; (14) the potential for duplicative liability coverage exists for tribal contractors because of tribes' long-standing practice of carrying private insurance to cover a wide range of activities, including those subsequently covered under FTCA; (15) neither Interior nor HHS routinely checks to determine whether tribal contractors have private liability insurance that could cover these claims; and (16) on the legal side, lawsuits involving FTCA claims have been filed in tribal courts, although federal courts have exclusive jurisdiction to hear such cases.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In its comments on the report, the Department of Health and Human Services concurred with the recommendation and outlined corrective actions to address the recommendation. During the Fall of 2000 and the Spring of 2001, the Department and the Indian Health Service implemented our recommendation. The claims processing personnel in the Department's Claims Branch now routinely check for duplicative private insurance when processing tort claims involving tribal contractors.

    Recommendation: To ensure that the federal government is not paying more than is necessary to resolve FTCA claims involving tribal contractors, the Secretaries of the Interior and of Health and Human Services should direct their claims processing personnel to determine if duplicative private liability insurance exists and tender the claims to the private insurers when it is in the best interests of the United States to do so.

    Agency Affected: Department of Health and Human Services

  2. Status: Closed - Implemented

    Comments: In its comments on the July 2000 report, the Department of the Interior agreed with GAO's report that the U.S. government could potentially pay both for the claims and the liability insurance to cover them. The follow-up response from the Department, dated September 27, 2000, stated that "The Department of the Interior takes this recommendation seriously and has already initiated efforts to address the concerns raised in the report." The Department of the Interior's Solicitor has directed the claims processing personnel in the field to check for duplicative private liability insurance when processing tort claims involving tribal contractors. The Solicitor's office is also in the process of implementing a new computer system that will allow the Department to monitor the processing of tort claims by the field offices.

    Recommendation: To ensure that the federal government is not paying more than is necessary to resolve FTCA claims involving tribal contractors, the Secretaries of the Interior and of Health and Human Services should direct their claims processing personnel to determine if duplicative private liability insurance exists and tender the claims to the private insurers when it is in the best interests of the United States to do so.

    Agency Affected: Department of the Interior

 

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