Federal Tort Claims Act:

Information Related to Implications of Extending Coverage to Volunteers at HRSA-Funded Health Centers

GAO-09-693R: Published: Jun 24, 2009. Publicly Released: Jun 24, 2009.

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The 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.

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