Are You Eligible for Coverage Under FTCA?

As we approach the deadline for health centers to submit their redeeming applications for the Federal Tort Claims Act (FCTA) coverage for CY2020, we thought we’d highlight a recent blog post. FTCA protection is important for health centers by allowing them to focus time and money on the patient population they serve.

*Don’t forget, if you are not currently protected by FTCA, you can submit your initial or deeming application at any time via the electronic system. To ensure coverage for CY2020, the earlier the better for initial application submission; redeeming application deadline is July 1.

How the Federal Tort Claims Act Affects Risk Management for FQHCs

Federally Qualified Health Centers (FQHCs) have been serving low-income and medically underserved individuals for more than 50 years, reaching over 24 million people each year. While the majority of the services offered by FQHCs involve primary and preventive care, they also provide treatment in high-risk areas, such as obstetric and dental care.

As with any healthcare organization, risk management is a crucial element of FQHCs’ mission to improve outcomes for vulnerable populations. In its most basic application, risk management is any activity, process or policy meant to reduce an organization’s liability exposure. For health centers, it is imperative to conduct risk management activities to prevent harm to patients and reduce medical malpractice claims.

But what happens if a patient is injured due to medical negligence? In the case of FQHCs, they have the opportunity to obtain medical malpractice coverage under the Federal Tort Claims Act. If you work in an FQHC, you have most likely heard of the Federal Tort Claims Act—but its exact connection to risk management can feel confusing. For those whose daily duties don’t lie in direct risk management, or who are not lawyers, let’s break down these definitions:

Torts

“Tort” is a legal word meaning a wrongful act or infringement of a right, leading to a civil legal liability. Simply put, tort law protects people from the bad or negligent acts of others.

The Federal Tort Claims Act was passed in 1946, allowing citizens to sue the federal government for alleged injury caused by federal employees. In these instances, the federal government (rather than the employee) defends the claim and pays any settlements.

In order to file a tort through FTCA, you must demonstrate the following:

• You were injured, or your property was damaged, by a federal employee
• The federal employee was not acting within the scope of their official duties
• The federal employee was acting wrongfully or negligently

As FQHCs are funded primarily through the federal government (and therefore could be considered federal employees), they became eligible for medical malpractice coverage under FTCA beginning in 1993. Congress wanted to see if coverage under the Act would lower a health center’s medical malpractice costs, thus leaving more money for centers to provide services. Subsequent reviews of the cost savings showed that FQHCs benefited from the protections offered under the FTCA, saving millions of dollars annually.

Risk Management

While the medical malpractice coverage offered to FQHCs under FTCA is provided at no cost to the health center, it does come with contingencies. Namely, the health center must reinvest some of those savings back into malpractice risk reduction.

One study of risk management in FQHCs found that the following risk management practices were considered some of the most important to health center staff:

Credentialing

Credentialing health care professionals involves verifying if they meet all required educational and licensing requirements, such as continuing education credits to maintain licensure. Respondents in this study stated that credentialing is the foundation for risk management, as you can “only be as good as the providers you hire.” Respondents also commented that credentialing is important from a liability perspective, as it documents that health centers are carrying out their due diligence when hiring new healthcare practitioners.

Quality Improvement

Quality improvement programs include the internal efforts to improve the quality of clinical care. One example of this is analyzing clinical outcome data and identifying areas of needed improvement. This provides an objective means of measuring and monitoring the performance of the health center over time.

Comprehensive Medical Records

Medical malpractice claims can often be dismissed if medical records demonstrate that appropriate care was provided, lending credence to the importance of accurate documentation in patient medical records.

Clear Communication With Patients

Health centers must provide information to their patients in a way that they can comprehend. This includes providing translation services when necessary. It is also important that patients are given a voice in determining their care.

Privileging of Health Care Professionals

This is the process of verifying, on a regular basis, that clinicians have the appropriate competencies and abilities to perform their clinical procedures effectively.

Training as Risk Management

Regular staff training on risk management is critical for mitigating risk. In the aforementioned study, 48% of the respondents stated that regular staff training was one of the most difficult risk management activities to implement. Reasons for this included a lack of funding, staff and training materials. Respondents also reported that training was often deferred due to limited staff time and not wanting to pull clinicians from providing care.

While implementing regular risk management training can be challenging, the Health Resources and Services Administration (HRSA) provides risk management resources for health centers, including free training. Despite these resources, 87% of FQHC respondents indicated they wanted to receive even more training, around topics like documentation and incident reporting. Specialized risk management for areas such as obstetrics and gynecology, mental health and dental health were also regarded as critical areas for extra training.

If you have completed the FTCA application, you probably noticed that the risk management section is the lengthiest one and requires multiple attachments demonstrating the risk management plan, documentation and tracking. We were pleased to see that HRSA included Relias in the application as an example of a tracking tool to prove annual staff training has been completed.

It’s easy for a center to focus on an organizational risk assessment and the development of a comprehensive risk management plan but then fail to execute the appropriate communication and training with staff to ensure successful implementation.

It might seem like a small part of a large application document, but item 2(A) of the Review of Risk Management Systems deserves a closer look:

“Developing and implementing an annual health care risk management training plan for all staff members based on identified areas/activities of highest clinical risk for the health center (including, but not limited to obstetrical procedures, infection control) and any non-clinical trainings appropriate for health center staff (including Health Insurance Portability and Accountability Act (HIPAA) medical record confidentiality requirements)”

After the FTCA application is complete and submitted, the hours of preparation, policy creation, updates and documentation are over. An important next step is shifting that energy and time to the implementation of your risk management plan. The training plan is key to reducing and managing risk. The best laid plans are easily thwarted by an ill-informed and unaware staff member.

What Is Your Risk Management Takeaway?

Hopefully you now have a clearer understanding of the relationship between torts, risk and training. If your FQHC is covered under the Federal Tort Claims Act, how are you ensuring that you are not only developing a risk management plan, but also executing on it? Are you conducting quarterly risk assessments at your center? Are you revising and updating your plans to ensure staff are knowledgeable and compliant? How are you reinvesting back into risk management? How satisfied are you with the outcomes of these efforts?