32530 Federal Register

geographically defined service areas;

and

(i) Which are selected and identified through tnbal resolution as the local provider of Indian health care services.

(2) Subject to the approval of the IHS Director after consultation with the DHHS Office of General Counsel. Indian tribes and tribal organizations which meet in all respects the requirements of the Indian Self-Determination Act to contract directly with the Federal Government but which choose through tribal resolution to subcontract to carry out IHS service programs within geographically defined service areas with another Indian tribe or tribal organization which contracts directly with IHS.

(3) Any other contractor that qualifies as an "Indian contractor" under the Indian Self-Determination Act.

$900.182 What other statutes and regulations apply to FTCA coverage?

A number of other statutes and regulations apply to FTCA coverage. including the Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671–2880) and related Department of Justice regulations in 28 CFR part 14.

§ 900.183 Do indian tribes and tribel organizations need to be aware of areas which FTCA does not cover?

Yes. There are claims against selfdetermination contractors which are not covered by FTCA, claims which may not be pursued under FTCA, and remedies that are excluded by FTCA. General guidance is provided below as to these matters but is not intended as a definitive description of coverage, which is subject to review by the Department of Justice and the courts on a case-by-case basis.

(a) What claims are expressly barred by FTCA and therefore may not be made against the United States, an Indian tribe or tribal organization? Any claim under 28 U.S.C. 2680, including claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel. slander, misrepresentation, deceit, or interference with contract rights, unless otherwise authorized by 28 U.S.C. 2680(h).

(b) What claims may not be pursued under FTCA?

(1) Except as provided in 5900.181(a)(1) and § 900.189, claims against subcontractors arising out of the performance of subcontracts with a selfdetermination contractor.

(2) claims for on-the-job injuries which are covered by workmen's compensation:

(3) claims for breach of contract rather

i

$600.186 is it necessary for a selfdetermination contrast to include any clauses about Federal Tort Claims Act coverage?

No, it is optional. At the request of Indian tribes and tribal organizations. self-determination contracts shall include the following clauses to clarify the scope of FTCA coverage:

(a) The following clause may be used for all contracts:

For purposes of Federal Tort Clairns Act coverage, the contractor and its employees (including individuals performing personal services contracts with the contractor to

provide health care services) are deemed to be employees of the deral government while performi This status is the funds

this contract.

the source of ractor to pay the mefits unless the dditional compensation

ning covered services from anyone the contractor.

(b) The following clause is for IHS contracts only. Under

tract, the contractor's required as a condition of provide health services to aries in order to meet lans. These services may contractor or non

· The employee's status Claims Act purposes is not

$900.187 Dese FTCA apply to a self-
determination contrast if FTCA is not
referenced in the contract?
Yes.

what extent shall the
operate with the Federal

in connection with tort claime rising out of the contractor's

(a) The contractor shall designate an individual to serve as tort claims liaison

Rules and Regulations

(b) As part of the notification required by 28 U.S.C. 2679(c), the contractor shall notify the Secretary immediately in writing of any tort claim (including any proceeding before an administrative agency or court) filed against the relates to performance of a selfcontractor or any of its employees that determination contract or subcontract. (c) The contractor, through its designated tort claims liaison, shall assist the appropriate Federal agency in preparing a comprehensive, accurate, and unbiased report of the incident so that the claim may be properly evaluated. This report should be completed within 60 days of notification of the filing of the tort claim. The report should be complete in every significant detail and include as appropriate:

(1) The date, time and exact place of the accident or incident;

(2) A concise and complete statement of the circumstances of the accident or incident:

(3) The names and addresses of tribal and/or Federal employees involved as participants or witnesses:

(4) The names and addresses of all other eyewitnesses:

(5) An accurate description of all government and other privately-owned property involved and the nature and amount of damage, if any;

(6) A statement as to whether any person involved was cited for violating a Federal, State or tribal law, ordinanca, or regulation:

(7) The contractor's determination as to whether any of its employees (including Federal employees assigned to the contractor) involved in the incident giving rise to the tort claim were acting within the scope of their employment in carrying out the contract at the time the incident occurred: (8) Copies of all relevant documentation, including available police reports, statements of witnesses, newspaper accounts, weather reports, plats and photographs of the site or damaged property, such as may be ry or useful for purposes of claim determination by the Federal and

(9) Insurance coverage information. copies of medical bills, and relevant employment records.

(d) The contractor shall cooperate with and provide assistance to the U.S. Department of Justice attorneys assigned to defend the tort claim, including, but not limited to, case preparation, discovery, and trial.

(e) If requested by the Secretary, the contractor shall make an assignment and subrogation of all the contractor's

the Federal government) arising out of a tort claim against the contractor.

(0) If requested by the Secretary, the contractor shall authorize representatives of the Secretary to settle or defend any claim and to represent the contractor in or take charge of any action. If the Federal government undertakes the settlement or defense of any claim or action the contractor shall provide all reasonable additional assistance in reaching a settlement or asserting a defense.

$900.189 Does this coverage extend to subcontractors of self-determination contracts?

No. Subcontractors or subgrantees providing services to a Public Law 93638 contractor or grantee are generally not covered. The only exceptions are Indian contractors such as those under subcontract with the California Rural Indian Health Board to carry out IHS programs in geographically defined service areas in California and personal services contracts under § 900.193 (for $900.183(b)(1)) or § 900.183(b) (for $900.190).

Medical-Related Claims

$900.190 is FTCA the exclusive remedy for a tort claim for personal injury or death resulting from the performance of a solidetermination contract?

Yes, except as explained in $900.183(b). No claim may be filed against a self-determination contractor or employee for personal injury or death arising from the performance of medical, surgical, dental, or rulated functions by the contractor in carrying out self-determination contracts under the Act. Related functions include services such as those provided by nurses, laboratory and x-ray technicians, emergency medical technicians and other health care providers including psychologists and social workers. All such claims shall he filed against the United States and are subject to the limitations and restrictions of the FTCA.

$900.191 Are employees of selfdetermination contractors providing health services under the self-determination contract protected by FTCA?

Yes. For the purpose of Federal Tort Claims Act coverage, an Indian tribe or tribal organization and its employees performing medical-related functions under a self-determination contract are deemed a part of the Public Health Service if the employees are acting

(b) Temporary employees:

(c) Persons providing services without compensation in carrying out a contract; (d) Persons required because of their employment by a self-determination contractor to serve non-IHS

beneficiaries (even if the service are provided in facilities not owned by the contractor); and

(●) Federal employees assigned in the contract.

$800.193 Doss FTCA coverage extend to individuals who provide health care services under a personal services contract providing services in a facility that in owned, operated, or constructed under the jurisdiction of the IHS?

Yes. The coverage extends to individual personal services contractors providing health services in such a

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$900.197 Does FTCA cover employees of the contractor who are paid by the contractor from funds other than those provided through the self-determination contract?

Yes, as long as the services out of which the claim arose were performed in carrying out the self-determination contract.

$900.198 Are Federal employees assigned to a self-determination contractor under the intergovernmental Personnel Act or

detailed under section 214 of the Public Health Service Act covered to the same extent that they would be if working directly for a Federal agency?

Yes.

$900.199 Doss FTCA coverage extend to health care practitioners to whom staff

Indian tribe or tribal organization but operated under a self-determination contract with IHS.

$900.194 Dess FTCA extend to services provided under a staff privileges with a non-INS facility where the quires a health care practitioner to provide ressi services the general popula

Yes. Those services are covered, as long as the contractor's health care practitioners do not receive additional compensation from a third party for the performance of the services and they are acting within the scope of their employment under a self-determination contract. Reciprocal services include: (a) Cross-covering other medical personnel who temporarily cannot attend their patients:

(b) Assisting other personnel with surgeries or other medical procedures; (c) Assisting with unstable patients or at deliveries; or

health care facilities operated under a selfdetermination contract on the condition that such practitioner provide health services to IHS beneficiaries covered by FTCA?

Yes, health care practitioners with staff privileges in a facility operated by a contractor are covered when they perform services to IHS beneficiaries.. Such personnel are not covered when providing services to non-IHS beneficiaries.

$900.200 May persons who are not Indians or Alesis Natives assert claims under FTCA?

Yes. Non-Indian individuals served under the contract whether or not on a fee-for-service basis, may assert claims under this Subpart.

Procedure for Filing Medical-Related
Claims

$900.201 How should claims arising out of the performance of medical-related

contract. (An emergency motor vehicle is a vehicle, whether government, contractor, or employee-owned, used to transport passengers for medical

Claims should be filed on Standard Form 95 (Claim for Damage, Injury or Death) or by submitting comparable written information (including a definite amount of monetary damage claimed) with the Chief, PHS Claims Branch. Room 18-20, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, or at such other address as shall have been provided to the contractor in writing.

$900.202 What should a selfdetermination contractor or a contractor's empleyse de en receiving such a claim?

They should immediately forward the claim to the PHS Claims Branch at the address indicated in § 900.201 and notify the contractor's tort claims

$900.203 if the contractor or contractor's employee receives a summons and/or a complaint alleging a tort covered by FTCA, what should the contractor do?

As part of the notification required by 28 U.S.C. 2679(c), the contractor should immediately inform the Chief. Litigation Branch, Business and Administrative Law Division. Office of General Counsel. Department of Health and Human Services. 330 Independence Avenue SW., Room 5382. Washington. DC 20201, and the contractor's tort claims liaison, and forward the following materials:

(a) Four copies of the claimant's medical records of treatment, inpatient and outpatient, and any related correspondence, as well as reports of consultants:

(b) A narrative summary of the care and treatment involved:

(c) The names and addresses of all personnel who were involved in the care and treatment of the claimant;

(d) Any comments or opinions that the employees who treated the claimant believe to be pertinent to the allegations contained in the claim; and

(e) Other materials identified in $900.188(c).

Non-Medical Related Claims

$900.204 le FTCA the exclusive remedy for a non-medical related tort claim arising out of the performance of a selfdetermination contract?

Yes. Except as explained in 5900.183(b), no claim may be filed against a self-determination contractor or employee based upon performance of non-medical-related functions under a self-determination contract. Claims of this type must be filed against the United States under FTCA.

$900.205 To what non-medical-related claims against self-determination contractors dess FTCA apply?

It applies to:

(a) All tort claims arising from the performance of self-determination contracts under the authority of the Act on or after October 1, 1989; and

(b) Any tort claims Arst Aled on or after October 24, 1989, regardless of when the incident which is the basis of the claim occurred.

$900.208 What employees are covered by FTCA for non-medical-related claims?

(a) Permanent employees: (b) Temporary employees: (c) Persons providing services without compensation in carrying out a contract: (d) Persons required because of their employment by a self-determination contractor to serve non-HS

provided in facilities not owned by the contractor); and

(e) Federal employees assigned to the

contract.

de?

Contract

beert cover?

Lorber statutes and

regulations apply to contract emp

(a) The Contract Disputes Act of 197 (CDA), Public Law 95-5634 U.S.C. 601 as amende

how me matter is submitted to the Karior Hoard of Contract Anneals, 43 CFR 4.110-126: and

(c) The Equal Access tence Act. S U.S.C. 504 2U.S.C. 2412 and regulons at 43 CFR 4.601 through 4.619 DOI and 45 Cr

$900.217 is filing a claim under the 60X
our only option for mestvig post-award
contract diepe 17

No. The Federal government attempts
tole all contract disputes by
agreement at the awardmedicial's
level. These are alternatives to hu
claim under the CDA:

(a) Before issuing adversion on a consider using informal discussions claim, the warding official should betwth parties assisted by individuals who have not beentially participated in the matter, to aid f resolving differences.

(b) In addition to fling CDA claim. or instead of hug a CDA claim, the parties may choose to use an alternative pute resolution mechanism, pursuant to the P of the Administrative Dispute Resolution Act. Few 101-552. as amended, 5 U.S.C. Set seq.. or the options listed action 108(106 of the Indian SelfDomination Act. as applicable. $900.218 What is a claim unda (Alatur & written demand by of the contracting parties, asking for one or more of towing (1) Payment of a specific sum o money under the contract:

(2) Adjustment or interpretation of

cone terms; or

(Seether claim relating to the