Government

HHS prodded to implement liability coverage for free clinic volunteers

These facilities would welcome any help with their overhead costs but are worried that the awaited rules will be too burdensome.

By Joel B. Finkelstein — Posted June 28, 2004

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Washington -- The idea seemed so simple when it passed in Congress. To attract more retired and off-hours physicians to volunteer at free clinics, the government would provide their liability coverage.

But nearly eight years later, this tiny provision of the Health Insurance Portability and Accountability Act has been stymied by confusion over how to implement it.

The delay is taking a toll. With medical liability premiums skyrocketing, many free clinics are feeling the pinch.

"It's a major problem nationally that is closing some free clinics," said Patricia White, executive director of West Virginia Health Right, a free clinic in Charleston.

Now some lawmakers are getting involved. In a June 4 letter, Sens. Judd Gregg (R, N.H.) and Ron Wyden (D, Ore.), urged the Health and Human Services Dept. to expedite the rule-making process so free clinics can begin to apply for participation in the federal program that provides liability insurance for federal workers and full-time staff at federally qualified health centers.

"Part of our overall health plan must be to provide the staffing, legal protection and resources necessary to deliver basic and preventive care to patients without insurance," said Gregg, who helped appropriate close to $5 million for the free clinic provision. "Extending liability coverage to volunteer physicians is one way to encourage more doctors to serve uninsured patients in free clinics."

Also this month, the AMA House of Delegates adopted a Board of Trustees report that found that many retired and semi-retired physicians want to volunteer their services to the indigent and uninsured. The report concluded that HHS should issue regulations to implement the HIPAA provision and that states should ease licensing barriers, such as fees, to enable these doctors to volunteer.

Volunteer physicians are more than just a valuable resource for free clinics -- they are a necessary one. Most clinics rely on tens, if not hundreds, of local physicians who work a few hours a week or a month providing patient care.

Some clinics require doctors to have their own liability coverage, meaning they usually must turn away retired doctors who want to volunteer. Others run bare, relying on state Good Samaritan laws that offer some protection from lawsuits. But many of these laws are untested. Some clinics purchase liability coverage for their volunteers.

While the latter would most directly benefit from the cash freed up by having coverage provided by the federal government, the other clinics also would gain the advantage of being able to attract more volunteer physicians to serve their patients.

"Get our arms around this"

The senators and others might have to keep the pressure on HHS to publish rules, experts said. The department is not stalling, but officials are being very cautious about how to proceed.

"There's no political resistance to this. There is not even bureaucratic resistance to this. There is just how do we get our arms around this," said Dan Hawkins, vice president for federal, state and public affairs at the National Assn. of Community Health Centers.

Free clinics take no payment from anyone, including private carriers, Medicare, Medicaid and the patients themselves. That creates a substantial barrier to developing a regulation.

"These are entities that are not known to Medicaid, they're not known to Medicare. ... They're not really known to any part of HHS," Hawkins said.

Because of this, the Health Resources and Services Administration has been grappling with how to classify these entities sufficiently to determine what requirements should be in place for participation in the federal liability program, said HHS spokesman Bill Pierce.

Meanwhile, directors of free clinics are worried that if they are held to the same standards as the federally qualified clinics, they could be shut out of federal help. "We're waiting to see how it will all play out," said Amy Rohling, executive director of the Ohio Assn. of Free Clinics.

She and other clinic administrators are not optimistic when they look at the hoops federally qualified health centers must jump through for their physicians to be covered under the federal program. And those facilities already have the advantage of being relatively homogeneous in how they operate.

"If you have seen one federally qualified health center, you've seen them all," White said. "But if you've seen one free clinic, you've seen one free clinic."

Because of this diversity among free clinics, some expert suggest that liability issues might be better addressed on a local rather than national level.

Several states have had notable success in bringing free clinics under the umbrella of local government indemnity pools. To participate, clinics could be required to do little more than register volunteer physicians with the state pool to be covered.

At last count, 43 states and the District of Columbia had laws shielding volunteer physicians from liability. But the strength of those laws is highly variable, and none provides complete immunity from lawsuits.

Malpractice lawsuits against physicians serving free clinics are extremely rare. An informal survey of more than 100 such facilities found that lawsuits against them numbered in the single digits over the lifetime of the clinics.

"It's not a litigious group," White said. Most of the patients are just grateful to receive medical attention. Additionally, high-risk groups, such as pregnant women and children, are covered by Medicaid and so don't come to free clinics.

"The risk of a lawsuit is exceedingly low, but it's not zero," said Paul A. Hattis, MD, MPH, an assistant professor in the Dept. of Family Medicine and Community Health at Tufts University Medical School in Boston. "People need to feel protected."

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ADDITIONAL INFORMATION

Significant contribution

  • Approximately 1,000 free clinics operate in the United States.
  • About 375,000 clinicians volunteer to work with uninsured patients every year in free clinics and elsewhere.
  • There are free clinics in every state and the District of Columbia.
  • They serve an estimated 3 million uninsured and underinsured Americans.
  • Free clinics provide $3 billion worth of health care.

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