Federal Tort Claims Act:
Coverage and Claims for Tribal Self-Determination Contracts at the Indian Health Service
GAO-01-1001T, Jul 31, 2001
The Indian Self-Determination and Education Assistance Act of 1975 encourages tribes to participate in and manage programs that for years had been administered on their behalf by the Department of Health and Human Services (HHS) and the Department of the Interior. The act authorizes tribes to take over the administration of such programs through contractual arrangements with the agencies that previously ran them: HHS' Indian Health Service and Interior's Bureau of Indian Affairs. For the Indian Health Service, the programs include mental health, dental care, hospitals and clinics. For the Bureau of Indian Affairs, the programs that can be contracted by tribes include law enforcement, education, and social services. Under the first 15 years of the Self-Determination Act, tribal contractors generally assumed liability for accidents or torts (civil wrongdoings) caused by their employees. However, in 1990, the federal government permanently assumed this liability when Congress extended the Federal Tort Claims Act (FTCA) coverage to tribal contractors under the Self-Determination Act. Originally enacted in 1946, FTCA established a process by which individuals injured by federal employees could seek compensation from the federal government. As a result of extending this coverage to tribal contractors, individuals injured by tribal employees may, under certain circumstances, seek compensation from the federal government. This testimony discusses the (1) process for implementing FTCA coverage for tribal self-determination contracts and (2) FTCA claims history for tribal self-determination contracts at the Indian Health Service for fiscal years 1997 through 1999. GAO found that 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. With the extension of FTCA coverage to tribal contractors, tribal employees or volunteers under the self-determination contract are considered federal employees for the purpose of FTCA coverage. 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. At the administrative level, HHS handles these claims for the Indian Health Service. If a claim is not resolved administratively, a lawsuit may be filed in federal court, where the Department of Justice would defend it. Administrative and legal settlements may be paid from agency funds, the U.S. Treasury, or the tribes' private liability insurance if duplicative coverage exists. Data on FTCA claims involving tribal contractors are not readily available because HHS is not required to track these claims separately from FTCA claims involving federal employees. However, in response to GAO's request for claims data, the department identified 114 claims, filed from fiscal years 1997 through 1999, that arose from programs contracted from the Indian Health Service. Total damages claimed were $487 million. Patient care activities and vehicle accidents of a few tribes gave rise to most of the claims. Although about half of the claims remain open, 58 (involving $230 million in claimed damages) have been brought to closure at a cost of less than $700,000. Of the claims brought to closure, 40 resulted in settlement payments and 18 were denied. This testimony updates a July, 2000 report (RCED-00-169).