Army medical training agreements.
Subject: Property and casualty insurance industry (Contracts)
Hospitals, Military (Contracts)
Medical personnel (Training)
Authors: Deaver, Maurice A.
Harris, Kendra J.
Pub Date: 01/01/2012
Publication: Name: U.S. Army Medical Department Journal Publisher: U.S. Army Medical Department Center & School Audience: Professional Format: Magazine/Journal Subject: Health Copyright: COPYRIGHT 2012 U.S. Army Medical Department Center & School ISSN: 1524-0436
Issue: Date: Jan-March, 2012
Topic: Event Code: 490 Contracts & orders let; 610 Contracts & orders received Computer Subject: Contract agreement
Product: Product Code: 6330000 Property & Liability Insurance NAICS Code: 524126 Direct Property and Casualty Insurance Carriers SIC Code: 6331 Fire, marine, and casualty insurance
Organization: Government Agency: United States. Army
Geographic: Geographic Scope: United States Geographic Code: 1USA United States
Accession Number: 284015867
Full Text: Introduction

Army medical treatment facilities (MTFs) operate professional education programs to train military healthcare providers (HCPs). (1) To ensure sufficient training opportunities are available for military HCPs and to sustain viable in-house programs, MTFs enter into gratuitous training and affiliation agreements with civilian healthcare training institutions (TIs). The agreements allow military and civilian HCPs to train at each other's facilities. Gratuitous training agreements under which military HCPs train in civilian medical facilities are called medical training agreements (MTAs). (2) Gratuitous training agreements under which civilian HCPs train in Army MTFs are known as affiliation agreements. * This article summarizes the history of the Army MTA program from a legal perspective and discusses the current status of the program.

HISTORY

Historically, the primary legal issue in MTAs has been professional liability coverage for HCPs who may be sued in a personal capacity. Provision of liability coverage has always been problematic. The Department of Justice (DOJ) becomes involved by virtue of the statutory requirements under the Federal Tort Claims Act (FTCA). (3) In order for the FTCA to apply, DOJ or the appropriate US Attorney's Office must certify that the allegedly negligent HCP was acting within the scope of federal employment and move to substitute the United States as the defendant. (4) Upon substitution, the HCP is immune from personal liability. (4,5)

Prior to 1989, DOJ concluded that work performed by military members training at civilian facilities primarily benefited the TI and not the Army, finding that military HCP-trainees were not acting within the scope of employment. Without certification and substitution by DOJ, the individual military HCP-trainee would be left as the defendant in a lawsuit, responsible for his or her own defense and without any malpractice insurance other than that which he or she might have personally obtained. This result was untenable.

In 1989, DOJ and legal representatives from the military services reached a consensus on defending these cases. The DOJ agreed to certify that the military HCP trainees were acting within the scope of their federal employment and substitute the United States as the defendant. In return, the services agreed to make every effort to ensure that the military HCPs training at TIs were covered under those institutions' insurance, rather than relying on the FTCA. In addition, the services agreed they would not accept one-sided agreements and would ensure the United States did not accept liability for civilian students at MTFs which was greater than the liability TIs accepted for military HCPs at their facilities. Finally, the services agreed to use all possible care in crafting agreements in order to maximize the defenses of the United States, particularly the "borrowed servant" defense. Under the borrowed servant defense, a special employer is liable for the negligent acts of the employee of another general employer when the employee is loaned to and supervised by the special employer. For example, a military HCP-trainee at a TI could be considered a borrowed servant from the MTF (general employer), and thus be covered by the TI's (special employer) professional liability coverage.

Despite the 1989 consensus, in subsequent years, lawsuits arose for professional negligence of military HCPs training in civilian TIs. In some instances, an MTA did not exist, was patently one-sided, did not maximize the ability of DOJ to assert the borrowed servant defense, or was otherwise ill-conceived. As the cases arose, DOJ raised the issue of noncompliance with the 1989 consensus, and raised the possibility that it might decline to certify and substitute if the services continued to fail to uphold their end of the arrangement to enter only into appropriate agreements. Such declinations have not, to the authors' knowledge, occurred.

Creation of Standard Format Medical Training Agreements

Continued friction over nonexistent and inadequate MTAs resulted in 2 standard MTA forms preapproved by DOJ. One form relies on professional liability coverage provided by the TI. The second form relies on the FTCA for professional liability protection. The Army distributed DOJ-approved model MTAs in 1994 and redistributed the same formats in 1996 and 2000. In addition, The Surgeon General's Memorandum dated March 28, 2000, (6) delegated limited authority to regional medical commands (RMC) to enter into MTAs with local teaching hospitals for mission-essential skills augmentation/enhancement training. Two DOJ-approved model MTA formats attached to the Memorandum evolved into US Army Medical Command (MEDCOM) Model MTA Format 1 and Format 2. Format 1, shown in Figures 1 and 2, is favored because it is consistent with the consensus and it provides that the TI will cover the military HCPs with liability insurance. The second format provides for FTCA coverage and specifically sets up the "borrowed servant" defense. Format 2, shown in Figures 3 and 4, should only be entered in the event that the TI cannot or will not agree to provide liability insurance under Format 1.

Current Army policy requires that any agreement varying from DOJ models must be approved beforehand by the US Army Legal Services Agency Litigation Division, Tort Litigation Branch (LITDIV). However, the requirement has been neither well-publicized nor closely observed. In 2003, Army MTFs conducted a local review of MTAs and reported to MEDCOM and LITDIV that, of an estimated 300 agreements, 95% were compliant with the required format. Notably, LITDIV conducted a subsequent physical review of the agreements and documented a substantially lower level of compliance.

Recommendations for Army Regulations and Policies Affecting MTAs

In December 2004, LITDIV recounted the history of the Army's MTA Program in a memorandum to The Surgeon General. LITDIV noted inadequate and erroneous guidance in Army Regulation 351-3, and recommended Training Agreements be separated from that publication and placed in a standalone regulation. However, the current Army Regulation 351-3, (1) published in October 2007, still covers MTAs and affiliation agreements.

In February 2006, the MEDCOM Office of the Staff Judge Advocate made a 2-pronged recommendation to The Surgeon General: (1) request OTJAG support for a senior executive level request to DOJ to suspend DOJ agreement requirements for the duration of the Global War on Terror; and (2) direct the Commanding General, Army Medical Department Center and School (AMEDDC&S) to

* assume proponency for the Army Medical Training and Affiliation Agreement program;

* survey the field on the impact of DOJ Policy on training agreements across the Army;

* establish Army policy on MTAs and affiliation agreements in a new, standalone regulation.

On March 7, 2007, The Surgeon General executed memoranda consistent with that recommendation.

CURRENT ARMY MTA POLICY

As of this writing, portions of the Army policy on MTAs are found in Army Regulation 351-3, paragraph 4-7, (1(p11)) The Surgeon General Memorandum of March 28, 2000, (6) and MEDCOM Model MTA Formats 1 and 2. Paragraph 4-7 of Army Regulation 351-3 sets out the policies, procedures, and responsibilities for what it describes as the Gratuitous Agreement Program, and defines a gratuitous agreement as:

[a] contractual document to obtain short or long-term training for military residents/fellows at civilian or Federal educational institutions when these institutions agree to provide training at no cost to the Government. (1(p11))

Short-term MTAs

Major subordinate commanders are supervisory authorities of short-term MTAs for MTFs within their respective commands. The Commander, MEDCOM is the overall supervisory authority for all Army MTFs. The MEDCOM Assistant Chief of Staff for Resource Management provides oversight for gratuitous agreements through the MEDCOM Agreements Manager (MCRM-M). All proposed MTAs must be reviewed by the judge advocate office supporting the MTF and be signed by a US contracting officer. MTF commanders ensure adherence to the requirements of paragraph 4-7 of Army Regulation 351-3, (1(p11)) and its implementing guidance. Furthermore, "there will be no payment of fees or charges "between the Army MTF and the" TI for short-term training. The Army and the Defense Federal Acquisition Regulation Supplements (7,8) provide limited additional guidance, respectively, for gratuitous agreements and the more general topic of educational service agreements.

Army Regulation 351-3 states that the format The Surgeon General has established:

Thus, MTAs must follow the format prescribed in MEDCOM Model MTA Formats 1 and 2. * MTF commanders may approve, and contracting officers who support the

[FIGURE 1 OMITTED]

MTF commanders may execute, MTAs that conform to MEDCOM Model MTA Format 1 or Format 2. Both formats conform to DOJ guidance. Format 1 prescribes TI-provided liability coverage, legal representation, and no indemnification by the United States, the Army, or the military trainee.

MTF commanders should attempt to agree upon MED COM Model MTA Format 1 with the TI because it is preferred. If the TI cannot or will not agree to Format 1, Format 2 may be used. Format 2 relies on the FTCA for liability protection of the military trainee and establishes the borrowed servant defense, to the extent it exists under applicable state law.

The oversight authority will coordinate with the MEDCOM Staff Judge Advocate (MCJA) to provide advance approval for all deviations from MEDCOM Model MTA Formats 1 and 2. MTFs and major subordinate commands must forward all MTAs that deviate from MEDCOM Model MTA Formats 1 and 2 through agreements manager channels to MCRM-M. In turn, MCRM-M will coordinate with the supervisory authority and MCJA. The oversight authority may approve nonsubstantive deviations from MEDCOM Model MTA Formats. Whenever there is a question as to whether proposed deviations are substantive, MCRM-M will coordinate through MCJA to contact LITDIV and/or the Department of Justice as necessary.

The local command authority issues temporary duty orders for military members in order to establish official duties under MTAs, and to identify the place, inclusive dates, and scope of training the duties will encompass. MTFs forward MTAs to the supervisory authority's support agreement manager within 5 days of execution or modification. MTFs also review existing MTAs annually. In addition to guidance on short-term MTAs, Army Regulation 351-31 provides instructions for long-term MTAs.

Long-term MTAs

The Office of the Surgeon General is the supervisory authority for long-term MTAs. Army Regulation 351-3 assigns the AMEDDC&S Department of Health Education and Training responsibility for the preparation and execution of long-term MTAs. (1(p12)) Assignment of the military HCP-trainee will be by permanent change of station orders. There will be no payment of charges or fees between the government and the TI for training.

[FIGURE 2 OMITTED]

Long-term MTAs follow model MTA Formats prescribed by the Office of the Surgeon General and are executed by US contracting officers.

Staff Skills Augmentation Training Memorandum

The Surgeon General Memorandum of March 28, 2000, (6) delegates to commanders of regional medical commands the authority to enter MTAs for staff participation in necessary mission essential skills augmentation, maintenance, or enhancement training. The Memorandum includes the following prerequisites for staff training pursuant to an MTA:

1. The commander of the regional medical command must designate certain medical skills as mission essential for MTFs in the command.

2. The MTA must provide staff physicians with augmentation, maintenance, or enhancement training for the designated essential skills.

3. The MTA must be with a local teaching hospital.

4. The commander of the regional medical command must approve the act of entering into the MTA, which must be executed by a contracting officer.

5. Commanders of regional medical commands may allow MTF commanders to approve staff participation in training opportunities under MTAs previously entered into by the regional medical command.

6. The training must be within the United States.

7. Training duration should be no longer than a few weeks at any one time, and it should not result in additional certification by a recognized specialty or society board.

8. TRICARE access standards must be maintained and participation in MTAs may not result in overall workload shifts to the managed care contractor.

[FIGURE 3 OMITTED]

The Memorandum requires appropriate legal review of the MTA, but the versions of MEDCOM MTA formats included as enclosures 1 and 2 to the Memorandum are outdated. The Memorandum does not include specific processing instructions, however all requirements described above for short-term MTAs apply.

Because the Memorandum specifies several limitations on the grant of authority to commanders of regional medical commands, requests to deviate from those limitations must be approved. Such deviations might include entering into an MTA with a nonlocal teaching hospital, or entering an MTA for the purpose of enhancing skills of staff members other than physicians. The procedure for requesting approval of deviations is the same procedure used for deviations in short-term MTAs.

The Memorandum concludes by addressing civilian facilities without residency/fellowship training programs. The memorandum indicates the training with industry agreement may be more appropriate for such facilities. Neither MCJA nor LITDIV have any records which suggest that DOJ has ever approved the training with industry format included as enclosure 3 to the Memorandum. Accordingly, any request to use the training with industry format requires DOJ approval for deviations from one of the 2 MEDCOM Model MTA Formats.

OBSERVATIONS ON THE CURRENT ARMY MTA PROGRAM

Deviations from MEDCOM Model MTA Format 1

MEDCOM Model MTA Format 1 is appropriate when the TI provides professional liability coverage. In the past, LITDIV advised that MEDCOM Model MTA Format 1 provides guidance, but is not mandatory because the coverage is not being provided by the United States, but by the TI. When the TI provides coverage, the concerns are: (1) is there actually coverage; (2) does the coverage provide for legal representation; and (3) are there provisions for no recourse against the United States, the trainee, or other Army personnel in the event the TI-provided coverage actually pays out? As a consequence, substantial latitude is permitted within MEDCOM Model MTA Format 1, and most deviations are not deemed substantive.

[FIGURE 4 OMITTED]

Deviations from MEDCOM Model MTA Format 2

When the FTCA replaces liability coverage for the military trainee, MEDCOM Model MTA Format 2 should be used. Even small deviations from this form are frequently viewed as substantive. Attempts to "improve" the document by rewriting it are generally not well-received. Do not attempt to write a better document. Every change to MEDCOM Model MTA Format 2 must be viewed in the context of its impact on the borrowed servant doctrine. Any change which involves severing or weakening the chain of supervision between military trainees and the TI will likely be substantive. The form language of MTA Format 2 places military trainees under the

Any changes in this language will almost certainly be deemed substantive.

Placing supervision responsibilities with personnel who are not employees of the TI (eg, independent contractors) breaks the supervisory chain within the TI and constitutes a substantive change. Similarly, inserting military personnel in the TI as instructors for military trainees also breaks the supervisory chain, as does the insertion of an independent government contractor as the instructor. Moving the responsibility for ensuring compliance with state licensure requirements from the TI to the government has been viewed as a substantive deviation. In one case, however, a change placing the burden on the military trainee was accepted when the TI attorney produced the state statute explicitly placing the burden of compliance on the trainee. These are a few examples in which particular deviations from MEDCOM Model MTA Format 2 were disapproved. There are a number of other deviations that have been disapproved, including proposed MTAs that include numerous changes and additions to MEDCOM Model MTA Format 2, even though the many changes and additions had no apparent impact on the borrowed servant doctrine.

Liability Insurance

Training institutions are increasingly unwilling to pay for liability coverage. Such coverage generally comes in the form of commercial liability insurance, although state-owned TIs may rely on a state tort claims act. Government purchase of liability insurance for military trainees is an alternative. The United States is a self-insurer. On a number of occasions, the Comptroller General has determined that, absent a specific statutory grant of authority or other limited circumstances which are not applicable to MTFs, there is no authority for the United States to purchase liability insurance for its personnel. A federal statute (9) and a Department of Defense directive (10) specifically delegate authority to the Secretary of the Army to purchase liability insurance for medical personnel who are detailed for service with "other than a Federal Department." To the authors' knowledge, such authority has never been exercised or redelegated. Obviously, a general decision to fund commercial liability insurance for military trainees at TIs would have substantial fiscal implications.

To Whom Do the MTA Formats and Rules Apply?

While the MTA rules resulted from military physicians performing residencies in civilian medical TIs, the rules have generally been applied to any medical training in civilian organizations in which a military HCP or student military HCP engaged in clinical training. Notably, since Army Regulation 351-3 (1) and The Surgeon General Memorandum of March 28, 2000 (6) apply to physicians, MTAs for other than physicians require an approved deviation. MTA applicability includes public educational institutions as well as private institutions and commercial businesses that deliver healthcare. The rules apply to both military HCPs and student HCPs, covering ranges from student technicians and nurses through medical staff physicians in initial, advanced, or skills maintenance training. The rules apply to all forms of civilian facilities. In short, MTA format rules apply to all cases in which Army medical personnel deliver healthcare services outside of the MTF to people who are not military health system beneficiaries, because the authority for providing such care is based on the training benefits received by military HCPs. Such training, in turn, enables military HCPs to better deliver healthcare services to military health system beneficiaries.

Viability of the Borrowed Servant Doctrine

The borrowed servant doctrine is a creature of state law. If the doctrine is applied, a TI acting in the role of a special employer is vicariously liable for the negligent acts of military HCPs loaned from the general employer (the MTF) when the military trainees are supervised by the TI. One primary purpose for the development of the MTA format was to maximize coverage for military trainees using TI liability insurance and the borrowed servant defense. If the borrowed servant defense is not recognized and TIs do not independently agree to carry liability coverage, military HCPs must rely on protection under the FTCA. To the extent the state where the TI is located does not recognize the doctrine, an argument might be made that the underlying reason for requiring the model MTA format does not apply. The argument has to be made on a case-by-case basis through the request for approval of a deviation from the MEDCOM Model MTA Formats.

Comparison of Federal Tort Claims Act Protection vs Commercial Liability Insurance

Federal Tort Claims Act coverage for a military HCP is generally more advantageous than commercial liability insurance. For instance, under the FTCA, the military member is immune from liability and is no longer a defendant in the lawsuit. Commercial insurers are only liable up to the policy limit, and the military HCP is still personally liable. Thus, a reasonably well-informed military HCP trainee or a commercial insurer might demand DOJ certify the HCP is within the scope of federal employment in spite of coverage provided by commercial liability insurance.

Military HCP-trainee Duty Status

It is essential that the military HCP-trainee performing under the MTA do so in a duty status. Coverage under the FTCA is predicated on the HCP-trainee acting within the scope of his/her federal employment. DOJ advised in 1989 that it will issue scope of federal employment certifications only in those cases where the HCP-trainee took the actions subject to the complaint(s) pursuant to official orders. DOJ will not issue scope of federal employment certifications in cases where the military HCP-trainee was engaged in activity while on permissive TDY, on leave, or in some other nonduty status.

OTHER MILITARY SERVICE MEDICAL TRAINING AGREEMENTS

The Air Force and Navy published standalone directives covering affiliation agreements and MTAs (Army terminology), or training affiliation agreements (Air Force and Navy terminology). (11,12) Those publications contain DOJ-approved model training affiliation agreement formats specific to each service.

[ILLUSTRATION OMITTED]

References

(1.) Army Regulation 351-3: Professional Education and Training Programs of the Army Medical Department. Washington, DC: US Dept of the Army; October 15, 2007.

(2.) 10 USC [section]4301.

(3.) 28 USC [section]2671-2680.

(4.) 28 USC [section]2679(d).

(5.) 10 USC [section]1089.

(6.) Office of The Surgeon General. Memorandum: Mission Essential Skills Augmentation/Enhancement Training. Washington, DC: US Dept of the Army; March 28, 2000.

(7.) Army Federal Acquisition Regulation Supplement: Part 5101. Washington, DC: US Dept of the Army; September 12, 2001 [rev 22]:151-152.

(8.) Defense Federal Acquisition Regulation Supplement. Washington, DC: US Dept of Defense; 1998 [update November 2011]: Subpart 237.72. Available at: www.acq.osd.mil/dpap/dars/dfars/html/r200907 29/237 72.htm. Accessed November 4, 2011.

(9.) 10 USC [section]1089(f).

(10.) Department of Defense Directive 6000.6: Defense of Certain Medical Malpractice Claims Against Department of Defense Healthcare Providers. Washington, DC: US Dept of Defense; July 2, 2004 [recerti fied October 31, 2006]. Available at: http:// www.dtic.mil/whs/directives/corres/pdf/600006p. pdf. Accessed November 4, 2011.

(11.) Air Force Instruction 41-108: Training Affiliation AgreementProgram.Washington, DC:USDeptofthe AirForce;May 4, 2011.Available at: http://www.e-pub lishing.af.mil. Accessed November 4, 2011.

(12.) BUMED Instruction 7050.1B: Support Agreements. Washington, DC: US Dept of the Navy; March 30, 2011. Available at http://www.med.navy.mil/direc tives/ExternalDirectives/7050.1B.pdf.Accessed No vember 4, 2011.

** The Air Force and Navy refer to both MTAs and affiliation agreements as training affiliation agreements.

*** The MEDCOM Model MTA formats are available from the MEDCOM Agreements Manager (MCRM-M).

Maurice A. Deaver, Jr, JD

Kendra J. Harris

Mr Deaver is Supervisory Attorney, Contract and Fiscal Law Division, Office of the Staff Judge Advocate, US Army Medical Command, Fort Sam Houston, Texas.

At the time this article was written, Ms Harris was a Legal Intern with the Office of the Staff Judge Advocate, US Army Medical Command, Fort Sam Houston, Texas.
will afford the military trainee the benefits and
   protection normally afforded employees of the
   educational institution regarding liability insurance and
   legal representation. (1(p11))


immediate professional supervision and control of
   the Chief, [appropriate department] at the Training
   Institution.... All professional services rendered ...
   by military residents will be properly monitored and
   supervised by TI staff personnel. (6)
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