DI 39518.055 Litigation and Related Issues - Federal Tort Claims – Disability Determination Services (DDS)
Federal Tort Claims Act 28 USC §§2671
1. Federal tort claim
A federal tort claim is a civil suit against the Federal government for any wrongful act not including a breach of contract.
2. Independent contractor
The term independent contractor refers to the nature of the legal relationship which exists between the Federal and State governments despite the fact that agreements are no longer signed and the DDS functions under regulations.
3. Amicus curiae brief
An amicus curiae brief is filed by someone not a party to the proceeding as a “friend of the court.”
Its purpose is to present arguments to support the plaintiff' or defendant's case.
1. Federal representation of DDS
If the Federal government agrees to represent a DDS employee sued under the Federal Tort Claims Act, it will be doing so to protect its own interest , i.e., to preserve policy.
2. Federal interest
a. Major challenge to SSA policy
If the issue in the case poses a major challenge to SSA policy or procedure, SSA will recommend to the Department of Justice (DOJ) through the SSA Office of the General Counsel that DOJ defend the Federal interest.
b. Amicus curiae
DOJ may represent the State employee, or, in some cases, may decide to file an “amicus curiae” brief.
c. Likelihood of DOJ representation
The likelihood that DOJ may represent a DDS administrator, DDS examiner, or DDS review physician, even in a case where there is a major Federal interest, is extremely remote.
C. Policy principle
1. Agent of DHHS
Under this Act neither the State agency nor its employees are considered to be an agent of DHHS.
2. Independent contractor
DDS employees are in the role of independent contractors.
D. Operating policy
1. Negligent acts
Negligent acts of DDS employees are not considered by the DOJ to be acts of employees of the Federal government.
2. DOJ representation of consultative fxamination (CE) panel physicians
CE panel physicians are:
responsible for providing for their own legal defense;
not under the specific control of the Federal government;
considered to be “independent contractors” of the State agency rather than employees of the Federal government or of any Federal agency.
The probability of the DOJ representing a CE panel physician is even less likely because the physician is usually further removed as a subcontractor of the DDS.
Whether these physicians may look to the State for legal representation depends on whether or not the applicable State law assumes liability for the payment of damages and for the provisions of legal counsel.
NOTE: If a claimant or beneficiary is injured in the course of a test or examination, including invasive procedures by an independant contractor or its subcontractor, SSA funds will not be used to pay for resulting treatment or damages.