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Federal Tort Claims Act and Health Center Medical Malpractice Liability Protection Southeast Atlantic Health Disparities Collaboratives 2008 Annual Transformation Teams summit/Reunion March 28, 2008 Nashville, TN. Martin Bree Triton Group, LLC. Triton Group. - PowerPoint PPT Presentation
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April 21, 2023April 21, 2023April 21, 2023April 21, 2023
Federal Tort Claims Act andHealth Center Medical Malpractice Liability
Protection
Southeast Atlantic Health Disparities Collaboratives2008 Annual Transformation Teams summit/Reunion
March 28, 2008Nashville, TN
Federal Tort Claims Act andHealth Center Medical Malpractice Liability
Protection
Southeast Atlantic Health Disparities Collaboratives2008 Annual Transformation Teams summit/Reunion
March 28, 2008Nashville, TN
Martin Bree
Triton Group, LLC.
Martin Bree
Triton Group, LLC.
April 21, 2023April 21, 2023
Triton GroupTriton GroupFirst Source of FTCA Program Information
o Triton Groupo 227 Hamburg.o Pompton Lakes, NJ 07442o HRSA Contract No. 232-00-0097
o Martin J. Bree Susan Lewiso 772-873-1865 727-822-4271o 772-873-1695 (fax)
[email protected] 856-625-8638 (cell)o [email protected]
o Roger Fuydalo 866-FTCA-HELP - Toll Free Marty Hiller (Free Clinics)o (866-382-2435) 216-382-4150o 973-831-8395 (Fax) [email protected] [email protected]
First Source of FTCA Program Information
o Triton Groupo 227 Hamburg.o Pompton Lakes, NJ 07442o HRSA Contract No. 232-00-0097
o Martin J. Bree Susan Lewiso 772-873-1865 727-822-4271o 772-873-1695 (fax)
[email protected] 856-625-8638 (cell)o [email protected]
o Roger Fuydalo 866-FTCA-HELP - Toll Free Marty Hiller (Free Clinics)o (866-382-2435) 216-382-4150o 973-831-8395 (Fax) [email protected] [email protected]
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program WorksHow the Program Works
• A scheme that provides immunity from lawsuit.
• Appears similar to an occurrence malpractice policy.
• Program in existence for 13 years.
• Very successful in terms of savings for health centers and coverage of health centers and staff.
• A scheme that provides immunity from lawsuit.
• Appears similar to an occurrence malpractice policy.
• Program in existence for 13 years.
• Very successful in terms of savings for health centers and coverage of health centers and staff.
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• Under FSHCAA Health Centers are eligible to be deemed “federal employees”.
• Provides immunity from lawsuit alleging medical malpractice.
• Plaintiff’s only remedy is claim under Federal Tort Claims Act (FTCA).
• Under FSHCAA Health Centers are eligible to be deemed “federal employees”.
• Provides immunity from lawsuit alleging medical malpractice.
• Plaintiff’s only remedy is claim under Federal Tort Claims Act (FTCA).
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• Who, what , when where?– Who is covered - Relationship to Health
Center.– What is covered – medical malpractice.– Where is it covered – scope of project.– When is it covered – scope of employment.
• Who, what , when where?– Who is covered - Relationship to Health
Center.– What is covered – medical malpractice.– Where is it covered – scope of project.– When is it covered – scope of employment.
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• Who is Eligible to be Deemed:
• Community Health Centers [section 330 (e)].
• Migrant Health Centers [section 330 (g)].
• Health Care for the Homeless [section 330 (h)].
• Public Housing Primary Care [section 330 (i)].
• Who is Eligible to be Deemed:
• Community Health Centers [section 330 (e)].
• Migrant Health Centers [section 330 (g)].
• Health Care for the Homeless [section 330 (h)].
• Public Housing Primary Care [section 330 (i)].
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• Who is covered - people– Employees.– Officers.– Directors.– Governing board members.– Contractors (some, not all).
• Who is covered - people– Employees.– Officers.– Directors.– Governing board members.– Contractors (some, not all).
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• Who is covered - Employees– All employees, full time or part time.– Volunteers are not employees.– Employees get a W-2 at end of year.
• Who is covered - Employees– All employees, full time or part time.– Volunteers are not employees.– Employees get a W-2 at end of year.
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• Who is covered - Contractors– Any full time contract provider (over 32 1/2 hours per week). – Part time contract provider of services in the fields of family
practice, ob-gyn, general internal medicine, or general pediatrics.
– Contract must be between the deemed health center and the individual provider.
– Contracts between the deemed health center and a corporation (including Professional Corporations) are not covered.
• Who is covered - Contractors– Any full time contract provider (over 32 1/2 hours per week). – Part time contract provider of services in the fields of family
practice, ob-gyn, general internal medicine, or general pediatrics.
– Contract must be between the deemed health center and the individual provider.
– Contracts between the deemed health center and a corporation (including Professional Corporations) are not covered.
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• Contractors– 42 U.S.C. §233(g)(1)(A) “…any contractor of
such an entity who is a physician, or other licensed or certified health care practitioner”.
– 42 U.S.C. §233 (g)(5) “an individual may be considered a contractor”.
– El Rio Case
• Contractors– 42 U.S.C. §233(g)(1)(A) “…any contractor of
such an entity who is a physician, or other licensed or certified health care practitioner”.
– 42 U.S.C. §233 (g)(5) “an individual may be considered a contractor”.
– El Rio Case
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• What is covered?– Medical malpractice.– More specifically, medical, surgical, dental
and related activities (if within the scope of employment and scope of project).
• What is covered?– Medical malpractice.– More specifically, medical, surgical, dental
and related activities (if within the scope of employment and scope of project).
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• Where is it covered – within the scope of project
– Only incidents that occur within the scope of the project are covered. (See Policy Information Notice 2008-01).
– Scope of Project are the activities described in the grant application that are approved by Public Health Service via Notice of Grant Award.
– An existing Scope of Project cannot be changed in a grant application. There is a separate process.
– A grant award for a new section 330 activity does change the Scope of Project.
• Where is it covered – within the scope of project
– Only incidents that occur within the scope of the project are covered. (See Policy Information Notice 2008-01).
– Scope of Project are the activities described in the grant application that are approved by Public Health Service via Notice of Grant Award.
– An existing Scope of Project cannot be changed in a grant application. There is a separate process.
– A grant award for a new section 330 activity does change the Scope of Project.
Triton Group, LLC
April 21, 2023April 21, 2023
How the Program Works (cont.)How the Program Works (cont.)
• When is it covered– Coverage is only for acts that are within the
scope of employment of the covered individual.
– No Moonlighting.– Must be acting on behalf of the deemed
entity.
• When is it covered– Coverage is only for acts that are within the
scope of employment of the covered individual.
– No Moonlighting.– Must be acting on behalf of the deemed
entity.
Triton Group, LLC
April 21, 2023April 21, 2023
FTCA ProceduresFTCA Procedures
• Procedure– Plaintiff files administrative claim against the United
States.– DHHS reviews claim and may deny it, pay it or offer a
settlement.– If DHHS denies claim plaintiff may file suit.– If DHHS does not act on claim within six months
plaintiff may file suit.– When suit is filed case transferred to DOJ.– DOJ may attempt to settle suit otherwise it goes into
litigation.
• Procedure– Plaintiff files administrative claim against the United
States.– DHHS reviews claim and may deny it, pay it or offer a
settlement.– If DHHS denies claim plaintiff may file suit.– If DHHS does not act on claim within six months
plaintiff may file suit.– When suit is filed case transferred to DOJ.– DOJ may attempt to settle suit otherwise it goes into
litigation.
Triton Group, LLC
April 21, 2023April 21, 2023
FTCA ProceduresFTCA Procedures
• Procedure– Plaintiffs often file suit in state court.– What to do:
• Immediately fax complaint and deeming letter to:
Lisa Barsoomian Department of Health and Human Service
Office of General Counsel (OGC) 202-619-2922 (Fax)
202-619-2155 (Voice)• Have health center attorney request extension of time to reply.
• Procedure– Plaintiffs often file suit in state court.– What to do:
• Immediately fax complaint and deeming letter to:
Lisa Barsoomian Department of Health and Human Service
Office of General Counsel (OGC) 202-619-2922 (Fax)
202-619-2155 (Voice)• Have health center attorney request extension of time to reply.
Triton Group, LLC
April 21, 2023April 21, 2023
Potential ProblemsPotential Problems
• Contracts.• Sub-Recipients.• Scope of Project - Sites and Services.• Billing Arrangements.• Americans with Disabilities Act, Rehabilitation
Act, Civil Rights Act.• Nursing Homes• Contracts with Correctional Institutions• Non-Health Center Patients
• Contracts.• Sub-Recipients.• Scope of Project - Sites and Services.• Billing Arrangements.• Americans with Disabilities Act, Rehabilitation
Act, Civil Rights Act.• Nursing Homes• Contracts with Correctional Institutions• Non-Health Center Patients
Triton Group, LLC
April 21, 2023April 21, 2023April 21, 2023April 21, 2023
Scope of ProjectScope of Project
New Policy - PIN 2008-01
Baseline Scope Verification Process - PAL 2008-01
New Policy - PIN 2008-01
Baseline Scope Verification Process - PAL 2008-01
April 21, 2023April 21, 2023
Important issuesImportant issues
– Insurance requirements of hospitals and Health Maintenance Organizations.
– National Practitioner Data Bank.– Other Insurance.– Deeming Applications .– Credentialing – a critical issue.– Emergency Response - PIN 2007-16
– Insurance requirements of hospitals and Health Maintenance Organizations.
– National Practitioner Data Bank.– Other Insurance.– Deeming Applications .– Credentialing – a critical issue.– Emergency Response - PIN 2007-16
Triton Group, LLC
April 21, 2023April 21, 2023
Non-Health Center PatientsNon-Health Center Patients
• Federal Register Notice September 25, 1995 (Volume 60 Number 185) page 49417 – 49418.– Hospital On-Call Requirements.– Cross Coverage Arrangements.– Community Activities.
• Other situations require a “Particularized Determination” See 99-08.
• Federal Register Notice September 25, 1995 (Volume 60 Number 185) page 49417 – 49418.– Hospital On-Call Requirements.– Cross Coverage Arrangements.– Community Activities.
• Other situations require a “Particularized Determination” See 99-08.
Triton Group, LLC
April 21, 2023April 21, 2023
National Practitioner Data Bank (NPDB)
National Practitioner Data Bank (NPDB)
• HRSA Participates in the NPDB.
• 42 U.S.C. §401 – 431.
• Assistant Secretary of Health elects to require PHS agencies to report – October 1987.
• http://www.npdb-hipdb.com.
• HRSA Participates in the NPDB.
• 42 U.S.C. §401 – 431.
• Assistant Secretary of Health elects to require PHS agencies to report – October 1987.
• http://www.npdb-hipdb.com.
Triton Group, LLC
April 21, 2023April 21, 2023
Other Insurance NeedsOther Insurance Needs
• Gap or Wrap-around: covers medical malpractice not covered by FTCA.– Volunteers– Outside Scope of project– Contracts with corporations– Contracts with part time specialists– Peer review (maybe)
• Tail Insurance• General Liability Insurance• Directors and Officers Liability• Proof of malpractice coverage – Triton Group
• Gap or Wrap-around: covers medical malpractice not covered by FTCA.– Volunteers– Outside Scope of project– Contracts with corporations– Contracts with part time specialists– Peer review (maybe)
• Tail Insurance• General Liability Insurance• Directors and Officers Liability• Proof of malpractice coverage – Triton Group
Triton Group, LLC
April 21, 2023April 21, 2023
Deeming ApplicationsDeeming Applications
• 2007 Policy– New organizations (never deemed before):
• Submit application found in PIN 99-08 to BPHC.– Previously deemed entities
• Submit application found in PAL 2007-02 to BPHC.• Due July 1, 2007.
– All participating health centers should have received 2008 deeming letters by now.
• 2008 Policy– Tentative due date June 1, 2008. (Look for a Program
Assistance Letter around Mid April.)
• 2007 Policy– New organizations (never deemed before):
• Submit application found in PIN 99-08 to BPHC.– Previously deemed entities
• Submit application found in PAL 2007-02 to BPHC.• Due July 1, 2007.
– All participating health centers should have received 2008 deeming letters by now.
• 2008 Policy– Tentative due date June 1, 2008. (Look for a Program
Assistance Letter around Mid April.)
Triton Group, LLC
April 21, 2023April 21, 2023
Program ValueMalpractice Premium Savings
Program ValueMalpractice Premium Savings
• Studies conducted for Triton Group by Princeton Insurance Company and Huggins Actuarial Services.
• Premiums calculated for 2002, 2005, 2006• Used Uniform Data System (UDS) data for
deemed Health Centers
• Studies conducted for Triton Group by Princeton Insurance Company and Huggins Actuarial Services.
• Premiums calculated for 2002, 2005, 2006• Used Uniform Data System (UDS) data for
deemed Health Centers
Triton Group, LLC
April 21, 2023April 21, 2023
Program ValueMalpractice Premium Savings
Study Methodology
Program ValueMalpractice Premium Savings
Study Methodology• Used Occurrence Premiums with $1m/3m limits.• Premiums include 25% for taxes, profits,
commissions, etc.• Each deemed Health Center rated by its specific
territory.• Rates based on Full Time Equivalents by specialty.• Premium increased by 10% to cover corporation and
allied personnel.
• Used Occurrence Premiums with $1m/3m limits.• Premiums include 25% for taxes, profits,
commissions, etc.• Each deemed Health Center rated by its specific
territory.• Rates based on Full Time Equivalents by specialty.• Premium increased by 10% to cover corporation and
allied personnel.
Triton Group, LLC
April 21, 2023April 21, 2023
Program ValueMalpractice Premium Savings Study
Results
Program ValueMalpractice Premium Savings Study
Results• 2002 Savings for deemed centers - $164,000,000• 2005 Savings for deemed centers - $180,000,000• 2006 Savings for deemed centers - $184,000,000• 2007 Savings for deemed centers - $192,000,000
• Extrapolating from the studies: total savings since 1993 $1.6 billion
• 2002 Savings for deemed centers - $164,000,000• 2005 Savings for deemed centers - $180,000,000• 2006 Savings for deemed centers - $184,000,000• 2007 Savings for deemed centers - $192,000,000
• Extrapolating from the studies: total savings since 1993 $1.6 billion
Triton Group, LLC
April 21, 2023April 21, 2023
0
50
100
150
200
250
300
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007
HRSA FTCA CLAIMS PER FISCAL YEAR
Triton Group, LLC
April 21, 2023April 21, 2023
0
10,000,000
20,000,000
30,000,000
40,000,000
50,000,000
60,000,000
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007Year
FTCA Losses Per YearHealth Centers
0
10,000,000
20,000,000
30,000,000
40,000,000
50,000,000
60,000,000
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007Year
FTCA Losses Per YearHealth Centers
Triton Group, LLC
April 21, 2023April 21, 2023
Incident Status SummaryHealth Center FTCA Malpractice IncidentsOct 1994 – Jun 30, 2006
Incident Status SummaryHealth Center FTCA Malpractice IncidentsOct 1994 – Jun 30, 2006
• 1,456 Medical Incidents – 412 Deemed Health Centers (DHCs)
– 51 States/Territories• 60% w/ final disposition
• 283 Obstetrics Related Claims– 151 DHCs
– 36 States/Territories
• 1,456 Medical Incidents – 412 Deemed Health Centers (DHCs)
– 51 States/Territories• 60% w/ final disposition
• 283 Obstetrics Related Claims– 151 DHCs
– 36 States/Territories
Triton Group, LLC
April 21, 2023April 21, 2023
Severity of Injuries Resulting from Malpractice IncidentsSeverity of Injuries Resulting from Malpractice Incidents
0 10 20 30 40 50
Emotional
Insignificant
MnrTemporary
MjrTemporary
MnrPermanent
Sig Permanent
Maj Permanent
Quad,BrainDmg
Death
Unknown
0 10 20 30 40 50
Emotional
Insignificant
MnrTemporary
MjrTemporary
MnrPermanent
Sig Permanent
Maj Permanent
Quad,BrainDmg
Death
Unknown
% of total
NATIONAL N=1,456
Triton Group, LLC
April 21, 2023April 21, 2023
Nature of OccurrenceNature of Occurrence
Triton Group, LLC
Previously Reported
1Q07 2Q07 3Q07 4Q07 Previous/Total
Obstetrics Related 15 10 12 5 305/347
Diagnosis Related 16 14 13 15 418/474
Treatment Related 7 11 16 10 284/328
Medication Related 5 7 8 5 126/151
Surgery Related 2 3 1 3 83/92
Other Miscellaneous 0 0 1 0 125/126
Monitoring Related 2 0 0 0 16/18
Equipment/Product Related
0 0 0 1 8/9
Anesthesia Related 0 0 0 0 7/7
IV & Blood Products Related
0 0 0 0 4/4
April 21, 2023April 21, 2023
Secondary Factors / System Problems
10 127
16 140 6 0 0 0
681
357
394
204
107
5626
3 1
311
0
50
100
150
200
250
300
350
400
450
500
550
600
650
700
750
Pol
icie
s /
Pro
toco
ls /
Pro
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res
Mis
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s
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ctor
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ning
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Com
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ion
Anc
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/R
ecur
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Com
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Equ
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Pro
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Num
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Q4FY2006 Previous
Triton Group, LLC
April 21, 2023April 21, 2023
Risk ManagementRisk Management
• Health Centers are expected to use a portion of savings to provide risk management services. (PIN 99-08 Para. XVIII).
• NACHC –risk management training for groups of health centers.
• Inspector General report on risk management in health centers.
• Triton Group can provide risk management services.
• Health Centers are expected to use a portion of savings to provide risk management services. (PIN 99-08 Para. XVIII).
• NACHC –risk management training for groups of health centers.
• Inspector General report on risk management in health centers.
• Triton Group can provide risk management services.
Triton Group, LLC
April 21, 2023April 21, 2023
Credentialing and PrivilegingCredentialing and Privileging
• PIN 2002-22
• Credentialing and privileging required of all licensed or certified health care practitioners.
• Process for Licensed Independent Practitioners (LIPs) generally mimics JCAHO.
• Non-LIPs requires primary source verification of only license or certification.
• Volunteers included.
• PIN 2002-22
• Credentialing and privileging required of all licensed or certified health care practitioners.
• Process for Licensed Independent Practitioners (LIPs) generally mimics JCAHO.
• Non-LIPs requires primary source verification of only license or certification.
• Volunteers included.
Triton Group, LLC
April 21, 2023April 21, 2023
Risk Management Findings from Health Center Claims
Risk Management Findings from Health Center Claims
• Credentialing and Privileging– Competence of providers
• Medical Records– Legibility– Completeness– Signatures– Availability
• Birth Injuries– Existence and Proper use of protocols
• Informed Consent
• Credentialing and Privileging– Competence of providers
• Medical Records– Legibility– Completeness– Signatures– Availability
• Birth Injuries– Existence and Proper use of protocols
• Informed Consent
Triton Group, LLC
April 21, 2023April 21, 2023
Recent Risk Management
Recommendations (from HRSA Contractor -
Keystone Peer Review Organization)
Recent Risk Management
Recommendations (from HRSA Contractor -
Keystone Peer Review Organization)
• Training/CME: – Monitoring Pitocin Administration– Cord prolapse– GBS testing
• Preceptor needs in labor and delivery setting
• Training/CME: – Monitoring Pitocin Administration– Cord prolapse– GBS testing
• Preceptor needs in labor and delivery setting
Triton Group, LLC
April 21, 2023April 21, 2023
Recent Risk Management RecommendationsRecent Risk Management Recommendations
• Illegible and/or Inadequate Medical Record Documentation– Accurate, complete and legible– Documentation of scheduled exams– Training in proper documentation– Use problem list and flow sheets for lab and meds– Encourage use of EMR– Documentation of conversations with patients or
specialists
• Illegible and/or Inadequate Medical Record Documentation– Accurate, complete and legible– Documentation of scheduled exams– Training in proper documentation– Use problem list and flow sheets for lab and meds– Encourage use of EMR– Documentation of conversations with patients or
specialists
Triton Group, LLC
April 21, 2023April 21, 2023
Recent Risk Management RecommendationsRecent Risk Management Recommendations• Policies/Procedures/Protocols
– Lack of policies/procedure/protocol in 32% of cases reviewed
– Examples: chest pain, handling of abnormal test results, adherence to ACOG 30 Minute “Decision to Incision” guideline.
– Every health center should have its own customized set of well defined policies and procedures
– Lack of algorithm for DVT/Pulmonary embolism prophylaxis
– Lack of vaccine schedule for high-risk patients
• Policies/Procedures/Protocols– Lack of policies/procedure/protocol in 32% of cases
reviewed– Examples: chest pain, handling of abnormal test
results, adherence to ACOG 30 Minute “Decision to Incision” guideline.
– Every health center should have its own customized set of well defined policies and procedures
– Lack of algorithm for DVT/Pulmonary embolism prophylaxis
– Lack of vaccine schedule for high-risk patients
Triton Group, LLC
April 21, 2023April 21, 2023April 21, 2023April 21, 2023
Recent Risk Management RecommendationsRecent Risk Management Recommendations
•Training: •Shoulder Dystocia Drills
•Other•Lack of effective communication in 29% of cases:
•Failure to communicate plan of care with patients
•Failure to inform ptients of lab results
•Training: •Shoulder Dystocia Drills
•Other•Lack of effective communication in 29% of cases:
•Failure to communicate plan of care with patients
•Failure to inform ptients of lab resultsTriton Group, LLC
April 21, 2023April 21, 2023
Triton GroupTriton GroupFirst Source of FTCA Program Information
o Triton Groupo 227 Hamburg.o Pompton Lakes, NJ 07442o HRSA Contract No. 232-00-0097
o Martin J. Bree Susan Lewiso 772-873-1865 727-822-4271o 772-873-1695 (fax)
[email protected] 856-625-8638 (cell)o [email protected]
o Roger Fuydalo 866-FTCA-HELP - Toll Free Marty Hiller (Free Clinics)o (866-382-2435) 216-382-4150o 973-831-8395 (Fax) [email protected] [email protected]
First Source of FTCA Program Information
o Triton Groupo 227 Hamburg.o Pompton Lakes, NJ 07442o HRSA Contract No. 232-00-0097
o Martin J. Bree Susan Lewiso 772-873-1865 727-822-4271o 772-873-1695 (fax)
[email protected] 856-625-8638 (cell)o [email protected]
o Roger Fuydalo 866-FTCA-HELP - Toll Free Marty Hiller (Free Clinics)o (866-382-2435) 216-382-4150o 973-831-8395 (Fax) [email protected] [email protected]
Triton Group, LLC
