The opinion of the court was delivered by: Denise Cote, District Judge
Plaintiff Frank Bogues ("Bogues") brings this medical malpractice action against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. In March 2003, Bogues sought medical treatment from the Ryan/Chelsea-Clinton Community Health Center (the "Ryan/Chelsea Center") and Dr. Paulette Stewart ("Dr. Stewart"). Bogues alleges that he received negligent medical treatment. In July 2005, Bogues sued Dr. Stewart and the Ryan/Chelsea Center for medical malpractice in New York Supreme Court. Pursuant to 28 U.S.C. § 2679(d), the United States Attorney for the Southern District of New York certified that the Ryan/Chelsea Center and Dr. Stewart were "deemed" to be employees of the Public Health Service under the Federally Supported Health Centers Assistance Act ("FSHCAA"), 42 U.S.C. § 233(g), and were acting within the scope of their employment at the time they provided medical treatment to Bogues. Bogues' case was removed to federal court, the United States was substituted as the defendant, and the case was dismissed for failure to exhaust administrative remedies. After the administrative process proved fruitless, Bogues filed the instant action against the United States pursuant to the FTCA. Evidence obtained in initial discovery subsequently revealed that the Ryan/Chelsea Center and Dr. Stewart were never properly "deemed" to be federal employees at the time of Bogues' treatment in March 2003. Accordingly, Bogues' claims under the FTCA are dismissed for lack of subject matter jurisdiction.
Subject matter jurisdiction in this FTCA action hinges on whether the Ryan/Chelsea Center and Dr. Stewart were "deemed" to be employees of the Public Health Service at the time of Bogues' medial treatment in March 2003. A discussion of the statutory and regulatory framework governing the deeming process for federally funded health centers is thus an appropriate place to begin.
1. Statutory and Regulatory Framework
Under § 224 of the Public Health Service Act of 1944 (the "PHSA"), the remedies provided under the FTCA are the exclusive means for resolving tort claims against employees of the Public Health Service acting within the scope of their employment. See 42 U.S.C. § 233(a). The Federally Supported Health Centers Assistance Act of 1992 ("FSHCAA"), Pub. L. No. 102-501, 106 Stat. 3268 (1992), amended § 224 of the PHSA to extend FTCA coverage to certain health centers that receive federal funding under § 330 of the PHSA, 42 U.S.C. § 254b, by authorizing the Department of Health and Human Services ("HHS") to "deem" them employees of the Public Health Service. See 42 U.S.C. § 233(g)-(n).*fn1
To be considered for FTCA coverage under the FSHCAA, a federally-funded health center must submit an application to HHS. The FSHCAA provides that "subject to the approval by the Secretary [of HHS] of an application under subparagraph (D), an entity described in paragraph (4) . . . shall be deemed to be an employee of the Public Health Service . . . ." 42 U.S.C. § 233(g)(1)(A).*fn2 Subparagraph D states that "[t]he Secretary may not . . . deem an entity or an officer, governing board member, employee, or contractor of the entity to be an employee of the Public Health Service . . . unless the entity has submitted an application for such deeming to the Secretary in such form and such manner as the Secretary shall prescribe." Id. § 233(g)(1)(D).
Within thirty days after receipt of an application pursuant to § 233(g)(1)(D), the Secretary of HHS must determine whether the health center is to be deemed an employee of the Public Health Service. Id. § 233(g)(1)(E). "The determination of the Secretary that an entity or an officer, governing board member, employee, or contractor of the entity is deemed to be an employee of the Public Health Service for purposes of this section shall apply for the period specified by the Secretary under subparagraph (A)." Id. With one exception not relevant here, "[o]nce the Secretary makes the determination that an entity . . . is deemed to be an employee of the Public Health Service for purposes of this section, the determination shall be final and binding upon the Secretary and the Attorney General and other parties to any civil action or proceeding." Id. § 233(g)(1)(F).
HHS has issued regulations, promulgated after notice and comment, to implement the deeming program for federally-funded health centers. See 42 C.F.R. §§ 6.1-6.6. The regulations provide, inter alia, that:
Eligible entities will be covered . . . only on and after the effective date of a determination by the Secretary that they meet the requirements of [42 U.S.C. § 224(h)]. In making such determination, the Secretary will receive such assurances and conduct such investigations as he or she deems necessary.
42 C.F.R. § 6.5. The deeming program is administered by the Bureau of Primary Health Care ("BPHC"), a division of the Health Resources and Services Administration ("HRSA") within HHS. HRSA/BPHC provides guidance on the deeming program to health centers through Program Information Notices ("PINs") and Program Assistance Letters ("PALs") issued to the public.*fn3
On April 12, 1999, HRSA/BPHC issued PIN 99-08, which describes the "process for applying and reapplying for coverage under the [deeming] program." See BPHC Program Information Notice 99-08: Health Centers and the Federal Tort Claims Act, § 1 (Apr. 12, 1999), available at http://bphc.hrsa.gov/policy/ pin9908.htm ("PIN 99-08"). Under § 3 of PIN 99-08, in order to be deemed, "a grantee must complete an initial application that demonstrates that the grantee" meets the requirements under the FSHCAA. Id. § 3. Section 12 describes the initial deeming application process and states that "initial deeming applications cannot be part of any grant application. Only the application in this PIN, submitted on its own, will be reviewed." Id. § 12. Section 13, in turn, describes the process for renewing a grantee's deemed status. It provides:
Health Centers must periodically apply for renewal of their deemed status. This occurs at the end of the Health Center's project period. An application for renewal of deemed status ("redeeming") is included as part of the single grant application for project period renewals. This must be completed as part of the project period renewal application in order for the coverage under the FTCA to continue beyond the end of the project period. Health Centers will be informed of the renewal of their deeming via the Notice of Grant Award."
Pursuant to § 7 of PIN 99-08, a "subrecipient" (or "subgrantee") that receives § 330 grant funds through a deemed Health Center is also eligible for FTCA medial malpractice coverage. Id. § 7. An eligible subrecipient is defined as "an entity (not an individual contractor) that receives a grant or contract from a deemed Health Center to provide the full range of health services on behalf of the deemed Health Center and only for those services under the scope of the project." ...