Despite the benefits of "disclose, apology and offer" (DA&O) programs as a faster, less costly alternative to malpractice litigation, physicians in states with DA&O laws must still have payouts made on their behalf reported to the National Practitioner Data Bank (NPDB), Medscape Medical News reported.
The Department of Health and Human Services (HHS) issued the ruling on May 22, according to the article, but few knew about it until mid-August when consumer watchdog group Public Citizen wrote HHS' new secretary Sylvia Burwell a letter following up on the department's efforts to close alleged loopholes making DA&O-related payments nonreportable.
At issue in particular was language in Oregon's DA&O law, which Public Citizen argued was designed to skirt NPDB reporting requirements. Notably, the law states that a payment decided out of court does not result "from a written claim or demand for payment" and that a "notice of an adverse event" filed by a patient to start the prelitigation process does not represent a written claim or demand for money.
Although the Massachusetts DA&O law does not include this language, it does call for injured patients considering a lawsuit to file a "prelitigation notice" and then wait a minimum six-month "cooling-off period" before they go to court.
In the May 22 memo, Health Resources and Services Administration Administrator Mary Wakefield, Ph.D., recommended that HHS classify payments made under both the Oregon and Massachusetts DA&O laws as reportable. Then-HHS Secretary Kathleen Sebelius approved these recommendations, including clarification that Massachusetts' prelitigation notice and Oregon's notice of an adverse event qualify as written, reportable claims if they include a demand for money.
Officials from Public Citizen told Medscape that they do support the DA&O approach, but want to make sure states adopting such legislation are aware of the ruling. And while state governments are not responsible for enforcing NPDB law, noted Michael Carome, M.D., director of Public Citizen's Health Research Group, they are obligated to communicate federal policies to medical liability insurers and other organizations required by law to report malpractice payments.
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