Payments for medical malpractice are reportable to the National Practitioner Data Bank (NPDB). Losing your medical license is reportable to the NPDB.

What about Performance Improvement Plans (PIP)? Are they reportable to the NPDB?

Let’s start with what a PIP is.

A performance improvement plan is a document that communicates with an employee their job-specific challenges as related to the expected result/performance outcomes, and what training and resources will be available to support the employee as they work towards improvement. The PIP also identifies potential consequences if improvement does not occur to the level indicated and/or within the timeframe provided.  While this documentation will be helpful should termination result in the future, that is not the primary goal of a PIP.  Instead, the intended outcome is employee development and performance improvement, as the name indicates. 

In many bylaws, a PIP is explicitly labeled as “non-disciplinary.” This is helpful if you are scratching your head wondering if your PIP is disciplinary. If it is a non-disciplinary action, it is generally not reportable to the NPDB.

Still, the lawyerly answer as to whether a specific PIP is reportable to the NPDB depends upon what led to the action, and whether the action restricts your privileges.

The NPDB spells it out:

Imposition of a quality improvement plan [another phrase for “performance improvement plan.”] raises two issues with respect to reportability. First, a quality improvement plan may restrict a practitioner’s clinical privileges. If so, and if the restriction is the result of a professional review action, concerns the practitioner’s professional competence or conduct, and is in place longer than 30 days, the plan may be reportable.

Second, if the quality improvement plan does not meet these requirements, it nonetheless may be considered an investigation so long as it meets the other requirements for an investigation (for more information, see the Investigations section of the NPDB Guidebook.) The reporting entity needs to determine whether the quality improvement plan is focused on one practitioner for competency concerns and whether such plans typically lead to a professional review action. When making this determination, the entity should consider the language of the plan: Does it describe future disciplinary measures that may follow if the elements of the plan are not met? The entity also may consult its bylaws and policies, as well as standard practices, to decide whether the plan is the type of inquiry that leads to a professional review action. If the quality improvement plan meets the requirements of an investigation, then a resignation while under the plan would be reportable.

If the PIP merely notes what you are expected to do, then it likely is not disciplinary, and likely not reportable to the NPDB.

If the PIP notes what you cannot do – for example, a requirement you cannot take a patient to the operating room without the surgery chairman’s approval, that IS a restriction, and potentially reportable, if it lasts more than 30 days. Note, discussing the case with the surgery chairman after it is over is not generally a restriction, because you were not prevented from taking the patient to the OR. You just had to discuss the case after the fact.

And, even if you have to discuss cases with the surgery chairman before being allowed to post on the schedule, that is not reportable to the NPDB until that restriction lasts more than 30 days. So, if that imposition lasts for just 2 weeks, it’s not reportable.

OK, what if you resign while in the middle of a performance improvement plan?

If the PIP is considered an “investigation”, then, in theory, the hospital will need to file a NPDB report. Even if the PIP was only one day old.

How do you know if your PIP is considered an investigation?

You will need to look at the bylaws. If you are not 100% certain after eyeballing the bylaws, then just ask. If you are thinking about resigning, you do not want the resignation to be stained by a Data Bank report labeling you as having “resigned while under investigation.” It’s better to know precisely how your PIP has been characterized.

Most of the time PIPs are non-disciplinary. Most of the time PIPs are not considered investigations. But not always. Trust, but verify. In writing.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

A fundamental tenet of US jurisprudence is equal justice for all. The federal government oversees the National Practitioner Data Bank (NPDB). If a doctor’s carrier pays a settlement or judgment for a professional liability lawsuit, that is reportable to the NPDB. It doesn’t matter whether the payment is $1 or $10M. If you live in a state that is doctor-friendly, the likelihood of being a line item in the NPDB is lower than in states with more hostile medico-legal environments. If you are trying to figure out which of those states you live in, you can just compare professional liability premiums. That will deliver the answer. 

There are also differences between states in terms of whether withdrawal of an application for a medical license while under investigation will trigger a NPDB report. Yes, I know. Sounds esoteric.

The rule is this:

If you withdraw a new medical license application while under investigation by that Medical Board, it is NOT reportable.

If you withdraw a renewal medical license application while under investigation by that Medical Board, it IS reportable.

What might trigger an investigation? Well, a complaint to that state’s Board. Or discipline by another state Medical Board. Lots of things.

On the surface, it makes sense. If you are just getting started in a state, and preparing to work there, that state doesn’t really have jurisdiction over you. But, if you already have a track record in that state, the state might assert jurisdiction.

The simplest cases are where a physician has worked in a state for decades. He renews his medical license every year. A patient files a complaint. There is an ongoing investigation. The doctor then submits his renewal application while this investigation is ongoing; or just lets his license lapse – again while the investigation is ongoing.

That is reportable to the NPDB.

Now for a different scenario, that is not so intuitive.

A doctor had a medical license in state A decades ago. He let it lapse after he moved to state B. He has an active license in state B. Been that way for decades. A complaint is filed in state B, and this doctor is disciplined in state B. He then decides he’s had it with state B, and he wants out. He decides to submit an application for a medical license in state A.

On the surface, it seems like a new application. It seems like his old license in state A expired decades ago, right? Hold on.

State A will likely conduct an investigation based on what took place in state B.

If the doctor withdraws his application while the investigation is taking place, is it reportable to the NPDB? Is it considered a new or renewal application? Here, the doctor’s license lapsed decades ago.

Well, each state treats this differently.

In Massachusetts, for example, if an ancient license lapses and one wants to obtain what is ostensibly a “new license” years later, Massachusetts treats this as reviving a lapsed license.

If the Board has reason to believe the lapsed licensee has committed a violation of law or regulation or has deviated from good and acceptable standards of medical practice, the matter will be forwarded to the Enforcement Division. The Enforcement Division will review the lapsed license application and if necessary, investigate the matter as an open complaint. The Board may defer action on the lapsed licensee renewal pending completion of the investigation or 180 days after the Board’s receipt of a complete lapsed license application, whichever is shorter, or, should the Board issue a Statement of Allegations against the lapsed licensee, pending completion of the adjudicatory process by the Board. The 180-day period allowed for investigation shall be extended by any period of time during which the licensee is unavailable or fails to cooperate with the Board. (243 CMR: BOARD OF REGISTRATION IN MEDICINE).

Meaning, in Massachusetts, an old license can be “revived” as part of the application process for what the doctor believed was a new license application. If the application triggers an investigation, and the doctor then withdraws his application, that action will be reported to the NPDB as withdrawal of renewal license while under investigation.

In contrast, in Alaska, this revival of a lapsed license peters out at five years.

To apply for reinstatement of a license that has been lapsed for one to five years, an applicant must continue to qualify for a license and must submit:

1. 1. A completed application (this is the same form that is used to apply for an initial license)
   2. Payment of the license renewal fee
   3. Proof of meeting the continuing medical education requirements
   4. Clearance from the Federation of State Medical Board (FSMB) and Drug Enforcement Administration (DEA)
   5. Arrange for verification of licensure to be sent from each state where the applicant is or has been licensed as a physician
   6. Arranges for verification of hospital privileges to be sent from each hospital where the applicant has held privileges within the past five years.

A license that has been lapsed for five years or more is considered expired and may not be reinstated, an applicant must apply for a new license.

So, Alaska and Massachusetts would treat the original vignette differently. In both states, there may very well be an investigation. But in Alaska, because decades transpired between original licensure and application for the updated license, it would NOT be treated as a renewal application. If the doctor withdraws his application in Alaska while under investigation, decades after his original medical license lapsed, that act should not be reportable to the NPDB.

In contrast, in Massachusetts, the act of applying for an updated license will trigger revival, and be treated as a renewal application, even decades after the original medical license seemingly lapsed. If an investigation is initiated, withdrawal of THAT application, in Massachusetts, will trigger a NPDB report.

Confusing, right?

What’s the take-home message? Before withdrawing an application, consult with knowledgeable counsel on what’s at stake, if anything, with that action. If there’s an ongoing investigation while the application is withdrawn, the outcome may depend upon which state you are in, and your past history with that state.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.