What is Considered Patient Solicitation?
What is considered patient solicitation? First, why does this matter? If a healthcare provider has signed an employment contract, it’s very likely there’s going to be a section that’s called restrictive covenants. And then in that section, it’s going to have several things that the provider can’t do after the contract terminates. The most common restrictive covenants would be a non-compete, non-disparagement clause, confidentiality. And then what we’re going to talk about today in non-solicitation agreement and any non-solicitation agreement will essentially say the provider can’t actively solicit, usually elicit patients or employees of the employer for a period. Let’s just say you are a primary care physician and you have decided to leave the employer and they have, let’s just say a 10-mile non-compete. You decide to establish a practice outside of the non-compete so you’re not violating that.
Are you allowed to blast out an email or send direct marketing to your patients from the old employer? The answer is no, that’s what the non-solicitation agreement would stop. It stops the act of solicitation of your current patients. Now, the practice can’t stop patients from coming with you, meaning, a non-solicitation agreement can’t dictate someone’s healthcare provider. But they can dictate that the physician, in this instance, isn’t the one initiating contact. Some of the questions I usually get are, alright, well, let’s say I’ve given notice and it’s widely known that I’m leaving and I’m seeing a patient and they ask me, hey, I hear you’re leaving, where are you going? Is that considered solicitation? In my opinion, no, that wouldn’t be an active solicitation. The doctor’s not initiating it. They’re simply providing information that’s already known and the patient requested it. So, in that circumstance, yes, you can say to the patient, yes, I’m leaving. And here’s where I’m going. Now, where people get in trouble is they would maybe go into the EMR and download a list of patients that they currently have. And then, as I said before, send out a direct email to all of them saying, hey, I’m leaving. Here’s my new practice. Please come with me. That’s what this would prohibit.
Some other issues are, alright, well, let’s say I go to my new job and then I just do general marketing. So, I put up a billboard, or I send out direct mail to a specific zip code. Is that considered solicitation? And for the most part, no, it’s not. If you’re not actively targeting your patients and you’re just doing general marketing, that’s not really considered a solicitation, they can’t stop you from doing those types of activities. Next, employees. One of the biggest fears and this is in private practice specifically, is bringing in a new provider, they establish relationships with the staff, so the MAs, the RNs, front office, office manager, and maybe the other providers in the office, and then when they leave, they take all the staff with them as well. A non-solicitation agreement can also stop a provider from actively soliciting employees. Other blogs of interest include:
And if they’re a savvy employer, they’re going to stick in there “you just simply can’t hire them for the restrictive period”. A normal restriction for a non-solicit is about one year. So, one year from when the contract terminates, you can’t solicit these people. If it states you cannot hire them, which would be considered enforceable for the most part, you can’t hire them. There’s nothing you can do about it. If it says you can’t actively solicit them, then once again, you can’t be the one to initiate contact. So, no emails, voice messages, text messages, or direct messages through social media. You can’t do any of that. Now, if someone approaches, let’s say that front office staff says, hey, I hear you’re leaving. I’d be interested in coming with you. If they’re the ones to initiate the contact, you are not the one actively soliciting them.
I think over time, more and more contracts have inserted you “cannot hire them” into the language. And it’s smart for the business to do that. Once again, you can’t initiate contact with the employees. Overall, yes, non-solicitation agreements are enforceable. They’re there for a reason. As I stated before, they don’t want someone coming in and then yanking their entire staff or a patient base as well. Is there any kind of negotiation as far as a non-solicitation agreement? Not really. Maybe you could negotiate some types of activities that would make it beyond the edge of solicitation, but for the most part, this is kind of like an all-or-nothing clause. Like with the non-compete, you can usually play around with the time, meaning, how long it lasts or the geographic restriction.
So, five miles instead of 10, or it applies to one office instead of two and then also the specialty listed, what you can’t do, like maybe you’re internal med and you could do urgent care, hospitalists, ED, primary care and focusing the specialty. Whereas with the non-solicitation agreements, really, you can’t solicit your patients. That’s about it.
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