What Is Considered Patient Solicitation? | Soliciting Patients
What is considered patient solicitation? First, why does this matter? Suppose a healthcare provider has signed an employment contract. In that case, there’s likely going to be a section that’s called restrictive covenants. And then, in that section, there will be several things the provider can’t do after the contract terminates. The most common restrictive covenants would be a non-compete, non-disparagement clause, and confidentiality. And then what we’re going to talk about today is 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.
An Example of Patient Solicitation in Medical Practice
Let’s say you are a primary care physician and you have decided to leave the employer, and they have, let’s say, a 10-mile non-compete. You decide to establish a practice outside the non-compete, so you’re not violating that. Are you allowed to blast 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. It’s widely known that I’m leaving and 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 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 go into the EMR and download a list of patients 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.
General Marketing Is Not an Example of Patient Solicitation
Some other issues are, alright, let’s say I go to my new job and do general marketing. So, I put up a billboard or send 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 just doing general marketing, that’s not considered a solicitation. They can’t stop you from doing those types of activities.
Asking Co-employees to Join Your New Practice
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, the front office, the office manager, and maybe the other providers. Then, when they leave, they take all the staff with them. A non-solicitation agreement can also stop a provider from actively soliciting employees.
And if they’re a savvy employer, they’ll 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, you can’t solicit these people one year from when the contract terminates.
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. 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.
Non-Solicitation Agreements Are Enforceable
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. 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. Still, 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 applies to one office instead of two, and the specialty is listed. What you can’t do, like maybe you’re internal med. You could do urgent care, hospitalists, ED, primary care, and focusing the specialty. Whereas with the non-solicitation agreements, you can’t solicit your patients. That’s about it.
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Can a Physician Solicit Patients after a Contract Ends?
Can a physician solicit patients after the contract ends? This will be determined solely by the non-solicitation clause in the contract. Nearly every physician contract will have restrictive covenants, which the physician can’t do either during or especially after the term of the contract. Once the relationship ends, either the physician terminates the contract, or maybe the employer does, and the restrictive covenants kick in. Then these state, here are the things the physician cannot do after the contract ends.
What is a Non-Solicitation Clause?
So, what is a non-solicitation clause? Generally, the physician can’t actively solicit patients, employees, business vendors, and independent contractors for a period. The period almost always is either one to two years. I mean, about 99% of physician contracts will probably be somewhere between one to two years for a non-solicitation clause. Now, the patient part will say the physician can’t actively solicit patients.
Let’s say the physician leaves a practice and maybe moves somewhere else in the area. They will likely have a non-compete that will say to them. You can’t work for. Usually, the non-solicit and non-compete lengths are the same. So, for one or two years, within 15 miles of your primary practice location. Let’s say the physician leaves the employer, starts to practice outside of the 15 miles, and then says, alright, I’m going to download the patient list from the employer and then blast out an email that says, I’m opening my own practice. I want you to come with me. Here’s my new address. Here’s my phone number. Okay, that’s what a non-solicitation clause would prohibit. The physician could not actively reach out to their patient who they saw with that employer for that period.
What does a non-solicitation clause not stop a physician from doing? Well, a patient’s healthcare provider is their choice. An employer can’t say you are prohibited from providing care to this patient. I’m saying that the employer can’t prohibit a patient from going somewhere. Still, they can prohibit the physician from reaching out. Now, if a patient reaches out to the physician and says, I hear you are leaving. Where are you going? I mention following you. I wouldn’t consider that active solicitation on the part of the physician. They’re simply answering a question, and that should be okay.
Can a Physician Solicit Employees after a Contract Ends?
Now, some of the trickier stuff is alright. What about active marketing to the public? Is a billboard considered soliciting? Is a Google ad soliciting? How about a website? Is it soliciting? Is a mailer soliciting? Now, these are usually the intricate things that are the issues we deal with in a non-solicit. Most contracts will not define what is considered a solicitation. So, you have to say, anecdotally, would this be considered an active solicitation or not? In my mind, general advertising should not be considered a solicitation. You’re targeting a specific market, but you’re not pinpoint targeting your patients from that employer. You’re reaching out to the broad public. And so, I would say that that would not be an active solicitation. So, that’s kind of non-solicit for patients.
Do Not Hire Clause
Now, employees can be different. If the employer is savvy, they’ll not only say that you can’t actively solicit employees, but they’ll also say you can’t hire them for that period. There’s a big difference between you not soliciting an employee and not being able to hire them. Kind of a do not hire is enforceable. And I’d say it’s probably maybe 25% of the contracts I review have a ‘do not hire’ non-solicit versus a ‘you can’t actively solicit them.’
The Biggest Concern of Any Business
The biggest concern of any, and this goes for most private practice, or I guess if you were like primary care for a big hospital network, is they don’t want to bring a physician in, they establish a patient base, have relationships with the MAs, the nurses, the front office, whoever the office manager is, then they say, you know what, I’m leaving. I’m going to start my own practice. I’m going to take all my patients. And I’m going to take all the employees. And then that employer is just stuck. That is the rationale behind these clauses.
Non-Solicit Are Enforceable
Are they enforceable? Yes, they are. They’re generally reasonable. Suppose they’re, as I said before, a year or two in length. In that case, an employer absolutely can prohibit an employee from soliciting patients or employees. It’s good business on the employer’s part, and it’s reasonable as well. As I said before, the biggest issue with this is what would be considered solicitation and what wouldn’t. And then if the employee part of it says either you can’t hire, or you just can’t solicit. So, that’s what a non-solicitation clause is in a physician’s contract.
What is a Physician Non-Solicitation Agreement?
What is a non-solicitation clause in a physician employment contract? There will be restrictive covenants in the agreement in almost any physician employment contract, be it in private practice or as a hospital healthcare network employee. Those are things that the physician cannot do after the employment relationship ends. Those would include a non-competition clause, non-solicitation clause, and non-disparagement clause. Those are the usual things in a restrictive covenant part of an employment contract.
Today, we’re just going to talk about the non-solicitation part. What does that mean? Generally, the non-solicitation clause will prohibit a physician from actively soliciting patients, employees, independent contractors, business vendors, and anyone associated with the employer. The physician leaving would be prohibited from reaching out to them and actively trying to bring them.
Non Solicitation of Patients
Why is this important, and what does it prohibit? Let’s start with patients. The non-solicitation clause will state that the physician can’t actively solicit the patient for a time, usually one to two years. This means they couldn’t, let’s say, download a list of all their patients with the email addresses or phone numbers or whatever. Then blast out an email to all their patients stating: I’m leaving the practice. I want you to come with me, here’s my new address, get your medical records, and move to my practice with me. The non-solicitation clause would prohibit that.
The Fear of Small Businesses
The biggest fear of almost any, at least smaller physician-owned practice, is to bring in a physician. Then that physician will establish a relationship with all the patients, build a patient base, leave, take all the patients, take the employees, and compete against them. That’s an obvious fear. And so that’s why the non-solicitation clause is in there, to prevent that type of thing.
What Does Non-Solicit Not Prevent?
Now, what does this not prevent? Well, I guess you must think about what is soliciting. Is just general marketing soliciting? I would say no. Most non-solicitation clauses don’t break down what is considered soliciting or not. It’s more of just a general you can’t solicit them.
But this normally wouldn’t prohibit normal marketing, not targeting your specific patient base like billboards or newspaper ads. However, news alerts are not that great effective mark marketing tactics in 2022. Electronic communication like Facebook ads, Google ads, announcements on social media, that type of thing. Normally, those would not be considered solicitations if it’s broadcast broadly and not to a specific population.
Ninety-five out of a hundred agreements will not define what that is. Now, if you are in the office, you’ve given notice to your employer, you’re seeing your patients, and they say, hey Dr. Smith, I hear you’re leaving. Where are you going? It’s not soliciting if you say, I’m leaving and going here. There’s the information.
A non-solicitation clause cannot prevent a patient from coming with a physician to their new practice. You can’t dictate who someone’s healthcare provider is. And if a patient wants to come with a physician who’s leaving, that employer cannot prevent that. Still, they can prevent the physician leaving from actively going after them. Another part of a non-solicitation clause will be employees. Now, if the employer is savvy, they will say, you cannot hire an employee, not just solicit them.
Physician Non-Solicit
Once again, soliciting would be actively going after somebody. So, sending a text, an email, a phone call, or talking to them and saying, hey, I’m leaving. I want you to come with me. I want you to be an employee of my new practice. Quit, come with me.
The non-solicitation clause could prevent those activities from going after that employee. Once again, they couldn’t prohibit that employee from leaving and going to the new practice unless the language states you cannot hire any employee from this practice. Usually, it would also state a time limit. For instance, it would say, anyone who’s been employed by the practice over the last 12 months. You can’t actively solicit them. Or, as I said before, if they’re savvy, it will say you cannot hire them. I represent physicians on that side.
Do Not Hire Clause Are Enforceable
But if I were representing an employer, I would certainly tell them, don’t just say solicit. I would say, put a language that states do not hire. Independent contractors, business vendors, that type of thing. If you want to use the same vendor for similar services, that’s fine. But you can’t actively divert that person from the old practice and independent contractors. You couldn’t just ask them to leave the old practice and come with you. If they offer a service that both practices can use, then generally, that’s okay. There’s going to be a non-solicit in most agreements.
Maybe It’s Not Solicitation If…
Now, this is also specialty-specific. Suppose you think about it if you work in the ED, hospitalist, ICU, like any shift-related position where you’re just providing care to what’s in front of you. You’re not going to ever solicit those patients. Maybe you have some frequent flyers in the ED, but you’re not going to want them to come with you to a new ED. This targets people with a solid patient base like pediatricians, primary care, cardiology, and those specialties.
Is Non Solicit Fair?
Is it fair? Honestly, yes, certainly it’s fair. And as I stated before, an employer’s worst nightmare is that they bring in a new physician, and that physician leaves and takes all the patients. So, I think, yes, it is fair. Still, as I said before, they can’t completely prohibit a patient from coming with you or coming with a physician to wherever they’re moving to if they stay in the area.
Employer Agreement that Is Not Renewed
What should a physician do if their contract is not renewed? This honestly doesn’t happen that often. We should probably define what is not renewed or the contract is terminated. So, most physician contracts will have automatic renewal provisions. For instance, let’s say you sign a contract. It has an initial two-year term. There’s usually some language in there that states that if it’s not terminated, the contract will automatically renew for another year. Then it would continue perpetually until one of the parties terminates the agreement.
Any contract will also have a termination provision. So, either party can terminate the agreement for-cause. This means someone had breached the agreement, and then either party can terminate it based upon who’s in breach. There’s another provision, and that is without-cause termination. Generally, that states that either party can terminate the agreement. At any time, for any reason, with a certain amount of notice to the other. Generally, that’s 60 or 90 days, which probably makes up 90% of all without-cause termination amounts.
There will also be a notice requirement if either party does not plan to renew the agreement, which should match the amount without-cause termination. It doesn’t make sense if either party must give 60 days’ notice to terminate the agreement without-cause that the notice requirement, not to renew the contract, would either be less or more than that.
Terminating The Contract Without Cause
Hopefully, that makes sense. It should be the same. Let’s say you have a 60-day notice of intent not to renew the agreement. Well, it would be the same process of terminating the contract without-cause. One party would give written notice if they didn’t want to renew the agreement. And then that would be it. You’d work out the 60 days. If, for whatever reason, the employer didn’t want the physician to finish the 60 days, then the physician would still be paid for those 60 days. They wouldn’t have to work.
But I Do Not Want To Leave
I’ve had physicians come and say they don’t want to renew the agreement. What should I do? And this might be a stupid answer. It’s to find a new job. They’re like, well, I want to fight for it. And that type of thing. If you’re in a job and the employer doesn’t want you, do not stay there. It makes zero sense.
On a personal level, it will be very awkward. The employer will find ways to get out of the agreement, or they’ll give them without-cause notice and move on. We also do a licensing board defense when an employee is either disciplined, or maybe the employer filed a board complaint. And that person says, well, I don’t want to leave. I want to stay here, fight whatever they’re doing. The employer will find a way, one way or another, to get rid of that employee. And it will only cause more pain for the employee moving forward.
What To Do If The Contract Is Not Renewed?
So going back to the original topic of what to do if it’s not renewed, you find a new job. That’s it. It’s hard. Sometimes, it’s hard to say why they wouldn’t want to renew the contract. What did I do wrong? It’s probably we’re finding out why. Most of the time, it’s just production. The physician simply didn’t produce what the employer’s expectations were. Most of the time, the volume issue is not the physician’s fault. It’s a lack of marketing, a lack of referrals. Maybe the staff is poorly trained and doesn’t do a good job of providing solid patient care experience.
There are several reasons why someone’s volume won’t hit expectations. But it’s not, or it’s usually not just the physician is too slow. He doesn’t want to see the number of patients that are expected. So hopefully, that was helpful regarding what to do if your contract isn’t renewed. Find a new job!
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