Non-Solicitation Clause: Is One Hiding in Your NP Employment Agreement?

I’ve mentioned before, that thinking through how your nurse practitioner job will end is perhaps even more important than negotiating how it will begin. As you review any employment agreement, it’s imperative that you consider the implications of restrictive covenants like non-compete clauses. Such terms limit how and where you can practice when you leave the employer in question. 

Medical practices gain an advantage over others by attracting and maintaining relationships with patients. At the core of developing these relationships are medical providers themselves. Medical providers are the critical customer facing component of healthcare. When a nurse practitioner departs a practice, the natural inclination is that the NP invites his or her patient panel to join the new practice. This can inflict a significant financial burden on the practice the nurse practitioner leaves. Non-solicitation provisions are intended to protect the practice’s business when a provider moves on.

Non-solicitation provisions prohibit nurse practitioners from inviting patients or other employees to join them in another practice. Solicitation is generally defined as an effort to “coerce, convince, or direct a patient to obtain services which are competitive with the practice”.

Leaving a medical practice is a public act. Your patients, of course, will notice you are missing when they call to book their next appointment. Non-solicitation provisions do not prevent nurse practitioners from informing patients of their departure. They may, however prohibit the NP from informing patients as to their new location. They also prohibit the NP from asking patients to join them in the transition to the new employer. Non-solicitation provisions do not prevent nurse practitioners from engaging in general marketing practices which may be seen by current patients such as magazine or TV ads, but rather more directed efforts. 

If your employment agreement contains a non-solicitation clause, consider the following in evaluating your agreement: 

• Avoid agreeing to a broad non-solicitation agreement that prevents you from seeing any patient previously treated during your time at the practice. A more favorable approach is to agree to a provision limiting treatment of patients with whom you’ve had contact with over a specified period of time such as the past 12 months.
• Patients should have the freedom to seek out your services on their own should they choose. Do not agree to a non-solicitation provision that indicates otherwise. 
• Non-solicitation provisions should apply to services offered by the current practice. For example, a nurse practitioner leaving a urology practice to work in a cardiology clinic does not pose a competitive threat to the urology practice. The clause should not prevent the NP from treating former patients in a new capacity. 
• Does the non-solicitation provision apply if you are terminated rather than leave on your own accord? Ideally, the non-solicitation provision should not apply if you, the nurse practitioner, are terminated. 

Leaving a medical practice is a complicated manner. Outlining the terms of your departure clearly and favorably on the front end ensures a more seamless transition should you choose to leave the practice. Consider having an attorney review your employment agreement to help you identify and negotiate the most favorable terms possible.