Telepsych and Noncompete

[Psych19]

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I'm exploring employment opportunities following the conclusion of my current contract. I'm looking at one telepsych position that is based out of a hospital system on the other end of the state. I work for a local community hospital doing inpatient work. The noncompete following separation with my current employer is 2 years and 10 miles. My actual home address is unfortunately within the radius of this noncompete. I'm not sure if the noncompete would bar me from practicing telepsych within my own home (if the physical location of the telepsych employer is well-outside the non-compete radius). I've been trying to look for articles re: the legal precedent for this. I live in a state where non-competes are not illegal. My current employer hasn't said anything about trying to enforce a non-compete--they are aware of where I live. I'm not sure if it would be worth their time/legal expenses to try to enforce a non-compete (if it even is enforceable).

I suppose one possible work-around if absolutely necessary would be to temporarily rent a small office outside of the noncompete radius and work out of there...

I know this is all state-dependent. Anyone have any experience in this area or could point me in the direction of any legal articles about this?

I am also having a contract review firm look at the new contract and I will see if they can comment on the issue above as well.

 

[comp1]

I mean yes, this would be automatically illegal and ignored in California, but I'm not sure it's exactly state dependent. It seems more contract dependent. What does the actual contract say? Also, anybody reading...please take this as a reminder to never allow a non-compete to remain in any contract. It is the first thing that must be struck. You are too valuable.

 

[Sushirolls]

1) Talk with a lawyer
2) If you are currently doing IP work, and about to do a mix of work for a different health system on the other side of the state, then I don't see where the harm will come from nor how the current employer claim 'injury' for your work. I don't think anyone knows how telemedicine work with all of the non-compete stuff, but ultimately our work is usually based on the concept of 'where is the patient located.'

So if 99% of your patients are outside of your 10 miles, I wonder worry about it.
3) if you were extra paranoid, sure get an office 10 miles, it would be a nice way to get out of the house.

 

[trophyhusband]

I'm exploring employment opportunities following the conclusion of my current contract. I'm looking at one telepsych position that is based out of a hospital system on the other end of the state. I work for a local community hospital doing inpatient work. The noncompete following separation with my current employer is 2 years and 10 miles. My actual home address is unfortunately within the radius of this noncompete. I'm not sure if the noncompete would bar me from practicing telepsych within my own home (if the physical location of the telepsych employer is well-outside the non-compete radius). I've been trying to look for articles re: the legal precedent for this. I live in a state where non-competes are not illegal. My current employer hasn't said anything about trying to enforce a non-compete--they are aware of where I live. I'm not sure if it would be worth their time/legal expenses to try to enforce a non-compete (if it even is enforceable).

I suppose one possible work-around if absolutely necessary would be to temporarily rent a small office outside of the noncompete radius and work out of there...

I know this is all state-dependent. Anyone have any experience in this area or could point me in the direction of any legal articles about this?

I am also having a contract review firm look at the new contract and I will see if they can comment on the issue above as well.

Your home address isn't going to be on the insurance credentialing or any of the other stuff related to your employment. Some clinic or hospital on the other side of the state will be... not sure how they'd argue you're in your non-compete zone when all of your employment info points to another place entirely. Your home address will be in the HR system and whatnot but as far as the work you're employed to do it shouldn't be.

 

[Mass Effect]

Why not just get a virtual address if you're concerned about it?

 

[splik]

You need to consult an attorney. The question is really whether your hospital is going to come after you. There is a common myth that restrictive covenants aren't enforceable, but they are unless you are in one of the few state which prohibits them. A restrictive covenant of 2 yrs and a 10 mile radius would be seen as eminently reasonable in any state that allows them (and almost all states allow them). If they come after you, even if your practice address was elsewhere, for telemedicine they would argue you are working from home and violating the agreement. The court would likely be interested in whether you were seeing patients who could be clients of your former hospital. The fact that you are currently doing inpatient matters less. If your hospital offers outpatient psychiatry services then the covenant could be enforceable. If they only provide inpatient care, and you are providing outpatient care once you leave, they likely can't argue a conflict. If you are providing services to an institution on the other side of the state, and the patients are not in the catchment area of your current hospital, you would likely be fine.

The hospital I trained at was very aggressive about going after physicians who violated the non-compete (which I think was a 25 mile radius) and they would have to pay six figure fines for violating it.

The best case situation is that your hospital isn't interested in going after you. If they, they can make your life difficult, even if it goes to court and the court finds in your favor (and remember 80-90% of cases don't make it to court, and the courts are so backlogged they can potentially freeze your work while the case is making its way through the courts).

The only vaguely relevant case I can find is: CAPSICUM GROUP, LLC v. ROSENTHAL et al, No. 2:2013cv05322 - Document 54 (E.D. Pa. 2013) In this case, the company argued to former employees were working from home and thus violating their non-compete even though the company was in a different state outside the 250 mile radius. The court was not interested in the fact they worked from home, but the fact that they interacted with potential clients of the former employee and thus had a legitimate business interest in restricting competition.

 

[Psych19]

Thanks all.
The noncompete says that I am not to "engage in the practice" within 10 miles of the hospital except as an employee of the hospital health system. With telehealth though, it's interesting to try to define what counts as the location where I am practicing medicine. Is it at the patient's home? Is it at my new employer's physical address 100s of miles away? Is it at my home or where I am logged into a computer? 2 out of 3 of those are safely outside the noncompete radius.

The fact that you are currently doing inpatient matters less. If your hospital offers outpatient psychiatry services then the covenant could be enforceable. If they only provide inpatient care, and you are providing outpatient care once you leave, they likely can't argue a conflict. If you are providing services to an institution on the other side of the state, and the patients are not in the catchment area of your current hospital, you would likely be fine.

I think you're right about this. My current hospital does not offer any outpatient services except for our in-person (non-virtual) IOP/PHP, and it is highly unlikely this will change in the next 2 years. I don't think it would be difficult to conclude that I will be serving a new patient population that is not in the catchment area of my current hospital. So I agree it would be difficult to argue a business interest conflict.

The best case situation is that your hospital isn't interested in going after you.

This is my hope and probably the most likely outcome. My current hospital is aware of my tentative plans to work virtually for this new hospital system and to date they've mentioned nothing about trying to enforce a non-compete.

Perhaps I'm just over-thinking things and being paranoid. I appreciate the advice from multiple posters to speak with a lawyer. I think I will do this, and maybe it will give me some peace of mind, which is well worth the fee.

 

[clausewitz2]

Thanks all.
The noncompete says that I am not to "engage in the practice" within 10 miles of the hospital except as an employee of the hospital health system. With telehealth though, it's interesting to try to define what counts as the location where I am practicing medicine. Is it at the patient's home? Is it at my new employer's physical address 100s of miles away? Is it at my home or where I am logged into a computer? 2 out of 3 of those are safely outside the noncompete radius.



I think you're right about this. My current hospital does not offer any outpatient services except for our in-person (non-virtual) IOP/PHP, and it is highly unlikely this will change in the next 2 years. I don't think it would be difficult to conclude that I will be serving a new patient population that is not in the catchment area of my current hospital. So I agree it would be difficult to argue a business interest conflict.


This is my hope and probably the most likely outcome. My current hospital is aware of my tentative plans to work virtually for this new hospital system and to date they've mentioned nothing about trying to enforce a non-compete.

Perhaps I'm just over-thinking things and being paranoid. I appreciate the advice from multiple posters to speak with a lawyer. I think I will do this, and maybe it will give me some peace of mind, which is well worth the fee.

If you belong to any local psychiatrist mailing lists or social media groups, maybe see if anyone who worked for them in the past is willing to discuss this with you? They may be able to give you a good sense of whether the hospital aggressively goes after anyone even remotely in violation of the non-compete or if you actually have to set up shop in their parking lot to spur them to action.

 

[Psych19]

If you belong to any local psychiatrist mailing lists or social media groups, maybe see if anyone who worked for them in the past is willing to discuss this with you? They may be able to give you a good sense of whether the hospital aggressively goes after anyone even remotely in violation of the non-compete or if you actually have to set up shop in their parking lot to spur them to action.

Thanks. That's good advice. It's a relatively recent phenomenon that my hospital system directly employs psychiatrists. Until me and one other doc (who hasn't left but will probably soon leave), the psychiatrists who worked here were in private practice and just contracted with the hospital to help with inpatient coverage on the side. There may be folks to talk to who have left in other specialties, though I imagine the hospital might approach the enforcement of their non-competes differently if those specialties are more important to the business interests of the institution.

 

[WisNeuro]

Thanks all.
The noncompete says that I am not to "engage in the practice" within 10 miles of the hospital except as an employee of the hospital health system. With telehealth though, it's interesting to try to define what counts as the location where I am practicing medicine. Is it at the patient's home? Is it at my new employer's physical address 100s of miles away? Is it at my home or where I am logged into a computer? 2 out of 3 of those are safely outside the noncompete radius.

Good question for an attorney, but if the location definition is similar to telehealth laws, it will be where the patient is located when they receive care.

 

[Sushirolls]

So could just simply get a temp office 10 miles away, and make sure you never see any patients in that 10 mile radius. Problem solved.

 

[Psych19]

So could just simply get a temp office 10 miles away, and make sure you never see any patients in that 10 mile radius. Problem solved.

Right. This would definitely be a viable option, and probably the most conservative approach.
That said, no new employer is gonna like seeing that you are restricted in who you can see, but the overlap in clientele is likely to be nearly nonexistent.
I'm thinking it would hard for my current employer to prove that I'm actually seeing telehealth patients from my home. They know my home address... but how do they know where I'm practicing? I could log on anywhere...

 

[Sushirolls]

Venture forth, and post us an update a year later after the non-compete time lapses.

 

[Merovinge]

Right. This would definitely be a viable option, and probably the most conservative approach.
That said, no new employer is gonna like seeing that you are restricted in who you can see, but the overlap in clientele is likely to be nearly nonexistent.
I'm thinking it would hard for my current employer to prove that I'm actually seeing telehealth patients from my home. They know my home address... but how do they know where I'm practicing? I could log on anywhere...

VPN that does not disclose it's logs is much cheaper than an office. This gets into the sheer preposterousness of non-competes and I can't imagine you will have any problem but also IANAL.

 

[Stagg737]

This is my hope and probably the most likely outcome. My current hospital is aware of my tentative plans to work virtually for this new hospital system and to date they've mentioned nothing about trying to enforce a non-compete.

Perhaps I'm just over-thinking things and being paranoid. I appreciate the advice from multiple posters to speak with a lawyer. I think I will do this, and maybe it will give me some peace of mind, which is well worth the fee.

If they’re already aware you’re looking for jobs, why not just ask them? You’re looking at outpatient jobs, they only do inpatient and PHP/IOP. Sounds like there’s no conflict of interest. So unless your current employer is malignant or vindictive I don’t see the problem with just asking…

 

[Sushirolls]

From my life acuired experiences they have no reason to give an answer or say 'you are off the hook.' They have more to lose than us. So you'll never get a straight answer. Now possibly if you have a pointed letter, guided by an attorney, sent to the medical group head and/or the CEO of the group/hospital and/or the legal counsel for the group/hospital you could have some evidence down the road should a case pop up pressing against you for violating the non-compete. Again a lawyer in that state will be able to say if this is worthwhile or not.

Big Box shops like non-competes for other reasons. I.e. they screw up or do some shady things, they'll consider it a bargaining chip and drop the non-compete to get off with a non-disclosure / no liability agreement... And after a Big Box shop has had enough of these positive bargainings, and naturally the advice of their in house legal counsel, they will continue to push for non-competes.

To quote another SDN poster "The hospital will never love you back."

 

[clausewitz2]

My two, non-lawyerly cents: the institution I trained at definitely slaps non-competes on everyone who signs on with them similar to what you are describing, but the head honcho of outpatient services himself was candid in a discussion I had with him in saying that they really didn't care about enforcing it, unless the person in question was trying to work for The Other Big Player In Town. Then they would sometimes come down like a ton of bricks on the poor unfortunate.

Pragmatically probably depends on how much of a threat they feel you might be.

 

[Psych19]

If they’re already aware you’re looking for jobs, why not just ask them? You’re looking at outpatient jobs, they only do inpatient and PHP/IOP. Sounds like there’s no conflict of interest. So unless your current employer is malignant or vindictive I don’t see the problem with just asking…

Thought about this. I'm inclined to agree with @Sushirolls . Doubt there is much to be gained from asking. I could ask about it and they might say no, which perhaps alleviates some immediate anxiety, but they could still change their mind 6 months later. Meanwhile I'm giving them the information that this is something that concerns me, and who knows what they might do with that information.

Had a good conversation with a lawyer this morning. I'm feeling less anxious about things. If I can remember, I'll try to post an update at a later time if anything ever happened.

 

[Mad Jack]

I would ask a lawyer but technically telehealth services occur at the facility they are billed from not your home. This is why, prior to COVID exceptions, either the patient or provider needed to be present at an eligible facility for most telehealth services. I highly doubt it will be a problem, but I'm not a lawyer and this isn't legal advice