Many Clauses Commonly Found in (or Omitted from) NP Contracts Raise Concern

By Melanie Balestra, NP, Esq.

I receive contracts to review every week. I also receive contracts from NPs who want to get out of the contract. Many employers give NPs a one-sided contract which protects the employer but not the NP. Here are clauses in contracts or omissions to be wary of:

• The contract states that the NP must see a certain number of patients each day. This is unsafe and does not take into consideration the severity of the conditions the patients may have.
• There are no Standardized Procedures (SPs). At present, an NP cannot work even one day in California without SPs present. If you are from another state or do not have SPs, you can go to the BRN website or purchase Rebecca Zettler’s Process Protocols online for guidance on how to create them.
• The contract includes a non-compete clause, which is not legal in California. The employer cannot write that after the NP leaves the practice, s/he cannot practice within a certain radius of their office for a certain number of years.
• Non-solicitation clauses have not been upheld in California. A patient has the right to visit any provider s/he wishes to visit. The NP cannot take patient data from the practice and the NP cannot voluntarily give the patient the new practice information. But if the patient asks the NP for her new information, the NP can give the patient the information.
• The contract includes an indemnity clause that protects the employer, but nothing that protects the employee. An indemnity clause is a provision in a contract under which one party (or both parties) commit to compensate the other (or each other) for any harm, liability, or loss arising out of the contract.
• No administrative time given in the contract. An NP should get at least four hours of administrative time.
• If an NP gets paid for any activity, such a lecturing or writing an article, the money goes to the employer.
• On Call time is required but nothing specifies how often or payment.
• The contract reads that the NP must work 32-40 hours per week as an independent contractor, which is not legal.
• A clause in the contract states that anything the NP develops or writes during the employment period belongs to the practice.
• A long clause about intellectual property belonging to the practice. The practice should be standard and not a secret.
• The contract is at-will for the employer but not for the NP.
• Everything that is required of the NP should be in the contract. If it is not in the written contract, it does not exist. The NP cannot then say, “but the physician promised this, this, and this.” Put it in writing.
• Although it may cost a couple of hundred dollars or more to have the NP contract reviewed by an attorney, it will save the NP grief and far more money in the future to get out of a contract if the NP is not happy in the practice.

Melanie Balestra is both an attorney and a nurse practitioner. She is a former President of CANP, and is currently President of the American Association of Nurse Attorneys, which in 2016 honored her with the award for Outstanding Health Law & Compliance Section Member. She has law offices in Irvine and Newport Beach, and continues to work part time as a PNP and Director of Pediatrics at the Laguna Beach Community Clinic.