Legal & Ethical Issues in Concierge Medical Practices for physicians

What is concierge medicine or a concierge practice? 

Over the past few years, concierge medicine has increasingly become prevalent. Concierge practices are private medical services that charge an extra retainer fee to guarantee patients more individualized, comprehensive care, and accessibility.  

Concierge primary care is defined by the American College of Physicians as “any practice that directly contracts with patients to pay out-of-pocket for some or all of the services provided by the practice, in lieu of or in addition to traditional insurance arrangements, and/or charges an administrative fee to patients, sometimes called a retainer or concierge fee, often in return for a promise for more personalized and accessible care”.  See, Doherty R. Assessing the Patient Care Implications of “Concierge” and Other Direct Patient Contracting Practices: A Policy Position Paper From the American College of Physicians. Ann Intern Med. 2015;163(12):949-952. doi:10.7326/M15-0366)

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What is a direct primary care practice or DPC?

Direct primary care is a business model allowing primary care physicians to offer their services directly to their patients without an insurance company in the middle.  Under a DPC model, patients must become members of the practice and pay a monthly or annual fee.  The membership fee allows the patients to access a variety of primary care, including consultations, exams, care coordination, and some lab services, without paying any additional fees at the time of service.

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What is the difference between Concierge and DPC?

Under both concierge and DPC models, patients are charged an extra fee for a set of services or accessibility to the physician.  The two main differences between a concierge and DPC model include the payment for and the scope of healthcare services provided under each model.  Under a concierge model, physicians may accept a membership retainer from the patient for selected services which are not covered by government or private insurances and also charge the patients’ health insurance for any services covered by the health insurance policy.  Further, the retainer with a concierge physician can cover only an in-depth physical exam and screening and some accessibility perks such as schedule coordination, no-wait appointments, waiver of cancellation fees, etc.  Because DPC physicians do not accept insurance and generally opt-out of Medicare, the retainer fee under the DPC model generally will cover more substantive healthcare services such as extended visits, clinical, lab and consultative services, care coordination, and comprehensive care management.    

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What are the legal issues with concierge services?

For primary care physicians thinking of transition to concierge medicine, there are legal and compliance issues to consider.  Below is a list of a few of these legal issues:

First, for physicians changing to a concierge model, they should ensure a smooth transition for all patients, including those who decide not to switch, to avoid patient abandonment.  For the group of patients who decide not to switch to the concierge model, physicians should make sure they are properly and carefully transferred to other physicians who can continue their care without much interruption or delays.

Second, because a concierge physician can continue to accept payments from private and government insurance, the physician must be careful not to include in the retainer fee services already paid for by the patient’s insurance companies.  When it comes to government payors, such as Medicare, if the physician is not opted-out, it is crucial to ensure the retainer fee services do not include or encompass Medicare covered services. 

Third, some state rules or policies may restrict, frown upon and disapprove of concierge services. So, it is important to determine whether the state rules are favorable or restrictive to concierge practice.  Certain restrictions may render the practice of concierge medicine unprofitable and a bad decision in that state.  

Fourth, the relationship between the retainer fee and the services it covers must be such that it does not violate state insurance laws.  

Finally, patient membership agreements must be drafted clearly to identify the amount of the fees and the services they cover and provide proper notifications.

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What is a patient membership agreement?

Practices should have a written contract with each concierge patient describing the membership fee and the services the practice will provide. Concierge lawyers can assist in drafting patient member agreements between doctor and patient.

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What are the ethical issues with concierge medicine? 

There are some ethical issues that arise when creating concierge medicine practices.  First, transition to concierge medicine will inevitably require those patients who do not wish to purchase the concierge package to leave the practice.  This may cause interruptions in care and in certain circumstances to lack of care if the patients have to travel to other practices which are not as accessible.  

Second, concierge services tend to enrich the health of more affluent patients and leave behind those who cannot afford the retainer fees, leading to class-division in healthcare.  

Finally, the concierge model may also push Medicare patients to leave those practices, further contributing to an increase to the already high need-patient population.

While ethical issues typically do not rise to the level of legal concerns, it is essential to review the current status of the ethical standards related to concierge medicine. The American Medical Association (AMA) offers some guidance on the ethical establishment of a concierge practice and emphasizes that establishing such a practice is not inherently unethical.

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How to Find A Concierge Lawyer?

You need a healthcare attorney who is experienced in your line of work and industry.  Because of the complex nature of health laws, even healthcare attorneys specialize in different niches and an attorney which specializes in federal payer reimbursement does not necessarily understand issues relating to concierge medicine! So, it is difficult to actually find a healthcare attorney that provides the exact services that you require in the type of practice that you have. 

Consider using the Perla search platform which allows you and your healthcare business to find qualified experts and advisors with experience and knowledge in the healthcare industry, such as a healthcare attorney. 

Perla is a private networking platform that connects healthcare professionals and businesses directly with healthcare attorneys with the exact experience you are looking for. You can search Perla’ Network of Healthcare Advisors quickly and for FREE. So, get started in your FREE search today by visiting our website to find a qualified healthcare attorney with experience in concierge medicine!

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