Many new physician practices are charging patient fees for joining their practices, often called “concierge” medicine. Previously, concierge medicine occurred almost exclusively in area of adult primary care. More and more, however, these fees are popping up in different specialties, such as pediatrics, cardiology, and other specialty practices. While these practices introduce attractive fee models for physicians dealing with ever increasing costs, higher workloads, and struggling reimbursements, physicians still must be cognizant of the legal issues involved when operating concierge practices.
The Patient Agreement
The patient agreement, sometimes called a membership or retainer agreement, must be carefully drafted to inform the patient of the specifics of this new type of practice model. If the practice still takes insurance, then this agreement should clearly state that the concierge program does not replace insurance. It should advise the patient to continue their current insurance coverage and explain that the fee, itself, also is not covered by insurance. The agreement should describe that the patient’s current insurance will continue to be billed for services covered by insurance. Further, this patient agreement should include the term of the agreement and the pricing involved with the membership. It should also explain how a patient may terminate and whether they will be refunded any portion of their membership fee if they terminate.
The Membership Fee
This membership fee to join the practice should also be effectively explained in the patient agreement. Typically, the fee is an annual membership fee that may be paid annually or in certain practices, semi-annually or quarterly. The agreement should also inform the patient exactly what the membership fee covers. This membership fee may be for increased access to the specialist physician, which may include same day appointments, longer appointment times, personal cell phone of the specialist, evening and weekend hours, house calls, and shortened waiting room times, to name just some of the heightened access that may be offered. The fee may also cover services not covered by insurance, such as nutrition consulting, fitness evaluations, and other non-covered health care services.
Insurance/Medicare Issues
While many primary care concierge practices choose to be cash only (ie. do not accept insurance), many specialists may choose to still accept insurance. In cases where the practice still accepts insurance, the membership fee should not cover anything already covered by insurance or a federal health care program, like Medicare. Medicare does not allow a physician to charge a fee for a service covered by Medicare. If a practice runs afoul of the Medicare rules, the practice and even the providers risk fines, penalties, and even being prohibited from being a Medicare provider. For many physicians, if they are banned from participation in Medicare and Medicaid, that can significantly and sometimes irreparably affect their ability to practice and gain employment.
Regulatory Concerns
It is also important that the concierge patient agreements as well as the practice itself not operate in a manner that violates any state and federal fee-splitting and kickback laws, as well as other health care rules and regulations. For instance, if a concierge practice offers discounted non-health care or other services, this could be viewed as an illegal inducement or incentive to use the services of the practice. Practices must also be careful when packaging services, whether they be health care or non-health care services, for discounted prices. These bundled packages risk raising fee-splitting and kickback issues. The applicable state and federal health care laws and regulations must be carefully examined in light of the fee arrangements between providers and the actual services offered in the practice. Violations of these health care rules can result in serious fines, penalties, loss of licensure and more.
Patient Abandonment
Another area to contend with is the ethical issues surrounding patient abandonment. Physicians must consult state rules on patient notice requirements and confront ethical considerations surrounding patient abandonment when starting a new practice. If the physicians fail to give proper patient notice, they risk being accused of patient abandonment in their new concierge practices. State laws vary on the amount of notice required to patients before a physician may terminate a patient-physician relationship.
Other Considerations
In addition to patient abandonment, other ethical considerations are consistently raised in the context of concierge medicine. While the advantages to patients are clear, those people against this fee-based model have criticized it as introducing a two-tiered health care system, where wealthy patients enjoy increased access and care that the rest of the population cannot afford. In contrast, the physicians advocating for this type of practice argue that they can greatly reduce their patient panels and the headaches often associated with running a clinical practice where they are expected to see numerous patients at shortened time slots. Many physicians feel that introducing a fee allows them to actually return to a simpler and more traditional form of practice, where they have longer appointment times, fewer patients, and can really know their patients well. While this sounds great, it presents several issues, including for those patients who lack the funds to join such concierge practices. When physicians are confronted with these types of ethical concerns, they often respond that all patients are given good care even when they are not members of concierge practices and that these services are not necessary for many patients. The concierge physicians argue that their fees, which may only be a few thousand dollars, are less than what many patients pay for cable, streaming services, and health club memberships. They argue that these new practice models provide an innovative approach for those few patients who have chronic health concerns or desire a different type of health care program and that it is not a model needed or desired by many patients.
Concluding Thoughts
Patients, fatigued from waiting for months for appointments only to be confronted with limited, shortened time in their actual visits, are becoming more accustomed to these new fee-based practices and are more willing than ever to pay for greater access to their doctors, whether these doctors are specialists or internists. Regardless of how one feels ethically about these types of practices, the trend towards concierge medicine in both primary care and specialists’ practices appears here to stay. Therefore, providers must carefully construct their patient agreements, forms, and concierge programs to comply with the many insurance, health care, and other rules and regulations that affect concierge medicine practices today.
Jonna Eimer
Hundreds of physicians and physician groups – plus dentists, behavioral health experts, and other health care providers – call on Jonna for counsel regarding business, regulatory, and employment issues.
She represents health care providers who are establishing their practices or selling their practices, as well as those negotiating and documenting employment, buy-in, and shareholder agreements. Jonna regularly counsels clients on forming management services organizations, corporate practice of medicine issues, and concierge practices.
In her practice, she advises businesses of all sizes, from large establishments to small entrepreneurial entities. Jonna is well-versed in complex mergers; stock and asset acquisitions and dispositions; employment and consulting agreements; and stockholder, limited liability company, and partnership agreements.
Jonna is a speaker at health care conferences, medical centers, and hospitals throughout Chicagoland. She is also a regular writer who contributes to publications such as Medical Economics, LexisNexis platforms, and Medscape.
