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Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Legal Risk Mitigation for
DPC Physicians
Philip Eskew, DO, JD, MBA
Submit your questions to: aafp3.cnf.io
Activity Disclaimer
The material presented here is being made available by the DPC Summit Co-organizers for educational
purposes only. This material is not intended to represent the only, nor necessarily best, methods or
processes appropriate for the practice models discussed. Rather, it is intended to present statements and
opinions of the faculty that may be helpful to others in similar situations.
Any performance data from any direct primary care practices cited herein is intended for purposes of
illustration only and should not be viewed as a recommendation of how to conduct your practice.
The DPC Summit Co-Organizers disclaim liability for damages or claims that might arise out of the use of the
materials presented herein, whether asserted by a physician or any other person. While the DPC Summit
Co-Organizers have attempted to ensure the accuracy of the data presented here, these materials may
contain information and/or opinions developed by others, and their inclusion here does not necessarily imply
endorsement by any of the DPC Summit Co-Organizers.
The DPC Summit Co-Organizers are not making any recommendation of how you should conduct your
practice or any guarantee regarding the financial viability of DPC conversion or practice.
Faculty Disclosure
It is the policy of the DPC Summit Co-Organizers that all individuals in a position to
control content disclose any relationships with commercial interests upon
nomination/invitation of participation. Disclosure documents are reviewed for potential
conflict of interest (COI), and if identified, conflicts are resolved prior to confirmation of
participation. Only those participants who had no conflict of interest or who agreed to an
identified resolution process prior to their participation were involved in this CME activity.
All faculty in a position to control content for this session have indicated they
have no relevant financial relationships to disclose.
The content of this material/presentation in this CME activity will not include discussion of
unapproved or investigational uses of products or devices.
Learning Objectives
• Understand the recent state DPC “not insurance” laws and
enforcement actions.
• Understand the HITECH Act, and how it may be used to by
patients as a right to obtain private & transparent pricing.
• Review common questions surrounding opting out of Medicare.
Direct Primary Care Defined
1) CHARGE A PERIODIC FEE
2) NOT BILL ANY THIRD PARTIES ON A FEE FOR SERVICE
BASIS, AND
3) ANY PER VISIT CHARGE MUST BE LESS THAN THE
MONTHLY EQUIVALENT OF THE PERIODIC FEE
AES Question
aafp3.cnf.io
Does this definition do the following:
Exclude a hybrid practice?
a)Yes
b)No
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: Exclude a hybrid practice?
Does this definition do the following:
Meant to be exclusive?
a)Yes
b)No
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: Does this definition do the following: Meant to be exclusive?
Does this definition do the following:
Meant to imply illegality of other models?
a)Yes
b)No
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: Does this definition do the following: Meant to imply illegality of
other models?
Does this definition do the following:
Consider that an employer/state might pay
the monthly fee?
a)Yes
b)No
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: Consider that an employer/state might pay the monthly fee?
Does this definition do the following:
Distinguish DPC from concierge?
a)Yes
b)No
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: Distinguish DPC from concierge?
June 2014 – 125 Locations
July 2015 – 290 Locations
Sept 2016 – 445 Locations
April 2017 - 620 Locations
June 2018 – 840 Locations
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
New York Enforcement
1) Included Benefits: All Members in good standing shall be entitled to
regular preventive checkups for adults and/or well baby checkups
(including all vaccinations up to the age of ten except the Gardasil
vaccine). Preventive checkups may include all treatments, testing and
care identified in Appendix I and Appendix II.
2) Benefits at Additional Charge: Members will also enjoy the benefit of
unlimited sick visits charged at $10 per visit. . . .
3) Services Not Available: THIS AGREEMENT DOES NOT COVER
HOSPITAL STAYS, EMERGENCY ROOM VISITS, SERVICES OF
SPECIALISTS NOT EMPLOYED BY [THE INQUIRER], TREATMENT
(INCLUDING BUT NOT LIMITED TO IMAGING) PROVIDED
ANYWHERE OTHER THAN AT [THE INQUIRER’S] FACILITIES, AND
ALL LAB TESTS OTHER THAN THOSE IDENTIFIED IN APPENDIX II.
New York Enforcement
Here, the unlimited benefits described in the inquirer’s materials
include items that are clearly dependent on fortuitous events,
such as tetanus vaccines after injury. Moreover, it seems
unlikely that the $10 co-payment truly covers the cost of
rendition of the physician’s services. Thus, it appears that the
inquirer is doing an insurance business, which requires a duly
issued license from the Department pursuant to Insurance Law §
1102
Maryland Enforcement
(2009 Issue Spotting)
1) Annual retainer fee covers unlimited office visits or a limited
number of services that the physician cannot reasonably provide
to each patient in his or her panel;
2) No limitations on the number of patients accepted into the
practice;
3) Annual retainer fee does not represent the fair market value of
the promised services;
4) Physician has substantial financial risk for the cost of services
rendered by other providers; or
5) The retainer agreement is non-terminable during the contract year
and/or does not provide for pro-rated refunds.
Maryland Enforcement (2015)
1) 2015 - A dental practice was forced to abandon a "premium plus
dental plan" because it appeared to be an unlawful insurance plan.
A. Aggressive Language = "works similar to many dental plans on the market.
You pay a monthly membership fee for benefit coverage on your dental
expenses... All questions regarding plan coverage, verifying benefits,
changing coverage types, or any other questions should be directed to our
staff..." The plan was "designed to cover preventive services such as
cleanings and oral exams" and "offers excellent coverage for major
dental procedures like crowns, root canals, bridges, and dentures."
B. A better approach would have been to charge a clearly described up front
nonrefundable enrollment fee, and then otherwise bill a monthly fee in
arrears (at the end of the month). Allow the patients to leave at any time
(obviously no refunds would be owed if they are paying at the end of the
month) and list a maximum patient panel size.
South Carolina Enforcement (March
2016)
1) Services limited to medical care provided by the DPC practice
A. Do not bundle labs, meds, or specialty care
2) Monthly membership dues paid at the end of each month
3) Membership “does not involve a risk transfer but rather operates
as a payment to secure access to physician’s services”
4) “Not health insurance” disclaimer on bold type in the agreement
5) “Program materials will not be distributed to insurance agents
and no solicitation or contract will be made with insurance
agents to promote program membership.”
NEVER, EVER – Under ANY circumstance – PAY a broker
Top Ten State “Reduce Your Risk”
Suggestions
1) Limit Panel Size
2) Detail Your Scope of Practice
3) “Not Insurance” Disclosures
4) Recommend Patients Purchase Insurance
5) Patient Partial Refund at any time
6) Escrow any funds received in advance
7) Require a visit at least annually
8) Require individual patient contracts
9) Office visit cap
10)Charge in Arrears
AES Question
aafp3.cnf.io
Are there any states where DPC is clearly the
unlawful practice of insurance?
a) Yes
b) No
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: Are there any states where DPC is clearly the unlawful practice of
insurance?
Are there any states where DPC is clearly the
unlawful practice of insurance?
a) Yes
b) No
• Follow the top ten guidelines if you are in a state with no DPC laws
Are there any states without any DPC
practices?
a) Yes
b) No
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: Are there any states without any DPC practices?
Are there any states without any DPC
practices?
a) Yes
• North Dakota and South Dakota
b) No
Indiana DPC Definition
This is a contract where the physician:
(1) agrees to provide primary care health services to the
individual patient for an agreed upon fee and time;
(2) does not bill any third parties on a fee for service basis;
(3) charges a periodic fee for services; and
(4) may charge a per visit charge only if the charge is less than
the monthly equivalent of the periodic fee.
Indiana “Not Insurance” Provision
Sec. 4.(a) A direct primary care agreement is not insurance and
is not subject to IC 27.
(b) Entering into a direct primary care agreement is not the
business of insurance and is not subject to IC 27.
(c) A primary care provider who enters into a direct primary care
agreement is not required to obtain a certificate of authority under
IC 27-1-3-20.
Indiana DPC Qualifiers
Sec. 5. (a) A direct primary care agreement must meet all of the following requirements:
(1) Be in writing.
(2) Be signed by both parties
(3) Allow either party to terminate the agreement upon written notice to the other party.
(4) Describe the scope of primary care health services that are covered by the periodic fee.
(5) Specify the periodic fee and any additional fees for ongoing care under the
agreement.
(6) Specify the duration of the agreement and any automatic renewal periods.
(7) Require not more than twelve (12)months of a periodic fee to be paid in advance.
(8) Prominently state in writing that the agreement is not health insurance.
(b) A primary care provider may not earn any funds under a direct primary care agreement
until the month of ongoing care is completed.
Indiana: Declining to Start the Agreement
Sec. 6.(a) A primary care provider may not decline to enter into a direct
primary care agreement with an individual or discontinue care of a patient
with whom the primary care provider has entered into a direct primary care
agreement solely because of the individual's or patient's health status.
(b) A primary care provider may decline to enter into a direct primary care
agreement with an individual if: (1) the primary care provider's practice has
reached maximum capacity; or (2) the individual's medical condition would
result in the primary care provider being unable to provide the appropriate
level and type of primary care health services that the individual
requires.
Indiana: Ending the Agreement
(1) Fails to pay the periodic fee.
(2) Performs an act of fraud concerning the patient's health care.
(3) Fails repeatedly to adhere to the recommended treatment
plan.
(4) Is abusive and presents an emotional or physical danger to
the primary care provider, the primary care provider's staff, or
other patients.
HITECH – Cash Pay for Privacy
• Section 13405(a) of the HITECH Act sets forth certain
circumstances in which a covered entity now MUST comply with
an individual’s request for restriction of disclosure of his or her
protected health information.
• §45 C.F.R 164.522(a)(1)
HITECH – Cash Pay for Privacy
Specifically, section 13405(a) of the HITECH Act requires that
when an individual requests a restriction on disclosure pursuant
to § 164.522, the covered entity must agree to the requested
restriction unless the disclosure is otherwise required by
law, if the request for restriction is on disclosures of protected
health information to a health plan for the purpose of carrying out
payment or health care operations and if the restriction applies to
protected health information that pertains solely to a health care
item or service for which the health care provider has been
paid out of pocket in full.
HITECH – HMO / Medicaid Implications
If a provider is required by State or other law to submit a claim to
a health plan for a covered service provided to the individual, and
there is no exception or procedure for individuals wishing to
pay out of pocket for the service, then the disclosure is
required by law and is an exception to an individual’s right to
request a restriction to the health plan pursuant to §
154.522(a)(1)(vi)(A) of the Rule.
HITECH – Medicare Implications
With respect to Medicare, it is our understanding that when a physician or
supplier furnishes a service that is covered by Medicare, then it is subject to
the mandatory claim submission provisions of section 1848(g)(4) of the
Social Security Act (the Act), which requires that if a physician or supplier
charges or attempts to charge a beneficiary any remuneration for a service
that is covered by Medicare, then the physician or supplier must submit a
claim to Medicare. However, there is an exception to this rule where a
beneficiary (or the beneficiary’s legal representative) refuses, of his/her own
free will, to authorize the submission of a bill to Medicare. In such cases, a
Medicare provider is not required to submit a claim to Medicare for the
covered service and may accept an out of pocket payment for the
service from the beneficiary. The limits on what the provider may
collect from the beneficiary continue to apply to charges for the covered
service, notwithstanding the absence of a claim to Medicare.
HITECH Privacy Implementation
• Have the patient sign a request that information relative to self-
paid services not be disclosed (usually called a Restrictions on
Uses and Disclosures Form)
• Flag this information so that it is not shared with the “health
plan”
• Inform the patient about the need to make the same request
downstream (pharmacies, labs, specialists)
HITECH Privacy Summary
• All covered entities MUST have a process
• Refusal must be of patient’s “own free will”
• Medicare
• May accept cash payments, but limiting charges apply
• Medicaid
• May or may not provide an exception (ex KY & CO)
• HMO laws (state based)
• May or may not provide an exception
• Private Insurance Contracts
• Federal law trumps terms of private agreements
HITECH Medicare Opt Out Implications
• Continue to be a “participating” physician
• Could attempt to charge all Medicare privately for “covered
services” (respecting Medicare limiting charge)
• Might be suspect if all patients need to sign up out of “own free
will” but might be easier if you market practice based on
heightened privacy
• Theoretically makes a monthly “noncovered services” fee
argument stronger
Opted Out Moonlighting
• Occ Med / Urgent Care / Emergency Care exceptions
• Cash Pay Telemedicine & Research Study Participation
• Hospice Administration
• PACE “Programs for All Inclusive Care of the Elderly”
• On Site DPC with a large Employer
• Correctional Medicine
• Constitutional Right (8th Amendment)
• Inmates cannot be covered by Medicare or Medicaid, and any private
insurance they had will not apply
• Usually care provided under private contract w/state
Urgent & Emergency Exception
• Medicare Benefit Policy Manual
• Chapters 15, 40.6 & 40.28.
• “Payment may be made to a [Medicare] beneficiary for services of an
opt out physician/practitioner” if
• “the services are emergency or urgent care services furnished by an
opt-out physician/practitioner to a beneficiary with whom he/she has
not previously entered into a private contract.”
• GJ=Opt‐out Physician/practitioner EMERGENCY OR URGENT
SERVICES modifier
• These claims will be reimbursed at the Medicare "nonparticipating"
physician rate (typically 95% of the regular rate)
Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018
Correctional / On-Site DPC / PACE
• No coding
• No billing
• No fee per visit
• Ongoing Messaging (via paper/text/email)
• Predictable Patient Panel (minimal recruiting)
• Patient does not pay the fee (state/employer)
• Patient has less choice of a physician
AES Question
aafp3.cnf.io
If an insurance company demands a prior
authorization, may you charge the insurance
company to complete their paperwork?
A) Yes – you may elect to do this on your own
B) Yes – but only with the patient’s permission
C) No – this is not permitted under federal law
D) No – this is not permitted under most state laws
E) It depends upon whether you are in “network”
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: If an insurance company demands a prior authorization, may you
charge the insurance company to complete their paperwork?
If an insurance company demands a prior
authorization, may you charge the insurance
company to complete their paperwork?
A) Yes – you may elect to do this on your own
A) Gary Gibson, MD v Medco Health Solutions of Columbus North Ltd
B) Yes – but only with the patient’s permission
C) No – this is not permitted under federal law
D) No – this is not permitted under most state laws
E) It depends upon whether you are in “network”
If I change from a hospital employed physician
to an independent DPC physician then my non-
compete agreement will…
A) Not apply by nature of my new DPC status
B) Not apply because it is against public policy
C) Apply because I am now competing with my old clinic
D) Apply because I failed to move outside a geographic region
E) Any of the above depending upon the state law variance
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: If I change from a hospital employed physician to an independent
DPC physician then my non-compete agreement will…
If I change from a hospital employed physician
to an independent DPC physician then my non-
compete agreement will…
A) Not apply by nature of my new DPC status
B) Not apply because it is against public policy
C) Apply because I am now competing with my old clinic
D) Apply because I failed to move outside a geographic region
E) Any of the above depending upon the state law variance
• Non-competes: note enforceability by jurisdiction
– Prohibited = CA, MT, ND, SD, DE, MA
– Restrictive Statute = FL, ID, MI, OR, GA, CO
– Physician favoritism = VA, TN, TX
Non-competes
• Non-competes: note enforceability by jurisdiction
–Prohibited = CA, MT, ND, SD, DE, MA
–Restrictive Statute = FL, ID, MI, OR, GA, CO
–Physician favoritism = VA, TN, TX
An individual patient asks if she can use her
health savings account to pay your
membership fees, and you reply:
A) Yes
B) No
C) Ask your accountant
D) This is an unsettled issue, and then go into a treatise about
tax law and the bipartisan Primary Care Enhancement Act
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: An individual patient asks if she can use her health savings account
to pay your membership fees, and you reply:
An individual patient asks if she can use her
health savings account to pay your
membership fees, and you reply:
A) Yes
B) No
C) Ask your accountant
D) This is an unsettled issue, and then go into a treatise about
tax law and the bipartisan Primary Care Enhancement Act
An large employer HR director asks if her
employees can use their health savings account to
pay your membership fees, and you reply:
A) Yes
B) No
C) Ask your accountant
D) This is an unsettled issue, and then go into a treatise about
tax law and the bipartisan Primary Care Enhancement Act
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: An large employer HR director asks if her employees can use their
health savings account to pay your membership fees, and you reply:
An large employer HR director asks if her
employees can use their health savings account to
pay your membership fees, and you reply:
A) No
B) Yes
C) Ask your accountant
D) This is an unsettled issue, and then go into a treatise
about tax law and the bipartisan Primary Care
Enhancement Act
• Cautious approach – customize an option that looks more like FFS
Will you code my visit with you today so that I
can submit it toward my insurance
deductible?
A) No, this is a waste of our time
B) No, this could be insurance fraud
C) Yes, I’ll just do this each time you come in and list my cash
pay rates
D) Yes, I’ll just do this once per year and will list 12 months of the
fee
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: Will you code my visit with you today so that I can submit it
toward my insurance deductible?
Will you code my visit with you today so that I
can submit it toward my insurance
deductible?
A) No, this is a waste of our time
B) No, this could be insurance fraud
C) Yes, I’ll just do this each time you come in and list my cash
pay rates
D) Yes, I’ll just do this once per year and will list 12 months of the
fee
If I “opt out” of Medicare and do not bill
Medicaid, then I am no longer subject to the:
A) Affordable Care Act
B) Clinical Laboratory Improvement Act
C) False Claims Act
D) Health Insurance Portability & Accountability Act
E) Occupational Safety & Health Administration Regulations
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: If I “opt out” of Medicare and do not bill Medicaid, then I am no
longer subject to the
If I “opt out” of Medicare and do not bill
Medicaid, then I am no longer subject to the:
A) Affordable Care Act
B) Clinical Laboratory Improvement Act
C) False Claims Act
D) Health Insurance Portability & Accountability Act
E) Occupational Safety & Health Administration Regulations
If I “opt out” of Medicare then I will no
longer:
A) Be able to privately contract for covered services
B) Be able to privately contract for non-covered services
C) Have an NPI number
D) Have a PECOS number (needed for ordering labs & DME)
E) Be able to participate in TRICARE
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: If I “opt out” of Medicare then I will no longer:
If I “opt out” of Medicare then I will no
longer:
A) Be able to privately contract for covered services
B) Be able to privately contract for non-covered services
C) Have an NPI number
D) Have a PECOS number (needed for ordering labs & DME)
E) Be able to participate in TRICARE
If I “opt out” of Medicare then I may
moonlight in the following areas:
A) Correctional Medicine
B) Indian Health Services
C) Veterans Administration
D) Locums (billing under the practice NPI)
E) All of the Above
Live Content Slide
When playing as a slideshow, this slide will display live content
Poll: If I “opt out” of Medicare then I may moonlight in the following
areas:
If I “opt out” of Medicare then I may
moonlight in the following areas:
A) Correctional Medicine
B) Indian Health Services
C) Veterans Administration
D) Locums (billing under the practice NPI)
E) All of the Above
Questions?
Submit your questions to:
aafp3.cnf.io
Don’t forget to evaluate
this session!
Contact Information
Philip Eskew
Phil@DPCfrontier.com
@PHILSQ

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Philip Eskew, DO, JD, MBA - Legal Risk Mitigation for DPC Physicians - DPC Summit 2018

  • 2. Legal Risk Mitigation for DPC Physicians Philip Eskew, DO, JD, MBA Submit your questions to: aafp3.cnf.io
  • 3. Activity Disclaimer The material presented here is being made available by the DPC Summit Co-organizers for educational purposes only. This material is not intended to represent the only, nor necessarily best, methods or processes appropriate for the practice models discussed. Rather, it is intended to present statements and opinions of the faculty that may be helpful to others in similar situations. Any performance data from any direct primary care practices cited herein is intended for purposes of illustration only and should not be viewed as a recommendation of how to conduct your practice. The DPC Summit Co-Organizers disclaim liability for damages or claims that might arise out of the use of the materials presented herein, whether asserted by a physician or any other person. While the DPC Summit Co-Organizers have attempted to ensure the accuracy of the data presented here, these materials may contain information and/or opinions developed by others, and their inclusion here does not necessarily imply endorsement by any of the DPC Summit Co-Organizers. The DPC Summit Co-Organizers are not making any recommendation of how you should conduct your practice or any guarantee regarding the financial viability of DPC conversion or practice.
  • 4. Faculty Disclosure It is the policy of the DPC Summit Co-Organizers that all individuals in a position to control content disclose any relationships with commercial interests upon nomination/invitation of participation. Disclosure documents are reviewed for potential conflict of interest (COI), and if identified, conflicts are resolved prior to confirmation of participation. Only those participants who had no conflict of interest or who agreed to an identified resolution process prior to their participation were involved in this CME activity. All faculty in a position to control content for this session have indicated they have no relevant financial relationships to disclose. The content of this material/presentation in this CME activity will not include discussion of unapproved or investigational uses of products or devices.
  • 5. Learning Objectives • Understand the recent state DPC “not insurance” laws and enforcement actions. • Understand the HITECH Act, and how it may be used to by patients as a right to obtain private & transparent pricing. • Review common questions surrounding opting out of Medicare.
  • 6. Direct Primary Care Defined 1) CHARGE A PERIODIC FEE 2) NOT BILL ANY THIRD PARTIES ON A FEE FOR SERVICE BASIS, AND 3) ANY PER VISIT CHARGE MUST BE LESS THAN THE MONTHLY EQUIVALENT OF THE PERIODIC FEE
  • 8. Does this definition do the following: Exclude a hybrid practice? a)Yes b)No
  • 9. Live Content Slide When playing as a slideshow, this slide will display live content Poll: Exclude a hybrid practice?
  • 10. Does this definition do the following: Meant to be exclusive? a)Yes b)No
  • 11. Live Content Slide When playing as a slideshow, this slide will display live content Poll: Does this definition do the following: Meant to be exclusive?
  • 12. Does this definition do the following: Meant to imply illegality of other models? a)Yes b)No
  • 13. Live Content Slide When playing as a slideshow, this slide will display live content Poll: Does this definition do the following: Meant to imply illegality of other models?
  • 14. Does this definition do the following: Consider that an employer/state might pay the monthly fee? a)Yes b)No
  • 15. Live Content Slide When playing as a slideshow, this slide will display live content Poll: Consider that an employer/state might pay the monthly fee?
  • 16. Does this definition do the following: Distinguish DPC from concierge? a)Yes b)No
  • 17. Live Content Slide When playing as a slideshow, this slide will display live content Poll: Distinguish DPC from concierge?
  • 18. June 2014 – 125 Locations
  • 19. July 2015 – 290 Locations
  • 20. Sept 2016 – 445 Locations
  • 21. April 2017 - 620 Locations
  • 22. June 2018 – 840 Locations
  • 32. New York Enforcement 1) Included Benefits: All Members in good standing shall be entitled to regular preventive checkups for adults and/or well baby checkups (including all vaccinations up to the age of ten except the Gardasil vaccine). Preventive checkups may include all treatments, testing and care identified in Appendix I and Appendix II. 2) Benefits at Additional Charge: Members will also enjoy the benefit of unlimited sick visits charged at $10 per visit. . . . 3) Services Not Available: THIS AGREEMENT DOES NOT COVER HOSPITAL STAYS, EMERGENCY ROOM VISITS, SERVICES OF SPECIALISTS NOT EMPLOYED BY [THE INQUIRER], TREATMENT (INCLUDING BUT NOT LIMITED TO IMAGING) PROVIDED ANYWHERE OTHER THAN AT [THE INQUIRER’S] FACILITIES, AND ALL LAB TESTS OTHER THAN THOSE IDENTIFIED IN APPENDIX II.
  • 33. New York Enforcement Here, the unlimited benefits described in the inquirer’s materials include items that are clearly dependent on fortuitous events, such as tetanus vaccines after injury. Moreover, it seems unlikely that the $10 co-payment truly covers the cost of rendition of the physician’s services. Thus, it appears that the inquirer is doing an insurance business, which requires a duly issued license from the Department pursuant to Insurance Law § 1102
  • 34. Maryland Enforcement (2009 Issue Spotting) 1) Annual retainer fee covers unlimited office visits or a limited number of services that the physician cannot reasonably provide to each patient in his or her panel; 2) No limitations on the number of patients accepted into the practice; 3) Annual retainer fee does not represent the fair market value of the promised services; 4) Physician has substantial financial risk for the cost of services rendered by other providers; or 5) The retainer agreement is non-terminable during the contract year and/or does not provide for pro-rated refunds.
  • 35. Maryland Enforcement (2015) 1) 2015 - A dental practice was forced to abandon a "premium plus dental plan" because it appeared to be an unlawful insurance plan. A. Aggressive Language = "works similar to many dental plans on the market. You pay a monthly membership fee for benefit coverage on your dental expenses... All questions regarding plan coverage, verifying benefits, changing coverage types, or any other questions should be directed to our staff..." The plan was "designed to cover preventive services such as cleanings and oral exams" and "offers excellent coverage for major dental procedures like crowns, root canals, bridges, and dentures." B. A better approach would have been to charge a clearly described up front nonrefundable enrollment fee, and then otherwise bill a monthly fee in arrears (at the end of the month). Allow the patients to leave at any time (obviously no refunds would be owed if they are paying at the end of the month) and list a maximum patient panel size.
  • 36. South Carolina Enforcement (March 2016) 1) Services limited to medical care provided by the DPC practice A. Do not bundle labs, meds, or specialty care 2) Monthly membership dues paid at the end of each month 3) Membership “does not involve a risk transfer but rather operates as a payment to secure access to physician’s services” 4) “Not health insurance” disclaimer on bold type in the agreement 5) “Program materials will not be distributed to insurance agents and no solicitation or contract will be made with insurance agents to promote program membership.” NEVER, EVER – Under ANY circumstance – PAY a broker
  • 37. Top Ten State “Reduce Your Risk” Suggestions 1) Limit Panel Size 2) Detail Your Scope of Practice 3) “Not Insurance” Disclosures 4) Recommend Patients Purchase Insurance 5) Patient Partial Refund at any time 6) Escrow any funds received in advance 7) Require a visit at least annually 8) Require individual patient contracts 9) Office visit cap 10)Charge in Arrears
  • 39. Are there any states where DPC is clearly the unlawful practice of insurance? a) Yes b) No
  • 40. Live Content Slide When playing as a slideshow, this slide will display live content Poll: Are there any states where DPC is clearly the unlawful practice of insurance?
  • 41. Are there any states where DPC is clearly the unlawful practice of insurance? a) Yes b) No • Follow the top ten guidelines if you are in a state with no DPC laws
  • 42. Are there any states without any DPC practices? a) Yes b) No
  • 43. Live Content Slide When playing as a slideshow, this slide will display live content Poll: Are there any states without any DPC practices?
  • 44. Are there any states without any DPC practices? a) Yes • North Dakota and South Dakota b) No
  • 45. Indiana DPC Definition This is a contract where the physician: (1) agrees to provide primary care health services to the individual patient for an agreed upon fee and time; (2) does not bill any third parties on a fee for service basis; (3) charges a periodic fee for services; and (4) may charge a per visit charge only if the charge is less than the monthly equivalent of the periodic fee.
  • 46. Indiana “Not Insurance” Provision Sec. 4.(a) A direct primary care agreement is not insurance and is not subject to IC 27. (b) Entering into a direct primary care agreement is not the business of insurance and is not subject to IC 27. (c) A primary care provider who enters into a direct primary care agreement is not required to obtain a certificate of authority under IC 27-1-3-20.
  • 47. Indiana DPC Qualifiers Sec. 5. (a) A direct primary care agreement must meet all of the following requirements: (1) Be in writing. (2) Be signed by both parties (3) Allow either party to terminate the agreement upon written notice to the other party. (4) Describe the scope of primary care health services that are covered by the periodic fee. (5) Specify the periodic fee and any additional fees for ongoing care under the agreement. (6) Specify the duration of the agreement and any automatic renewal periods. (7) Require not more than twelve (12)months of a periodic fee to be paid in advance. (8) Prominently state in writing that the agreement is not health insurance. (b) A primary care provider may not earn any funds under a direct primary care agreement until the month of ongoing care is completed.
  • 48. Indiana: Declining to Start the Agreement Sec. 6.(a) A primary care provider may not decline to enter into a direct primary care agreement with an individual or discontinue care of a patient with whom the primary care provider has entered into a direct primary care agreement solely because of the individual's or patient's health status. (b) A primary care provider may decline to enter into a direct primary care agreement with an individual if: (1) the primary care provider's practice has reached maximum capacity; or (2) the individual's medical condition would result in the primary care provider being unable to provide the appropriate level and type of primary care health services that the individual requires.
  • 49. Indiana: Ending the Agreement (1) Fails to pay the periodic fee. (2) Performs an act of fraud concerning the patient's health care. (3) Fails repeatedly to adhere to the recommended treatment plan. (4) Is abusive and presents an emotional or physical danger to the primary care provider, the primary care provider's staff, or other patients.
  • 50. HITECH – Cash Pay for Privacy • Section 13405(a) of the HITECH Act sets forth certain circumstances in which a covered entity now MUST comply with an individual’s request for restriction of disclosure of his or her protected health information. • §45 C.F.R 164.522(a)(1)
  • 51. HITECH – Cash Pay for Privacy Specifically, section 13405(a) of the HITECH Act requires that when an individual requests a restriction on disclosure pursuant to § 164.522, the covered entity must agree to the requested restriction unless the disclosure is otherwise required by law, if the request for restriction is on disclosures of protected health information to a health plan for the purpose of carrying out payment or health care operations and if the restriction applies to protected health information that pertains solely to a health care item or service for which the health care provider has been paid out of pocket in full.
  • 52. HITECH – HMO / Medicaid Implications If a provider is required by State or other law to submit a claim to a health plan for a covered service provided to the individual, and there is no exception or procedure for individuals wishing to pay out of pocket for the service, then the disclosure is required by law and is an exception to an individual’s right to request a restriction to the health plan pursuant to § 154.522(a)(1)(vi)(A) of the Rule.
  • 53. HITECH – Medicare Implications With respect to Medicare, it is our understanding that when a physician or supplier furnishes a service that is covered by Medicare, then it is subject to the mandatory claim submission provisions of section 1848(g)(4) of the Social Security Act (the Act), which requires that if a physician or supplier charges or attempts to charge a beneficiary any remuneration for a service that is covered by Medicare, then the physician or supplier must submit a claim to Medicare. However, there is an exception to this rule where a beneficiary (or the beneficiary’s legal representative) refuses, of his/her own free will, to authorize the submission of a bill to Medicare. In such cases, a Medicare provider is not required to submit a claim to Medicare for the covered service and may accept an out of pocket payment for the service from the beneficiary. The limits on what the provider may collect from the beneficiary continue to apply to charges for the covered service, notwithstanding the absence of a claim to Medicare.
  • 54. HITECH Privacy Implementation • Have the patient sign a request that information relative to self- paid services not be disclosed (usually called a Restrictions on Uses and Disclosures Form) • Flag this information so that it is not shared with the “health plan” • Inform the patient about the need to make the same request downstream (pharmacies, labs, specialists)
  • 55. HITECH Privacy Summary • All covered entities MUST have a process • Refusal must be of patient’s “own free will” • Medicare • May accept cash payments, but limiting charges apply • Medicaid • May or may not provide an exception (ex KY & CO) • HMO laws (state based) • May or may not provide an exception • Private Insurance Contracts • Federal law trumps terms of private agreements
  • 56. HITECH Medicare Opt Out Implications • Continue to be a “participating” physician • Could attempt to charge all Medicare privately for “covered services” (respecting Medicare limiting charge) • Might be suspect if all patients need to sign up out of “own free will” but might be easier if you market practice based on heightened privacy • Theoretically makes a monthly “noncovered services” fee argument stronger
  • 57. Opted Out Moonlighting • Occ Med / Urgent Care / Emergency Care exceptions • Cash Pay Telemedicine & Research Study Participation • Hospice Administration • PACE “Programs for All Inclusive Care of the Elderly” • On Site DPC with a large Employer • Correctional Medicine • Constitutional Right (8th Amendment) • Inmates cannot be covered by Medicare or Medicaid, and any private insurance they had will not apply • Usually care provided under private contract w/state
  • 58. Urgent & Emergency Exception • Medicare Benefit Policy Manual • Chapters 15, 40.6 & 40.28. • “Payment may be made to a [Medicare] beneficiary for services of an opt out physician/practitioner” if • “the services are emergency or urgent care services furnished by an opt-out physician/practitioner to a beneficiary with whom he/she has not previously entered into a private contract.” • GJ=Opt‐out Physician/practitioner EMERGENCY OR URGENT SERVICES modifier • These claims will be reimbursed at the Medicare "nonparticipating" physician rate (typically 95% of the regular rate)
  • 60. Correctional / On-Site DPC / PACE • No coding • No billing • No fee per visit • Ongoing Messaging (via paper/text/email) • Predictable Patient Panel (minimal recruiting) • Patient does not pay the fee (state/employer) • Patient has less choice of a physician
  • 62. If an insurance company demands a prior authorization, may you charge the insurance company to complete their paperwork? A) Yes – you may elect to do this on your own B) Yes – but only with the patient’s permission C) No – this is not permitted under federal law D) No – this is not permitted under most state laws E) It depends upon whether you are in “network”
  • 63. Live Content Slide When playing as a slideshow, this slide will display live content Poll: If an insurance company demands a prior authorization, may you charge the insurance company to complete their paperwork?
  • 64. If an insurance company demands a prior authorization, may you charge the insurance company to complete their paperwork? A) Yes – you may elect to do this on your own A) Gary Gibson, MD v Medco Health Solutions of Columbus North Ltd B) Yes – but only with the patient’s permission C) No – this is not permitted under federal law D) No – this is not permitted under most state laws E) It depends upon whether you are in “network”
  • 65. If I change from a hospital employed physician to an independent DPC physician then my non- compete agreement will… A) Not apply by nature of my new DPC status B) Not apply because it is against public policy C) Apply because I am now competing with my old clinic D) Apply because I failed to move outside a geographic region E) Any of the above depending upon the state law variance
  • 66. Live Content Slide When playing as a slideshow, this slide will display live content Poll: If I change from a hospital employed physician to an independent DPC physician then my non-compete agreement will…
  • 67. If I change from a hospital employed physician to an independent DPC physician then my non- compete agreement will… A) Not apply by nature of my new DPC status B) Not apply because it is against public policy C) Apply because I am now competing with my old clinic D) Apply because I failed to move outside a geographic region E) Any of the above depending upon the state law variance • Non-competes: note enforceability by jurisdiction – Prohibited = CA, MT, ND, SD, DE, MA – Restrictive Statute = FL, ID, MI, OR, GA, CO – Physician favoritism = VA, TN, TX
  • 68. Non-competes • Non-competes: note enforceability by jurisdiction –Prohibited = CA, MT, ND, SD, DE, MA –Restrictive Statute = FL, ID, MI, OR, GA, CO –Physician favoritism = VA, TN, TX
  • 69. An individual patient asks if she can use her health savings account to pay your membership fees, and you reply: A) Yes B) No C) Ask your accountant D) This is an unsettled issue, and then go into a treatise about tax law and the bipartisan Primary Care Enhancement Act
  • 70. Live Content Slide When playing as a slideshow, this slide will display live content Poll: An individual patient asks if she can use her health savings account to pay your membership fees, and you reply:
  • 71. An individual patient asks if she can use her health savings account to pay your membership fees, and you reply: A) Yes B) No C) Ask your accountant D) This is an unsettled issue, and then go into a treatise about tax law and the bipartisan Primary Care Enhancement Act
  • 72. An large employer HR director asks if her employees can use their health savings account to pay your membership fees, and you reply: A) Yes B) No C) Ask your accountant D) This is an unsettled issue, and then go into a treatise about tax law and the bipartisan Primary Care Enhancement Act
  • 73. Live Content Slide When playing as a slideshow, this slide will display live content Poll: An large employer HR director asks if her employees can use their health savings account to pay your membership fees, and you reply:
  • 74. An large employer HR director asks if her employees can use their health savings account to pay your membership fees, and you reply: A) No B) Yes C) Ask your accountant D) This is an unsettled issue, and then go into a treatise about tax law and the bipartisan Primary Care Enhancement Act • Cautious approach – customize an option that looks more like FFS
  • 75. Will you code my visit with you today so that I can submit it toward my insurance deductible? A) No, this is a waste of our time B) No, this could be insurance fraud C) Yes, I’ll just do this each time you come in and list my cash pay rates D) Yes, I’ll just do this once per year and will list 12 months of the fee
  • 76. Live Content Slide When playing as a slideshow, this slide will display live content Poll: Will you code my visit with you today so that I can submit it toward my insurance deductible?
  • 77. Will you code my visit with you today so that I can submit it toward my insurance deductible? A) No, this is a waste of our time B) No, this could be insurance fraud C) Yes, I’ll just do this each time you come in and list my cash pay rates D) Yes, I’ll just do this once per year and will list 12 months of the fee
  • 78. If I “opt out” of Medicare and do not bill Medicaid, then I am no longer subject to the: A) Affordable Care Act B) Clinical Laboratory Improvement Act C) False Claims Act D) Health Insurance Portability & Accountability Act E) Occupational Safety & Health Administration Regulations
  • 79. Live Content Slide When playing as a slideshow, this slide will display live content Poll: If I “opt out” of Medicare and do not bill Medicaid, then I am no longer subject to the
  • 80. If I “opt out” of Medicare and do not bill Medicaid, then I am no longer subject to the: A) Affordable Care Act B) Clinical Laboratory Improvement Act C) False Claims Act D) Health Insurance Portability & Accountability Act E) Occupational Safety & Health Administration Regulations
  • 81. If I “opt out” of Medicare then I will no longer: A) Be able to privately contract for covered services B) Be able to privately contract for non-covered services C) Have an NPI number D) Have a PECOS number (needed for ordering labs & DME) E) Be able to participate in TRICARE
  • 82. Live Content Slide When playing as a slideshow, this slide will display live content Poll: If I “opt out” of Medicare then I will no longer:
  • 83. If I “opt out” of Medicare then I will no longer: A) Be able to privately contract for covered services B) Be able to privately contract for non-covered services C) Have an NPI number D) Have a PECOS number (needed for ordering labs & DME) E) Be able to participate in TRICARE
  • 84. If I “opt out” of Medicare then I may moonlight in the following areas: A) Correctional Medicine B) Indian Health Services C) Veterans Administration D) Locums (billing under the practice NPI) E) All of the Above
  • 85. Live Content Slide When playing as a slideshow, this slide will display live content Poll: If I “opt out” of Medicare then I may moonlight in the following areas:
  • 86. If I “opt out” of Medicare then I may moonlight in the following areas: A) Correctional Medicine B) Indian Health Services C) Veterans Administration D) Locums (billing under the practice NPI) E) All of the Above
  • 87. Questions? Submit your questions to: aafp3.cnf.io Don’t forget to evaluate this session! Contact Information Philip Eskew Phil@DPCfrontier.com @PHILSQ

Editor's Notes

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  6. PA, SC – through one branch WI, MD – still in committee GA – died in committee
  7. Follow the top ten guidelines if you are in a state with no DPC laws
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  9. Follow the top ten guidelines if you are in a state with no DPC laws
  10. North Dakota and South Dakota
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  12. North Dakota and South Dakota
  13. Michigan – passed but not implemented Nebraska – most promising, others less likely Likely many more unknown orange states Purple – pilots of self funded state employees that required no legislative action
  14. A – Gary Gibson vs. Medco Health So
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  18. Correct Answer: C
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  20. Cautious approach – customize an option that looks more like FFS
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