Concierge Medicine----Promises and Legal Pitfalls

Concierge Medicine----Promises and Legal Pitfalls

There are members of your medical community that are seeking big financial rewards by moving away from traditional insurance based medicine to concierge medicine. Physicians are under pressure to do more for shrinking dollars and accountable care organizations (ACOs) are requiring physicians to assume greater financial and liability risks while promoting the holistic concept of the patient centered home. The physician is asked to buy into the idea that achieving better patient medical outcomes is paramount to fee-for-service payments profitability. There is no question that over the next few years, there will be a major shift away from fee-for-service to bundled payments for patient-centric care. Essentially, medical providers salaries, hospital reimbursement, and the like, will be reallocated to pay for the medical care of previously uninsured persons. It is therefore, not a surprise, that the primary care concierge model has arisen. Franchises, such as MDVIP, have arisen to help would-be enteprenure primary care providers to transition into concierge medicine.

Typical concierge medicine models promote patient practices between 300-600 in size, 24 hr physician availability, flexible appointment times, zero time waiting room stays, and personalized care in exchange for annual membership fees between $1,500 to $3000.

One of the amenities of concierge medicine is to provide patients with electronic access to their provider. Such access may be at an additional charge, possibly $25 per exchange, through EHR patient portals, e-mail, texting, direct phone conversations, or videoconfrencing through Skype , Facetime, or the like.

The three most popular primary care concierge models include

(1) where the physician opts out of participation with Medicare and becomes and out –of-network provider with commercial insurers,

(2) continuation participation with Medicare and commercial insurance along with a fee for non-covered amenities, and non-covered physician health services, and

(3) continues participation with Medicare and commercial insurance with an extra charge for amenities not covered by medical insurance.

All three models impose a membership fee but the amount of the fee varies as does do the amenities and services covered by the fee. Most concierge medical providers choose to continue to participate in Medicare and commercial insurers.

The concierge medicine business model involves contracts:

(1) between participating providers/physicians and the concierge franchise network,

(2) between the provider and the medical insurance company, and

(3) contract between the patient and the concierge network with payment of a membership fee, a part of which is paid to the participating provider.

The concierge franchise network provides staff support to the participating provider, an electronic medical record system, scheduling of patient education seminars, handling/processing of membership enrollments and billing/collection of membership fee., and perhaps an after-hours patient call center.

CONTRACT SIMPLICITY: Key elements of the patient/member-concierge network agreement include defining the scope of services that the membership fee covers, informing the member as to whether the provider will out-out of Medicare and/or commercial insurance networks, and provider patient disclosure that the membership fee paid is an additional fee paid and not one paid in exchange for waiving of insurance co-payments or insurance deductibles. It must specify the term of the contract, when the membership fee must paid and whether it is refundable in whole or in part, and specify whether the contract is automatically renewed after the completion of the initial term of the contract. The contract should be easy to read and easy for patients to understand.

ABANDONMENT: Should the contract be terminated or not renewed, the provider cannot abandon the patient. Therefore, the physician must provide at least 30 days of ongoing medical coverage, beyond severance from the contract, to allow the patient to transfer care to another provider.

MEDICARE COMPLIANCE AND CIVIL MONETARY PENALTIES: Medicare compliance is critical in delivery of added charges in the Concierge Medicine model. In fact, in 2014, the OIG issued an alert to physicians targeting concierge practices that might charge members for otherwise covered services under Medicare.

http://oig.hhs.gov/fraud/docs/alertsandbulletins/2004/FA033104AssignViolationI.pdf

The concern arose after the OIG found that some concierge practices were charging for services covered under Medicare, while characterizing them as non-covered charges to their Medicare covered members. This included membership charges for “coordination of care with other providers,” “a comprehensive assessment and plan for optimum health,” and “extra time” attributable to patient care.

Charging a Medicare patient for prior authorization services which allows a patient to obtain access to Medicare services provided through the practice may well constitute double billing. On the other hand, physicians who have opted out of Medicare may charge for prior authorization/administrative services and

“coordination of care” fees so long as they comply with opt-out contract regulations.

“Double billing” violations may result in imposition of Civil Monetary Penalties ranging from $10k-50k per violation for violation of Medicare assignment rules as well as possible exclusion from the Medicare program.

OPT-OUT OF MEDICARE PROPERLY OR ELSE: For physicians wishing to opt-out of Medicare, compliance requirements apply including:

(1) filing an affidavit under sec 40.9. Contracts with Medicare patients must comply with sec 40.28 and

(2) the physician much retain a copy of this contract available for inspection by CMS upon request.

The failure for a physician to fail to properly opt-out with Medicare is that private contracts with Medicare beneficiaries for otherwise covered services are void. Payment for those services must be submitted to Medicare and cannot be charged to Medicare patients. Additionally, if the opt-out process was not performed properly by the provider, the physician may not attempt to opt out again until a 2-year opt-out period has passed.

CONCLUSION: Tough times for physicians have resulted in the emergence of concierge medicine. Especially when Medicare patients are involved, pitfalls must be avoided or else the opportunity for a lucrative practice could result in enormous payments of monetary penalties to the government. Clearly, the OIG is not a fan of concierge medicine.

Leslie Tar, Esq., LLM*

*Florida Health Law Attorneys, Florida Medical Board Defense Attorneys, Florida Medical License Defense Attorneys.

* Office location in Port Charlotte, Florida with service to Sarasota, Ft Myers, Naples, Tampa, Orlando, Vero Beach, West Palm Beach, Boca Raton, Ft Lauderdale, Miami, Gainesville, Tallahassee, Pensacola and throughout Florida and nationally.