Increasingly, our healthcare and business law firm’s clients are interested in opening concierge medicine practices. Hamil Little’s last blog post provided an overview of what concierge medicine is with references to compliance risks. This post outlines those very serious compliance risks for practices that treat Medicare patients and are not opted out of Medicare. If you have questions regarding this blog post or starting a concierge practice, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, email@example.com. You may also learn more about our law firm by visiting www.hamillittle.com.
Understanding the compliance risks associated with concierge medicine practices requires understanding a fairly easy and, perhaps, obvious concept: Providers cannot bill patients for services paid for by their insurance; a practice referred to as “double billing.” Applying that concept is easier said than done. Consider the complexity in this: a concierge medicine practice requires a $200/month fee that includes “longer appointments,” which is a clear benefit to patients. Assuming the appointment itself is covered by insurance, is the fact that it’s longer something that insurance does not cover? Maybe, but maybe not. There are ample examples of how complex this question is and, as it relates to Medicare, CMS and the Office of Inspector General (“OIG”) offer minimal guidance.
To provide clarity of how concierge benefits could potentially be covered and potential penalties for violating this Medicare rule, the OIG published an alert in 2004 providing a warning to concierge medicine providers. Specifically, the alert analyzed a provider who offered a contract for “additional services” for a monthly/yearly fee and concluded that services that the provider considered additional were potentially (at least partially) covered services, including: “coordination of care with other providers,” “a comprehensive assessment and plan for optimum health,” and “extra time” spent on patient care. In that case, claims were brought against the provider and the provider agreed to a monetary settlement with the HHS (unreported amount) and agreed to stop offering these contracts to his patients. In 2007, the OIG took issue with another concierge medical practice where membership was in exchange for: (1) an annual comprehensive physical examination; (2) same day or next day appointments; (3) support personnel dedicated exclusively to members; (4) 24 hours-a-day and 7 days-a-week physician availability; (5) prescription facilitation; (6) coordination of referrals and expedited referrals, if medically necessary; and (7) other service amenities as determined by the physician. The physician agreed to pay $106,600 to resolve his liability. The OIG also maintains on its website the following language: “It is legal to charge patients for services that are not covered by Medicare. However, charging an “access fee” or “administrative fee” that simply allows them to obtain Medicare-covered services from your practice constitutes double billing.”
Apart from that guidance, there is little from CMS or the OIG on the subject. The consequences of failing to satisfy Medicare’s rules that an enrolled provider cannot charge patients separately for covered services are harsh and include exclusion from Medicare and substantial penalties. As such, it is important to incorporate Medicare guidance into establishing a concierge medicine practice that treats Medicare patients.
Our firm works with many providers to create forms and other policies to lawfully create concierge medicine practices considering each practice’s unique needs. If you have questions regarding this blog post or wish to discuss the process of opening a concierge practice, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, firstname.lastname@example.org. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.