Concierge Medicine: A Legal Analysis

Deniza Gertsberg’s article, Concierge Medicine: A Legal Analysis, was recently published in the New York State Bar Association’s Health Law Journal.  Her article focuses on retainer-based medical practices examined through the lens of federal and state laws. This legal analysis evaluates the possible legal pitfalls that retainer-based medical practices may encounter with Medicare assignment rules, civil money penalties, healthcare exclusions, the Anti-kickback statute and the Medicare patient inducement statute. She also discusses the importance of understanding the scope of covered and noncovered Medicare items and services and further explores State insurance and managed care laws and ethical dilemmas presented by these forms of medical practice organization. Below is an excerpt from Deniza’s article:

With labels such as “concierge medicine,” “VIP medicine,” “boutique medicine,” “exclusive practice,” “premium practices,” or “platinum medicine,” direct patient-doctor contractual arrangements have received their share of negative attention from the press as well as certain lawmakers since their inception in 1996. Perceived as medicine for the rich, some academics and ethicists worry that such “elitist” practices may cause access to care problems and would further “exacerbate the already tiered healthcare system, accelerate the fragmentation of insurance risk pools through cherry picking of the healthier patients, and promote the nonmedical services and amenities.”

These days, however, “concierge medicine” appeals to broader segments of the population as physicians offer more affordable contracts to patients. While the term “concierge medicine” remains popular, many, including some state legislatures, are switching to the more neutral terms of “retainer-based medicine” or “direct practices,” to better reflect (and regulate) the varied and more accessible forms of these contractual relationships between patients and physicians.

Attorneys advising physicians in starting or transitioning to retainer-based care should pay close attention to the legal and ethical risks these new practice models may implicate for their clients.

For advice on transitioning or establishing a concierge medical practice please contact our office.