Episode 4: Legal Issues in DPC…with Dr Phil Eskew
As a new model of healthcare delivery, DPC entails a unique set of legal challenges. DPC practices often find themselves charting new legal territory as they provide innovative care in a profession whose regulatory laws trace their roots back decades, if not centuries. DPC law is a new area and without much legal precedent, leading many doctors and even lawyers to shy away. But as noted by Dr Phil Eskew, lawyer, family physician and founder of DPC Frontier website, sailing the un-sailed seas of new legal scenarios need not be frightening.
The most common legal question that Dr Eskew is asked regarding DPC law deals with the Medicare opt out process. According to Medicare laws, it is illegal to charge a patient for a service that is already paid for by Medicare, so unless a physician ‘opts out’ of Medicare, he or she runs the risk of ‘double dipping’ if he or she charges a patient for a DPC contract that includes services that could be reimbursed by Medicare. Should the physician opt out, this prevents him or her from moonlighting under any employer paid by Medicare. According to Dr Eskew, there are several ways that DPC physicians can opt out and still moonlight, all of which he describes in his website here. DPC physicians can also avoid violating Medicare laws by charging a “fee for non-covered services,” which concierge doctors have traditionally justified with the provision of newsletters, but as Dr Eskew notes, it’s difficult if not if not impossible to justify to the government that everything in a DPC contract is not covered by Medicare.
Another common legal issue arising in DPC law is HIPAA compliance. While there is still some debate in the legal community about whether DPC practices are considered a “covered entity” that must abide by HIPAA compliance standards, there are steps a practice can take to be in compliance with HIPAA which Dr Eskew details in his website. Also, for ensuring compliance of electronic health records (EHR) software, there are many free EHRs as well as several low-cost EHRs that meet HIPAA compliance encryption standards. Finally, for practices who sign a business associate agreement (BAA) with Google, communication on Google core apps is considered to meet HIPAA level of encryption.
Finally, for those who practice DPC in states without DPC laws (see which ones have these here), DPC can run the risk of violating rules of the state insurance commissioner. If a DPC practice fails to set appropriate limits to what services can be provided by the annual or monthly, then it can become liable to scrutiny by insurance regulatory bodies for failing to appropriately pool risk (i.e. offering services on which it can’t deliver). Per Dr Eskew, risk of violating insurance laws can be avoided by clear patient contracts detailing exactly what services are being offered. Areas where practices can get into trouble, he says, include not placing a cap on panel size or offering unlimited visits without a clear indication for the visit. By detailing exactly what can be offered, a practice makes clear that it can deliver on what is promised.
In sum, DPC law, while young, does present unique legal challenges. But with thoughtful preparation, these hurdles can be overcome. Brave pioneers like Dr Eskew and others have helped offer support along the way. He’s even started a website where he gives away as much legal advice as he can to DPC doctors. Certainly charting new legal territory can be daunting, but there’s help out there. Besides, for primary care doctors, what’s the alternative?
[02:41] What led Dr Eskew to enter medicine and DPC in particular?
[04:48] Dr Eskew provides an overview of legal barriers to opening a DPC practice.
[06:26] Dr Eskew provides the Medicare opt out requirements.
[07:25] Dr Eskew discusses moonlighting options for opted out physicians.
[08:37] Dr Eskew describes the ‘fee-for-non covered’ services.
[09:49] Dr Eskew discusses relevancy of HIPAA to DPC law.
[12:33] Dr Eskew talks about how DPC doctors should go about finding EHRs with regards to HIPAA compliance.
[13:49] How insurance laws do or don’t apply to a DPC practices.
Dr Phil Eskew is a family physician, DPC doctor, lawyer and DPC legal expert. Prior to graduating from medical school in 2012, Dr Eskew graduated from West Virginia University College of Law in 2008. He is now the VP of Clinical Development and General Counsel at Proactive MD, a company focused on helping employers design, staff, run and monitor onsite health and wellness centers. He is also the VP of Clinical Development and General Counsel at the Heartland Institute, a non-profit think tank devoted to discovering , developing and promoting free-market solutions to social and economic problems.