New Legal Considerations Ep. 🎙️ Concierge Medicine is Creating a Splash from the Windy City 💨 to the Sunshine ☀️😎 State:

Jonna D. Eimer is a health law and corporate attorney and shareholder at Roetzel & Andress in Chicago, Illinois. She represents numerous concierge medicine practices and has extensive experience with other innovative practice models. She also advises her clients – including physicians and physician groups, dentists, behavioral health clinicians, and other health care providers – in forming new practices, selling established practices, and negotiating employment and shareholder agreements, as well as guiding them with respect to regulatory matters. In addition, she counsels clients in forming management services organizations (MSOs) and navigating these sales to private equity. She can be reached at jeimer@ralaw.com.

 

By Jonna D. Eimer, Roetzel & Andress

 

Concierge medicine is on the rise, especially in the “snowbird” states like Florida, as practices and hospitals from Chicago and elsewhere have opened concierge practices to serve their patient populations in these warm locations. As these concierge style medicine practices continue to grow all over the country in primary care, pediatrics, women’s health and other specialties, practices need to be particularly mindful of the different legal considerations that affect these new practice models. Because patient membership fees are often paid in advance and the patient agreement usually contemplates a personal relationship with increased access to a certain physician, there are different legal challenges and practice issues that should be addressed at the outset of these practices.

 

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Transitions, Terminations and Retirement

 

Jonna D. Eimer is a health law and corporate attorney and shareholder at Roetzel & Andress in Chicago, Illinois. © 2024 Roetzel & Andress. Photo Used With Permission.

 

The concierge model generally relies on increased access and time for patients because physicians have typically accepted fewer patients. Because of this, it can be very difficult to figure out the fairest way to negotiate a partner’s exit and how these patients and fees paid would transfer in the event of such departure. Does the partner get paid only in a buy-out of the whole practice or will the practice buy-out the individual partner upon his or her termination? Would this be handled differently in the case of a retirement? Would the practice consider a buy-out only if another physician can be substituted and take over the patient panel? How then is the new provider paid if fees have already been collected for a given year? It is possible the patients reject the substitute physician regardless of the departing physician’s recommendation.

 

Oftentimes, the agreements governing the practice’s operations include long notice provisions prior to any termination or retirement because it is not easy to substitute another concierge doctor if one leaves. Also, the patients have paid for the personal relationship and membership with their own doctor, so they do not always feel that this relationship transfers to another doctor. Another thing to consider is if a doctor terminates or unexpectedly dies or becomes disabled and a new doctor cannot cover their patients, what happens to patient fees that have already been collected? The practice needs to consider whether these fees are returned to patients and then whether a new membership agreement is entered into with the new physician. All these considerations need to be addressed in the initial stages of the company’s operations.

 

Cost Sharing/Expenses

 

Another issue confronting concierge practices is cost sharing and how to divide expenses in this type of practice models. Practices must decide if they are allocating costs based on each physician’s patient panel size or based on their respective ownership percentages of the practice. Once you allow for different panel sizes, these differences can become quite problematic, and physicians can end up disagreeing on the fair allocation of these costs. Confronting these differences early in the formation of the practice and providing for them in the practice’s operating documents can help avoid difficult and costly conflicts later for the partners.

 

Sales to Third Parties

 

Physician owners in a concierge practice also need to consider at the formation of a practice how the profits of the practice will be divided in the case of a sale to a third party. Will profits be divided based on a physician’s ownership in the practice or based on an individual physician’s production and fee generation? If a practice has providers with vastly different production and patient panel sizes, then this is important to consider because the higher producing partner may want a sale to a third party to take into account these differences. Another partner may feel strongly that profits should be divided based on ownership percentages in the practice entity, which may be equal even if the providers have different numbers of patients. Frequently, the potential buyer has their own considerations for valuing the practices and may ascribe different values to each physician’s practice. The buyer may base its valuation of the practice on patient panel size and fees generated by each individual physician.

 

Regulatory Considerations

 

Concierge practices typically charge a fee for membership in their practice, which generally allows patients increased access to the physicians and their services. If the practice is accepting Medicare and/or commercial insurance, the fee cannot be charged for any service already covered by Medicare or insurance. Additionally, if the practice accepts commercial insurance, the fee must be scrutinized to be sure it is allowed under any agreement with a commercial payor of the practice. Some payor agreements may specifically prohibit any patient fee for membership in a practice. Some practices have reached out to their commercial payors directly when converting to a concierge practice and have had these commercial payors review and approve their patient agreements and membership fees.

 

Coverage and Licensing Concerns

 

Because of the unique access provided to concierge patients, some practices have added special coverage when these patients are out of state or on vacation. In light of their patients who winter in warmer climates, like Florida, California and Arizona, some practices have partnered with other concierge practices in these states to offer services to their “snowbird” patients. Health systems are taking advantage of these practice models also. For instance, Chicago-based Northwestern Medicine opened a concierge medicine office in Naples, Florida, and Ohio-based Cleveland Clinic also has opened concierge medicine practices in multiple Florida locations. Doctors, however, need to be aware that they need to be licensed in the state where the patient resides. Due to these licensing considerations, some concierge physicians are also obtaining licenses in other states to cover patients that often spend their winters in these warmer states.

 

Final Thoughts

 

The above issues are just some of the unique considerations facing concierge practices from Chicago to Florida and other states as well. Because each concierge practice has unique patient fee agreements to consider, there is not a “one size fits all” approach to advising these practices. Concierge practices should not overlook the unique legal and practice issues facing them, from patient fee issues to physician departures. These models have a variety of legal challenges that should be addressed at the early stages of the practice, so they do not lead to partner and patient discord later on.

 

Connect with Jonna D. Eimer at Roetzel & Andress in Chicago, Illinois.

 

Jonna D. Eimer is a health law and corporate attorney and shareholder at Roetzel & Andress in Chicago, Illinois. She represents numerous concierge medicine practices and has extensive experience with other innovative practice models. She also advises her clients – including physicians and physician groups, dentists, behavioral health clinicians, and other health care providers – in forming new practices, selling established practices, and negotiating employment and shareholder agreements, as well as guiding them with respect to regulatory matters. In addition, she counsels clients in forming management services organizations (MSOs) and navigating these sales to private equity. She can be reached at jeimer@ralaw.com.

 

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