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The Impact of a Physician’s Ethical Obligations on Concierge Program Structure

Wednesday, July 13th, 2022

As with other types of practice arrangements, concierge medicine arrangement require attention to the ethical implications. Physicians who enter these arrangements will want to assure that the structure and operation of the concierge practice does not violate any ethical principles. Ethical considerations should be baked into the structure of the concierge practice arrangement. Ethical considerations impact the terms of the concierge patient agreement, the process for securing patients to enter concierge arrangements, and the structure of the financial arrangement adopted as part of the concierge arrangement.
The primary source of a physician’s ethical obligations are ethical guidelines of the American Medical Association (AMA). In 2003, the AMA issued ethical guidance on retainer medicine practices. (Concierge is generally structured as a “retainer” practice arrangement but can be distinguished by the preferential facilities and service availability that is characteristic of some retainer practices). AMA Policy E-8.055 describes the ethical concerns that need to be addressed in concierge medical programs. For the most part, the standards set under the AMA Guidelines follow address factors that are consistent with good business practices and compliance with state insurance and other relevant laws. The guidelines established by the AMA policy include:
Clear Terms of Concierge Care. That the terms of the concierge practice arrangement be clear. Clarity of terms benefits both the patient and the physician. Patients need to know what they are getting in exchange for their direct payment of program costs. Decisions about where to spend limited health care dollars are potentially critical to the ability of the patient to control their health care. Physician benefit as well through a careful delineation of the scope of covered services.

Ability to Terminate. Both the patient and the practice should be able to terminate the arrangement. A practice should not in effect trap a patient in a retainer agreement. The program agreement should not contain any terms that penalize the patient for terminating the agreement. An affirmative right to terminate should be integrated into the agreement.

Undue Influence. That there be no undue influence exerted over patients to enter concierge practice arrangements. Physicians should not take any actions that could be viewed as pressuring patients to enter retainer agreements. Physicians should be helpful where possible through sharing information that they know to be true with patients in support of their decision. Even providing this information should be done carefully and both the pros and cons of the arrangement should be explained. Objectively true information could be provided to assist patients in making their decision.

Patient Abandonment. The potential for patient abandonment is an ethical concern for physicians and can result in professional discipline if the program results in a patient being without medical care. Physicians have an obligation under the AMA guidelines to facilitate the transfer of patients to other physicians. The obligation would extend to patients of a previous traditional practice of the physician prior to converting to the concierge model of practice. It also applies to concierge program patients who terminate or are terminated from the concierge program.

Segregation of Covered and Non-Covered Services. Segregation of services that are reimbursable under insurance or governmental health programs is also suggested by the AMA Guidelines. Absent a clear division between concierge and reimbursable services, the AMA Guidelines state that reimbursable services should be ascertained on a case-by-case basis. This standard will not apply when insurance or government reimbursement is not an issue. Medicare is a special outlier in this area because program regulations require that the concierge practice not provide services that are reimbursed by the Medicare program. Physicians are forced by this requirement to completely opt out of the Medicare program unless they can find a way to safely carve out Medicare covered services from the service array. Carving out Medicare can be difficult because no clear guidelines have been issued by the Center for Medicare and Medicaid Services and the line between covered and non-covered services can be nebulous. For example, Medicare pays for certain preventive care making it unclear whether that care segment can be safely provided in a concierge practice serving Medicare beneficiaries.

Beware of unsupported Health Claims. The AMA Guideline warn against physicians promoting the concierge program as providing better results or better care than is provided in traditional medical practice. Concierge practices are required to be based on “scientific evidence, sound medical judgment, relevant professional guidelines, and concern for economic prudence.” This would seem to imply that any claims comparing the concierge practice to a traditional medicine practice should be based on clinical evidence.

Equity Between Patient Types. If a physician provided services to both concierge patients and patients with insurance or governmental reimbursement, they must be “particularly diligent to offer the same standard of diagnostic and therapeutic services to both categories of patients.” All patients, the policy notes, “are entitled to courtesy, respect, dignity, responsiveness, and timely attention to their needs.” This would seem to work against concierge practices that serve patients who are eligible for reimbursement by limiting the ability for concierge patients to receive care on a preferential basis.

Care to the Needy. The AMA Guidelines also indicate that physicians have a professional obligation to provide care to those in need and that retainer physicians should seek “specific opportunities” to fulfill this obligation. It does not specify that these opportunities need to be provided inside of the concierge practice.
As stated in the introduction, most of these issues are consistent with good business practices and compliance with applicable legal requirements. For example, a clear definition of covered and non-covered services is also necessitated by the potential application of state insurance laws.
The factors indicated in the AMA Guidelines should be considered and integrated into the structure and documents defining the concierge relationship. Some areas are suitable for the promulgation of policies and procedures that are integrated into the legal structure of the program through the terms of the concierge patient contract, physician employment agreements, and potentially other documents defining the parameters of the concierge program.

Concierge Medicine Article Series

Wednesday, July 13th, 2022

Concierge Medicine Legal and Operational Structure

Articles in Series

Chapter I – What is Concierge Medicine?

Chapter II – Benefits of Concierge Medicine Arrangements
Chapter III – Primary Legal Issues Impacting Concierge Medical Practice Arrangements
Chapter IV – Services Normally Provided As Part of a Concierge Arrangement
Chapter V – Concierge Medical Practice Legal and Operational Structure
Chapter VI – Considering Whether to Opt-Out of Medicare
Chapter VII – The Impact of a Physician’s Ethical Obligations on Concierge Program Structure
AMA Opinion 8.055 – Retainer Practices AMA Code of Medical Ethics
Medicare Opt-Out Information and Regulations

John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
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Wausau, WI 54402-8050

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