History: Senate Bill 18 in 2019
In 2019, Georgia became the 26th state to designate in its insurance code that Direct Primary Care practices are “not insurance” by passing Senate Bill 18. At the time, 3.2 million Georgians were living in areas facing a severe physician shortage. Dubois & Mesa, SB 18 – Direct Primary Care, Ga. St. Univ. L. Rev., Vol. 36:1, p. 136 (2019). In supporting the bill, Senator Kay Kirkpatrick said:
It is a way for people who can’t afford high dollar plans to get the majority of their care handled for a reasonable and predictable amount of money and is also a way for people to keep their primary care doctor if they change plans or if their doctor is not in their insurance network.
Dubois, SB 18 – DIRECT PRIMARY CARE, p. 136.
Rules: The Written Agreement
Senate Bill 18 modified the insurance code in O.C.G.A. §§ 33-7-2.1. Under the act, a “direct primary care agreement” means a contract where a “physician or the physician’s medical practices agrees to provide health care services to the individual patients for an agreed-upon fee and period of time.” O.C.G.A. § 33-7-2.1(a)(1). To avoid this arrangement qualifying as insurance and, thus, requiring the practice to abide by insurance rules, there must be an agreement in writing signed by the physician and patient. Id. § 33-7-2.1(d)(1)-(2). Other specific requirements of the written agreement include:
- Either party must be allowed to terminate the agreement upon written notice.
- The agreement must specify the scope of services covered by the periodic fee, what the periodic fee is, and whether there are any additional fees.
- The duration of the agreement and any automatic renewal period must be specified in the agreement.
- The agreement can require no more than 12 months of the periodic fee to be paid in advance.
Importantly, the agreement must “prominently state in writing that such agreement is not health insurance.” Other states require such disclaimer to be in bold, a larger font, a different color font, etc. Some states require the disclaimer to be on the signature page. To be safe, we usually include the disclaimer on the signature page in all caps and blue ink so there is no question whether the disclaimer is prominent.
Furthermore, if the agreement is terminated, any unearned portion of any fees paid must be refunded within 30 days of the contract’s termination. The code section allows specific reasons for why the physician can terminate care for patients under the agreement in Section 33-7-2.1(e).
Other Consideration: Rule Changes, Telemedicine, & Medicare
There are numerous other considerations in drafting your practice’s direct primary agreement that are wise to discuss with an advisor or counsel. For instance, the agreements should contemplate changes in the rules and what happens when the practice needs to modify the agreements to comply with any such changes. If telemedicine is part of the services offered under a direct primary care agreement, protections for the practice can be incorporated into the direct primary care agreement. It is also wise to consider the implications of treating Medicare patients, whether the provider is officially opted out of Medicare or simply not accepting Medicare patients. If services offered under the direct primary care agreement are Medicare “covered services,” additional disclaimers and language can be added to the agreement to protect the practice and provider.
Our firm works with many providers to create forms and other policies to lawfully create direct primary care practices considering each practices’ unique needs. If you have questions regarding this blog post or wish to discuss the process of migrating to a direct primary care practice, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.