Georgia has passed SB 18 the “Direct Primary Care Act.” It is a well written bill to define DPC as “not subject to state insurance laws.” It passed the senate and the house and was signed by the governor on April 25, 2019 making Georgia the 26th state to have DPC “not insurance” defining language. Be sure to review Georgia Code Title 33 Insurance when designing your practice. Physicians will want to be certain that they are not defined as operating an insurance company or a health maintenance organization.
Here is the language of the Georgia “Direct Primary Care Act:”
This Act shall be known and may be cited as the "Direct Primary Care Act."
Chapter 7 of Title 33 of the Official Code of Georgia Annotated, relating to kinds of insurance, limits of risks, and reinsurance, is amended by adding a new Code section to read as follows:
(a) As used in this Code section, the term:
(1) 'Direct primary care agreement' means a contract between a physician and an individual patient or his or her legal representative in which the physician or the physician's medical practice agrees to provide health care services to the individual patient for an agreed-upon fee and period of time.
(2) 'Direct primary care practice' means a physician or physician's medical practice that charges a periodic fee for services, does not bill any third parties on a fee for service basis, and whose per visit charge is less than the monthly equivalent of the periodic fee.
(3) 'Physician' means a person licensed to practice medicine pursuant to Article 2 of Chapter 34 of Title 43.
(b) A direct primary care agreement is not insurance, shall not be deemed an insurance arrangement nor agreement, and is not subject to state insurance laws.
(c) A physician offering, marketing, selling, or entering into a direct primary care agreement shall not be required to obtain a certificate of authority or license other than to maintain a current license to practice medicine with the State of Georgia.
(d) To be considered a direct primary care agreement for the purposes of this Code section, such agreement shall:
(1) Be in writing;
(2) Be signed by a physician or agent of the physician and the individual patient or his or her legal representative;
(3) Allow either party to terminate such agreement upon written notice; provided, however, that a physician shall be required to give a patient adequate notice of at least 30 days to allow a patient a reasonable amount of time to find another health care provider, and a patient shall be required to give a physician notice of no more than 30 days;
(4) Describe the scope of health care services that are covered by the periodic fee;
(5) Specify the periodic fee and any additional fees outside of the periodic fee for ongoing care;
(6) Specify the duration of such agreement and any automatic renewal periods and require that no more than 12 months of the periodic fee be paid in advance; and
(7) Prominently state in writing that such agreement is not health insurance.
(e) A physician providing health care services under a direct primary care agreement may decline to accept a patient if, in the physician's opinion, such patient's medical condition is such that the provider is unable to provide the appropriate level and type of health care services such patient requires. The physician may discontinue care for patients under the direct primary care agreement if:(1) The patient fails to pay the periodic fee or any additional fees specified by the agreement;
(2) The patient has performed an act of fraud;
(3) The patient repeatedly fails to adhere to the recommended treatment plan;
(4) The patient is abusive and presents an emotional or physical danger to the staff or other patients of the direct primary care practice; or
(5) The physician or the physician's medical practice discontinues operation as a direct primary care practice.
(f) In the event that either party terminates an agreement pursuant to this Code section, any unearned portion of any fees paid pursuant to such agreement shall be refunded by the physician to the patient within 30 days of termination."
SECTION 3. All laws and parts of laws in conflict with this Act are repealed.
Practices should note Georgia Attorney General’s Opinion 82-71 “Prepaid Dental Plans May not be Licensed as Health Maintenance Organization.” The letter stated: ”In short, it is my official opinion that all of the above-discussed prepaid dental plans constitute the offering of insurance if their financial success depends upon some participants not fully utilizing the available benefits so as to offset the cost of participants who fully utilize available benefits. Alternatively, if in fact a plan's charges to each participant approximate the cost of the services rendered to that participant, no insurance or risk distribution among participants would be involved. An examination by your office of the fee structure and costs of operation of a particular plan may be necessary to reach the proper determination as to that plan.” Fortunately DPC practices in Georgia have the clear DPC law above, but they should still 1) avoid charging patients on a prepaid basis, and 2) build a fare market value argument (likely by referencing other DPC practices across the country) to demonstrate the fair market value of the services delivered.
Title 33. INSURANCE Chapter 1. GENERAL PROVISIONS
(2) "Insurance" means a contract which is an integral part of a plan for distributing individual losses whereby one undertakes to indemnify another or to pay a specified amount or benefits upon determinable contingencies.
Title 33. INSURANCE Chapter 21. HEALTH MAINTENANCE ORGANIZATIONS
(6) "Health maintenance organization" means any person who undertakes to provide or arrange for one or more health benefits plans.
(4) "Health benefits plan" means any arrangement whereby any person undertakes to provide, arrange for, pay for, or reimburse any part of the cost of any health care services, at least part of which consists of arranging for or the provision of health care services, as distinguished from an arrangement which provides only for indemnification against the cost of such services on a prepaid basis through insurance or otherwise.
(5) "Health care services" means any services included in the furnishing to any individual of medical or dental care or hospitalization or incident to the furnishing of such care or hospitalization, as well as the furnishing to any person of any and all other services for the purpose of preventing, alleviating, curing, or healing human illness or injury.
Dispensing medications is permitted in Georgia and physicians that wish to dispense must notify the Georgia Composite Medical Board. The Georgia Department of Public Health does have a recommended Drug Dispensing Procedure. The law is cited below, but this set of frequently asked questions from the Drug and Narcotics Agency of the State of Georgia is especially helpful.
(c) All practitioners who dispense drugs shall comply with all record-keeping, labeling, packaging, and storage requirements imposed upon pharmacists and pharmacies with regard to such drugs pursuant to this chapter and Chapter 13 of Title 16.
(d) All practitioners who dispense drugs shall make all records required to be kept under subsection (c) of this Code section available for inspection by the board.
(e) Any practitioner who desires to dispense drugs shall notify, at the time of the renewal of that practitioner's license to practice, that practitioner's respective licensing board of that practitioner's intention to dispense drugs. That licensing board shall notify the board regarding each practitioner concerning whom that board has received a notification of intention to dispense drugs. The licensing board's notification shall include the following information:
(1) The name and address of the practitioner;
(2) The state professional license number of the practitioner;
(3) The practitioner's Drug Enforcement Administration license number; and
(4) The name and address of the office or facility from which such drugs shall be dispensed and the address where all records pertaining to such drugs shall be maintained.
(f) The board shall have the authority to promulgate rules and regulations governing the dispensing of drugs pursuant to this Code section.
(g) This Code section shall not apply to practitioners who provide to their patients at no cost manufacturer's samples of drugs.
26-4-40. Unlawful to practice pharmacy without license; exception; fine
(a) Except as otherwise provided in this chapter, it shall be unlawful for any individual to engage in the practice of pharmacy unless currently licensed to practice under the provisions of this chapter.
(b) Practitioners authorized under the laws of this state to compound drugs and to dispense drugs to their patients in the practice of their respective professions shall not be required to be licensed under the provisions of this chapter; however, practitioners shall meet the same standards, record-keeping requirements, and all other requirements for the dispensing of drugs applicable to pharmacists.
(c) Any individual who, after hearing, shall be found by the board to have unlawfully engaged in the practice of pharmacy shall be subject to a fine to be imposed by the board for each offense. Each violation of this chapter pertaining to unlawfully engaging in the practice of pharmacy shall also constitute a felony punishable upon conviction thereof by a fine of not less than $500.00 nor more than $1,000.00 or by imprisonment for not less than two nor more than five years, or both.
Note that Georgia is one of only eleven states that elect their insurance commissioner (most are appointed by the governor), and a recent candidate (not elected) campaigned in part on the idea that DPC should not be regulated as insurance. In 2017 Georgia did pass HB 165 to "provide that maintenance of certification shall not be required as a condition of licensure to practice medicine, staff privileges, employment in certain facilities, reimbursement, or malpractice insurance coverage."