Massachusetts has no DPC laws at present and although a group is in the legislative planning stages at this time. The Massachusetts Direct Primary Care Coalition has formed, led by current DPC physicians Jeff Gold, MD and Rushika Fernandopulle, MD, and supported by other soon-to-be DPC physicians. Be sure to review Massachusetts General Laws Part 1 Title 22 Chapter 175 when planning your DPC practice, note that Massachusetts makes it very difficult to conduct any in-office dispensing. Jeff Gold has done some wonderful work for the rest of the DPC Community in Massachusetts. Most importantly, he has obtained helpful guidance from the insurance commissioner about how to avoid the unlawful business of insurance. The most important section of the three page letter discusses mandatory disclosures that the office would like to see in DPC patient agreements:
The practice is not a health benefit plan.
The agreement does not satisfy minimum essential coverage standards for health insurance.
Open enrollment windows in traditional plans are not changed with this agreement.
The practice is not participating in any health insurance plans.
Services provided are limited to those contemplated in the contract.
Services provided by the DPC practice may also be covered by your insurance plan as well.
Massachusetts if one of around five states (the others are Connecticut, Rhode Island, Vermont and New York) that supposedly have antiquated Medicare limiting charge laws on the books. These laws (covered in this 1987 New York Times article) prohibit physicians from (privately) billing Medicare patients more than the amount that would be paid by Medicare for covered services, and appear to have been authored prior to the existence of the "opt out" private contract option.
Physician Dispensing is essentially prohibited in Massachusetts. See General Laws Part I, Title XV, Chapter 94C, Section 9
Notwithstanding section 17, a physician… may “dispense by delivering to an ultimate user a controlled substance in a single dose or in a quantity that is, in the opinion of such physician… essential for the treatment of a patient. The amount or quantity of any controlled substance dispensed under this subsection shall not exceed the quantity of a controlled substance necessary for the immediate and proper treatment of the patient until it is possible for the patient to have a prescription filled by a pharmacy. All controlled substances required by the patient as part of the patient's treatment shall be dispensed by prescription to the ultimate user in accordance with this chapter.
This section shall not prohibit or limit the dispensing of a prescription medication that is classified by the department as schedule VI and that is provided by the manufacturer as part of an indigent patient program or for use as samples if the prescription medication is: (i) dispensed to the patient by a professional authorized to dispense controlled substances pursuant to this section; (ii) dispensed in the package provided by the manufacturer; and (iii) provided at no charge to the patient. The department shall promulgate rules and regulations governing the dispensing of medication pursuant to this section. These rules and regulations shall include, but not be limited to, the types and amounts of medications that may be dispensed and the appropriate safeguards for the labeling and dispensing of such medications.
Read page 35 and 36 of the Commonwealth of Massachusetts Board of Registration in Medicine Prescribing Practices Policy and Guidelines Policy 15-05 Adopted October 8, 2015 “Massachusetts physicians are permitted to dispense up to a 30-day supply of Schedule VI sample medications. Physicians may dispense larger supplies of sample medications, up to 90 days, as part of a manufacturer's indigent drug program. All sample medications dispensed to patients, including those provided as part of an indigent patient drug program, must be labeled.”
Definitions of Insurance:
“A contract of insurance is an agreement by which one party for a consideration promises to pay money or its equivalent, or to do an act valuable to the insured, upon the destruction, loss or injury of something in which the other party has an interest.”
At present DPC physicians would need to argue that their contracts were for “ongoing care.” Many DPC physicians wish to provide as needed “urgent care” in addition to their regular ongoing primary care services. The insurance commissioner might choose to view urgent care services as “doing an act valuable to the insured” upon an “injury of which the other party has an interest.” This interpretation would bar DPC practices from incorporating urgent care services into their panel of bundled period fee offerings.
“Primary care provider - a health care professional qualified to provide general medical care for common health care problems who; (1) supervises, coordinates, prescribes, or otherwise provides or proposes health care services; (2) initiates referrals for specialist care; and (3) maintains continuity of care within the scope of practice.”
This definition is appropriately broad. It is not problematic, but worth noting here because in Massachusetts’s case if you were to elect to pass DPC legislation you would not be obligated to provide an original definition of primary care.
Health Maintenance Organizations
DPC physicians also need to make sure they do not inadvertently violate HMO laws. In Massachusetts the relevant passages are as follows:
''Health maintenance organization'', a company organized under the laws of the commonwealth, or organized under the laws of another state and qualified to do business in the commonwealth, which:
(1) provides or arranges for the provision of health services to voluntarily enrolled members in exchange primarily for a prepaid per capita or aggregate fixed sum.
(2) demonstrates to the satisfaction of the commissioner proof of its capability to provide its members protection against loss of prepaid fees or unavailability of covered health services resulting from its insolvency or bankruptcy or from other financial impairment of its obligations to its members.
Without appropriate DPC legislation a risk averse DPC physician in Massachusetts currently may want to:
1) Bill in arrears (after the period of service has been provided)
2) Stipulate that the periodic fee is only for ongoing primary care and charge additional amounts for any urgent care (or refuse to provide urgent care)
3) Bear the legal expense and uncertainty that the insurance commissioner might dislike the description of the model
Black letter law is needed to clear up these unnecessary gray areas in the law. This will spare the insurance commissioner from repeatedly needing to undergo a case by case analysis of each DPC physician’s practice while lowering legal barriers to physician entry into the DPC model.