Montana
Montana does have a few DPC practices, and fortunately has made repeat efforts at passing well drafted legislation. Another DPC defining “not insurance” bill (SB 101) was been sponsored during the 2021 legislative session by Sen Cary Smith. The third time was the charm! Thank you Sen Smith! Montana became the 31st state to pass DPC defining “not insurance” legislation with his signature on 04/20/21. Later on 05/11/21 Montana passed legislation permitting in-office dispensing (see below)! 2021 was a wonderful year for DPC in Montana!
Unfortunately 2017's SB 100 was vetoed by the Governor. A prior (poor) effort at DPC legislation was vetoed by the governor on April 27, 2015 and covered in detail in our blog. If you have aspirations of opening a DPC practice in Montana, be sure to begin by reviewing the Montana Code Title 33 Insurance and Insurance Companies, note that Montana prohibits any in-office dispensing.
Excellent guidance has been provided by insurance commissioner Matthew Rosendale on 12/04/2017 referencing our definition of DPC and stating that DPC physicians are not in the business of insurance.
“A DPC Agreement must meet the following criteria:
1) The provider charges a periodic fee under the agreement;
2) The provider does not bill any third parties on a fee-for-service basis, for services covered by the agreement; and
3) Any visit fee charged by the provider must be less than the monthly equivalent of the periodic fee.”
“After a review of applicable Montana law, including Mont. Code Ann. § 33-1-201, Ogden v. Montana Power Co., 229 Mont. 387 (1987), and Shattuck v Kalispell Regional Med. Ctr., 2011 MT 229, the Commissioner has determined that healthcare providers are not in the business of insurance. In addition, written agreements which meet these specific criteria and clearly outline the primary care services provided under the agreement are not insurance products regulated by the CSI, because there is no risk sharing or indemnification involved.”
“Please note that any variation from this direct primary care definition may involve indemnification of a party, or the transfer or pooling of risk, which may make the agreement fall under the regulation of this agency. In addition, providers entering into agreements for more comprehensive coverage may be regulated by the CSI as “health maintenance organizations” under MCA § 33-31-102.”
“Healthcare provider or others who are considering such direct primary care agreements should contact this agency for a determination of whether a specific agreement does, or does not, constitute “insurance” under Montana law. To avoid consumer confusion, the CSI also recommends that providers include language stating that direct primary care agreements are not insurance, and are not meant to replace health insurance coverage.”
Dispensing - Thanks to the efforts of Institute for Justice Attorney Josh Windham (the Institute for Justice filed a lawsuit in June 2020 to overturn this unconstitutional law) and Dr. Carol Bridges, Dr. Cara Harrop and Dr. Todd Bergland in May 2021 (in response to litigation from this same group) the state passed SB 374 allowing healthcare providers in Montana to dispense medications directly to their patients. I have quoted some of the most important passages below and bolded a few areas of emphasis.
Now “a medical practitioner may dispense drugs if the practitioner:
(a) registers with the board of pharmacy provided for in 2-15-1733; and
(b) complies with the requirements of this section.
(2) Drugs dispensed by a medical practitioner must be:
(a) dispensed directly by the practitioner at the practitioner's office or place of practice;
(b) dispensed only to the practitioner's own patients; and
(c) necessary in the treatment of the condition for which the practitioner is attending the patient.
(3) Before dispensing a drug, a medical practitioner shall offer to give a patient the prescription in a written, electronic, or facsimile form that the patient may choose to have filled by the practitioner or any pharmacy.
(4) Except as otherwise provided in this section, a medical practitioner:
(a) may dispense only those drugs that the practitioner is allowed to prescribe under the practitioner's scope of practice; and
(b) may not dispense a controlled substance.
(5) A medical practitioner dispensing drugs shall comply with and is subject to the provisions of this part and the provisions of:
(a) Title 37, chapter 7, parts 4, 5, and 15;
(b) Title 50, chapter 31, parts 3 and 5;
(c) the labeling, storage, inspection, and recordkeeping requirements established by the board of pharmacy; and
(d) all applicable federal laws and regulations.
(6) A medical practitioner registering with the board of pharmacy shall pay a fee ($240.00) established by the board by rule. The fee must be paid at the time of registration and on each renewal of the practitioner's license.
(7) Except as provided in subsection (8), a medical practitioner registered with the board of pharmacy may not dispense drugs to an injured worker being treated pursuant to Title 39, chapter 71.
Subject only to 37-2-104, 37-7-401, and 37-7-402, this chapter does not: (1) subject a medical practitioner, as defined in 37-2-101, or a person who is licensed in this state to practice veterinary medicine to inspection by the board, prevent the person from compounding or using drugs, medicines, chemicals, or poisons in the person's practice, or prevent a medical practitioner from furnishing to a patient drugs, medicines, chemicals, or poisons that the person considers proper in the treatment of the patient.”
Prior to these updates in 2021 the Montana Code Annotated (2017) 37-2-104 historically stated that “it is unlawful for a medical practitioner to engage, directly or indirectly, in the dispensing of drugs” except… in an emergency, or “whenever there is no community pharmacy available to the patient,” or “the dispensing of drugs occasionally, but not as a usual course of doing business, by a medical practitioner.”
Medicaid - Most physicians will want to review the three options discussed here. DPC practices will likely find that the “Rendering Only Enrollment” is the most effective option. This should ensure that you are credentialed with Medicaid while not obligating you to bill Medicaid for services rendered.