New York has no DPC laws at present and none appear to be in the planning stages at this time. Multiple DPC practices are operating within the state, but these practices do have to overcome more legal hurdles than the average DPC practice. These include a broad definition of insurance, a broad definition of health maintenance organizations, restrictions on in-office dispensing, the inability to offer pass through discount laboratory pricing, and the inability to offer pass through pathology pricing. Fortunately there are a few DPC practices that have already fought some of these battles. The oldest DPC group in New York is referenced below, and more can be found in our DPC mapper. When debating entity formation please be aware that New York State currently has a 17 week wait period for formation of PLLC, which resets if they request additional information.
1) Insurance Definition (design your practice to avoid this category) N.Y. Ins. Law § 1101(a) (McKinney Supp. 2003) There are many steps physicians can take to lower the risk of their DPC patient agreements. These techniques have been covered in manuscripts from Dr. Eskew pending publication with the Journal of Legal Medicine. In New York the language below makes it even clearer that physicians should focus more on the true value of DPC - ongoing primary care services (not merely urgent care avoidance).
"Insurance contract" means any agreement or other transaction whereby one party, the "insurer", is obligated to confer benefit of pecuniary value upon another party, the "insured" or "beneficiary", dependent upon the happening of a fortuitous event in which the insured or beneficiary has, or is expected to have at the time of such happening, a material interest which will be adversely affected by the happening of such event.
"Fortuitous event" means any occurrence or failure to occur which is, or is assumed by the parties to be, to a substantial extent beyond the control of either party.
2) Health Maintenance Organization Definition - DPC physicians should be mindful of this definition as well. Typically your practice will need to be designed to avoid this category, but a smaller number of larger groups may seek it out.
ARTICLE 44 of the NYS Public Health Law § 4401. Definitions
1. "Health maintenance organization" or "organization" means any person, natural or corporate, or any groups of such persons who enter into an arrangement, agreement or plan or any combination of arrangements or plans which propose to provide or offer, or which do provide or offer, a comprehensive health services plan.
2. "Comprehensive health services plan" or "plan" means a plan through which each member of an enrolled population is entitled to receive comprehensive health services in consideration for a basic advance or periodic charge…
3) In Office Dispensing (difficult in New York). NY - Education Law, Article 137, Pharmacy §6807. Exempt persons.
Many DPC physicians across the country purchase medications at wholesale prices and then pass along these savings to their patients by dispensing the medications directly in the office. The exception provision below works... but only for a three day supply unless you are able to fit your practice into a broader category listed in the second paragraph below.
"This article shall not be construed to affect or prevent: Any physician… legally authorized to prescribe drugs under this title… from supplying his patients with such drugs as the physician… deems proper in connection with his practice, provided, however, that all such drugs shall be dispensed in a container labeled with the name and address of the dispenser and patient, directions for use, and date of delivery, and in addition, such drug shall bear a label containing the proprietary or brand name of the drug and, if applicable, the strength of the contents, unless the person issuing the prescription specifically states on the prescription in his own handwriting, that the name of the drug and the strength thereof should not appear on the label; provided further that if such drugs are controlled substances, they shall be dispensed pursuant to the requirements of article thirty-three of the public health law."
"No prescriber…, may dispense more than a seventy-two hour supply of drugs, except for:
- persons practicing in hospitals as defined in section twenty-eight hundred one of the public health law;
- the dispensing of drugs at no charge to their patients;
- persons whose practices are situated ten miles or more from a registered pharmacy;
- the dispensing of drugs in a clinic, infirmary or health service that is operated by or affiliated with a post-secondary institution;
- persons licensed pursuant to article one hundred thirty-five of this title;
- the dispensing of drugs in a medical emergency as defined in subdivision six of section sixty-eight hundred ten of this article;
- the dispensing of drugs that are diluted, reconstituted or compounded by a prescriber;
- the dispensing of allergenic extracts; or
- the dispensing of drugs pursuant to an oncological or AIDS protocol."
4) Discount Labs (2013 New York Consolidated Laws PBH - Public Health, Article 5 - LABORATORIES, Title 6 - (585 - 588) LABORATORY BUSINESS PRACTICES) DPC practices routinely sign contracts with lab companies for discounted prices. These discounted prices are billed to the DPC practice and then the DPC practice then charges the patient. By alleviating the lab of the burden of collecting from the patient the costs are much lower. In New York this standard lab arrangement used across the country (in all other states except New Jersey) is not legally permitted. See the language below. Note that there are some exceptions DPC practices might pursue, but none are easy. A large DPC group in New York might look closely at arranging their operation as an HMO to solve this (and other) problems.
"§ 585. Definitions. Whenever used in this title:
1. "Health services purveyor" means any person, firm, partnership, group, association, corporation or professional corporation, or any agent, employee, fiduciary, employer or representative thereof, including but not limited to a physician, dentist, podiatrist or chiropractor, either in individual practice, group practice or employed in a facility owned by any person, group, association, firm, partnership or corporation hiring any of the aforementioned practitioners, who provide health or health related services.
2. "Clinical laboratory" shall have the same meaning as is set forth in subdivision one of section five hundred seventy-one of this article."
5) Discount Pathology - New York is a "direct billing" state meaning that any skin biopsies you remove and send to pathology for a diagnosis must be billed "directly" to the patient (rather than your practice). Most DPC practices in other states attempt to use labs that have low priced cash rates. These cash rates are charged to the DPC practice, and then the practice collects the same fee from the patient at the time of service. As a NY DPC physician your inability to relieve the pathologist from the collection burden will typically mean your patients face higher pathology prices.
6) Medicaid - If a DPC physician wants to ensure that his orders (prescriptions, labs, imaging studies) will be followed he needs to "sign up" with New York Medicaid as an "Ordering/Prescribing/Referring/Attending" (OPRA) so that he will be "known" to Medicaid. This is due to an ACA requirement (42 CFR 455.410) that I have discussed here. Here is a document from the NYS Medicaid Program discussing the situation in detail.
§ 586. Payment for services. 1. It shall be unlawful for any purveyor of clinical laboratory services, directly or indirectly, through any person, firm, corporation or association or its officers or agents, to bill or receive payment, reimbursement, compensation or fee from any person other than the recipient of the services, such recipient being the person upon whom the clinical services have been or will be rendered.
DPC Practice "business of insurance" case Study - AMG Medical Group is a well known DPC practice with multiple locations around New York City. AMG, headed by John Muney, MD, initially offered DPC plans by charging only a monthly fee, but when the practice was evaluated by the state insurance commissioner they determined that his plan took on too much risk. The New York Times covered the disagreement between the practice and the insurance commissioner in a story entitled "A Health Care Plan so Cheap, They Made Him Raise the Price." The same story was also covered by the American Enterprise Institute and Fox News. Dr. Muney ultimately agreed to begin charging a $33 fee for unscheduled "sick" visits. The Office of General Counsel issued OGC Op. No. 09-02-02 on February 2, 2009 representing the position of the New York State Insurance Department related to this case.