Adopting a Strategic Role in the Health Care Industry: Health Supporters

In an era of evolving health care and advanced communications technology, there is room for participation by not only health professionals, but also business entities seeking to partake in the redesign of care processes and delivery of quality services. 

Instead of providing medical or clinical services, many have opted to become health supporters or concierge service providers to supplement the traditional delivery of medical services.  They are business entities that deliver health care resources tailored to an individual’s needs.  Under this model, a health supporter would offer its subscribers enhanced health services or perks not traditionally covered under a health plan in exchange for a monthly or annual fee.  These services may range from scheduling of appointments, prescription refills and delivery, remote monitoring of vitals, to virtual access to health professionals on a 24/7 basis.  The nature of the services, combined with today’s communications technology, allows delivery to be carried out under a virtual setting. 

Adoption of this type of strategic role in the provision of supportive health services by a non-licensed professional entity is not without legal and regulatory hurdles.

For instance, entities seeking to provide services to the Medicare population (which is more likely to engage these concierge services) must be mindful that certain services are considered to be “covered” under the Medicare program.  On this specific topic, the Office of Inspector General (OIG) declared that certain services offered though a concierge program were already covered and reimbursable by Medicare; therefore, Medicare beneficiaries could not be billed for those services whether they were provided by a licensed professional or by a business entity.  Covered services under the Medicare program include (a) coordination of care with other providers; (b) comprehensive assessment and plan for optimum health; and (c) extra time spent on patient care.

A few states have taken a similar position.  The Commissioner of the New York Department of Health (DOH), for instance, warned that charging a fee for concierge services may constitute impermissible double billing if they are for services already covered under a managed care plan, including: (a) 24-hr coverage; (b) case management; and (c) coordination of necessary referrals.  Therefore, it is important for a health supporter to clearly delineate the services to be provided in its contracts with subscribers to ensure that they are not services deemed to be covered by Medicare or under a managed care plan.

In addition to the issue of “covered services” and the potential problem of double billing, DOH also warned that a number of concierge services may be viewed as discriminatory with respect to individuals not in a position to pay the additional charges.  Concierge services are especially discriminatory when services relate to access to needed and necessary care.  Potentially discriminatory services include those offering (a) expedited appointments; (b) continuity of care; and (c) better waiting rooms.  These services are considered discriminatory because they are likely to result in the triaging of individuals based on their ability to pay and not based upon medical need.  In other words, concierge services cannot be designed to grant a subscriber preferential treatment and access to necessary care over other individuals entitled to the same services. 

Another set of legal and regulatory hurdles are implicated when health supporters seek to offer ancillary services by a licensed practitioner (e.g., a nurse or physician).  Depending on the jurisdiction, state licensing requirements, as well as other applicable laws and regulations, may be implicated even if such services take place over virtual settings (e.g., interaction occurs via an electronic device, telephone, or teleconference).  For instance, in New York, a concierge program that features the availability of a nursing telephone line must ensure that nursing services are carried out by a nurse licensed in that state, regardless of whether delivery occurs over an electronic device instead of a face-to-face interaction.

Lastly, consideration must be given to the structuring of the business itself to ensure compliance with a state’s prohibition against the corporate practice of the health professions.  Generally, states with a corporate practice of medicine doctrine prohibit business corporations from hiring or employing licensed health professionals to provide professional services to the public.  Therefore, a health supporter must examine the licensing and professional practice requirements of the target state to ensure that its arrangements with participating health professionals are structured properly and not in violation of applicable laws, rules, and regulations.

Reprinted with permission.  All rights reserved.