Concierge or Functional Medicine Practice Legal Issues: An Overview


Many physicians, chiropractors, and other healthcare practitioners are wanting to start a cash-based, concierge or functional medicine practice yet not run afoul of legal and regulatory issues (such as those involving insurance).

Our law firm advises many different types of healthcare practices and practitioners about transitioning from a conventional, standard medical or chiropractic practice into one that is cash-based or focused on holistic approaches to health, concierge medical services, direct care, functional medicine, wellness, or similar variation.

Is Your Item or Service Covered by Medicare or Private Insurance

The first question you should ask is what service you intend to provide in the concierge or functional medicine or wellness practice.

Are you participating or non-participating in Medicare?

That makes the functional or concierge / wellness practice more challenge, since Medicare covers many items and services, and if offering these services to Medicare patients then you must follow Medicare rules with respect to billing.  For example, Medicare covers an annual wellness exam.

Life is easier if you are opted out, or, do not offer that part of the practice to Medicare patients.

Have you signed participation agreements with private insurers?  If so, then again, you'll need ensure you're providing non-covered services.

We cover these topics in some of our earlier posts:

A key issue presented by many physicians and other healthcare providers is how to have a hybrid practice – one that has a conventional care component, and a piece that is functional, complementary and alternative, or integrative – while ramping up more into what the practitioner actually wants to do (e.g., integrative mediine).

Concierge or Wellness Agreement with Patient

Once you've decided what services to offer and that they are non-covered (or, you're opted out of Medicare and not on any insurance panels), you must design a contract with the patients that expresses the services you'll offer, the cash price, and other important terms.

Recently, we  advised a chiropractor to remove spinal adjustments from his list of concierge services, because these are covered by Medicare.

The dietary supplements and the therapeutic massage stayed in the program.

Medicare patients would receive an Advance Beneficiary Notice (ABN) for these.

The patient agreement must specify the non-covered services, and that these are not billed to Medicare or insurance.

Note that in private insurance, services may be covered even though not reimbursed (because the patient has not met the high deductible).

Who's Covered?

If you're participating as a provider private insurance, it's a good idea to take the following steps:

  1. Make a comprehensive list of insurance companies with whom you've agreed to participate, and collect all the relevant documents (including participation agreements and related policies).
  1. Review the policies, and then confirm with the insurance company (by phone and in writing) the following:
  2. Does the participation agreement follow you personally, or only your corporation or LLC?
  3. Does the insurance participation agreement apply to your conventional practice (say dermatology or gynecology) only, but not to other services (such as your integrative medicine practice; or your hospitalist role at the local hospital), or to anything you do as a healthcare provider?
  4. Are the services you intend to offer, covered or non-covered)?

Hybrid Practice; Two Practices

You could end up with a hybrid practice – one that takes insurance and one that is cash only, but if so be sure to follow the rules with respect to billing Medicare or private insurance where appropriate.

For example, in your functional or integrative medicine practice, you might choose to:

  • Not see Medicare patients.
  • If you see Medicare patients and are par or non-par, then only offer non-covered services (under an ABN).
  • If you see Medicare patients and are opted out, then offer any services you'd like, but give those patients a Medicare beneficiary private contract.

You may have different population in your integrative practice than in your regular practice.  For example, the Medicare patients may not seek care that is focused on lab tests, interpretation, overall health guidance, followed by more testing and interpretation and advice.  In that case, the first bullet might make the most sense.  And you might, for example, clearly delineate the two practices such that, for instance, the integrative medicine practice doesn't provide surgical care, but refers to the other practice for surgery.

If you're moving toward a more functional medicine model, there are additional issues to address, such as:

  • Kickback and anti-markup issues surrounding interpretation of and billing for lab tests.
  • Adding suitable language to your informed consent forms regarding integrative medicine.
  • HIPAA compliance, and privacy and security issues.
  • Liability risk management issues.

Contact us for more advice about building a practice that works for you.

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