Florida legislature passes direct primary care bill

March 14, 2018

Alert

Update: Effective July 1, 2018, Florida legislation allows physicians, chiropractors, nurse practitioners and primary care group practices to furnish primary care services for a flat monthly fee and establishes parameters for direct primary care agreements.

Florida is on the verge of enacting legislation that would smooth the way for physicians, chiropractors, nurse practitioners and primary care group practices to furnish primary care services for a flat monthly fee directly to their patients or to employee groups. On March 8, the Florida Senate unanimously passed HB 37, which sets forth parameters for direct primary care agreements and will go to Gov. Rick Scott for signature.

Direct primary care is touted as a way for patients to access primary care and related services at a fixed cost and for physicians to focus more time on patient care while avoiding costs and administrative hassles relating to insurance and billing. Current IRS interpretations question whether direct primary care service fees are “qualified health expenses” for tax purposes. A bipartisan bill introduced in Congress would, if passed, permit patients to use direct primary care as an adjunct to high deductible health plans and reimburse themselves for direct primary care services through health savings accounts and thereby obtain tax benefits

Depending on state law, direct primary care arrangements can create risks of triggering potentially burdensome regulation under state insurance codes. Some states have enacted statutes declaring that direct primary care arrangements are not subject to state insurance regulation, while in other states (such as Florida), there is a lack of statutory and regulatory guidance on whether direct primary care is subject to insurance regulation. The Florida Office of Insurance Regulation has not asserted regulatory authority over direct primary care, but in the absence of HB 37 could assert such authority.

HB 37 provides that a direct primary care agreement does not constitute insurance and is not subject to the Florida Insurance Code. Employers also may contract with providers to have them extend direct primary care to employees without it being considered health or workers’ compensation insurance. The bill would allow substantial flexibility for structuring direct primary care arrangements, so long as the primary care services are within the competency and training of the provider and the agreement is in writing and satisfies seven additional requirements. In particular, the direct primary care agreement must:

Be signed by or on behalf of the provider and the patient or employer.
Specify the duration of the agreement and any automatic renewal provisions.
Allow termination upon 30 days written notice, or immediately if the physician-patient relationship is violated or the agreement is breached.
Describe the scope of primary care services covered by the monthly fee.
Specify the monthly fee as well as fees for any primary care services that are not covered by the monthly fee.
Offer a refund if the provider ceases to offer primary care services.
Contain specific wording, in contrasting color, explaining that the agreement is not insurance.

If (as expected) HB 37 is signed by Gov. Scott, it would take effect on July 1, 2018. Providers who are interested in direct primary care should plan ahead in order to lay the groundwork for implementing a direct primary care model.

For more information, please contact one of the attorneys listed below.

Over the past 24 months, the U.S. Department of Health and Human Services Office for Civil Rights has brought notable enforcement efforts against several non-profit covered entities and business associates, resulting in instances of six and seven-figure penalties against providers across the county for incidents involving breaches of protected health information.

A new amendment to New York state law, which would have required all healthcare providers to obtain separate consents from patients for treatment and payment is on hold until further guidance is released, according to the New York Department of Health.

On November 1, 2024, the Centers for Medicare & Medicaid Services issued the Medicare Physician Fee Schedule 2025 final rule, which establishes new advanced primary care management billing codes that will expand opportunities for physician practices, federally qualified health centers, rural health clinics and other health care providers to get paid for services provided by clinical staff under the direction of a physician, nurse practitioner or physician assistant beginning January 1, 2025.

Florida legislature passes direct primary care bill

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