In the 2006 Regular Legislative Session, the West Virginia (WV) Legislature enacted the WV Preventive Care Pilot Program, Chapter 16, Article 2J of the West Virginia Code. The purpose of the pilot program was to test the feasibility of patients obtaining direct primary and preventative care from healthcare providers for a pre-paid retainer outside of the traditional health insurance model. (Direct primary care or "DPC" is one model of a now popular term, "concierge medicine.") The Preventive Care Pilot Program by enactment expired June 30, 2016, although practitioners who were participating in the Pilot Program were permitted to continue beyond the expiration date. Its legacy is the WV Direct Primary Care Practice Act.
The Basics of the WV Direct Primary Care Practice Act
In 2017, the West Virginia Legislature passed the House Bill 2301, the West Virginia Direct Primary Care Practice Act ("DPCPA"), codified as a new Article 3F under Chapter 30 of the West Virginia Code. Incorporating what was learned through the Pilot Program, the Act permits a patient (or the patient's representative) to enter into a written agreement, called a "direct primary care membership agreement," for medical products and services with a primary care provider. Primary care providers include medical doctors, doctors of osteopathy, advanced practice nurses, and other individuals authorized to screen, assess, diagnose, and/or treat patients "within the competency and training" of his/her scope of practice under West Virginia law.
Elements of Direct Primary Care in West Virginia
The specific requirements of the law for direct primary care in WV are outlined in the statute and include the following. The direct primary care membership agreement must be signed by both the patient (or patient's representative) and the provider. It must describe the duration of the agreement and how it may be terminated. It must define the scope of services, the amount of the retainer, and how fees will be applied. It also must define any additional fees that the provider may charge. No patient can be required to pay in advance more than twelve (12) months of fees, and fees are not earned or deducted by the provider until services are provided. If the agreement is terminated early, then any unearned fees are returned to the patient. (In effect, the retainer is held in escrow.)
WV Direct Primary Care Oversight
Because the direct primary care membership agreement under the new WV Direct Primary Care Practice Act provides that the patient will pay the provider for the services--rather than an insurance payor--the arrangement is entirely separate from and will not impact any existing healthcare insurance that the patient may have. This includes, without exception, Medicaid or Medicare. As a consequence, the agreement is not subject to oversight by the West Virginia Insurance Commissioner. Oversight is vested in the bodies that license the healthcare provider (i.e. the West Virginia Board of Medicine, the West Virginia Board of Osteopathic Medicine, and the West Virginia Board of Examiners for Registered Professional Nurses).
WV Concierge Medicine Leaves Control in the Hands of the Patient and Doctor
The WV DPCPA puts control into the hands of the patient and the primary care provider, both of whom may desire to free themselves from the (indirect) control of public and private health insurance regulation and claims handling. However, to participate in a concierge medicine arrangement, patients must have the ability to pay the retainer. Further, patients entering the direct primary care membership agreement who have health insurance must understand that the payment of the retainer for services received under the WV Direct Primary Care Practice Act does not count toward any deductibles. That may seem a small trade-off for greater control.
If you have questions about the West Virginia Direct Primary Care Practice Act, or about Direct Primary Care in West Virginia, contact me, Charlotte Hoffman Norris. You may call me directly at 866.617.4736 or complete our firm's contact form to discuss your concerns.