New Hampshire

New Hampshire became the 28th state to clearly define DPC as outside of insurance on 08/16/19 when the governor signed HB 508 (an act relative to direct primary care) into law. This law is discussed in detail below. It amended Amend RSA 415 by inserting after section 27 the following new section: 415:28 Direct Primary Care. Unfortunately DPC physicians are not able to dispense medications in New Hampshire. Physicians, PAs, and NPs are limited to providing a three day supply of medications for the “immediate needs” of the patient. “72 hours: In the ambulatory patient treatment areas of an institution, a medical practitioner may dispense drugs for the immediate needs of the patient but not to exceed a 72-hour supply and only if permitted by the institution.” Please see the New Hampshire Pharmacy Laws & Rules Section 318:42 Dealing in or Possessing Prescription Drugs which states (on page 30 and 31) that “[i]t shall be unlawful for any person who is not a licensed pharmacist in a pharmacy registered in accordance with the provisions of this chapter to manufacture, compound, dispense, sell, offer for sale or have in possession any prescription drug as defined in RSA 318:1, XVII, provided that this section shall not prevent the following: Physicians, dentists, optometrists, podiatrists, veterinarians, advanced practice registered nurses, naturopathic doctors, and physician assistants from possessing, compounding in accordance with RSA 318:14-a, personally administering, or distributing prescription drugs to meet the immediate medical needs of their patients. For advanced practice registered nurses and physician assistants, compounding shall be limited according to RSA 318:42, VIII.”

New Section; Direct Primary Care. Amend RSA 415 by inserting after section 27 the following new section: 415:28 Direct Primary Care.

I. In this section:
(a) "Direct primary care agreement" means a written agreement between a primary care provider and a patient, a patient's legal representative, or a patient's employer, which meets the requirements of paragraph II.
(b) "Primary care provider" means a health care provider licensed under RSA 329, RSA 326-B, or RSA 328-D, or a primary care group practice, who provides primary care services to patients.
(c) "Primary care services" means medical services in family practice, general practice, internal medicine, pediatrics, obstetrics, or gynecology including the screening, assessment, diagnosis, and treatment of a patient conducted within the competency and training of the primary care provider for the purpose of promoting health or detecting and managing disease or injury.

II. Primary care services resulting from a primary care provider entering a direct primary care agreement is not insurance and the primary care provider shall not be subject to the requirements of this chapter when the following conditions are met:
(a) The agreement is in writing and signed by the primary care provider, or agent, and the individual patient or his or her legal representative.
(b) The agreement specifies the periodic fee required and any additional fees for services not covered by the periodic fee, and may allow the periodic fee and any additional fees to be paid by a third party.
(c) The agreement describes the health care services that are covered by the periodic fee.
(d) The agreement describes the duration of the agreement and any automatic renewal periods.
(e) The agreement allows either party to terminate the agreement in writing, without penalty or payment of a termination fee, at any time or after notice as specified in the agreement which shall not exceed 90 days.
(f) The agreement prominently states that the agreement is not health insurance and the primary care provider will not file any claims against the patient's health insurance policy or plan for reimbursement of any primary care services covered by the agreement.
(g) The agreement prominently states that the agreement is not workers' compensation insurance and does not replace an employer's obligations under RSA 281-A.
(h) The agreement does not conflict with an existing contract the primary care provider has signed with an insurance company covering the individual patient.
(i) The primary care provider is not otherwise required to obtain a license as an insurer, third party administrator, or insurance agent or insurance broker.

III. The direct primary care practice shall not decline to accept new direct primary care patients solely because of the patient's health status. A direct primary care practice may decline to accept a patient for cause, including, but not limited to:
(a) The practice has reached a maximum capacity;
(b) The patient has previously contracted for services for which they have not paid; or
(c) The patient’s medical condition is such that the provider is unable to provide the appropriate level and type of primary care services.

IV. If the direct primary care practice provides the patient with notice and opportunity to obtain care from another physician, the direct primary care practice may discontinue care for a patient for cause, including, but not limited to:
(a) The patient fails to pay the periodic fee.
(b) The patient has performed an act of fraud.
(c) The patient repeatedly fails to adhere to the recommended treatment plan.
(d) The patient is abusive and presents an emotional or physical danger to the staff or other patients of the direct practice.
(e) The primary care provider discontinues operation as a direct primary care practice.

2 New Subparagraph; Discount Medical Plan Organizations; Direct Primary Care Plan. Amend RSA 415-I:3, III by inserting after subparagraph (c) the following new subparagraph:

(d) A plan that provides direct primary care meeting the requirements of RSA 415:28.

3 Prohibition of Exclusive Arrangement With Managed Care Insurers. Amend RSA 420-I:1, III to read as follows:

III. "Managed care" means any arrangement for the provision of physician services which is characterized by some measure of risk-sharing through capitated or other shared-risk compensation formulae, and which are characterized by the establishment and maintenance of a provider network available to subscribers or participants, and which provides incentives for subscribers or participants to use that network for covered services, and which ordinarily limit coverage or the extent of such coverage to physician services provided by that network. "Managed care" shall include any managed care products or services or similar products including but not limited to those governed by RSA 415, RSA 419, RSA 420, RSA 420-A, RSA 420-B, and RSA 420-C. "Managed care" shall not include direct primary care services which meet the requirements of RSA 415:28.

4 New Section; Direct Primary Care. Amend RSA 420-J by inserting after section 2 the following new section:

420-J:2-a Direct Primary Care.

I. In this section:

(a) "Direct primary care agreement" means a written agreement between a primary care provider and a patient, a patient's legal representative, or a patient's employer, which meets the requirements of RSA 415:28.
(b) "Primary care provider" means a health care provider licensed under RSA 329, RSA 326-B, or RSA 328-D, or a primary care group practice, who provides primary care services to patients.
(c) "Primary care services" means medical services in family practice, general practice, internal medicine, pediatrics, obstetrics, or gynecology including the screening, assessment, diagnosis, and treatment of a patient conducted within the competency and training of the primary care provider for the purpose of promoting health or detecting and managing disease or injury.

II. Primary care services resulting from a primary care provider entering a primary care agreement is not insurance and the primary care provider shall not be subject to the requirements of this chapter when the following conditions are met:

(a) The agreement is in writing and signed by the primary care provider, or agent, and the individual patient or his or her legal representative.
(b) The agreement specifies the periodic fee required and any additional fees for services not covered by the periodic fee, and may allow the periodic fee and any additional fees to be paid by a third party.
(c) The agreement describes the health care services that are covered by the periodic fee.
(d) The agreement describes the duration of the agreement and any automatic renewal periods.
(e) The agreement allows either party to terminate the agreement in writing, without penalty or payment of a termination fee, at any time or after notice as specified in the agreement which shall not exceed 90 days.
(f) The agreement prominently states that the agreement is not health insurance and the primary care provider will not file any claims against the patient's health insurance policy or plan for reimbursement of any primary care services covered by the agreement.
(g) The agreement prominently states that the agreement is not workers' compensation insurance and does not replace an employer's obligations under RSA 281-A.
(h) The agreement does not conflict with an existing contract the primary care provider has signed with an insurance company covering the individual patient.
(i) The primary care provider is not otherwise required to obtain a license as an insurer, third party administrator, or insurance agent or insurance broker.

(a) The patient fails to pay the periodic fee.
(b) The patient has performed an act of fraud.
(c) The patient repeatedly fails to adhere to the recommended treatment plan.
(d) The patient is abusive and presents an emotional or physical danger to the staff or other patients of the direct practice.
(e) The primary care provider discontinues operation as a direct primary care practice.

V. A primary care provider who has signed a contract with a health carrier which remains in force to receive capitated payments for the care of a patient shall not enter into a direct primary care agreement for the care of the same patient, unless the contract with the health carrier specifically allows this practice and the health carrier is provided a copy of the direct primary care agreement within a time frame specified by the contract with the health carrier.

VI. A direct primary care agreement may authorize a primary care provider to serve as a patient's authorized representative and as a claimant's representative as defined in RSA 420-J:3 and participate in grievance procedures per RSA 420-J:5 and request external review per RSA 420-J:5-a, 420-J:5-b, and 420-J:5-c.

5 Effective Date. This act shall take effect 60 days after its passage.

If you have aspirations of opening a DPC practice in New Hampshire, it may still be wise to review the New Hampshire state insurance code (Title 37) and to generally be aware of Chapter 406B: Unauthorized Insurance).

Physician dispensing in NH is essentially prohibited. Physicians are limited to providing a three day supply of medications for the “immediate needs” of the patient. “72 hours: In the ambulatory patient treatment areas of an institution, a medical practitioner may dispense drugs for the immediate needs of the patient but not to exceed a 72-hour supply and only if permitted by the institution.”

If you are marketing yourself to large employers, take note of the state's stop loss requirements. The Health Maintenance Organization and Medical Discount Plan hurdles are significant and are described below. In addition to these problems, larger DPC organizations should take note of Chapter 420-I: Prohibition of Exclusive Arrangements with Managed Care Insurers.

The "Health Maintenance Organization" Problem

New Hampshire has a vaguer HMO definition than most states, and this poor definition can become a problem for DPC practices. See below for details, here is a link to the entire HMO section of the code. If your practice were defined as an HMO this would be fatal to your operations.

V. "Health care services'' means physician, hospitalization, laboratory, x-ray service and medical equipment and supplies, which may include but are not limited to: medical, surgical, and dental care; psychological, obstetrical, osteopathic, optometric, optic, podiatric, chiropractic, nursing, physical therapy services, and pharmaceutical services; health education; preventive medical, rehabilitative, and home health services; inpatient and outpatient hospital services, extended care, nursing home care, convalescent institutional care, laboratory and ambulance services, appliances, drugs, medicines, and supplies; and any other care, service, or treatment of disease, correction of defects, or the maintenance of the physical and mental well-being of enrolled participants.
VI. "Health maintenance organization'' means a public or private organization, organized under the laws of this state or the laws of another state which:
(a) Provides or otherwise makes available to enrolled participants health care services;
(b) Is compensated for the provision of one or more health care services to an enrolled participant on a primarily predetermined periodic rate basis;
(c) Provides physicians' services directly through physicians who are either employees or partners of such an organization, or under arrangements with one or more physicians or groups of physicians.
VII. "Provider'' means any physician, hospital or other institution, organization, or other person who furnishes health care services.

The "Medical Discount Plan" Problem

New Hampshire has several regulations worth reviewing when designing your DPC practice. Chapter 415-I discusses how DPC physicians will likely be viewed as "Discount Medical Organizations." Some of the most important sections are linked below. If your practice were defined as a Medical Discount Plan you would be subject to these additional regulations; while unlikely fatal to your practice, they would be a nuisance, and remind us of the bad DPC law on the books in Oregon and West Virginia - only without the critical "NOT INSURANCE" protections.

415-I:3 Definitions. "Discount medical plan organization'' means an entity that, in exchange for fees, dues, charges, or other consideration, provides access for discount medical plan members to providers of medical or ancillary services and the right to receive medical or ancillary services from those providers at a discount. "Discount medical plan organization'' is the organization that contracts with providers, provider networks, or other discount medical plan organizations to offer access to medical or ancillary services at a discount and determines the charge to discount medical plan members. "Discount medical plan organization'' does not include a provider that offers discounts to its own patients without any cost or fee of any kind to the patient. Be certain you review all the Medical Discount Plan language; some of the most problematic sections are listed below.

415-I:5 Registration Requirement.
415-I:6 Suspension and Revocation of Registration.
415-I:8 Fees; Refund Requirements; Bundling of Services.
415-I:9 Provider Agreements; Participating Provider Listing Requirements.