Ohio

Ohio passed DPC defining "not insurance" on 07/18/19 with House Bill 166 becoming the 27th state to define DPC as outside of insurance. Here is the language of the entire Ohio DPC law:

Sec. 3901.95. A direct primary care agreement that meets all of the following shall not be considered insurance and nothing in Title XXXIX or Chapter 1739., 1751., or 1753. of the Revised Code shall apply to such an agreement:

(A) It is in writing.
(B) It is between a patient, or that patient's legal representative, and a health care provider and is related to services to be provided in exchange for the payment of a fee to be paid on a periodic basis.(C) It allows either party to terminate the agreement as specified in the agreement.
(D) It requires termination to be accomplished through written notification.
(E) It permits termination to take effect immediately upon the other party's receipt of the notification or not more than sixty days after the other party's receipt of the notification.
(F) It does not impose a termination penalty or require payment of a termination fee.
(G) It describes the health care services to be provided under the agreement and the basis on which a periodic fee is to be paid in exchange for those services.
(H) It specifies the periodic fee required and any additional fees that may be charged.
(I) It authorizes the periodic fee and any additional fees to be paid by a third party.
(J) It prohibits the health services provider from charging or receiving any fee other than the fees prescribed in the agreement for those services prescribed in the agreement.
(K) It conspicuously and prominently states that the agreement is not health insurance, is not subject to the insurance laws of this state, and does not meet any individual health insurance mandate that may be required under federal law.

Older "Discount Medical Plan" laws are still worth reviewing.  Readers should review ORC Chapter 3961: Discount Medical Plans.  It appears that this law was passed to help certain administrative middlemen negotiated discounts with various groups of medical practitioners.  These middlemen (known as "discount medical plan organizations") could market their "plans" as outside of insurance by disclosing that the plan was "not insurance" on their marketing materials.  Does this law provide any legal cover for DPC practices?  The answer is unclear.

In our case we would argue that the DPC practice is the "discount medical plan organization (DMPO)" which means a person who

  1. does business in this state;

  2. offers to members access to providers of medical services and the right to receive discounted medical services from those providers;

  3. contracts with providers, provider networks, or other discount medical plan organizations to offer discounted medical services to members; and

  4. determines the fee members pay to participate in the plan.

The DPC patient contract would need to include: "a copy of the terms and conditions of the discount medical plan, including any limitations or restrictions on the refund of any processing fees or periodic charges associated with the discount medical plan." The contract with the patient should be free of the following dirty words: "health plan," "coverage," "benefits," "copay," "copayments," "deductible," "pre-existing conditions," "guaranteed issue," "premium," "PPO," "preferred provider organization,"or any other terms in a manner that could mislead a person into believing that the discount medical plan is health insurance.

There are many odd requirements that really do not apply to DPC practices within this law.  The DMPO must maintain a toll-free telephone number along with procedures for receiving complaints and sending these to the state department of insurance.  Any "enrollment fee" is essentially limited to $30 (Section 3961.06(B)), so to cover up front costs you would need to have another type of fee such as an "initial visit fee" that would be clearly nonrefundable. The most problematic statement in the law is as follows (section 3961.05(E)):  A DMPO shall not "[p]ay providers fees for medical services or collect or accept money from a member to pay a provider for medical services received under the discount medical plan."  This weirdly appears to prohibit a DPC practice from accepting a payment from the patient and then turning around to use this payment to pay salaried physicians that are working in the practice.  For a DPC practice to reliably use ORC Chapter 3961 to be in the "not insurance" category the practice would oddly need to use a third party DMPO rather than being the DMPO themselves.  

It would appear that the definitions of plans, insurance, and contracts that are contemplated in various portions of the Ohio Revised Code do not present problems for most DPC practices, but the advice of a local Ohio attorney is recommended.  Be sure to review the Ohio Insurance Code when planning your DPC practice.  The Ohio Academy of Family Physicians has been supportive of the DPC model. 

Chapter 3963: HEALTH CARE CONTRACTS
Chapter 1751.01 Health insuring corporation law definitions
Chapter 3924: SMALL EMPLOYER HEALTH BENEFIT PLANS; PROVISION OF HEALTH CARE COVERAGE

In office dispensing is permitted in Ohio.  The State of Ohio Board of Pharmacy requires that most dispensing physicians obtain a Terminal Distributor of Dangerous Drugs license.  All the details and applications can be found on this Ohio Board of Pharmacy website.  The regulation was updated in the summer of 2020. Many DPC practices may be able to avoid formal licensure “if the business practice has a single prescriber (MD, DO, DVM, DPM, etc.) who is the sole shareholder, member, or owner of the practice, then this business practice is not required to be licensed as a Terminal Distributor of Dangerous Drugs with the Ohio Board of Pharmacy.” Thank you to fellow attorney Kathrine S. Nicol for pointing out this update!