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Is a Membership Fee Insurance? What the States Have Said
A concierge fee is paid in advance for care that has not happened yet. That is also a rough description of an insurance premium. This brief gathers what state regulators and lawmakers have put in writing about retainer fees and the features they weigh. It ends with a self-check you can bring to your attorney.
New in October 2026. A companion to Brief No. 43 (payer contracts) and Brief No. 33 (Medicare).
Start here: the questions this brief answers
Tap a question for the short answer, then jump to the evidence.
Usually not, but it depends on what the fee promises and on your state. The regulators CMT found ask a similar question: does the fee buy care that is triggered by an uncertain event, so that the practice loses money if a member gets sick more than expected? Maryland’s insurance regulator listed five warning signs in 2009, starting with unlimited visits for a fixed annual fee. In the early 2000s New York’s insurance department said a physician charging a flat yearly fee for a year of care would be doing an insurance business, while a membership with per-visit fees that cover cost would not. A fee that pays for defined services such as an annual physical, with illness care billed separately, sits further from the line. Laws differ by state and change over time. Before you set terms, ask a healthcare attorney licensed in your state.
Can a concierge membership fee be treated as insurance?
It can, in some states and for some designs. Regulators have focused on fees that prepay for care triggered by illness or injury, where the practice carries the risk that members need more care than the fee covers. A fee for defined, routine services is much less likely to raise the issue.
Go to the full answer ↓What features make a regulator look harder?
Unlimited visits for one fixed fee, no limit on panel size, a fee above the market value of what it buys, financial risk for other providers’ services, and no refund when a member leaves. Maryland listed all five in 2009.
Go to the full answer ↓Which states have said anything about it?
CMT found written positions on the insurance question from the Maryland and New York insurance regulators and from New Mexico’s attorney general, plus a 2012 California bill that failed in committee. New Jersey addressed a related network question. Part 3 has the details and dates.
Go to the full answer ↓Do state direct primary care laws cover a concierge practice?
Those laws are written for practices that do not bill insurance for the services the fee covers. A concierge practice that bills insurance may fall outside them. Ask counsel how your state’s law reads.
Go to the full answer ↓How can I check my own arrangement?
Use the self-check in Part 4 to list which features your agreement has, then take the list to an attorney licensed in your state. The tool gives no verdict.
Go to the full answer ↓Why a fee can look like a premium
A patient pays a concierge practice before the year begins, and the practice promises to be there for whatever comes up. Read that way, the fee resembles a premium. State insurance law exists to make sure anyone who sells that kind of promise has the money to keep it.
Maryland’s Insurance Article defines insurance as a contract “to indemnify or to pay or provide a specified or determinable amount or benefit” when a determinable contingency occurs.1 Policy and Law New York uses the idea of a “fortuitous event,” one largely beyond the control of either party.2,
The concern is old. In 1957 a New Mexico union arranged for members to pay family physicians $3.25 a month for office care. The attorney general found no insurance, reasoning that “so long as the physician does the treating of the patient, it is merely pre-payment of medical fees.” The opinion quoted the California Supreme Court: “Hazard is essential and equally so a shifting of its incidence.”7 Policy and Law Later regulators drew the line more tightly, as Part 2 shows.
Whether your fee is insurance is a question of state insurance law. Whether your fee is allowed under the network contracts you signed is a question of contract, covered in Brief No. 43. A fee can pass one test and fail the other, so each needs its own review.
The features regulators weigh
No two states use identical tests, but the documents CMT read return to the same handful of features. Read each rung as a question your attorney is likely to ask.
An annual physical is scheduled, not triggered. Maryland said a fee for an annual physical alone is generally not insurance, and New York said routine services not tied to illness may be included in a membership fee.1,
New York objected when “the entity bears the risk of incurring a loss if the cost of the services exceeds the paid fees.”8 A physician who charges only a set fee for chance-driven services “is assuming the risk of loss,” the department wrote in 2003.4 Maryland added a related sign: substantial financial risk for services rendered by other providers.1
Maryland called unlimited office visits for a fixed fee the clearest case, describing that model as “the business of insurance” in its view, and noted “it is not physically possible” for one physician to give every patient unlimited visits.1 New York reached the same result for a flat yearly fee covering a year of care, and in 2010 for bundles capped at three or six sick visits.2,
Maryland suggested pricing a bundled fee as the sum of the market values of the services in it, keeping an annual-physical fee at or below that exam’s market value, and capping the panel at what the physician can actually deliver.1 New York allowed a membership fee plus discounted per-visit charges, provided each discounted fee covers the cost of the visit, including overhead.2,
Maryland recommended that either party may end the agreement for any reason, with pro-rata refunds.1 New York required one plan to state “clearly, conspicuously and unambiguously” that it is not insurance, and said fee waivers must be case by case, based on need, not built into the plan.8,
Maryland’s report summed up its approach in five words: “the devil is in the contract.”1 It did not ban any model. It sorted them by design, and it urged practices to consult the agency in advance and existing practices to share their written agreements with it.
Most concierge practices that keep billing insurance charge a fee for access and for services the plan does not pay for, while sick visits go to the insurer or to Medicare. In that design the insurer, not the practice, carries most of the cost of illness. CMT’s reading is that this keeps a typical concierge fee further from the line than the prepaid plans in the New York opinions. The question comes back when a fee promises unlimited visits or bundles outside services the practice must buy. This is editorial reasoning from the documents above, not a legal standard, and none of the opinions CMT read tested that exact design.
What states have put in writing
These are the state documents CMT could open and confirm. They are examples, not a survey, and most are more than a decade old. Laws get amended and informal opinions can be superseded, so treat every row as a starting point for your attorney, not as current law.
| State and source | What was asked | What it said | Evidence type |
|---|---|---|---|
| Maryland Insurance Administration, report after a December 2008 hearing (January 2009) | When is a retainer practice doing the business of insurance? | Five indicators: unlimited visits or services a physician cannot give every patient; no limit on patients; a fee above fair market value; substantial risk for other providers’ services; no termination right or pro-rated refund. An annual-physical model is generally not insurance; an unlimited-visit bundle is, in the agency’s view.1 | Policy and Law |
| New York State Insurance Department, Office of General Counsel (2002 and 2003) | Can a physician sell a flat yearly fee for care, or a prepaid membership for office services? | A flat yearly fee for a year of care would be “the doing of an insurance business” requiring a license. A membership with per-service fees that cover cost, plus routine services, would not. A set fee alone for chance-driven services would make the physician an unlicensed insurer.2, | Policy and Law |
| New York State Insurance Department, Office of General Counsel (2009 and 2010) | Are a monthly primary care membership and prepaid bundles with limited sick visits insurance? | The monthly plan was not insurance because visits for illness carried separate fees covering cost, with overhead. Bundles including three or six sick visits for one prepaid fee were insurance unless restructured, with a clear statement that the program is not insurance.3, | Policy and Law |
| New Mexico Attorney General, Opinion No. 57-29 (1957) | Are monthly payments to a chosen physician for office care insurance? | No, “so long as the physician does the treating of the patient.” Included as history; New Mexico law has changed many times since.7 | Policy and Law |
| California Senate Health Committee, SB 1320 (2012) | Should state law declare retainer practices are not health plans or insurers? | Staff noted that the lack of a definition “creates some confusion” about how retainer practices are regulated. The bill failed in committee, 3 to 5, and was returned to the Senate secretary.6, | Policy and Law |
| New Jersey Department of Banking and Insurance, Bulletin 12-02 (2012) | A related question: may network physicians offer retainer services without discriminating? | Yes, with safeguards, including no extra charge for covered services. The bulletin does not say whether a retainer is insurance.9 | Policy and Law |
Two patterns stand out. Regulators have been more comfortable when the fee pays for scheduled or routine services and illness care is paid per visit, at a price that covers its cost. They have been least comfortable with open-ended promises. In CMT’s reading of the New York opinions, the label on the arrangement did not decide the outcome. A prepaid plan sold to members was still an insurance business when the fee alone paid for sick visits.8
The AMA’s ethics opinion on retainer practices adds a separate duty that sits alongside state law: physicians should explain how a retainer arrangement may affect the patient’s insurance coverage.10 Practice Insight
These figures describe direct primary care (DPC), not concierge medicine. DPC usually operates outside insurance billing at lower monthly fees. They are shown here, separately, for context only and should not be read as concierge data.
Several states have answered the insurance question by statute for practices that charge a periodic fee and do not bill insurance for the services the fee covers. Washington’s direct practice law says a compliant direct practice is not an insurer, requires it to charge its fee monthly, bars it from submitting claims to carriers for services covered by its agreements, and requires annual statements to the insurance commissioner.11 Michigan’s 2014 law states that “a medical retainer agreement is not insurance” when the written agreement meets its conditions, among them a right to end it on written notice, a description that quantifies the services included, a statement that it is not health insurance and a ban on billing an insurer for those services.12,
Oregon took a different route in 2011. A “retainer medical practice” there must be certified by the Department of Consumer and Business Services. It may provide only primary care, may not bill insurers for retainer services and must tell prospective patients in writing “that the practice is not insurance.”14 Researchers at Georgetown University wrote in 2018 that states are split on regulating these arrangements and that regulators “need to take steps to protect consumers and prevent financial insolvencies.”15 Whether any of these laws reaches a concierge practice that bills insurance for other care depends on its wording. Ask counsel.
Self-check: features that raise the question
Check any statement that describes your current or planned agreement. The tool lists what sources have said about each feature you check, so you can take the list to your attorney. It does not add up a score and does not tell you whether your fee is insurance. Nothing is saved or sent anywhere.
Which of these describe your membership agreement?
Educational only. Not legal advice, not a classification of your practice and not a substitute for counsel licensed in your state.
An unchecked list does not mean a fee is safe. Some states may weigh features not listed here, and state law can change after this brief is published.
Preparing for the conversation with counsel
An attorney’s time is better spent on your actual agreement than on general background. These steps help you arrive with the facts that matter.
List what the fee buys
Write down every service and promise in the agreement and the marketing. Mark which are scheduled (an annual physical, a wellness plan) and which happen only when a member gets sick.
Follow the sick visits
For each illness-driven service, note who pays. If the answer is the membership fee alone, with no claim to insurance and no separate visit charge, that is the arrangement regulators have questioned.
Price the promise
Compare the fee with the market value of the defined services, and the panel size with the hours you actually have.
Read the exit and the words
Check how members cancel and what they get back. Then look for a plain statement that the fee is not insurance, and remove language that sounds like coverage.
Ask before you launch
Bring the self-check results and the agreement to a healthcare attorney licensed in your state. Maryland suggested consulting its insurance regulator in advance; ask your attorney whether that makes sense where you practice.1
This brief is educational only. It is not legal advice, and it does not say whether any particular fee is or is not insurance. Insurance law is set state by state, and the documents cited here may have been changed or superseded. The answer also turns on the exact words of your agreement. A practice that sees patients in more than one state may need advice for each. Before you set or change a membership fee, have a healthcare attorney licensed in each of those states review it, and ask about your network contracts at the same time.
Concierge patients in the study generally keep their existing insurance or Medicare for medical services. About 43% of respondents in the segmentation model belong to the two types that rate insurance compatibility as highly important (n=561, 2018 to 2024).16 Industry Research
CMT reading: Patients tend to see the membership as a layer on top of their coverage, not a substitute for it. Make sure your agreement and marketing describe it the same way when counsel reviews the fee.
CMT Patient Study: people searching for a concierge or membership physician through CMT, January 2013 to December 2024. Self-selected, not nationally representative and not peer-reviewed; DPC patients excluded. CMT original
Know the line
Regulators look at who carries the cost of illness, not at whether the agreement uses the word “membership.”
Define the fee
Build the fee from defined services priced at market value, and let members leave with a fair refund.
Ask first
Take your agreement to counsel licensed in your state before launch, and review it again when the law or your offering changes.
How this brief was built
CMT searched for state insurance regulator reports and staff opinions, attorney general opinions, statutes, bulletins and legislative records that address whether a physician’s retainer or membership fee is insurance or a regulated health plan. Every source cited was opened and checked in October 2026. The New York opinions are informal staff opinions issued by the former New York State Insurance Department and now posted by the Department of Financial Services; they state the department’s view at the time on the facts presented. The New Mexico opinion dates from 1957 and is included as an early statement of the reasoning, not as current New Mexico law. CMT did not survey all 50 states, did not check whether any cited opinion has since been withdrawn, and did not find a published opinion on concierge fees from a state attorney general other than New Mexico’s.
This brief concerns concierge (retainer) practices, which usually keep billing insurance or Medicare for covered care. State laws written for direct primary care, which usually does not bill insurance, appear only in a walled-off box, and no DPC figures are reported. The self-check in Part 4 lists features that sources have discussed. It does not score or classify an arrangement and gives no legal verdict. Because this is a legal topic, CMT recommends independent review by a healthcare attorney licensed in each state where the practice sees patients.
How to read the evidence types
Every key finding is labeled by evidence type. Labels describe the type of evidence, not its value. Each type answers different questions. Funding is disclosed on every source.
Randomized trials and systematic reviews.Best for cause and effect.
Large observational studies and government data.Best for trends at scale.
Surveys, smaller studies and expert consensus.Best for real-world experience.
Company-sponsored or company-reported data that is not peer-reviewed.Best for early signals and operating data.
Statutes, regulation and official guidance.Best for what is required.
What we don't know
- How many states have a written position on concierge retainer fees and insurance law. CMT found a handful and did not search every state.
- Whether any state has brought an enforcement action against a concierge practice for selling unlicensed insurance. CMT found guidance and opinions, not enforcement records.
- How the New York reasoning applies to a typical concierge fee that pays for access and amenities while visits are billed to insurance. None of the opinions CMT read addressed that design directly.
- Whether laws written for direct practices or medical retainer agreements reach a concierge practice that bills insurance for other services. Each statute is worded differently.
How to cite this brief
External review: this brief has not yet been reviewed by an outside expert. When review is complete, the reviewer is credited by name above with any conflicts of interest, and the version number is updated. Reviewers check accuracy and fairness; CMT is responsible for the final content.
Corrections policy: when an error is identified, CMT corrects it in the open and updates the version number above. Send corrections to the editor through conciergemedicinetoday.net.
Related CMT Research Briefs
References
- Maryland Insurance Administration. "Retainer" or "Boutique" or "Concierge" Medical Practices and the Business of Insurance (Report MIA-2008-12-002). January 2009. insurance.maryland.govFunding: state (Maryland Insurance Administration publication)
- New York State Insurance Department, Office of General Counsel. OGC Opinion No. 02-05-20: Prepaid medical services plan (physician charging a flat yearly fee). May 17, 2002. Informal opinion, posted by the New York State Department of Financial Services. www.dfs.ny.govFunding: state (New York State Insurance Department publication)
- New York State Insurance Department, Office of General Counsel. OGC Opinion No. 09-11-01: Monthly membership plan for primary and preventive care. November 2, 2009. Informal opinion, posted by the New York State Department of Financial Services. www.dfs.ny.govFunding: state (New York State Insurance Department publication)
- New York State Insurance Department, Office of General Counsel. OGC Opinion No. 03-07-25: Physician prepaid membership for office services. July 21, 2003. Informal opinion, posted by the New York State Department of Financial Services. www.dfs.ny.govFunding: state (New York State Insurance Department publication)
- California Legislature. SB 1320 (Harman), Retainer practices: complete bill history, 2011 to 2012 session. Failed passage in Senate Health Committee April 25, 2012 (3 ayes, 5 noes). www.leginfo.ca.govFunding: state (California Legislature record)
- California Senate Committee on Health. Analysis of SB 1320 (Harman), Retainer practices, as amended March 28, 2012. Hearing date April 25, 2012. www.leginfo.ca.govFunding: state (California Senate committee staff analysis)
- Office of the Attorney General of New Mexico. Opinion No. 57-29: Monthly payments to physicians for personal services, insurance or prepayment of medical fees. February 15, 1957. Via New Mexico Compilation Commission (NMOneSource). nmonesource.comFunding: state (New Mexico Attorney General publication)
- New York State Insurance Department, Office of General Counsel. OGC Opinion No. 10-03-03: Prepaid bundles of medical services with limited sick visits. March 16, 2010. Informal opinion, posted by the New York State Department of Financial Services. www.dfs.ny.govFunding: state (New York State Insurance Department publication)
- New Jersey Department of Banking and Insurance. Bulletin No. 12-02: Provision of non-covered services by limited-panel network physicians. Thomas B. Considine, Commissioner. January 9, 2012. nj.govFunding: state (New Jersey Department of Banking and Insurance publication)
- American Medical Association. Code of Medical Ethics Opinion 11.2.5: Retainer Practices. code-medical-ethics.ama-assn.orgFunding: not stated (American Medical Association ethics policy)
- Revised Code of Washington, chapter 48.150: Direct practices (sections 48.150.010, .040 and .060). Washington State Legislature. app.leg.wa.govFunding: not stated (state statute)
- Michigan Compiled Laws, section 500.129: Medical retainer agreements (Insurance Code of 1956, added by 2014 Public Act 522, effective March 31, 2015). Michigan Legislature. www.legislature.mi.govFunding: not stated (state statute)
- Michigan Senate Fiscal Agency. Bill analysis, Senate Bill 1033 (Public Act 522 of 2014): Medical retainer agreements. April 1, 2015. archive.legislature.mi.govFunding: state (Michigan Senate Fiscal Agency publication)
- Oregon Revised Statutes, section 735.500: Requirements for certification as retainer medical practice; disclosures (2011 c.499 section 2). Text via Oregon.Public.Law; official chapter 735 index at oregonlegislature.gov, 2025 edition. oregon.public.lawFunding: not stated (state statute)
- Kona M, Lucia K, Corlette S. Direct primary care arrangements raise questions for state insurance regulators. Georgetown University Center on Health Insurance Reforms, for The Commonwealth Fund. October 23, 2018. commonwealthfund.orgFunding: not stated (Georgetown University faculty commentary published by The Commonwealth Fund)
- Concierge Medicine Today. Your Patients Aren't One Audience. They're Four (CMT Patient Study). Patient inquiries to CMT, January 2013 to December 2024; self-selected respondents searching for a concierge or membership physician; DPC patients excluded; not peer-reviewed or nationally representative. Accessed October 2026. conciergemedicinetoday.netFunding: Concierge Medicine Today (self-conducted; no outside funder) CMT original
Educational and informational only. This CMT Research Brief does not constitute medical, legal, tax, financial, accounting or other professional advice, and it does not create a professional relationship of any kind. Statements about laws, regulations, tax rules and payer policies are general, may not reflect the rules in your state, and can change after publication. Consult a qualified attorney, accountant, tax adviser, compliance professional or licensed clinician before acting on anything here.
Independence. Concierge Medicine Today is an independent publication. It does not accept payment for favorable coverage, and it does not favor one practice model over another. Company names and products are mentioned for context only and are not endorsements. Funding is disclosed for every source in the reference list.
Accuracy. CMT verifies figures against their original or best available sources at the time of publication. Where a figure is an estimate, an inference or a company-reported number, the brief says so. This content is not without possible error or omission.
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