PRACTICE DECISION TOOLS
FOR Doctors, Specialists, NPs, PAs
Physician-Patient Archetype Test • Marketing • CMT Patient Study • See all tools
RESEARCH & PROOF
National Stats, Industry Research
CMT Research Briefs • Polls • Visuals • Legal Op • Natl Stats • Contact
You built a concierge practice.Now you need to protect it.
Legal context, not legal advice, from attorneys who work with membership-based practices: Medicare and insurance rules, HSAs and tax, pricing, partnerships and practice transitions. Each comment is dated and reflects the contributor's view at the time. Where the law has changed since, a CMT editor's note says so.
Read this first. Contributors are practicing attorneys who advise concierge and membership practices, and some offer the services they discuss. Their views are their own, not CMT's, and attorneys sometimes disagree with each other. Mentions are not endorsements. Nothing here is legal, tax or financial advice. Talk with your own attorney before acting.
The questions physicians are actually asking
Short, sourced answers. Tap a question, then follow the link for the full research.
01Can I stay in Medicare while charging a membership fee?
Generally, yes. A physician who stays enrolled may charge a membership fee only for services and amenities Medicare does not cover. Charging for covered services is an assignment violation; federal regulators warned about this in 2004 and have settled cases since. CMT Research Brief No. 33
Sources: HHS OIG alert, March 31, 2004; Farrell Fritz, 2017 (reported 2007 settlement).
02Should I opt out of Medicare to do cash healthcare?
It is one lawful path, not the only one. Opting out requires an affidavit, a signed private contract with every Medicare patient, and two-year periods that renew automatically. Attorneys disagree about when it makes sense; see the commentary below. CMT Research Brief No. 33
Sources: Noridian (Medicare contractor), opt-out rules; Lamb McErlane, October 2025.
03Are my membership fees HSA or FSA eligible?
Direct primary care rule · a different model from concierge medicine
It depends on the structure. Since January 1, 2026, HSA funds can pay qualifying direct primary care arrangements up to $150 a month for an individual ($300 for a family), under IRS Notice 2026-5. Practices that bill insurance or charge more generally fall outside that rule. Ask a tax adviser about your own fees. CMT Research Brief No. 27
Source: IRS Notice 2026-5, December 2025.
04What happens when a partner leaves, or dies?
Whatever your operating documents say, which is why attorneys urge practices to decide early: notice periods, who keeps which members, and what happens to fees already collected. See the partnership commentary below. CMT Research Brief No. 34
Source: Jonna D. Eimer commentary, 2025 (below). Not legal advice for any specific practice.
What the attorneys say, by topic
Commentary, not advice
Quotes are reproduced as provided by each contributor and dated. They are the contributors' opinions, not statements of CMT policy or of law. Editor's notes add verified third-party sources where the law or facts have changed or where views differ.
Medicare, Medicaid and insurance
The most common legal question in this field, and the one where contributors disagree most. Read both views.
Regulatory considerations
“Concierge practices typically charge a fee for membership in their practice, which generally allows patients increased access to the physicians and their services. If the practice is accepting Medicare and/or commercial insurance, the fee cannot be charged for any service already covered by Medicare or insurance. Additionally, if the practice accepts commercial insurance, the fee must be scrutinized to be sure it is allowed under any agreement with a commercial payor of the practice. Some payor agreements may specifically prohibit any patient fee for membership in a practice. Some practices have reached out to their commercial payors directly when converting to a concierge practice and have had these commercial payors review and approve their patient agreements and membership fees.”
Medicare, Medicaid and HMO compliance
“Collaborate with a knowledgeable attorney, consultant, or individual(s) to structure your cash practice to follow three (3) federal statutes and decades of Medicare/OIG guidance (essentially, using what looks like the executive health model but with different branding and added/variable features). This approach ensures Medicare/Medicaid/HMO compliance, allows for healthcare insurance plan integration (if desired, and not necessary), and ensures patient fees are ‘qualified medical expenses’ eligible for HSA/FSA/HRA/MSA funding (in other words, allows for employer and pre-tax funding) with no changes in existing laws. It works right now.”
Don't always follow the crowd
“If your attorney or consultant tells you to opt out of Medicare to do cash healthcare, you are not working with the right expert. Opting out creates different but real compliance risk that the person you are working with does not understand.”
You have options without creating compliance risks
“If your attorney or consultant tells you that you cannot bill insurance or stay in network while doing cash healthcare, you are not working with the right expert. There is a wide range of preference with plan billing in cash healthcare. The right expert can explain to you that you can elect to bill plans a little, a lot, or not at all, and why you have those options without creating compliance risks. You can do zero plan billing, or some, but you should know why you have those options, and why there is no need to opt out of Medicare.”
HSAs, tax and branding
Be unique, avoid industry jargon
“Steer clear of marketing and branding that, while quite prevalent in the marketplace, is frustrating your patient fees achieving qualified medical expense status. For example, you may dearly love the DPC or concierge [as terms or] brands, but the IRS is convinced that neither brand's patient fees are qualified medical expenses. Why debate the IRS? Neither brand is likely to fully explain YOUR medical or healthcare philosophy, and neither brand assists with qualified medical expense status, so both brands frustrate HSA/FSA/HRA/MSA funding absent changes in tax laws and IRS regulations.”
Don't replicate, innovate
“Avoid formulas, brands, and models that work against you implementing your unique vision of healthcare. Don't replicate, innovate. And, do so using the referenced structuring that for decades has achieved Medicare compliance and tax-advantaged funding options. Call the practice whatever you want, incorporate whatever healthcare services you wish into your subscription, and don't be constrained by the ill-informed guidance in this marketplace that is not using existing laws/guidance to maximize your practice's potential.”
Pricing
Don't let guilt drive your strategy
“Instead of allowing a combination of guilt and lack of accurate pricing market data to cause you to under-price and devalue your brand, consider instead pricing your practice at true market value but using ad hoc scholarships/discounts and employer funding to improve equitable access to cash healthcare.”
When you have a heart for your community, you don't have to compete on price
“Consider your practice pricing as establishing your perceived brand value in the marketplace. You need not track the national franchise-style concierge enterprise pricing or DPC pricing: both are frequently published, but most cash practices do not market their prices, so the actual market is much higher than your online search reveals. So the easiest prices to find are not necessarily reflective of the actual market, and imitating them will devalue your perceived brand. Instead, work with an experienced attorney or consultant who actually knows the unpublished typical prices for cash practice models. And remember, most if not all of those published price versions of cash healthcare are not structuring their fees/services to allow for employer/tax-advantaged funding, and perhaps their lower prices are unintentionally reflecting that. Pre-tax and employer funding options allow for higher price points, and can be used to provide versions of this care with 100% employer funding that can enable more folks to benefit from this care model.”
Partnerships, transitions and sales
Decide these questions when the practice forms, not when a partner leaves.
Cost sharing and expenses
“Another issue confronting concierge practices is cost sharing and how to divide expenses in this type of practice model. Practices must decide if they are allocating costs based on each physician's patient panel size or based on their respective ownership percentages of the practice. Once you allow for different panel sizes, these differences can become quite problematic, and physicians can end up disagreeing on the fair allocation of these costs. Confronting these differences early in the formation of the practice and providing for them in the practice's operating documents can help avoid difficult and costly conflicts later for the partners.”
Transitions, terminations and retirement
“The concierge model generally relies on increased access and time for patients because physicians have typically accepted fewer patients. Because of this, it can be very difficult to figure out the fairest way to negotiate a partner's exit and how these patients and fees paid would transfer in the event of such departure. Does the partner get paid only in a buy-out of the whole practice or will the practice buy-out the individual partner upon his or her termination? Would this be handled differently in the case of a retirement? Would the practice consider a buy-out only if another physician can be substituted and take over the patient panel? How then is the new provider paid if fees have already been collected for a given year? It is possible the patients reject the substitute physician regardless of the departing physician's recommendation.”
Notice periods and collected fees
“Oftentimes, the agreements governing the practice's operations include long notice provisions prior to any termination or retirement because it is not easy to substitute another concierge doctor if one leaves. Also, the patients have paid for the personal relationship and membership with their own doctor, so they do not always feel that this relationship transfers to another doctor. Another thing to consider is if a doctor terminates or unexpectedly dies or becomes disabled and a new doctor cannot cover their patients, what happens to patient fees that have already been collected? The practice needs to consider whether these fees are returned to patients and then whether a new membership agreement is entered into with the new physician. All these considerations need to be addressed in the initial stages of the company's operations.”
Sales to third parties
“Physician owners in a concierge practice also need to consider at the formation of a practice how the profits of the practice will be divided in the case of a sale to a third party. Will profits be divided based on a physician's ownership in the practice or based on an individual physician's production and fee generation? If a practice has providers with vastly different production and patient panel sizes, then this is important to consider because the higher producing partner may want a sale to a third party to take into account these differences. Another partner may feel strongly that profits should be divided based on ownership percentages in the practice entity, which may be equal even if the providers have different numbers of patients. Frequently, the potential buyer has their own considerations for valuing the practices and may ascribe different values to each physician's practice. The buyer may base its valuation of the practice on patient panel size and fees generated by each individual physician.”
No one-size-fits-all approach
“Because each concierge practice has unique patient fee agreements to consider, there is not a ‘one size fits all’ approach to advising these practices. Concierge practices should not overlook the unique legal and practice issues facing them, from patient fee issues to physician departures. These models have a variety of legal challenges that should be addressed at the early stages of the practice, so they do not lead to partner and patient discord later on.”
Coverage and licensing
Snowbird patients and state licenses
“Because of the unique access provided to concierge patients, some practices have added special coverage when these patients are out of state or on vacation. In light of their patients who winter in warmer climates, like Florida, California and Arizona, some practices have partnered with other concierge practices in these states to offer services to their ‘snowbird’ patients. Health systems are taking advantage of these practice models also. For instance, Chicago-based Northwestern Medicine opened a concierge medicine office in Naples, Florida, and Ohio-based Cleveland Clinic also has opened concierge medicine practices in multiple Florida locations. Doctors, however, need to be aware that they need to be licensed in the state where the patient resides. Due to these licensing considerations, some concierge physicians are also obtaining licenses in other states to cover patients that often spend their winters in these warmer states.”
The rules differ by model, and by what you add
Growing a practice often means a new model, a new service or a new way of finding members. Each one brings its own legal questions. Here is what regulators, statutes and professional bodies say, so you walk into your attorney’s office with the right questions.
How to read this. Unlike the attorney commentary above, this section is CMT’s plain-language summary of government, statutory and professional sources, each linked below. Laws vary by state and change often, and the examples here are not a complete list. Nothing here is legal advice. Use the questions in each card with your own attorney.
New: see every model compared side by side in CMT Research Brief No. 37 →
Concierge: a membership fee plus insurance billing
- Federal regulators warned in 2004 that a physician who stays in Medicare may charge a membership fee only for services Medicare does not cover. Charging for covered services can violate the physician’s assignment agreement.1
- The AMA’s ethics opinion on retainer practices asks physicians to explain the arrangement clearly, including how it affects the patient’s insurance, and to keep membership charges clearly separate from insured medical services.2
Direct primary care: a monthly fee, no insurance billing
These rules apply to DPC, not to concierge medicine. DPC is shown separately for context only.
- Some states have their own DPC statutes. Georgia’s, for example, says a DPC agreement is not insurance, requires a written agreement that says so plainly, bars billing third parties fee-for-service, and requires refunds of unearned fees within 30 days of termination.3
- Since January 1, 2026, HSA funds can pay qualifying DPC arrangements up to $150 a month for an individual and $300 for a family.4
Opting out of Medicare for cash-based care
- Opting out requires a filed affidavit and a signed private contract with every Medicare patient.5
- Opt-out periods last two years and renew automatically unless the physician cancels on time.5
Ancillary services: labs, imaging, IV therapy
- The federal self-referral law (Stark) bars referring Medicare patients for “designated health services,” including clinical lab work and imaging, to an entity you have a financial relationship with, unless an exception applies.6
- Stark is strict liability: intent does not matter. The separate Anti-Kickback Statute is criminal and covers paying or receiving anything of value for referrals in federal programs.7
- States add their own rules. Texas, for example, now requires IV therapy to be given by nurses under adequate physician supervision.8
Aesthetics and medical spa services
- Regulators are focusing on medical spas where physician supervision exists on paper but not in practice. Georgia, for example, bars paying physicians to serve as medical directors in name only.8
- Rules differ sharply by state: Indiana now requires medical spa registration, and Illinois treats Botox and microneedling as the practice of medicine with ownership limits.8
- Product sourcing is under scrutiny too, including an April 2026 FDA action over suspected counterfeit Botox at a Texas medical spa.8
Longevity and advanced diagnostics
- The American College of Radiology does not recommend total-body MRI screening for people without symptoms, citing no documented evidence it prolongs life and the risk of unnecessary follow-up.9
- The FTC expects health claims for products, including diagnostic tests, to be backed by competent and reliable scientific evidence, generally randomized human trials for health benefits.10
- When Medicare is expected to deny payment, CMS’s Advance Beneficiary Notice process governs when financial responsibility can shift to the patient.11
Practice marketing, reviews and testimonials
- Under HIPAA, using patient health information for marketing generally requires the patient’s written authorization, with limited exceptions such as describing your own services.12
- An FTC rule announced in August 2024 bans fake or AI-generated reviews, buying reviews, undisclosed reviews by staff, and suppressing negative reviews through threats. The FTC can seek civil penalties.13
Patient abandonment: converting, leaving or closing
- The AMA’s ethics code says physicians who end a relationship must give patients enough notice to find another physician and help transfer their care.14
- For retainer practices specifically, the AMA asks physicians to help patients who decline the membership transition to new care, and to keep caring for them until they do.2
- State medical boards may set their own notice rules. Ohio’s board, for example, adopted rules on ending relationships and notifying patients when a physician leaves a practice.15
Corporate practice of medicine
- In states that follow the doctrine, licensed clinicians, not lay corporations, must own for-profit medical practices, so physicians keep control of clinical decisions. The rules vary widely by state.16
- States are tightening. Oregon’s 2025 law bars management services organizations from holding majority control over physician practices.16
Sources for this section (16)
- HHS Office of Inspector General. OIG Alert on charging Medicare beneficiaries for covered services (assignment violations). March 31, 2004. hhs.gov
- American Medical Association. Code of Medical Ethics Opinion 11.2.5: Retainer Practices. ama-assn.org
- Official Code of Georgia Annotated § 33-7-2.1, Direct primary care agreements. Via Justia. law.justia.com
- Internal Revenue Service. Notice 2026-5. December 2025. irs.gov
- Noridian Healthcare Solutions (Medicare Administrative Contractor). Opt-out period, renewal and cancellation. noridianmedicare.com
- Centers for Medicare & Medicaid Services. Physician Self-Referral. Last modified February 9, 2026. cms.gov
- HHS Office of Inspector General. Fraud & Abuse Laws. oig.hhs.gov
- Elliott B, Rai K. Medical Spa Compliance Under the Microscope. Holland & Knight. August 5, 2026. hklaw.com
- American College of Radiology. ACR Statement on Screening Total Body MRI. April 17, 2023. acr.org
- Federal Trade Commission. Health Products Compliance Guidance. Updated December 20, 2022. ftc.gov
- Centers for Medicare & Medicaid Services. FFS Advance Beneficiary Notice of Noncoverage (ABN). Last modified July 17, 2026. cms.gov
- U.S. Department of Health and Human Services. HIPAA Privacy Rule guidance: Marketing. hhs.gov
- Federal Trade Commission. Federal Trade Commission Announces Final Rule Banning Fake Reviews and Testimonials. August 14, 2024. ftc.gov
- American Medical Association. Code of Medical Ethics Opinion 1.1.5: Terminating a Patient-Physician Relationship. ama-assn.org
- Bricker Graydon. Ohio State Medical Board issues new rules on terminating the physician-patient relationship and notifying patients when a physician leaves a practice. 2013. bricker.com
- Burleson J. State Spotlight: Oregon’s Multi-Pronged Approach to Corporate Influence in Physician Practices. Center on Health Insurance Reforms, Georgetown University. April 27, 2026. chir.georgetown.edu
Opinion: “Your Membership Fee Won't Qualify for an HSA. Your Practice Can Still Win.” (Guest Contributors)
How membership practices above the $150 monthly HSA limit can still serve patients among the roughly 42 million HSA accounts open at the end of 2025 (Devenir, April 2026: 41.7 million). The views are the contributors' own.
The Waxman letter: Congress, HHS and concierge medicine in 2002
In March 2002, members of Congress led by Rep. Henry Waxman asked HHS Secretary Tommy G. Thompson whether retainer-based (concierge) practices complied with Medicare. As reported at the time, the Secretary replied that it was “not clear that such annual retainer agreements necessarily violate the law” (as quoted in press coverage reprinted by PNHP). A 2005 report noted that a later OIG alert addressed only fees for covered services and was described as consistent with the Secretary's earlier position (MDedge, July 15, 2005). That reply was widely read as allowing concierge models to proceed. It was not a blanket approval: later federal guidance set clear limits, summarized below.
CMT republishes the original exchange from the public record so physicians and journalists can read it in full. A 2002 letter is historical context, not current compliance guidance.
Rep. Waxman and colleagues write to Secretary Thompson about concierge practices and Medicare.
Secretary Thompson replies on behalf of HHS (file noted as “last revision” below).
HHS Office of Inspector General alert: participating physicians may not charge Medicare patients extra for covered services (OIG alert).
GAO reviews concierge care and Medicare (GAO-05-929).
New HSA rules for qualifying direct primary care take effect (IRS Notice 2026-5). For participating physicians, membership fees still may not pay for Medicare-covered services. See Brief No. 33.
Source: Tommy G. Thompson Collection, Marquette University Archives (public record), including Rep. Waxman's March 2002 letter and Secretary Thompson's response. Republished by Concierge Medicine Today, LLC.
Hear it from the experts in their own words
From Chicago to Florida: concierge law isn't one-size-fits-all
Guest: Jonna D. Eimer
Apple Podcasts · Spotify (2025)
Cash healthcare, Medicare and compliance: how does it really work?
Guest: James Eischen, Esq.
Apple Podcasts · Spotify (2025)
Why are there so many concierge practice transactions?
Guests: Gary W. Herschman and Dana Jacoby
Apple Podcasts · Spotify (2025)
Guests speak for themselves. Podcast conversations are educational, not legal advice.
Get legal and regulatory updates, free
When Medicare guidance, tax rules or state boards change, the weekly eJournal tells you what it means for a membership practice.
Get the weekly eJournalFree. One email a week. Unsubscribe anytime.
Read the sourced research
- No. 33Medicare and Membership MedicineOpting out, what fees may cover, and enforcement
- No. 32The Patients Left BehindConversions, ethics and patient transitions
- No. 27The $150 Line: HSAs and DPCThe 2025 tax law, explained
Every source named. Funding disclosed. Free to read.
Ask your questions in person
At the Concierge Medicine Forum, physicians, attorneys and practice leaders share what has worked, and what hasn’t. Education first, no sales pitches on stage.
Register for CMF 2026Atlanta · October 15 to 17, 2026
Contributing attorneys
Jonna D. Eimer
Roetzel & Andress · Chicago, IllinoisHealth law and corporate attorney and shareholder. Represents concierge medicine practices and other innovative practice models. Advises physicians, physician groups, dentists, behavioral health clinicians and other providers on forming and selling practices, employment and shareholder agreements, regulatory matters, management services organizations (MSOs) and sales to private equity.
James Eischen, Esq.
Eischen Law Office · CaliforniaLicensed California attorney with more than 32 years of experience in corporate, business planning, health care and real estate matters. Advises cash-based and subscription health care practices on structuring, Medicare compliance and tax-advantaged patient funding.
Michele P. Madison
BradleyExperience in legal issues arising in hospitals, physician offices and integrated health systems, including employment, investigations, risk management and corporate matters. Provides legal education for medical staff and management teams, implements HIPAA privacy and security compliance plans, prepares Certificate of Need applications, and advises on medical staff governance and credentialing.
- U.S. Department of Health and Human Services, Office of Inspector General. Alert on charging Medicare beneficiaries for covered services. March 31, 2004. www.hhs.gov
- Farrell Fritz. Concierge medicine: Medicare compliance is still a consideration. September 19, 2017. www.farrellfritz.com
- Noridian Healthcare Solutions (Medicare Administrative Contractor). Opt-out period, renewal and cancellation. med.noridianmedicare.com
- Kalogredis VJ, Parekh S. Opting out of Medicare: legal and compliance implications. Lamb McErlane PC. October 13, 2025. www.lambmcerlane.com
- Internal Revenue Service. Notice 2026-5. December 9, 2025. www.irs.gov
- Devenir. HSA assets reach nearly $174 billion at year-end 2025. April 23, 2026. www.devenir.com
- U.S. Government Accountability Office. GAO-05-929, Concierge care characteristics and considerations for Medicare. August 2005. www.gao.gov
- Physicians for a National Health Program (reprint of press coverage). The doctor is in, for a price. pnhp.org
- MDedge Family Medicine. Legal risk seen with some retainer-fee model practices. July 15, 2005. www.mdedge.com
- Northwestern Medicine. Concierge Medicine, Naples location. nm.org
- Becker's Hospital Review. Cleveland Clinic opens 6th concierge medicine practice in Florida. August 11, 2026. beckershospitalreview.com
Contributor quotes are cited to the contributor and year. Primary documents: Tommy G. Thompson Collection, Marquette University Archives.
Disclaimer. Content is for general informational and educational purposes only and does not constitute medical, legal, tax or financial advice. Contributor commentary reflects each contributor's views as of the date shown, not the views of Concierge Medicine Today, and may not reflect later changes in law. Mentions of attorneys or firms are not endorsements, and no attorney-client relationship is created by reading this page. CMT is not liable for errors or omissions. Conduct your own due diligence and consult your own attorney before acting on any information. By using this site you agree to CMT's Terms and Conditions of Use and Privacy Policy. © 2007-2026 Concierge Medicine Today, LLC.

