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The Membership Agreement: What to Include and What to Check With Counsel
The membership agreement is the first legal document most concierge patients sign, and later it is one of the first documents a buyer reads. This brief walks through the agreement clause by clause, ties each clause to the rule or guidance behind it, and ends with a review checklist to take to your attorney. It contains no model contract language.
New in October 2026. A companion to Brief No. 44 (insurance law) and Brief No. 33 (Medicare).
Start here: the questions this brief answers
Tap a question for the short answer, then jump to the evidence.
A sound agreement says exactly what the fee buys and what it does not, keeps the fee separate from anything insurance or Medicare already pays for, and spells out how members renew, cancel, get money back and leave. Four bodies of rules shape those clauses. The AMA’s ethics opinion on retainer practices asks physicians to present terms clearly and to separate retainer charges from insured care. Medicare rules bar charging participating patients again for covered services, and opted-out physicians need a private contract with specific elements. State insurance regulators have questioned open-ended promises such as unlimited visits. Consumer laws on automatic renewal may reach recurring fees; the FTC’s 2024 click-to-cancel rule was vacated in 2025, but state laws such as California’s still apply where they reach. Rules vary by state. Have a healthcare attorney licensed in your state review the final document.
What should a concierge membership agreement cover?
At minimum: the parties and term, a specific list of included and excluded services, how access works, the fee and how it changes, how the fee relates to insurance and Medicare, renewal and cancellation, refunds, how the practice may end the relationship, and privacy and communication terms. Part 2 has a clause-by-clause table.
Go to the full answer ↓Can the agreement charge Medicare patients for anything?
A participating physician may charge for services Medicare does not cover, plus the usual deductible and coinsurance. In 2004 the HHS Office of Inspector General warned that a fee covering services Medicare already pays for can lead to penalties. Opted-out physicians use a separate private contract with elements set by federal regulation.
Go to the full answer ↓Does the FTC click-to-cancel rule apply to my practice?
That rule no longer stands. A federal appeals court vacated it in July 2025, and in March 2026 the FTC asked for public comment on whether to write a new one. The federal ROSCA statute and state automatic renewal laws still apply where they reach. Whether any of them reach a medical membership is a question for counsel.
Go to the full answer ↓What happens to the fee when a member leaves?
That depends on your agreement and your state. Maryland’s insurance regulator recommended pro-rated refunds when either side ends the agreement. Some states set deadlines for returning patient overpayments and later treat unclaimed balances as unclaimed property.
Go to the full answer ↓How do I use the review checklist?
Check each item your draft already handles. The tool lists the open items with a question for your attorney beside each one. It does not save anything or give a legal verdict.
Go to the full answer ↓Why the agreement carries so much weight
A new member usually meets the agreement before meeting the physician for a visit. Years later, the same document lands on a buyer’s desk. In between, a regulator, a payer or a patient’s lawyer may read it far more literally than anyone did when it was signed.
Several separate sets of rules reach the same few pages. Professional ethics asks for clear terms and honest billing.1 Practice Insight Medicare rules decide what a participating physician may charge a beneficiary for, and what an opted-out physician’s contract must say.2,
The deal side has noticed. At the Concierge Medicine Forum 2026, an attorney presenting on exit readiness listed membership agreements and clearly defined services among the items a buyer examines in diligence, and cautioned against terms that appear to underwrite insurance-like risk.6 Practice Insight Maryland’s regulator put the same idea more briefly in 2009: “the devil is in the contract.”4
If a member, a buyer and a state regulator each read your agreement cold, would all of them come away with the same idea of what the fee buys? Patient trust depends on the answer, and so does the value of the practice.
Clause by clause: why it matters and what to ask
The table follows the order most agreements use. Each row names the rule or guidance behind the clause and a question for your attorney. It offers no contract wording, and none of it is legal advice.
| Clause | Why it matters | What to ask counsel | Evidence type |
|---|---|---|---|
| Parties, term and start date | Sets who is bound, when the fee is earned and when renewal and refund rules start to run. The AMA asks physicians to present retainer terms clearly.1 | Is the right entity named (the practice, not a management company), and does the term match how and when we bill? | Practice Insight |
| Services included and excluded | Regulators in Maryland and New York looked first at what the fee actually buys. A buyer in diligence will too.4, | Is each included service described specifically enough that a member, a payer and a regulator would read it the same way? Are exclusions stated just as plainly? | Policy and Law |
| Access promises | Maryland called unlimited office visits for a fixed fee the clearest sign of insurance. At CMF 2026, physicians questioned whether “unlimited” is workable at all.4, | Does any phrase such as “unlimited” or “24/7” create an open-ended duty? How should response times and coverage while the physician is away be described? | Policy and Law |
| Who pays for sick visits | New York objected when a prepaid entity “bears the risk of incurring a loss if the cost of the services exceeds the paid fees.” Separate per-visit fees that cover cost changed the answer.7, | Under our state’s law, does it matter whether illness visits are billed to insurance, charged separately or included in the fee? | Policy and Law |
| The fee and insured services | The OIG said a $600 annual fee for services that included some Medicare already covered was a request for payment for covered services. The AMA asks practices to clearly distinguish retainer charges from insured care.2, | Does any service paid for by the fee overlap with something Medicare or the member’s plan covers? How is that documented? | Policy and Law |
| Medicare private contract (opted-out physicians only) | Federal regulation lists what the contract must contain, including that the patient agrees not to submit a claim and is not compelled to sign. It may not be signed while the patient needs emergency or urgent care.3, | Does our contract contain every element in 42 CFR 405.415? Is it a separate document from the membership agreement, and do we deliver a copy before services begin? | Policy and Law |
| Insurance effects and a not-insurance statement | The AMA asks physicians to address the arrangement’s implications for the patient’s current insurance. New York required one prepaid plan to state that it is not insurance.1, | Should our agreement say plainly that the fee is not insurance? Does anything in the agreement or our marketing sound like coverage? | Policy and Law |
| Renewal and fee changes | California’s automatic renewal law, as amended for contracts from July 1, 2025, requires express consent to the renewal offer and notice 7 to 30 days before a fee change, according to a law firm analysis.5 | Does our state’s automatic renewal law reach a medical membership? If so, what consent, reminder and notice steps apply? | Policy and Law |
| Cancellation by the member | The AMA says patients must be free to opt out of a retainer agreement. Maryland recommended that either party may end the agreement for any reason.1, | How much notice may we require, in what form, and must members be able to cancel online if they joined online? | Policy and Law |
| Refunds and credit balances | Maryland recommended pro-rated refunds. Texas guidance says physicians must return an overpayment within 30 days of identifying it, and unclaimed balances go to the state after three years.4, | How are unused fees refunded on cancellation? When does a balance become an overpayment or unclaimed property in our state? | Policy and Law |
| Rejoining after leaving | One practice at CMF 2026 described its own policy for returning members: an initial-visit fee, written cancellation notice and a 12-month wait before rejoining without paying for the months away.6 | Is a rejoin rule consistent with our refund terms and any state consumer law, and is it applied the same way to every member? | Practice Insight |
| Ending the relationship (practice side) | The AMA asks physicians to give notice “long enough in advance to permit the patient to secure another physician” and to help transfer care. State medical boards may add rules.11 | What notice and transition steps does our state require when we end a membership, and does the agreement match them? | Practice Insight |
| Privacy and communication | A HIPAA covered provider gives its notice of privacy practices no later than the first service and makes a good-faith effort to get written acknowledgment. Diligence teams at CMF 2026 flagged texting and apps.12, | Is the privacy notice acknowledgment handled separately from the membership signature? Does the agreement describe texting and app use the way our HIPAA policies do? | Policy and Law |
| Scope of care and expectations | A physician at CMF 2026 described using the meet-and-greet to explain positions on controlled substances, antibiotics and care while patients travel.6 | Which expectations belong in the signed agreement and which belong in a separate patient policy that we can update? | Practice Insight |
Two rows carry most of the federal risk for practices that see Medicare patients. A participating physician may charge beneficiaries for items and services Medicare does not cover, along with deductibles and coinsurance, but the OIG warned in 2004 of “substantial penalties and exclusion” for asking patients to pay again for covered services.2 Policy and Law A physician who has opted out works under a different regime: a private contract with every Medicare patient, an affidavit filed with each Medicare contractor, and an opt-out status that now renews automatically every two years unless cancelled at least 30 days before it expires.9 Brief No. 33 covers both paths in more depth.
Many of the questions above come back to one idea. The more precisely an agreement defines what the fee buys, the easier it is to show that the fee does not duplicate insured care and does not promise open-ended treatment. This is editorial reasoning from the sources in this brief, not a legal standard.
The rules on renewing, cancelling and refunding have moved
Most concierge fees renew every year, and many renew automatically. That puts the agreement within reach of subscription law in some states, at least potentially, and the federal picture changed twice in two years.
Medicare’s private contract rules are published. A 2015 amendment keeps the requirement that each contract state the dates of the current two-year opt-out period.3
The OIG warns participating physicians that annual fee contracts covering Medicare services can bring civil money penalties and exclusion.2
Maryland’s insurance regulator lists five indicators of insurance and recommends that either party be able to end the agreement, with pro-rated refunds.4
New York staff opinions accept a monthly membership with cost-covering sick-visit fees, and reject prepaid bundles of sick visits unless restructured with a statement that the program is not insurance.8,
California amends its automatic renewal law (AB 2863, signed September 24, effective July 1, 2025). The FTC adopts its Click-to-Cancel Rule in October.5,
The U.S. Court of Appeals for the Eighth Circuit vacates the FTC rule in full because the agency skipped a required preliminary regulatory analysis. The court does not reach the other challenges.14
The FTC asks for public comment on an advance notice of proposed rulemaking, including whether to adopt provisions of the vacated rule.15
After the court decision, the FTC’s amended negative option rule is gone, but the agency’s older authority is not. Law firm analyses note that the Restore Online Shoppers’ Confidence Act (ROSCA) still requires clear disclosure of material terms, express informed consent and a simple way to stop recurring charges for online sales, and that the FTC and state attorneys general continue to bring cases.14,
Refunds raise a separate set of rules. In Texas, physicians must return an overpayment within 30 days of determining it occurred, with no minimum amount, and the state medical association warns that keeping the money as credit for future services can draw medical board action. Balances that go unclaimed for three years are reported to the state comptroller.10 Practice Insight Other states set different deadlines. CMT found no guidance that says whether the unused part of a prepaid membership fee counts as an overpayment, which is one more reason to write the refund terms down before anyone cancels.
Maryland’s regulator recommended pro-rated refunds when either party ends the agreement, a term that also answers the question a departing member will ask first.
The rejoining policy described at CMF 2026 shows how refund terms and re-entry terms interact. That practice charged returning members an initial-visit fee, required written cancellation notice and set a 12-month period before a former member could rejoin without paying for the intervening months.6 Practice Insight CMT reports it as one practice’s policy. A rule like that should be checked against the practice’s own refund clause and against state consumer law before it is copied.
Agreement review checklist
Check each item your current draft already handles. The open items appear below the meter with a question to raise with your attorney. The checklist does not score your agreement or say whether it complies with any law. Nothing is saved or sent.
Does your draft agreement cover these?
Questions for counsel on open items:
Educational only. Not legal advice and not a substitute for counsel licensed in your state.
A fully checked list means only that the draft addresses each topic. It does not mean the wording is right for your state. Bring the draft itself, not only the checklist, to your attorney.
Before the member signs
The agreement works best when nothing in it surprises the member. The meet-and-greet is where that happens, and AMA Opinion 1.1.5 points the same way: physicians should alert patients at the outset to foreseeable barriers to continuity of care.11
Say what the fee buys
Walk through the service list in plain words before the prospective member signs. If you cannot explain a clause in a sentence, it may need to be rewritten.
Say what it does not buy
Name the services the member’s insurance or Medicare still pays for, and what happens with hospital care, specialists and labs. The AMA asks physicians not to imply that retainer patients get better medical care.1
Prescribing expectations
A physician at CMF 2026 described raising positions on controlled substances and antibiotics at the first meeting, so that a later “no” is not a surprise.6 Whether such positions belong in the agreement or in a separate policy is a drafting choice to make with counsel.
Travel and distance
Explain what the practice can and cannot do when a member is out of state. Licensing limits apply to visits across state lines; Brief No. 47 covers them.
This brief is educational only. It is not legal advice, offers no contract language and does not say whether any agreement complies with any law. Insurance, consumer, refund and medical board rules are set state by state and change. Medicare rules turn on whether you participate, do not participate or have opted out. Before you launch or revise a membership agreement, have a healthcare attorney licensed in each state where you see patients review the full document, and review it again when your services, fee or ownership change.
Coverage Keepers, 27% of the segmentation sample, are happy with their current doctor, rate insurance compatibility highest of any type (4.67 of 5) and want the concierge experience added to a trusted relationship, not traded for it (n=561, 2018 to 2024).16 Industry Research
CMT reading: An agreement that says plainly what the fee covers, and what insurance or Medicare still covers, speaks directly to these patients.
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 readers
Members, buyers, payers and regulators all read the agreement. Write it for the most literal of them.
Define the fee
List what the fee buys, keep it apart from insured care, and write renewal, cancellation and refund terms before you need them.
Review on a schedule
Take the draft to counsel before launch, and again when the law, your services or your ownership change.
How this brief was built
CMT read the federal and professional sources that most directly govern what a concierge membership agreement says: the AMA Code of Medical Ethics opinions on retainer practices and on ending a patient relationship, the 2004 HHS Office of Inspector General alert on charging Medicare patients, the federal private contract regulation for opted-out physicians and the CMS opt-out page, and HHS guidance on the HIPAA notice of privacy practices. For consumer subscription law, CMT read the FTC’s March 2026 announcement and law firm analyses of the July 2025 court decision and of California’s 2024 amendments. State insurance material comes from Brief No. 44; the two New York opinions were reopened for this brief, while the Maryland report was verified for Briefs No. 43 and 44 in October 2026 and could not be reopened this time. Every other source cited was opened and checked in October 2026.
Background on what buyers and physicians are discussing comes from session remarks at the Concierge Medicine Forum 2026, CMT’s annual conference. Speakers are not named, their remarks are reported as their views, and one practice’s terms are described as that practice’s policy, not a recommendation. This brief concerns concierge practices, which usually keep billing insurance or Medicare. It reports no direct primary care figures, and state laws written for direct primary care are covered in Brief No. 44. The clause table and checklist are educational. They contain no contract wording and give no legal verdict. Because this is a legal topic, CMT recommends 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
- What a typical concierge agreement contains. CMT found no published study of the clauses practices actually use, how long the agreements run or how often they renew automatically.
- Whether state automatic renewal laws reach a physician membership. Each law defines its scope differently, and CMT found no enforcement action involving a concierge practice.
- Whether the FTC will propose a new negative option rule, and what it would cover. As of the March 2026 announcement the agency was at the advance notice stage.
- How state refund and unclaimed property rules treat the unused part of a prepaid annual fee. The Texas guidance CMT read addresses overpayments generally, not membership fees.
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
- American Medical Association. Code of Medical Ethics Opinion 11.2.5: Retainer Practices (opinion text, PDF). code-medical-ethics.ama-assn.orgFunding: not stated (American Medical Association ethics policy)
- HHS Office of Inspector General. OIG Alert: charging Medicare beneficiaries for services that are covered (assignment violations). March 31, 2004. hhs.govFunding: federal (HHS Office of Inspector General publication)
- Code of Federal Regulations, Title 42, section 405.415: Requirements of the private contract (63 FR 58901, Nov. 2, 1998, as amended at 80 FR 71370, Nov. 16, 2015). Text via GovRegs; official text at ecfr.gov. www.govregs.comFunding: not stated (federal regulation)
- 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)
- Floyd M, Wu Min XD. California's latest automatic renewal law amendments take effect in July 2025. Kilpatrick Townsend & Stockton LLP. October 3, 2024. Law firm commentary. ktslaw.comFunding: not stated (law firm analysis)
- Concierge Medicine Forum 2026 (Concierge Medicine Today annual conference, Atlanta). Session remarks on exit diligence, membership agreements, pricing and new-patient visits, October 2026. CMT editorial notes from session recordings; speakers not named; remarks are the speakers' views and were not independently verified.Funding: not stated (speaker remarks at a conference organized by Concierge Medicine Today, LLC)
- 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 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)
- Centers for Medicare & Medicaid Services. Manage your enrollment: opting out of Medicare (affidavit, private contracts, two-year periods, automatic renewal). Last modified March 4, 2026. www.cms.govFunding: federal (Centers for Medicare & Medicaid Services publication)
- Texas Medical Association, Office of the General Counsel. Don't hold patient credit balances past 30 days. March 11, 2015, updated December 11, 2019. www.texmed.orgFunding: not stated (Texas Medical Association legal guidance for members)
- American Medical Association. Code of Medical Ethics Opinion 1.1.5: Terminating a Patient-Physician Relationship (opinion text, PDF). code-medical-ethics.ama-assn.orgFunding: not stated (American Medical Association ethics policy)
- U.S. Department of Health and Human Services, Office for Civil Rights. Notice of Privacy Practices for Protected Health Information (HIPAA Privacy Rule guidance). December 3, 2002, revised April 3, 2003; content last reviewed February 13, 2026. www.hhs.govFunding: federal (HHS Office for Civil Rights publication)
- Gibson, Dunn & Crutcher LLP. FTC restarts negative option rulemaking after Eighth Circuit vacatur; enforcement under ROSCA continues (client alert). February 27, 2026, updated March 11, 2026. Law firm commentary. www.gibsondunn.comFunding: not stated (law firm analysis)
- Archie JC, Boynton MR, Kim A, Mahmood G, Rubin MH. Eighth Circuit vacates FTC Click-to-Cancel Rule days before compliance deadline (Custom Communications, Inc. v. FTC, No. 24-3137, July 8, 2025). Latham & Watkins LLP. July 11, 2025. Law firm commentary. www.lw.comFunding: not stated (law firm analysis)
- Federal Trade Commission. FTC seeks public comment in response to Advance Notice of Proposed Rulemaking regarding the Negative Option Rule (press release). March 11, 2026. www.ftc.govFunding: federal (Federal Trade Commission publication)
- 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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