Health Care's Other 'Big Deal': Federal and State Regulation of Direct Primary Care Practices and Their Role in the Post-ACA Landscape

Direct primary care has arisen as a promising, yet controversial, alternative to the traditional fee-for-service delivery model that has for decades been the predominant service arrangement in the American healthcare marketplace. Although these practices have been around for quite some time in various iterations, they have become exponentially more popular since Congress enacted the Affordable Care Act. This recent popularity has been jointly driven by state regulation that exempts direct practices from regulation as insurers, and the ACA's acceptance of them as viable components of approved "health plans" offered on state insurance exchanges. Nevertheless, scholars have diverted scarce attention to the model, and the time is ripe for an examination of the various states' statutes and the model's role in the post-ACA healthcare landscape. This Note will begin that examination. First, it will canvass the historical development of direct primary care statutes and review the legal and policy debates surrounding them. Importantly, that discussion will begin by distinguishing the direct primary care model from the traditional notion of “concierge” practices, a family to which direct practices nominally belong despite significant structural and operational differences. Second, it will provide an overview of the most important substantive provisions within the statutes and distinguish the differences among the participating states’ approaches. Third, it will examine the statutes’ effectiveness in addressing the legal and policy issues that have bedeviled concierge practices since their inception, as well as their broader role in the American healthcare marketplace. There, particular attention will be placed upon the doctor shortage, a particularly pressing challenge to healthcare policymakers in the coming years. Based upon that analysis, this Note will conclude by suggesting that, despite some significant shortcomings, the direct primary care model is on balance a positive development within the post-ACA healthcare landscape. Because each state faces unique challenges to healthcare access and quality, each state should retain discretion to reform its delivery infrastructure in accordance with those challenges. And given the level of uncertainty with respect to the model’s impact on the healthcare system writ large, individual states are suitable places to evaluate pressing questions about its short and long-term impacts, including whether the model provides better, cheaper care when compared to the traditional fee-for-service model, and whether its expansion will place undue stress on healthcare access. Furthermore, this marketplace innovation harmonizes particularly well with the ACA’s commitment to cooperative federalism. Therefore, this Note argues that state legitimization and individual regulation of the model is exactly how the regulatory cookie should crumble.