Provided by:  Jennifer Kirschenbaum, Esq.
February 7, 2019
 
 
 
Hi Everybody!

We have received your concerns over a pay per booking model Zocdoc is rolling out. We spoke with Zocdoc directly and we have reviewed Zocdoc’s “Roll Out” materials. Here is the skinny:  Zocdoc’s new pricing model charges providers a fixed rate per patient booking, regardless of whether the patient shows up at the appointment and receives medical services.

Is this legal?   Thank you for asking!  Federal law only applies to patients of federally funded programs.  We received information from Zocdoc that it is disabling its services for self-identified beneficiaries of such programs, e.g., Medicare and Medicaid.   

With regard to New York State laws, such as New York Education Law § 6530(18)(kickback) and (19)(fee split), Zocdoc shared its new pricing model with the New York State Department of Health (DOH) and received a letter from its General Counsel, Division of Legal Affairs (which we reviewed), stating that Zocdoc’s new pricing model does not run afoul of New York State law (on referrals, it says that “Zocdoc is not engaged in [] referrals” as that term is defined and used, or in any reasonable sense.  The reasoning behind the opinion is that ZocDoc is a "booking" service, not a referral service.  Fees will be charged regardless of whether the patient actually shows up, and are not reflective of the cost of the medical services.  Noted by DOH - patients are not required to pay anything for this service.  

With the DOH opinion letter in hand, It seems ZocDoc has the "All Clear".  That being said, this assessment is subject to change upon any shift in New York's ever changing regulatory environment.  Opinions change, law suits push effectiveness, legislatures act, so, as is the usual advice -  Caveat Emptor - keep reading and staying current on the times.  

Questions?  Always feel free to reach out.  Email is best for me (Jennifer@kirschenbaumesq.com), and Robert is also up to speed on this issue (RPlosky@kirschenbaumesq.com).