Direct primary care marketing: HSA and membership

A direct primary care practice sells a relationship for a fixed periodic fee instead of billing a claim for each visit. That is easy to say and harder to market well, because the fee touches tax law, Medicare, state law and advertising law at the same time. Since January 2026 there is a new federal rule about health savings accounts and direct primary care, and prospective members ask about it. This guide covers how to describe that rule without overpromising, how to handle Medicare patients, and how to word the claims a membership page leans on: access, unlimited visits and savings.

Several related topics have their own guides and are not repeated here. Medicare opt-out, private contracts and online auto-renewal for membership practices are covered in our concierge medicine marketing guide. General primary care marketing is in our primary care practice marketing guide. Publishing prices for services outside the membership is covered in advertising cash prices, and estimates for self-pay patients in our good faith estimate guide. For eligibility wording on services outside the membership, see HSA and FSA eligible claims in practice ads. Onsite clinics and direct contracts with employers are covered in our guide to marketing a practice directly to employers.

This is general information, not legal or tax advice. Sources cited were checked on October 30, 2026: 26 U.S.C. 223 as amended by Pub. L. 119-21, section 71308 (enacted July 4, 2025), IRS Notice 2026-5 and IRS news release IR-2025-119 (December 9, 2025), 42 U.S.C. 1395l(x)(2)(A), 42 CFR 405.410, 15 U.S.C. 45 and 52, and the FTC policy statements on deception and advertising substantiation. The HSA rules are new and Treasury and the IRS invited comments on Notice 2026-5, so check for later guidance before you rely on any detail here. State laws on direct primary care are set state by state; ask a lawyer licensed in your state, and ask a tax professional before you describe tax treatment to patients.

What the membership is, in plain words

Before any claim about taxes or access, a prospective member needs to understand what the fee buys and what it does not. A direct primary care page that answers these questions in the first screen saves the front desk a great deal of explaining later.

The fee: the amount, the billing period, and whether it differs by age or for families.
Any one-time enrollment fee, and whether it is refunded if the member leaves.
What the fee covers: visit types, how patients reach the clinician between visits, and any in-office tests or procedures included.
What costs extra: outside labs, imaging, medicines, specialist care, hospital care and emergencies, with the prices you charge for anything you sell in the office.
That the membership is not health insurance, and that members still need coverage for care outside primary care.
How to cancel, and what happens to any prepaid months.

Whether a state has a statute specific to direct primary care, and what wording it requires in the agreement or in advertising, is set state by state. Where a state requires a statement that the arrangement is not insurance, put that statement where the price appears, not only in the signed agreement. Where your state has no specific statute, the plain-language statement above is still the honest description of what you sell.

The 2026 HSA rule, stated exactly

Pub. L. 119-21, signed July 4, 2025, added section 223(c)(1)(E) to the Internal Revenue Code. It says that a direct primary care service arrangement is not treated as a health plan for the rule that decides who can contribute to a health savings account. Before this change, membership in a direct primary care practice could count as other coverage and stop someone with a high deductible plan from contributing. The law applies to months beginning after December 31, 2025. The same law added direct primary care fees to the list of expenses an HSA can pay for, in section 223(d)(2)(C)(v).

The statute defines the arrangement narrowly. All of these conditions come from the statute and from IRS Notice 2026-5, issued December 9, 2025:

The care must consist solely of primary care services provided by primary care practitioners. The statute borrows the Medicare definition of primary care practitioner in 42 U.S.C. 1395l(x)(2)(A): a physician with a primary specialty designation of family medicine, internal medicine, geriatric medicine or pediatric medicine, or a nurse practitioner, clinical nurse specialist or physician assistant.
The sole compensation for that care must be a fixed periodic fee.
Primary care services here do not include procedures that require general anesthesia, prescription drugs other than vaccines, or laboratory services of a kind not run in an ambulatory primary care setting.
For the HSA contribution rule, the total direct primary care fees for one person in a month may not exceed $150, or $300 where an arrangement covers more than one person. The statute indexes this amount for inflation for taxable years beginning after 2026.

Notice 2026-5 answers several questions a practice will face when it designs and markets a membership. It says that an arrangement that charges a fixed fee but also bills separately, through insurance or otherwise, for items and services it provides to members on the condition of membership does not qualify (Q-11). It says an arrangement can still qualify when its clinicians separately bill both members and non-members for services offered outside the arrangement (Q-12). Fees may be billed for periods longer than a month and up to a year, as long as they stay fixed, periodic and within the monthly limit on an annual basis; the notice gives $1,800 a year, $900 for six months or $450 for three months for one person in 2026 (Q-13). Whether an arrangement qualifies depends on its terms, not on which services a member actually uses (Q-14).

The notice also covers points patients will ask about. Membership fees do not count toward a high deductible plan’s deductible or out-of-pocket maximum (Q-16). Fees an employer pays, including through salary reduction in a cafeteria plan, cannot also be reimbursed from the employee’s HSA (Q-18). Fees above the monthly limit can still be paid from an HSA as a medical expense, but the arrangement then stops the member from making HSA contributions while it applies (Q-20).

How to word HSA claims on your site

The HSA rule is about the member’s tax position, which depends on facts you do not control: whether they have a qualifying high deductible plan, whether they have other coverage, whether they are entitled to Medicare, and what their total direct primary care fees are. A membership page can say what is true about your arrangement. It should not tell a reader that they personally can contribute or that their fees will be tax-free.

Wording that stays inside what you know:

“Our membership fee is a fixed monthly fee of $X for primary care only. We do not bill insurance for services included in the membership.” State only what your agreement says.
“Federal law changed in 2026 so that some direct primary care memberships do not stop a person from contributing to an HSA. Whether you can contribute depends on your own coverage. Ask your tax professional.”
Link to the IRS news release or Notice 2026-5 so readers can see the rule themselves.

Wording to avoid: “HSA approved”, “HSA certified” or “IRS approved”. Neither the statute nor Notice 2026-5 sets up any approval or certification of practices; the notice says qualification depends on the arrangement’s terms (Q-14). Avoid “pay with pre-tax dollars” without the conditions, and avoid promising that the fee counts toward a deductible, which Q-16 says it does not. If your family price is above the $300 limit or your individual price above $150, do not use the HSA rule in marketing for that tier at all without explaining that the tier does not meet the contribution rule, and if your membership includes prescription drugs or outside labs in the fee, ask a tax professional whether it qualifies before you mention HSAs.

Your marketing claims also have to match what your billing does. Q-11 makes this concrete: if the practice bills insurance for services that are part of the membership, the arrangement does not meet the definition, and an HSA claim on the page would be false.

Medicare patients

Two rules shape how a direct primary care practice talks to people on Medicare. The first is tax: under 26 U.S.C. 223(b)(7), the HSA contribution limit is zero for the first month a person is entitled to Medicare benefits and every month after. HSA messaging is therefore not relevant to Medicare patients as a reason to join, and an ad aimed at people on Medicare should not lead with it.

The second is Medicare billing. A physician or practitioner who wants to treat Medicare patients privately for a fee, without submitting claims, has to opt out of Medicare under 42 CFR 405.410. That means filing an affidavit with each Medicare Administrative Contractor the clinician would otherwise bill. A participating physician may opt out at the beginning of a calendar quarter, with the affidavit filed at least 30 days before that quarter starts, and the opt-out period runs for 2 years. The private contract terms, and the risks of charging Medicare patients a membership fee for services Medicare covers, are covered in our concierge medicine guide, and age-specific outreach in our guide to marketing to Medicare patients.

For the website, the practical point is consistency. If the practice has opted out, say so on the membership page in plain words and explain what it means for a Medicare patient. If it has not, do not suggest that Medicare patients can join on the same terms as everyone else until a lawyer has looked at how the fee and Medicare billing fit together.

Claims about access, visits and savings

A direct primary care practice markets access more than anything else. Under 15 U.S.C. 45, deceptive acts or practices in commerce are unlawful, and 15 U.S.C. 52 covers false advertisements for services. The FTC Policy Statement on Deception looks at the net impression a claim leaves on a reasonable consumer, and the Policy Statement Regarding Advertising Substantiation says objective claims need a reasonable basis before they run. For a membership page that means:

“Unlimited visits”: only if the agreement has no visit cap. If there is a fair use limit or a limit on visit length, state it next to the claim.
“Same-day or next-day appointments”: only if your schedule delivers it. Keep a record of how you measure it. If it holds on weekdays only, say weekdays.
“Text your doctor”: say who answers, during which hours, and how fast you aim to reply. Say that messages are not for emergencies and to call 911 in an emergency.
Panel size or “small practice” claims: if you state a maximum panel, keep to it and update the page if it changes.
Savings claims, such as “save compared with insurance”: a savings claim needs a basis you can show, and it depends on the reader’s own plan and use. A general comparison is safer as information than as a promise: show your fee and your prices, and let readers compare.
Discounted labs or medicines: list the actual prices you charge and the date the list was updated, rather than a percentage off an undefined retail price.

Keep the same wording in ads, on the site, in the business profile description and in the agreement. When the agreement says something different from the page, the page is the claim the reader relied on.

Employer memberships

A direct primary care practice may also sell memberships to employers. Two points from the sources above belong in that conversation. An employer that pays the fee on an employee’s behalf is paying something the employee cannot also claim from an HSA (Notice 2026-5, Q-18). And the notice says section 223 does not let a high deductible plan pay membership fees before the deductible is met (Q-15). Employer benefit design raises other legal questions, so keep marketing to employers to what the membership is and costs, and suggest the employer ask its benefits adviser about plan rules.

Illustration: two membership pages

Illustration: a family medicine practice charges adults $95 a month, bills nothing to insurance for included visits, and sells a short list of in-office tests at posted prices. Its page states the fee, lists what is included and what costs extra, says the membership is not insurance, and explains in two sentences that federal law changed in 2026 for some memberships, that eligibility to contribute depends on the reader’s own coverage, and links to the IRS release. A banner offering “HSA approved care” is removed before launch.

Illustration: a practice offers a premium tier at $175 a month for one adult that includes some prescription medicines in the fee. Its draft page uses the same HSA paragraph for every tier. On review, the practice keeps the HSA paragraph only on its basic tier, after a tax professional confirms that tier fits the definition, and adds a note that the premium tier does not meet the contribution rule.

Checklist

The fee, billing period, enrollment fee and cancellation terms are on the membership page, near the price.
Included services and services that cost extra are listed separately, with prices for anything you sell in the office.
The page says the membership is not insurance, with any wording your state requires.
HSA wording describes the 2026 rule and your arrangement, and does not promise any reader that they can contribute or that fees will be tax-free.
No “HSA approved”, “IRS approved” or “counts toward your deductible” claims.
Each tier is checked against the $150 and $300 limits and the excluded services before HSA wording appears on it.
Practice billing matches the page: no insurance billing for services included in the membership if you mention HSAs.
Medicare wording matches your opt-out status, and HSA messaging is not aimed at Medicare patients.
Access, visit, panel and savings claims each have a record behind them.
Ads, site, business profile and agreement say the same thing.

If a clinician has opted out of Medicare, see our guide to Medicare opt-out practice advertising for website, ad and booking wording.

How we help

We build websites, local search, Google Ads and AI front desk tools for independent practices and health businesses. For a direct primary care practice, that means a website with membership pages that show the fee, what is included and what costs extra on one screen, HSA wording that sticks to the federal rule and links to the IRS, separate pages for Medicare patients and for employers, and inquiry flows that answer the questions people ask before they join. Our tools are built with HIPAA in mind. We confirm in writing what a BAA covers before any patient information flows through a tool, and if it is not covered, we do not route patient information through it. We are not a healthcare provider and we do not give legal or tax advice. We do not sell lead lists and we do not pay for referrals. For the wider rules, see our healthcare marketing rules hub.

Can a direct primary care member contribute to an HSA?

Since January 2026, membership in a direct primary care service arrangement that meets the definition in 26 U.S.C. 223(c)(1)(E) does not by itself stop an otherwise eligible person from contributing. The person still needs qualifying high deductible coverage and no other disqualifying coverage, and the total fees must stay within the monthly limit.

What is the monthly fee limit?

For the contribution rule, the total direct primary care fees for one person in a month may not exceed $150, or $300 for an arrangement covering more than one person. The statute indexes the amount for inflation for taxable years beginning after 2026.

Can members pay the fee from their HSA?

The 2025 law added direct primary care fees to the expenses an HSA can pay. Notice 2026-5 says fees above the monthly limit can still be reimbursed, but the arrangement then stops the member from contributing while it applies. Fees an employer pays cannot also be reimbursed from the employee’s HSA.

Can we say our practice is HSA approved?

Avoid it. Neither the statute nor Notice 2026-5 sets up any approval of practices. You can describe your arrangement accurately and explain that eligibility depends on each person’s own coverage.

Does the fee count toward a high deductible plan’s deductible?

No. Notice 2026-5 says membership fees paid by the member do not count toward the plan’s deductible or out-of-pocket maximum.

Can Medicare patients join a direct primary care practice?

That depends on the clinician’s Medicare status and how the fee relates to Medicare-covered services. Opting out under 42 CFR 405.410 has its own process. Ask a healthcare lawyer before marketing memberships to people on Medicare.

Sources

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