The State of New York has the financial capital of the country (arguably the world), has the most insurance companies in the country, and was the biggest state for the longest time. For these reasons it is generally looked to for leadership in the law on financial subjects primarily governed by state law. Here’s their statute.
(a) In this article: (1) “Insurance contract” means any agreement or other transaction whereby one party, the “insurer”, is obligated to confer benefit of pecuniary value upon another party, the “insured” or “beneficiary”, dependent upon the happening of a fortuitous event in which the insured or beneficiary has, or is expected to have at the time of such happening, a material interest which will be adversely affected by the happening of such event.
(2) “Fortuitous event” means any occurrence or failure to occur which is, or is assumed by the parties to be, to a substantial extent beyond the control of either party.
Every state has the idea of fortuity, contingency, unforeseeability, something substantially beyond the control of the parties.
Many states, probably most, do indeed regulate service contracts/extended warranties for home and automobiles as insurance. Many regulate prepaid legal services as insurance.
Not Netflix, because it is sold on the basis that the subscriber’s utilization level is substantially within the subscriber’s control.
I can watch every night as I wish. For a DPC visit, I need to have a medical need to attend.
Other ways in which Netflix differs, from a policy perspective.
Netflix expressly reserves the right to change permitted utilization and pricing at any time for any reason, can vary server capacity, can vary program quality (its payment for licenses probably depend on many times a show is streamed).
DPC has explicit and implicit guarantees of quality and quantity, there’s a professional standard for determining need for a visit and quality of what has to be performed.
Marginal costs for Netflix supply are low, inputs are readily expandable, high utilizers have at best modest effect on supply or quality available for synchronous use by others; significant economies of scale; elastic supply.
DPC visits by patient X fully excludes patient Y from synchronous use (or MD from golf course); high marginal cost; supply vastly less elastic.
Way different social value for failure of the vendor to deliver.
Netflix: disrupted video streaming
DPC: disrupted access to health care
Netflix server outage in Seattle: 20K viewers each spend 5 minutes switching to Hulu
Qliance closes doors: 20K patients in Seattle hunting for PCPs accepting new patients; not getting med refills or timely A1c; trying to add health care plans outside of enrollment periods.
Systemic effects: If Netflix diverts TV addicts from Hulu, who cares. If DPC diverts a relatively healthy sub-population from, say, ACA compliant individual market policies that are guaranteed issue that would make ACA guarantees for those with pre-existing conditions more expensive.
If Netflix usage was essential to life and if the need for Netflix usage surged owing fortuitous viral infection, it might be wise to regulate Netflix
Finally, in considering whether or not DPC should be regulated as insurance, consider a DPC that finds itself with 50 spaces to fill and has to determine whether to make a pitch at/to
(a) an architecture firm full of middle-class and up college graduates working mostly at home this coming fall or
(b) a small meat-packing firm full of low income low education folk working indoors in close quarters.
Then consider DPC writ large, with clinics competing for business. Reread the foundational works of health care economics, and tell me why DPCs won’t end up as a primary care microcosm of underwriting, cherry-picking, death-spirals, and all of that.
DPC Referee 