ASK: We’re contemplating providing a telehealth profit to our staff that may be separate from our major medical plan. Will this settlement be an ERISA plan?
ANSWER: Telehealth advantages (also called telemedicine advantages) are sometimes provided beneath an employer’s group well being plan, which is ruled by ERISA if sponsored by a personal sector employer. Even when telehealth advantages are provided individually from the employer’s group well being plan, the advantages should still be topic to ERISA.
Usually, an association is an ERISA welfare profit plan if it’s a plan, fund, or program established or maintained by an employer to supply ERISA-listed advantages to its staff. Here’s a abstract of every component of the definition:
Plan, fund or program. An association that gives “one-time” advantages and due to this fact doesn’t require an “ongoing administrative scheme” won’t be thought of a plan, fund, or program topic to ERISA. It is laborious to think about a telehealth profit that does not contain ongoing administration, so this component is more likely to be met.
Established or maintained by an employer for its staff. You’ve got indicated that this profit can be provided by the corporate, so this component can be fulfilled.
Present advantages listed in ERISA. Medical advantages are among the many advantages listed in ERISA, and telehealth is clearly medical care, so this component can be met.
Beneath a DOL regulatory protected harbor, sure group insurance coverage preparations with minimal employer involvement could also be exempt from ERISA even when they supply ERISA-listed advantages (see our Checkpoint query of the week). In case your association is a voluntary employee-pays-all telehealth profit provided by a 3rd get together, with restricted employer participation as set forth within the protected harbor, it could not be an ERISA plan. If it doesn’t meet the entire protected harbor necessities, it will likely be an ERISA plan and should adjust to typically relevant guidelines, resembling having a plan administrator, grievance and enchantment procedures, and a abstract plan description.
As a gaggle well being plan, a telehealth plan raises authorized points along with the applicability of ERISA, together with concerns beneath COBRA, HIPAA, and protection mandates, resembling first-dollar protection of preventive providers, no annual greenback limits or lifetime in important well being advantages, and parity in psychological well being and substance use dysfunction advantages. Please notice that telehealth-only plans that meet specified standards have been briefly exempted from a few of these mandates for sure plan years starting earlier than the tip of the COVID-19 emergency; see our checkpoint query of the week.
As well as, telehealth protection could have an effect on a person’s skill to contribute to a well being financial savings account (HSA), though the short-term aid gives that telehealth and different distant care providers supplied on or after January 1, 2020 won’t trigger a lack of HSA eligibility for the plan. years starting on or earlier than December 31, 2021; for months starting after March 31, 2022 and earlier than January 1, 2023; and for plan years starting after December 31, 2022 and earlier than January 1, 2025.
For extra data, see EBIA ERISA Compliance handbook in Sections VI (“What office fringe advantages are topic to ERISA?”) and VII.C (“Voluntary Secure Harbor Plan Detailed Overview”). See additionally EBIA Self-insured well being plans handbook in Part XI.E.5 (“Telehealth”), of EBIA Client Pushed Healthcare handbook in Part XI.G.8 (“Sure telehealth and different distant care providers won’t preclude HSA eligibility”), and HIPAA Portability, Privateness and Safety handbook in Part XXIII.O (“HIPAA Privateness and Safety Points for Well being Plans Incorporating Telehealth”).
Contributing editors: EBIA workers.