ASK: We are considering offering a telehealth benefit to our employees that would be separate from our primary medical plan. Will this settlement be an ERISA plan?

ANSWER: Telehealth benefits (also known as telemedicine benefits) are often offered under an employer’s group health plan, which is governed by ERISA if sponsored by a private sector employer. Even if telehealth benefits are offered separately from the employer’s group health plan, the benefits may still be subject to ERISA.

In general, an arrangement is an ERISA welfare benefit plan if it is a plan, fund, or program established or maintained by an employer to provide its employees with the benefits listed in ERISA. Here is a summary of each element of the definition:

  • Plan, fund or program. An arrangement that provides “one-time” benefits and therefore does not require an “ongoing administrative scheme” might not be considered a plan, fund, or program subject to ERISA. It’s hard to imagine a telehealth benefit that doesn’t involve ongoing administration, so this element is likely to be met.

  • Established or maintained by an employer for its employees. You have indicated that this benefit would be offered by the company, so this element will be fulfilled.

  • Provide benefits listed in ERISA. Medical benefits are among the benefits listed in ERISA, and telehealth is clearly health care, so this element will be met.

Under a DOL regulatory safe harbor, certain group insurance arrangements with minimal employer involvement may be exempt from ERISA even if they provide ERISA-listed benefits (see our Checkpoint question of the week). If your arrangement is a voluntary employee-pays-all telehealth benefit offered by a third party, with limited employer participation as set forth in the safe harbor, it would not be an ERISA plan. If it does not meet all of the safe harbor requirements, it will be an ERISA plan and must comply with generally applicable rules, such as having a plan administrator, grievance and appeal procedures, and a summary plan description.

As a group health plan, a telehealth plan raises legal issues in addition to the applicability of ERISA, including considerations under COBRA, HIPAA, and coverage mandates, such as first-dollar coverage of preventive services, no annual dollar limits or lifetime in essential health benefits, and parity in mental health and substance use disorder benefits. Please note that telehealth-only plans that meet specified criteria have been temporarily exempted from some of these mandates for certain plan years beginning before the end of the COVID-19 emergency; see our checkpoint question of the week.

In addition, telehealth coverage may affect an individual’s ability to contribute to a health savings account (HSA), although the temporary relief provides that telehealth and other remote care services provided on or after January 1, 2020 will not cause a loss of HSA eligibility for the plan. years beginning on or before December 31, 2021; for months beginning after March 31, 2022 and before January 1, 2023; and for plan years beginning after December 31, 2022 and before January 1, 2025.

For more information, see EBIA’s ERISA Compliance manual in Sections VI (“What workplace fringe benefits are subject to ERISA?”) and VII.C (“Voluntary Safe Harbor Plan Detailed Review “). Also see EBIA’s Self-Insured Health Plans manual at Section XI.E.5 (“Telehealth”), EBIA’s Consumer Driven Healthcare manual at Section XI.G.8 (“Certain Telehealth Services and other remote care services shall not preclude HSA eligibility”), and EBIA’s HIPAA Portability, Privacy and Security Handbook at Section XXIII.O (“HIPAA Privacy and Security Issues for Health Plans Incorporating Telehealth ”).

Contributing editors: EBIA staff.

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