QUESTION: We’re contemplating providing a telehealth profit to our staff that may be separate from our main medical plan. Will this association be an ERISA plan?

ANSWER: Telehealth advantages (additionally known as telemedicine advantages) are sometimes supplied below an employer’s group well being plan, which is ruled by ERISA if sponsored by a non-public sector employer. Even when telehealth advantages are supplied individually from the employer’s group well being plan, the advantages are probably topic to ERISA.

Generally, an association is an ERISA welfare profit plan if it’s a plan, fund, or program established or maintained by an employer to offer its staff with ERISA-listed advantages. Here’s a abstract of every factor of the definition:

• Plan, fund, or program. An association that gives “one-off” advantages and thus doesn’t require an “ongoing administrative scheme” won’t be thought of a plan, fund, or program topic to ERISA. It’s troublesome to think about a telehealth profit that may not contain ongoing administration, so this factor will probably be met.

• Established or maintained by an employer for its staff. You have got indicated that this profit could be supplied by the corporate, so this factor can be met.

• Offering ERISA-listed advantages. Medical advantages are among the many advantages listed in ERISA, and telehealth is clearly medical care, so this factor can be met.

Beneath a DOL regulatory secure 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-pay-all telehealth profit supplied by a 3rd get together, with employer involvement restricted as set forth within the secure harbor, it could not be an ERISA plan. If it doesn’t meet all the necessities of the secure harbor, will probably be an ERISA plan and should adjust to the widely relevant guidelines, comparable to having a plan administrator, declare and enchantment procedures, and a abstract plan description.

As a gaggle well being plan, a telehealth plan raises authorized points except for ERISA’s applicability, together with issues below COBRA, HIPAA, and protection mandates comparable to first-dollar protection of preventive companies, not imposing annual or lifetime greenback limits on important well being advantages, and parity in psychological well being and substance use dysfunction advantages. Observe that telehealth-only plans assembly specified standards have been quickly exempt from sure of those mandates for sure plan years starting earlier than the tip of the COVID-19 emergency; see our Checkpoint Query of the Week.

Furthermore, telehealth protection could have an effect on a person’s capacity to contribute to a well being financial savings account (HSA), though momentary reduction supplies that telehealth and different distant care companies offered on or after January 1, 2020, is not going to trigger a lack of HSA eligibility for 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 info, see EBIA’s ERISA Compliance guide at Sections VI (“What Office Fringe Advantages Are Topic to ERISA?”) and VII.C (“Detailed Assessment of Voluntary Plan Secure Harbor”). See additionally EBIA’s Self-Insured Well being Plans guide at Part XI.E.5 (“Telehealth”), EBIA’s Client-Pushed Well being Care guide at Part XI.G.8 (“Sure Telehealth and Different Distant Care Providers Will Not Forestall HSA Eligibility”), and EBIA’s HIPAA Portability, Privateness & Safety guide at Part XXIII.O (“HIPAA Privateness and Safety Points for Well being Plans Incorporating Telehealth”).

Contributing Editors: EBIA Workers.