April CBA Report

T elemedicine has become a popular way for employers to provide convenient and cost-effective medical care for their employees. Employees can essentially be treated by a doctor for many common ailments at any time of the day or night without leaving the comfort of their home or office. However, many employers that offer telemedicine benefits have not consid- ered the legal issues that may come along with them. This article reviews four of the many questions that employers should consider when designing and offering a telemedicine benefit. 1. Is the telemedicine benefit a group health plan? If the telemedicine benefit is a group health plan under the Employee Retirement Income Security Act of 974 (ERISA) or the Internal Revenue Code (the Code), a number of compliance obligations will apply. ERISA and the Code have slightly different definitions of “group health plan,” but both defi- nitions generally depend upon whether the employer is paying for medical care for its employees. For this purpose, “medical care” generally includes amounts paid for the diagnosis, cure, miti- gation, treatment, or prevention of disease, or amounts paid for the purpose of affecting any structure or function of the body. Although not every telemedicine call will necessarily involve medical care, it is difficult to argue that the benefit as a whole does not provide medical care. 2. Can I offer the telemedicine benefit to all employees – even those not enrolled in my medical plan? If the telemedicine benefit is a group health plan under ERISA or the Code, and if it does not qualify as an “excepted benefit,” it will be subject to the market reform provisions of the Patient Protection and Affordable Care Act (ACA). Among other requirements, the market reform provisions require non-grand- fathered group health plans to cover all items and services that have been identified as recommended preventive services under the ACA. The telemedicine program alone likely will not comply with the ACA’s preventive care requirements because it would be difficult, if not impossible, to provide all of the recommended preventive services over electronic communications. Therefore, if the telemedicine benefit is subject to the ACA market reform requirements, if it was put into place after March 23, 2010, and if it is not limited to participants in the employer’s health plan (which does provide coverage for the required preventive care services), it will very likely violate the ACA. Such a violation would subject the employer to a self-reportable excise tax that is generally equal to $100 per affected individual per day that the violation occurs and is not fully corrected. There is no guidance specifically addressing whether or how a telemedicine benefit could be an “excepted benefit” that is exempt from the ACA’s market reform requirements. However, if the tele- medicine benefit could be considered an employee assistance program, it would be an excepted benefit if (i) it did not provide significant benefits in the nature of medical care; (ii) it was not coordinated with benefits under another group health plan; and (iii) it did not require employee contributions or cost-sharing. This third requirement, however, could pose problems for employers as noted below. 3. Can I offer the telemedicine services at no cost to my employees? An employer generally can provide this service to employees free of charge. However, offering the service to employees at no cost could disqualify employees from eligibility to contribute to a health savings account (HSA). To be eligible to contribute to an HSA, an individual must be enrolled in a qualified high deductible health plan (HDHP) and must not have any other disqualifying health coverage that provides a benefit before the employee meets the deductible under QUESTIONS EMPLOYERS SHOULD ASK ABOUT TELEMEDICINE By Kimberly Wilcoxon 4 12 l April 2019 CBA REPORT www.CincyBar.org Feature Article