By Pension and Benefits Editorial Staff
Further guidance is needed to more fully support the efforts of employers and health insurance plans to expand telehealth coverage in the interest of employees and the public health. That’s according to a letter from the American Benefits Council (Council), America’s Health Insurance Plans (AHIP) and America’s Physician Groups (APG) to the Departments of Labor, Health and Human Services, and Treasury.
The groups praised the Coronavirus Aid, Relief, and Economic Security (CARES) Act provision allowing health saving account-eligible high-deductible health plans to cover telehealth services without cost-sharing as “an important step” in expanding access to telehealth services. However, the letter asks the agencies to issue additional guidance regarding the Summary of Benefits and Coverage’s (SBC) 60-day notice and telehealth services for employees who are not benefits-eligible.
Non-enforcement safe harbor. The letter indicates that many employers and health insurance plans are making (or contemplating making) changes to the health coverage they provide in response to COVID-19 to expand access to or reduce costs for telehealth services. Yet the law and regulations regarding SBCs require that plans, which make a material modification to the plan terms that would affect the content of the SBC mid-year, provide notice of the modification to enrollees not later than 60 days prior to the date on which the modification will be effective and update the SBC.
Because plans are concerned that they will not be able to comply with the 60-day advance notice requirement if they are seeking to implement changes immediately, such as eliminating copayments on telehealth services, the letter requests that the agencies adopt a non-enforcement safe harbor from the SBC requirement, so long as the changes at issue are benefit enhancements related to COVID-19 and the plan provides notice to participants of the changes as soon as practical. The groups request that the safe harbor apply to the current plan year and any plan year that begins before the end of the COVID-19 related public health emergency.
Telehealth services for other employees. The letter also indicates that many employers wish to provide telehealth services to their employees who are not benefits-eligible and employees who opted out of the employer’s group health plan.
“In some instances, these employees have other coverage (for example, through a spouse's coverage or through a union plan), while in other instances, the employee may not have other coverage. A number of employers provide these benefits on a limited basis consistent with the current excepted benefits regulations. During this public health emergency, other employers, however, wish to provide more substantial telehealth coverage than may otherwise currently be considered an excepted benefit,” the letter states.
Accordingly, the letter requests that the agencies take action to ensure that an employer's more robust offer of telehealth services does not result in a violation of the Affordable Care Act's market reforms to the extent the benefits provided give rise to an ongoing administrative scheme (i.e., an ERISA plan) and provide significant benefits in the nature of medical care. The groups suggest the agencies could either adopt a non-enforcement policy that applies to the current plan year and any plan year that begins before the end of the COVID-19 related public health emergency or issue additional excepted benefit guidance.
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