Employers Urge Policy Changes as Senate Panel Examines Telehealth Issues

As congressional talks on a potential new round of a coronavirus-related relief aid package ramp up, major plan sponsor groups are calling for policy changes to more fully support employer-sponsored telehealth and other remote care services.

In conjunction with last week’s hearing held by the Senate Health, Education, Labor and Pensions (HELP) Committee, Telehealth: Lessons Learned from the COVID-19 Pandemic, the American Benefits Council (ABC) and the ERISA Industry Committee (ERIC) submitted written statements to the committee that lay out how Congress can expand private sector access to telehealth. The groups also called for making recently enacted coronavirus-related telehealth relief permanent.

Congress and the Administration moved quickly in the early days of the pandemic to boost telehealth in the public sector. Medicare used emergency powers to lift restrictions that generally limited telehealth payments to rural providers and doctors with existing relationships with patients. It also waived a strict requirement that barred payments for regular phone calls, a policy that limited access for poorer and rural patients without broadband internet, and expanded telehealth services to more health care settings like nursing homes and hospices. Strict HIPAA privacy, security and breach notification rules that might otherwise apply to video chat apps were also relaxed, allowing health care providers to now use FaceTime, Skype and Google Hangouts rather than invest in expensive technology platforms.

But there have been relatively few policy improvements to help employers expand and improve telehealth services. 

Notable exceptions are two provisions enacted in March as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. One allows HSA-qualifying HDHPs to cover all telehealth and other remote care services before participants have met their deductible. Another allows HSA-eligible individuals to receive all telehealth and other remote care services – including via stand-alone telehealth programs – free of cost sharing without affecting their eligibility to make or receive HSA contributions. Both of these provisions are set to expire for plan years beginning after December 31, 2021, however, and ABC and ERIC are urging that these changes be made permanent.

In addition, the groups are asking Congress to remove a thicket of state barriers to telehealth care, including a requirement in many states that the patient and provider reside in the same state, limiting telehealth to specific technologies, and requiring that patients have a pre-existing relationship with the provider. If all states joined interstate medical licensing compacts that provide reciprocity for medical providers, many of these barriers would be removed, they pointed out.

At the federal level, some employers want to offer telehealth as a standalone employee benefit, apart from their comprehensive medical plan. However, doing that means these standalone programs may need to comply with a myriad of Affordable Care Act and ERISA group health plan requirements. While employers are generally limited – at least from a compliance perspective - in their ability to offer telehealth as a standalone benefit to employees (and their dependents) who are not simultaneously enrolled in the employer’s comprehensive medical plan, new tri-agency Frequently Asked Questions (FAQs) guidance provides limited relief during the COVID-19 public health emergency period. Specifically, the large employer standalone telehealth and other remote care programs are temporarily exempt from certain ACA and ERISA requirements. Unfortunately, this relief applies only to standalone telehealth programs offered solely to employees not eligible for such employer’s other group health plans. Furthermore, this limited relief applies only for plan years beginning before the end of the COVID-19 public health emergency period. Nonetheless, ERIC and ABC will continue urging lawmakers to designate standalone telehealth and other remote care services as an “excepted benefit” under current rules so that it can be offered to more employees on a permanent basis.

ERIC and ABC also strongly cautioned Congress to reject any mandates relating to telehealth that would impede employers’ flexibility to innovate and pursue value-based care. The groups cited legislation (the Healthcare at Home Act, HR 6644) that would require ERISA health plans and insurers to cover telehealth for any service that is covered in person, as well as mandate that payment for those services be the same whether provided via telehealth or in person.

The extent to which plan sponsors’ views will be incorporated into a new aid package is unclear. But it may be a positive sign that during the HELP Committee a number of senators – including Chairman Lamar Alexander, R-TN -- said they want Medicare to permanently pay doctors for telehealth visits regardless of the patient’s location, and to keep in place new types of telehealth services, such as emergency room visits, eligible for Medicare and Medicaid reimbursement. The committee also recognized the need for more broadband in rural areas where internet and cell phone service are limited.

Earlier this month, Alexander called for preserving gains made through telehealth in a white paper focused on preparing for future pandemics. He said during the hearing that some telehealth provisions could come in a future legislative package, though the outlook this year is uncertain.

Geoff Manville
by Geoff Manville

Principal, Mercer’s Law & Policy Group

Dorian Smith
by Dorian Smith

Partner, Mercer’s Law & Policy Group

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