Orgs Ask Congress to Make Telehealth a Permanent Excepted Benefit

The American Telemedicine Association, along with 48 other stakeholder groups, have written a letter to Congress asking it to make permanent the regulatory flexibility that authorizes telehealth services to be treated as an excepted benefit for all employees.

Telehealth services and remote care are not normally included as excepted benefits under the Employee Retirement Income Security Act (ERISA). If employers provide telehealth services to employees, it is considered a group health plan and requires employers to meet several ERISA mandates. If the employer does not comply with the mandates, then it will be subject to penalties.

This policy prevents employers from offering telehealth and remote care services to part-time and seasonal employees and employees who do not participate in an employer’s full health plan.

In June 2020, the Departments of Labor, Health and Human Services, and Treasury stated that they would not enforce any penalties if employers wanted to offer telehealth services to their employees who were not eligible for employer-sponsored health insurance.

“As proven during the public health emergency, telehealth and remote care services offer access to high-quality care that provides an essential lifeline to US workers,” Ann Mond Johnson, chief executive officer of the American Telemedicine Association, stated in an accompanying press release.

“As a result, telehealth has emerged as a cost-effective solution to ensure working Americans have access to medical care, including behavioral and mental health services, regardless of their coverage status or eligibility.”

However, the non-enforcement policy is set to expire when the public health emergency ends.

The organizations urged Congress to solidify the regulation in order to preserve access to telehealth and remote services for all employees.

“As Congress examines what policies are needed to transition to a post-pandemic economy, we ask that you consider targeted reforms to ERISA that would permanently allow employers to expand additional telehealth benefit options to many of our nation’s workers,” the letter read.

Employers have been hesitant to offer telehealth benefits to employees under the temporary policy because they know the offerings are not permanent, the organizations said. Permanently including telehealth services as an excepted benefit would ensure all employees could access virtual care and employers could offer the services without facing consequences.

The organizations clarified in the letter that adding telehealth services as an excepted benefit would not impact employers’ responsibilities under the Affordable Care Act to offer employees minimum essential coverage. Employers would not be able to substitute an employee’s full health benefits for the excepted telehealth benefit either.

Telehealth advocates have put similar pressure on Congress in the past to increase coverage and expand telehealth coverage past the public health emergency.

The Health Care at Home Act, proposed in May 2020, called for private payers to cover telehealth use for all medically necessary benefits under ERISA, including mental and behavioral healthcare services.

The eHealth Initiative and other telehealth organizations penned a letter to Congress in July 2021 urging legislators to establish a post-pandemic telehealth policy. The organization requested the removal of geographic and originating site restrictions for telehealth services. eHealth Initiative also asked Congress to allow federally qualified health centers, rural health clinics, and critical-access hospitals to continue to offer telehealth services after the public health emergency is lifted.

Additionally, more than 230 organizations recently encouraged state legislators to maintain telehealth licensure flexibilities during the remainder of the public health emergency that allow patients to receive telehealth services from out-of-state providers.