Are There Any Special Rules for Telehealth During the COVID-19 Emergency?

‍Question: Our company's self-insured ERISA group health plan offers telehealth services. We understand that federal agencies have issued COVID-19-related guidance regarding telehealth. Are there any special rules we should know about?

Answer: In response to the COVID-19 emergency, several agencies have issued guidance regarding the provision of telehealth services. Not all of it applies to self-insured ERISA group health plans, however. Here are some highlights:

Required coverage. Group health plans (whether insured or self-insured) must cover certain COVID-19 diagnostic tests without cost-sharing, prior authorization or other medical management requirements. This includes diagnostic services and items provided during telehealth provider visits (as well as in-person, urgent care, emergency room or other visits) that result in an order for, or administration of, a covered diagnostic test.

High-deductible health plans (HDHPs). If your plan includes an HDHP option so that participants may be eligible to contribute to a Health Savings Account, it may (without losing HDHP status) cover telehealth and other remote care services without a deductible for plan years beginning on or before December 31, 2021. This temporary safe harbor applies broadly — it's not limited to coverage for COVID-19-related services.

Other guidance. The Centers for Medicare and Medicaid Services has issued COVID-19-related guidance encouraging insurers to promote the use of telehealth. The Department of Health and Human Services Office for Civil Rights has also provided HIPAA enforcement relief to health care providers offering telehealth services. Neither of these applies to self-insured health plans.

Because telehealth services are health benefits, telehealth arrangements also raise other compliance considerations — including issues under the Affordable Care Act, ERISA, COBRA and HIPAA. Providing telehealth through an employer-sponsored group health plan, as your company does, eases many of these concerns.

However, compliance may be more difficult if telehealth is provided as a separate arrangement — for example, if it's offered to all employees, rather than only to group health plan participants. Consult your benefits advisor for more information and specific advice.