Legal Alert: Congress Set to Extend Telehealth Safe Harbor Beyond Calendar Year 2022

On December 20, 2022, the House and Senate released H.R. 2617, the Consolidated Appropriations Act, 2023  (“CAA, 2023”), which is expected to pass in both chambers this week before being presented to the President for signature, which is expected by the Friday deadline to avoid a partial government shutdown. 

The CAA, 2023 is largely a bipartisan spending bill but also includes, among other things, another, new telemedicine safe harbor similar to that which was created under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) for plan years beginning on or before December 31, 2021, and the CAA, 2022 for months beginning after March 31, 2022, and before January 1, 2023.  The safe harbor allows high deductible health plans (HDHPs) to cover medical and behavioral health treatment before participants meet their deductibles (i.e., without cost sharing). 

Once it is enacted, the safe harbor under the CAA, 2023 will apply for months beginning after March 31, 2022, and before January 1, 2023 and for plan years beginning on or before December 31, 2021, or after December 31, 2022, and before January 1, 2025.  Essentially, this combines the relief under the CARES Act and the CAA, 2022 and means that both calendar and non-calendar year plans will be able to take advantage of the relief from April through December 2022, then from the start of their 2023 plan year through the end of their 2024 plan year.  As drafted, there appears to be a gap under which non-calendar year plans cannot take advantage of the safe harbor for the months of their 2022 plan year that fall into 2023.

Background on Telehealth Safe Harbor under the CARES Act and CAA, 2022

On March 27, 2020, the CARES Act became law. While the CARES Act was largely an economic package intended to stabilize individuals and employers during COVID-19-related shutdowns, it also included several measures directly related to employee benefits. One specific provision was the safe harbor under which HDHPs could cover telehealth and other remote care without cost-sharing. As a result, no-cost telehealth could be provided to plan participants for any reason–not just COVID-19-related issues–without disrupting HSA eligibility.

The CARES Act safe harbor was a temporary measure, applying only to plan years beginning on or before December 31, 2021, which means, for calendar year plans, the safe harbor expired on December 31, 2021.  Without the safe harbor, telehealth programs that provide “significant benefits” in the nature of medical care or treatment generally disrupt HSA eligibility.  Whether benefits are “significant” is a facts and circumstances determination.  That said, in cases where a telehealth program provides robust benefits, such as medical advice and diagnosis for a broad range of non-emergency, common medical illnesses, general referrals to other provider types (including the emergency room), and certain prescription drugs for common medical illnesses, it may be difficult to support an argument that it does not provide “significant” benefits, in the absence of specific IRS guidance. 

Telehealth Safe Harbor Under the CAA, 2022

The safe harbor under the CARES Act was well-received, and as the December 31, 2021, deadline approached, there was a strong effort among stakeholders to encourage lawmakers to either extend the safe harbor or make it a permanent measure.

Accordingly, on March 10, 2022, Congress passed the CAA, 2022, which was subsequently signed into law on March 15, 2022.  The safe harbor under the CAA, 2022 was identical to the CARES Act safe harbor, except that it applied for the period of April 1, 2022, through December 31, 2022, only (i.e., it was tied to the calendar year, not a plan year). 

New Telehealth Safe Harbor Under the CAA, 2023

The new safe harbor is identical to both the prior safe harbors, except that it marries both the plan year approach of the CARES Act with the calendar year approach of the CAA, 2022 to ensure that it applies for both calendar and non-calendar year plans and will apply for months beginning after March 1, 2022, and plan years beginning on or before December 31, 2021, or after December 31, 2022, and before January 1, 2025.

Conclusion

If passed by both chambers and signed into law by the President, as it is expected to be, this multi-year relief will allow HDHPs to maintain their HSA-qualified status if they choose to cover telehealth services at no cost and/or without a participant first meeting the applicable deductible for plan years beginning in 2023 and 2024.

Employers are encouraged to discuss this optional relief with their insurance broker, medical plan carrier, or third-party administrator to ensure proper administration.

About the Author.  This alert was prepared for Alera Group by Barrow Weatherhead Lent LLP, a national law firm with recognized experts on ERISA and the Affordable Care Act.  Contact Stacy Barrow or Nicole Quinn-Gato at sbarrow@marbarlaw.com or nquinngato@marbarlaw.com.

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