Legal Blog

The Telemedicine Frontier: Make Sure You Comply With ERISA

One of the recent inventions in group health benefits is telemedicine.  It’s growing in popularity as a benefit provided by employers because (1) it can make routine medical care more accessible and (2) it can cut medical expenses.  In general terms, telemedicine is the provision of medical service via technology rather than in person.

Here’s how it works.  Telemedicine services can be provided to employees in real-time communications, such as phone calls, video conferencing or text messages. Or it can take the form of “store and forward” technology, such as transmission of medical records or images.  Typical services include patient consultations, simple primary care diagnoses and treatment and prescriptions and refills. For employees who frequently travel, it can add a valuable medical service otherwise only available at an office visit.  Telemedicine can cut costs and also reduce time off for medical treatment.

From the employer’s perspective, telemedicine is customarily offered in two ways: provider-sponsored and group health plan-sponsored.  If the telemedicine service is employer-provided, the telemedicine provider bills the plan for each “electronic” doctor’s visit and it’s processed like any other medical expense under the employer’s group health plan.  In other cases, however, the plan has an arrangement with the telemedicine provider that affords employees access to an “on call” physician who is on retainer with the telemedicine company.  Many of these plan arrangements involve a monthly maintenance fee that allows free or discounted “e-visits.”

Telemedicine arrangements can pose thorny legal issues for employers.  If an employer provides telemedicine services to all employees, regardless of whether they are enrolled in the employer’s group health plan, the telemedicine program could inadvertently create a separate ERISA group health plan.  ERISA, and its progeny, COBRA and HIPPAA, are not the only statutes that could apply.  In addition, the telemedicine program may have to comply with state laws relating to physician licensure, scope of permitted services and patient informed consent. Employers who add a telemedicine plan also must ensure that they do not inadvertently disqualify their employees from Health Savings Account (HSA) and high-deductible health plan (HDHP) eligibility.

As part of my practice, I advise companies, their pension plans and their plan trustees on ERISA and related legal matters.  If you have a question, call me.



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