As virtual care becomes more clinical, there are more rules to follow 

As virtual care becomes more clinical, there are more rules to follow
February 1, 2024

Telehealth solutions for employees have been evolving from periphery coaching models, such as Livongo and Cleo, to more virtual care models staffed by physicians, nurses and clinicians. These new virtual care point solutions, like Twin Health and Midi, provide a range of services to eligible members, from diagnosing and managing conditions to medication management, ordering labs, coordinating with primary care physicians and more.

There are good reasons these types of programs are expanding. They help to address ongoing provider shortages, offer more convenient access to care, and ideally should result in cost savings as well. As far as the implementation lift, it can vary. Setting up a virtual care point solution as a participating network provider with either the medical third-party administrator or pharmacy benefit manager is the easiest to launch as the claims will already be set up to process through normal plan channels – think Aetna and Teladoc, Anthem and LiveHealth Online and other similar arrangements. The program can also be easily promoted as an existing subset of network providers. Otherwise, it is a bigger lift to integrate as a plan sponsor-specific network or offer as a complete carve-out model. 

Virtual care compliance check-list

Either way, compared with solutions that primarily provide coaching services, these newer-to-market point solutions that are more clinical in nature will have more compliance requirements. That’s because they are more likely to fall within the legal definition of a group health plan than more limited non-clinical virtual care products. Employers implementing a virtual clinical care point solution should work to ensure compliance with all applicable laws and regulations. If the point solution is a group health plan under ERISA, some issues to consider include:

Satisfying the Affordable Care Act. It’s unlikely that any point solution will, on its own, comply with all ACA group health plan benefit mandates, such as covering all ACA-mandated preventive services without cost sharing. Some stand-alone virtual clinical care point solutions may be intended to qualify as “excepted benefits,” exempt from many ERISA and ACA group health plan mandates. But if that’s not possible, the point solution likely will need to integrate with the employer’s medical plan—meaning that the point solution is only available to medical plan enrollees—to satisfy the ACA.

Excepted benefit considerations. If the point solution is intended to be an excepted benefit, make sure the program is designed to satisfy all applicable requirements. For example, and by way of analogy, excepted benefit employee assistance programs cannot offer significant benefits in the nature of medical care, cannot impose cost sharing or require employee contributions and cannot be coordinated with benefits in another group health plan. Whether a plan sponsor can categorize a point solution as an excepted benefit should be discussed with legal counsel. And remember, while excepted benefits are exempt from many laws, such as certain transparency requirements, they are not exempt from all laws, including privacy and security rules.

Considerations for integrated point solutions. If the point solution integrates with the employer’s medical plan to satisfy ERISA and the ACA, it may be possible to piggyback off the medical plan’s existing compliance efforts. But this approach should be confirmed with all relevant vendors and may not work in every case. For example, extra steps may be needed to ensure the point solution complies with COBRA requirements and with relevant transparency laws.

Consider HSA eligibility. Make sure that the virtual care point solution (which reasonably can be classified as telehealth or a remote care service) does not provide pre-or no-deductible health benefits that might disqualify an individual from making or receiving Health Savings Account contributions or jeopardize the HSA-qualifying status of the employer’s high deductible health plan. Currently available COVID-19 relief permits HSA-qualifying HDHPs to cover pre-deductible telehealth and other remote care, but this relief will expire at the end of the year (during 2025 for non-calendar-year plans) unless it is extended or made permanent through legislation. If this relief is not extended, it's possible that under existing and permanent HSA guidance, certain virtual care point solutions could reasonably be categorized as an EAP, disease management or wellness program and be offered on pre-or-no-deductible basis, but only if the point solution does not provide significant benefits in the nature of medical care or treatment. 

The list above is not exhaustive. For example, cybersecurity and data privacy issues should be considered when implementing any virtual care point solution, and plan sponsors should ensure that improvements to medical or surgical benefits do not upset the medical plan’s mental health parity compliance, even inadvertently. Meanwhile, we’ll be keeping an eye on legislative proposals that might ease the pathway to compliance for telehealth programs in the future.

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