Coalition of 49 Healthcare Organizations Urges Congress to Permanentize Employer Telehealth Options

On Monday, Nov. 1, a coalition of 49 healthcare organizations sent a letter to the committee chairs and ranking members of the key Senate and House committees in the U.S. Congress urging them to make permanent “the current regulatory flexibility extended by the Departments of Labor, Health and Human Services (HHS) and Treasury that allows telehealth and remote care services to be treated as an excepted benefit. Including standalone telehealth as an excepted benefit will help ensure hardworking Americans can access high-quality, cost-effective care when and where they need it most, regardless of employment status,” the coalition urged congressional leaders. The letter was sent to Senators Ron Wyden (D-Ore.) and Mike Crapo (R.-Id.), as chair and ranking member of the Senate Finance Committee; Sens. Patty Murray (D-Wash.) and Richard Burr, as chair and ranking member of the Senate Health, Education, Labor & Pensions (HELP) Committee; Reps. Frank Pallone (D.-N.J.) and Cathy McMorris Rodgers (R.-Wash.), as chair and ranking member of the House Energy and Commerce Committee; Reps. Richard Neal (D-Mass.) and Kevin Brady (R.-Tex.), as chair and ranking member of the House Ways and Means Committee; and Reps. Bobby Scott (D.-Va.) and Virginia Fox (R.-N.C.), as chair and ranking member of the House Education and Labor Committee. The letter was sent during a time of exceptional activity, as members of Congress were debating a very large number of elements that could be included in a variety of legislative packages.

A press release posted to the website of the Washington, D.C.-based American Telemedicine (ATA), began thus: “Today, the American Telemedicine Association (ATA), the premier organization working to accelerate the adoption of telehealth, and nearly 50 stakeholders sent a letter to Congress urging lawmakers to make permanent the current regulatory flexibility that allows telehealth and remote care services to be treated as an excepted benefit for certain employees. Under current law, when telehealth or remote care services are provided by an employer, the benefit is considered a ‘group health plan’ under ERISA, which triggers a number of mandates,” the press release notes. “If these mandates are not met, the employer is subject to per-day, per-violation penalties, unless otherwise specified. Neither telehealth nor remote care services are currently included among the excepted benefits under ERISA. This prevents the employer from offering these services to all employees, not just those full-time employees who elect coverage in an employer’s plan.”

In a statement contained in the ATA press release, Ann Mond Johnson, the ATA’s CEO, said that, “As proven during the public health emergency, telehealth and remote care services offer access to high-quality care that provides an essential lifeline to U.S. workers. 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. It is time for Congress to take action to permanently add telehealth and remote care services as an excepted benefit for these employees.”

The letter to the committee chairs and ranking members began thus: “Thank you for your on-going commitment to examining the lessons learned from the COVID-19 pandemic. Much attention has been given to the important role telehealth and remote care services have played in extending access to high quality care during the pandemic. As your committees analyze the full scope of temporary telehealth

policies put into place during the current public health emergency (PHE), we urge you to consider making permanent the current regulatory flexibility extended by the Departments of Labor, Health and Human Services (HHS) and Treasury that allows telehealth and remote care services to be treated as an excepted benefit. Including standalone telehealth as an excepted benefit will help ensure hardworking Americans can access high-quality, cost-effective care when and where they need it most, regardless of employment status. Without Congressional action, employers will be unable to offer basic virtual health services to millions of Americans in part-time and seasonal jobs or workers otherwise not participating in their employer’s full medical plan.”

Further, the letter stated, “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. While many employers want to provide telehealth or remote care benefits to employees, they are prohibited from doing so without exposure to penalties under ERISA. Under current law, when telehealth or remote care services are provided by an employer, the benefit is considered a ‘group health plan’ under ERISA, which triggers a number of mandates. If these mandates are not met, the employer is subject to per-day, per-violation penalties, unless otherwise specified. Neither telehealth nor remote care services are currently included among the excepted benefits under ERISA. This prevents the employer from offering these services to all employees, not just those full-time employees who elect coverage in an employer’s plan.”

Later on in the letter, the signatory organizations noted that “The COVID-19 pandemic has illustrated the immense benefits of telehealth and remote care services. American workers want these benefits, and employers want to provide them. With temporary flexibilities that allowed employers to fill gaps in care set to expire, we urge you to consider making permanent the current policies that allow telehealth and remote care services to be treated as an excepted benefit.”

The entire text of the letter, including the list of the 29 signatory organizations, can be found here.