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.

 

 

Questions about 401(k) plans?
Contact Ted Stein at tstein@offitkurman.com or 240.507.1725.

 

ABOUT THEODORE P. STEIN

tstein@offitkurman.com | 240.507.1725

Theodore P. Stein is an attorney based in Bethesda with more than 30 years of experience who counsels employers, their plans and plan trustees on how to comply with ERISA and the ACA and how to minimize the risk of ERISA claims. He also represents them when litigation is threatened or filed. He is the Chair of the ERISA/Employee Benefits Practice and a Principal in the firm’s Labor and Employment Practice Group.

 

 

 

 

 

ABOUT OFFIT KURMAN

Offit Kurman is one of the fastest-growing, full-service law firms in the Mid-Atlantic region. With over 140 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our eleven offices serve individual and corporate clients in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City regions. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.

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