The COVID-19 pandemic has made telemedicine a very popular and regularly utilized benefit. It seems that insurers will continue to offer telemedicine as a mainstream benefit; however, the interaction between telemedicine and Health Savings Accounts (HSAs) continues to be a concern—especially now that Open Enrollment is here.

To be eligible for an HSA, an individual must be enrolled in a qualified high deductible health plan (HDHP), and must not have any other disqualifying coverage. Disqualifying coverage is a plan or program that provides coverage prior to the minimum deductible being satisfied for an HDHP ($1,400 single / $2,800 family).

The Internal Revenue Service (IRS) and other regulatory agencies have never formally addressed whether telemedicine with no copay or a low copay constitutes disqualifying coverage. The CARES Act passed last year helped answer this question.

What does the CARES Act say about telemedicine and HSAs?

The CARES Act included language which provided flexibility for HDHPs to have a telemedicine benefit in place with no copay, or a low copay without it impacting HSA eligibility. This benefit could be provided prior to the minimum deductible being satisfied for an HDHP. This flexibility is available for plan years beginning on or before December 31, 2021.

This also tells us that under normal circumstances, many telemedicine programs eliminate HSA eligibility. Only certain telemedicine programs would preserve HSA eligibility—those that that apply the full cost of the telemedicine visit to the deductible or those that only provide preventive services.

What happens to my plan?

For plans with effective dates or renewal dates on or after January 1, 2022, the flexibility for telemedicine and its interaction with HSAs is coming to an end. Employers, employees, and other individuals will need to be aware of this to determine any impact or change to HSA eligibility. It’s also possible that Congress revisits this to provide extended or permanent flexibility for telemedicine, HDHPs, and HSAs.

Each year, employers are required to provide a written notice to Medicare-eligible employees who are covered under their group health plan. This notice should include information about the creditable coverage status of the prescription drug benefit. In other words, the notice tells employees if the prescription drug benefit on the group health plan is at least as good as the standard Medicare Part D plan.

What is Medicare Part D?

Medicare is broken up into four parts—Part A, B, C, and D. Medicare Part D is the part of Medicare that covers most outpatient prescription drugs, and covers approved medication prescribed by a doctor.

Unless they have creditable coverage elsewhere, anyone who is eligible for Medicare but delays enrollment in a Part D plan is subject to a late enrollment penalty. This penalty amounts to 1% of the base beneficiary premium for every full month a Medicare-eligible person is without creditable coverage and foregoes enrollment in Part D.

The type of notice an employer must provide to Medicare-eligible employees depends on whether or not the prescription drug benefit in their current group plan is as good as Part D.

A Creditable Coverage Notice

A creditable coverage notice should be provided when the drug benefit is at least as good as the standard Medicare Part D plan.

Or, A Non-Creditable Coverage Notice

A non-creditable coverage notice should be provided when the drug benefit is not as good as the standard Medicare Part D plan. Most prescription drug benefits included under a group health plan are creditable, but to know for sure, refer to this Simplified Determination document provided by the CMS. This document makes it easy to figure out your plan’s creditable coverage status if you are unsure.

When should I give my employees this notice?

The notice must be distributed prior to October 15th, Friday—meaning it must be distributed by October 14th. October 15 is when the Medicare Advantage and Part D annual enrollment period begins. The annual enrollment period will run through December 7th.

The notice must also be distributed at other times, such as when going on a new or different group plan that does not have a drug benefit that is as good as Medicare Part D, or when a Medicare-eligible employee first joins the group plan.

Who else should I provide the notice to?

Additionally, the notice should be provided to any covered dependents who are eligible for Medicare, including those who become eligible for Medicare due to a disability. COBRA beneficiaries and covered retirees who are eligible for Medicare should also be provided a notice. As a best practice, employer may want to provide this notice to everyone covered under their group plan.

Where can I download a sample notice?

Model Part D notices have been provided by the CMS here, and are available in English and Spanish.

We are here to help you go over your current coverage and explore alternative options.

The EEOC (Equal Employment Opportunity Commission) has been issuing COVID-19 guidelines for employers dating back to March 2020. The guidance has been issued in a frequently asked question (FAQ) format and gets updated periodically. On May 28, 2021, the EEOC updated its guidance to include information for employers wanting to provide incentives to employees for receiving a COVID-19 vaccination.

We’ve rounded up a few vaccine incentive guidelines for employers to keep in mind.

Q: Can I require my employees to be vaccinated before entering a worksite?

A: There are no laws that prevent an employer from requiring all employees to be vaccinated for COVID-19; however, employers must allow for employees to not get vaccinated due to a disability or religious belief.

First, the EEOC indicates there are no federal equal employment opportunity laws that would prevent an employer from requiring all employees physically entering a worksite to be vaccinated for COVID-19; however, employers generally must provide reasonable accommodations for employees who do not get vaccinated due to a disability or religious belief. Reasonable accommodations may include having unvaccinated employees wear a mask, work at a social distance, work a modified shift, get tested periodically for COVID-19, work from home, or accept a job reassignment.

Q: Can I provide vaccine incentives to my employees?

A: Employers may provide an incentive to employees who voluntarily provide documentation that they received a COVID-19 vaccination.

The EEOC also indicates that employers may provide an incentive to employees who voluntarily provide documentation that they received a COVID-19 vaccination on their own from a third-party provider, and this will not be considered a violation of the Americans with Disabilities Act (ADA). Employers are required to keep vaccination information confidential and stored separately from an employee’s normal personnel file.

Q: To what extent can I provide incentives to my employees?

A: When an employer provides for an on-site COVID-19 vaccination where the vaccines are administered by the employer or someone the employer hires, incentives cannot be so substantial that they would be considered coercive.

The EEOC further adds that if or when an employer provides for an on-site COVID-19 vaccination where the vaccines are administered by the employer or someone the employer hires, incentives cannot be so substantial that they would be considered coercive. Employees generally must answer pre-vaccination medical questions, and a large incentive might make some employees feel pressured to disclose protected health information.

While the COVID-19 vaccination incentive guidance is helpful, employers may want to think carefully about any incentives they are considering. There are many Americans who are skeptical about the safety of the COVID-19 vaccines, and this could be a very sensitive topic for some employees. There’s also other Americans who are strong believers in the vaccines, and they are fearful of being around unvaccinated people. Employers have some difficult decisions to make, and it would not be surprising if there are a slew of lawsuits because of COVID-19 requirements (or a lack thereof) that are proclaimed by employees to be discriminatory, unsafe, unhealthy, or impermissible in the workplace.

For more details, the EEOC FAQ guidance can be found by clicking here. Section K of the FAQ guidance discusses vaccine incentives offered by employers.

As you may be aware, the Biden administration previously created a special enrollment period (SEP) on HealthCare.gov in response to the COVID-19 pandemic. This SEP allows individuals to sign up for coverage (or change plans) without a typical qualifying event.

Previously, it was announced that the SEP would run from February 15, 2021 until May 15, 2021. However, a more recent announcement by the Department of Health and Human Services (HHS) indicates that the SEP will now run until August 15, 2021. If you reside in one of the 36 states which utilize HealthCare.gov, you will now have access to this SEP for three additional months. On the other hand, states which operate on their own Health Insurance Marketplace can optionally choose to offer a similar SEP.

What else is in the American Rescue Plan Act of 2021 (ARPA)?

This extended SEP comes in response to recent changes authorized under the American Rescue Plan Act of 2021 (ARPA). The ARPA creates numerous changes to the availability of subsidized coverage available on the Health Insurance Marketplaces, namely:

• More individuals can qualify for advanced premium tax credits (APTCs). The ARPA temporarily removes the requirement that household earnings must be within 400% of the Federal Poverty Level (FPL) to qualify for an APTC.

• The ARPA temporarily caps the amount that an individual or family will have to pay for the benchmark plan (i.e., the second-lowest cost silver plan) at 8.5% of their household income. This is down from 9.83%.

• The ARPA temporarily gives an additional boost in APTCs to those with household earnings less than 400% of the FPL. According to the HHS announcement, these savings will decrease premiums by an average of $50 per person per month and $85 per policy per month.

• The ARPA temporarily creates a new APTC for anyone who collects unemployment benefits for one or more weeks during the 2021 year. The benchmark plan will cost $0 for these individuals.

HealthCare.gov released a statement that they will be ready to begin processing the above-mentioned changes as of April 1, 2021 with the exception of the new APTC that applies to those who have or will collect unemployment benefits this year—APTC may not be available until July.

The full American Rescue Plan Act can be found here.