[House Report 118-132]
[From the U.S. Government Publishing Office]
118th Congress } { Rept. 118-132
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
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TELEHEALTH BENEFIT EXPANSION FOR WORKERS ACT OF 2023
_______
June 30, 2023.--Ordered to be printed
_______
Ms. Foxx, from the Committee on Education and the Workforce, submitted
the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 824]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 824) to amend title XXVII of the Public
Health Service Act, the Employee Retirement Income and Security
Act of 1974, and the Internal Revenue Code of 1986 to treat
benefits for telehealth services offered under a group health
plan or group health insurance coverage as excepted benefits,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Telehealth Benefit Expansion for
Workers Act of 2023''.
SEC. 2. TREATING BENEFITS FOR TELEHEALTH SERVICES OFFERED UNDER A GROUP
HEALTH PLAN OR GROUP HEALTH INSURANCE COVERAGE AS
EXCEPTED BENEFITS.
(a) ERISA.--
(1) In general.--Section 733(c)(2) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1191b(c)(2)) is
amended--
(A) by redesignating subparagraph (C) as subparagraph
(D); and
(B) by inserting after subparagraph (B) the following
new subparagraph:
``(C) Benefits for telehealth services.''.
(2) Maintaining application of certain provisions.--Section
732(c)(1) of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1191a(c)(1)) is amended--
(A) by redesignating subparagraphs (A) and (B) as
clauses (i) and (ii), respectively, and adjusting the
margins accordingly;
(B) by striking ``The requirements'' and inserting
the following:
``(A) In general.--Except as provided in subparagraph
(B) and subject to subparagraph (C), the
requirements.''; and
(C) by adding at the end the following new
subparagraphs:
``(B) Application of provisions.--The requirements of
sections 2704, 2705, and 2712 of the Public Health
Service Act, as applied under section 715, shall apply
to any group health plan or group health insurance
coverage in relation to its provision of excepted
benefits described in section 733(c)(2)(C).
``(C) Requirement for provision of notice with
respect to telehealth excepted benefits.--Subparagraph
(A) shall not apply to any group health plan (and group
health insurance coverage offered in connection with a
group health plan) in relation to its provision of
excepted benefits described in section 733(c)(2)(C)
unless such plan or coverage (as applicable) provides
to each participant or beneficiary enrolled under such
plan or coverage (and to each individual seeking to
enroll under such plan or coverage) a notice that
distinguishes between the benefits provided under a
group health plan or group health insurance that meets
the requirements of this part and the benefits provided
under a group health plan or group health insurance
coverage that provides only excepted benefits described
in section 733(c)(2)(C).''.
(3) Conforming amendment to application provision.--Section
715(a) of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1185d(a)) is amended--
(A) in paragraph (1), by inserting ``, other than
section 2722 of such Act,'' after ``Affordable Care
Act)''; and
(B) in paragraph (2), by inserting ``(other than such
section 2722)'' after ``a provision of such part A''.
(b) PHSA.--
(1) In general.--Section 2791(c)(2) of the Public Health
Service Act (42 U.S.C. 300gg-91(c)(2)) is amended--
(A) by redesignating subparagraph (C) as subparagraph
(D); and
(B) by inserting after subparagraph (B) the following
new subparagraph:
``(C) Benefits for telehealth services.''.
(2) Limitation on exception to group health plans and group
health insurance coverage.--Section 2722(c)(1) of the Public
Health Service Act (42 U.S.C. 300gg-21(c)(1)) is amended--
(A) by redesignating subparagraphs (A) and (B) as
clauses (i) and (ii), respectively, and adjusting the
margins accordingly;
(B) by striking ``The requirements'' and inserting
the following:
``(A) In general.--Except as provided in subparagraph
(B), the requirements.''; and
(C) by adding at the end the following new
subparagraph:
``(B) Application of provisions in the case of
individual health insurance coverage for certain
excepted benefits.--The requirements of subparts I and
II shall apply to any individual health insurance
coverage in relation to its provision of excepted
benefits described in section 2791(c)(2)(C).''.
(c) IRC.--Section 9832(c)(2) of the Internal Revenue Code of 1986 is
amended--
(1) by redesignating subparagraph (C) as subparagraph (D);
and
(2) by inserting after subparagraph (B) the following new
subparagraph:
``(C) Benefits for telehealth services.''.
(d) Publication of Model Notice.--Not later than 180 days after the
date of the enactment of this Act, the Secretary of Labor, in
consultation with the Secretary of Health and Human Services and the
Secretary of the Treasury and taking into account input from the
public, shall publish a model notice that may be used by a group health
plan or group health insurance coverage (as such terms are defined in
section 733 of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1191b)) for purposes satisfying the requirement of section
732(c)(1)(C) of such Act, as added by subsection (a).
(e) Effective Date.--The amendments made by this section shall apply
with respect to plan years beginning on or after the date of the
enactment of this Act.
Purpose
H.R. 824, the Telehealth Benefit Expansion for Workers Act
of 2023, amends the Employee Retirement Income Security Act of
1974 (ERISA)\1\ and the Internal Revenue Code of 1986 (Code)\2\
to expand coverage, lower costs, and promote a healthy
workforce by allowing for telehealth excepted benefit plans.
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\1\29 U.S.C. Sec. 1001 et seq.
\2\26 U.S.C. Sec. 1 et. seq.
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Committee Action
116TH CONGRESS
Second Session--Hearing
On January 28, 2020, the Committee on Education and the
Workforce's Subcommittees on Health, Employment, Labor and
Pensions (HELP) and Workforce Protections (WP) held a joint
hearing entitled ``Expecting More: Addressing America's
Maternal and Infant Health Crisis,'' which examined trends in
maternal and infant mortality in the United States and related
policy proposals, including expanding access to health care
through telehealth. Testifying before the subcommittees were
Ms. Stacy Stewart, President and CEO, March of Dimes,
Washington, D.C.; Ms. Nikia Sankofa, Executive Director, United
States Breastfeeding Committee, Washington, D.C.; and Ms. Joia
Crear-Perry, Founder and President, National Birth Equity
Collaborative and Black Mamas Matter, Washington, D.C.
117TH CONGRESS
First Session--Hearings
On April 15, 2021, the HELP Subcommittee held a hearing
entitled ``Meeting the Moment: Improving Access to Behavioral
and Mental Health Care,'' which examined, among other things,
the benefits of telehealth services. Testifying before the
Subcommittee were Mr. James Gelfand, Senior Vice President,
ERIC, Washington, D.C.; Dr. Meiram Bendat, Founder, Psych-
Appeal, Santa Barbara, California; Dr. Christine Yu Moutier,
Chief Medical Officer, American Foundation for Suicide
Prevention, New York, New York; and Dr. Brian D. Smedley, Chief
of Psychology in the Public Interest, American Psychological
Association, Washington, D.C.
On June 9, 2021, the Committee held a hearing entitled
``Examining the Policies and Priorities of the U.S. Department
of Labor,'' which examined the Department of Labor's (DOL)
Fiscal Year 2022 budget priorities. The Committee was
interested in whether the Department would extend existing
telehealth relief, including standalone telehealth benefits.
The sole witness was the Honorable Martin J. Walsh, Secretary
of DOL, Washington, D.C.
On June 16, 2021, the Committee held a hearing entitled
``Examining the Policies and Priorities of the U.S. Department
of Health and Human Services,'' which examined the Department
of Health and Human Services' (HHS) Fiscal Year 2022 budget
priorities. The sole witness was the Honorable Xavier Becerra,
Secretary of HHS, Washington, D.C. Secretary Becerra was
questioned about the Trump administration's telehealth
policies.
Second Session--Hearings
On February 17, 2022, the HELP Subcommittee held a hearing
entitled ``Exploring Pathways to Affordable, Universal Health
Coverage'' which examined, among other things, the benefits of
expanding telehealth services. Testifying before the
Subcommittee were Dr. Brian Blase, President, Paragon Health
Institute, Ponte Verde, Florida; Dr. Georges C. Benjamin,
Executive Director, the American Public Health Association,
Washington, D.C.; Ms. Katie Keith, Center on Health Insurance
Reforms, Georgetown University, Washington, D.C.; and Mr.
Robert B. Reich, Carmel P. Friesen Professor of Public Policy,
Goldman School of Public Policy, University of California,
Berkley, California.
On April 6, 2022, the Committee held a hearing entitled
``Examining the Policies and Priorities of the U.S. Department
of Health and Human Services,'' which examined HHS' Fiscal Year
2023 budget priorities. The sole witness was the Honorable
Xavier Becerra, Secretary of HHS, Washington, D.C. The hearing
included a discussion about expanding access to telehealth.
On June 10, 2022, the Committee held a hearing entitled
``Examining the Policies and Priorities of the U.S. Department
of Labor,'' which examined DOL's Fiscal Year 2023 budget
priorities. The sole witness was the Honorable Martin J. Walsh,
Secretary of DOL, Washington, D.C. Secretary Walsh was
questioned about whether DOL would extend existing telehealth
flexibilities.
118TH CONGRESS
First Session--Hearing
On April 24, 2023, the HELP Subcommittee held a hearing
entitled ``Reducing Health Care Costs for Working Americans and
Their Families,'' which examined the continuing negative impact
of the Affordable Care Act (ACA) on employer-sponsored health
coverage and lowering costs by extending telehealth services.
Testifying before the Subcommittee were Mr. Joel White,
President, Council for Affordable Health Coverage, Washington,
D.C.; Mrs. Tracy Watts, Senior Partner, Mercer, Washington,
D.C.; Ms. Marcie Strouse, Partner, Capitol Benefits Group, Des
Moines, Iowa; and Ms. Sabrina Corlette, Senior Research
Professor, Center on Health Insurance Reforms, Georgetown
University's Health Policy Institute, Washington, D.C.
Legislative Action
On February 2, 2023, Rep. Tim Walberg (R-MI) introduced the
Telehealth Benefit Expansion for Workers Act of 2023 (H.R.
824), with Rep. Rick Allen (R-GA), Rep. Angie Craig (D-MN),
Rep. Susan DelBene (D-WA), Rep. Ron Estes (R-KS), and Rep.
Mikie Sherrill (D-NJ) as original cosponsors. On June 13, 2023,
the Committee considered H.R. 824 in legislative session and
reported it favorably, as amended, to the House of
Representatives by a recorded vote of 21-14. The Committee
adopted an Amendment in the Nature of a Substitute (ANS)
offered by Rep. Walberg, which reaffirmed that plans cannot
discriminate against individuals with preexisting conditions or
discriminate against participants based on health status, and
that rescissions of coverage are prohibited. The ANS to H.R.
824 also required a disclosure informing the beneficiary that
the coverage is not major medical coverage. Rep. Mark
DeSaulnier (D-CA) offered an impede coordination of care or
result in reduced access to in-person care. This amendment
failed by a recorded vote of 15-18.
Committee Views
INTRODUCTION
Background on employer-sponsored insurance coverage
Since World War II, employers have offered health care
benefits to recruit and retain talent and to ensure a healthy
and productive workforce. Employer-sponsored health insurance
is one of the primary means by which Americans obtain health
care coverage. According to the Kaiser Family Foundation,
almost 159 million American workers and family members are
covered by a health benefit plan offered by their employer.\3\
The U.S. Census Bureau reports that 54.3 percent of Americans
were covered by employment-based health coverage in 2021.\4\
When given the option for employment-based health coverage, 77
percent of workers accept coverage.\5\ Almost all businesses
with at least 200 or more employees offer health benefits.\6\
According to the Kaiser Family Foundation, however, smaller
firms (with 3 to 199 employees) are significantly less likely
to offer health benefits.\7\ As a result, in 2022, just over
half of all employers offered some health benefits.\8\
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\3\Kaiser Family Found., Employer Health Benefits: 2022 Annual
Survey, 2022 Employer Health Benefits Survey, Sec.3, 58, available at
http://files.kff.org/attachment/Report-Employer-Health-Benefits-2022-
Annual-Survey.pdf.
\4\U.S. Census Bur., U.S. Dep't of Com., Health Insurance Coverage
in the United States: 2021, http://census.gov/content/dam/Census/
library/publications/2022/demo/p60-278.pdf.
\5\Kaiser Family Found., supra note 3, Summary of Findings, at 12.
\6\Id.
\7\Id.
\8\Id.
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Employer-provided health benefits are regulated by a number
of laws, including ERISA, as amended by the ACA. DOL implements
and enforces ERISA. By virtue of its jurisdiction over ERISA,
the Committee has jurisdiction over employer-provided health
coverage.
Telehealth
Generally, ``telehealth'' and ``telemedicine'' are not
defined in ERISA, the Public Health Service Act (PHSA), or the
Code.\9\ The Kaiser Family Foundation focused on telehealth as
a rapidly expanding form of health care delivery in its
Employer Health Benefits 2022 Annual Survey (2022 Survey).\10\
For that purpose, the 2022 Survey defined ``telemedicine'' as
``the delivery of health care services through
telecommunications to a patient from a provider who is at a
remote location, including video chat and remote
monitoring.''\11\
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\9\Telehealth is defined in Title 42 of the U.S. Code as ``the use
of electronic information and telecommunications technologies to
support long distance clinical care, patient and professional health-
related education, public health, and health administration.'' 42
U.S.C. Sec. 254c-16(a)(4). That definition is narrowly applicable to a
specific provision of the U.S. Code directing the HHS Secretary to
award grants to establish demonstration projects for the purpose of
providing remote mental health care.
\10\Kaiser Family Found., supra note 3, Telemedicine, at 191.
\11\Id.
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Before the COVID-19 pandemic, telehealth comprised a very
small but growing percentage of health care expenditures and
reimbursements.\12\ In Fiscal Year 2019, the Centers for
Medicare and Medicaid Services (CMS) recorded 840,000
telehealth visits.\13\ A recent Department of Health and Human
Services (HHS) report showed a 63-fold increase in Medicare
telehealth use during the pandemic, with 52.7 million visits in
2020.\14\
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\12\See generally, Victoria Elliott, Cong. Research Serv., R46239,
Telehealth and Telemedicine: Frequently Asked Questions (2020).
\13\Press Release, Ctrs. for Medicare & Medicaid Serv., New HHS
Study Shows 63-Fold Increase in Medicare Telehealth Utilization During
the Pandemic (Dec. 3, 2021), https://cms.gov/newsroom/press-releases/
new-hhs-study-shows-63-fold-increase-medicare-telehealth-utlization-
during-pandemic.
\14\Id.
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During the COVID-19 pandemic, DOL, HHS, and the Treasury
(the Departments) allowed employers to offer coverage for
telehealth and other remote care services to employees who were
not eligible for any other group health plan offered by their
employer.\15\ As a result, the Departments provided ``relief
for a group health plan (and health insurance offered in
connection with a group health plan) that solely provides
benefits for telehealth or other remote care services from the
group market reforms under part 7 of ERISA, title XXVII of the
[PHSA], and chapter 100 of the [Code].''\16\ The Departments'
relief was limited to telehealth and other remote care service
arrangements sponsored by large employers (very generally,
employers with more than 50 employees) for employees (or their
dependents) who were ineligible for coverage under any of their
employer's other group health plans.\17\ Notably, the
Departments continued to include telehealth and remote care
services as ``group health plans'' rather than as excepted
benefits.\18\ As such, the Departments stated that some market
reforms would continue to apply to telehealth, including
prohibitions on pre-existing condition exclusions or other
discrimination based on health status, prohibitions on
rescissions, and mental health or substance use disorder
parity.\19\ The relief provided by the Departments applies only
to plan years beginning before the end of the public health
emergency (PHE) related to COVID-19 (May 11, 2023).\20\
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\15\FAQs ABOUT FAMILIES FIRST CORONAVIRUS RESPONSE ACT AND
CORONAVIRUS AID, RELIEF, AND ECONOMIC SECURITY ACT IMPLEMENTATION PART
43, at 11 (Jun. 23, 2020), https://www.cms.gov/files/document/FFCRA-
Part-43-FAQs.pdf.
\16\Id.
\17\Id.
\18\See generally Id.
\19\Id.
\20\Id.
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Congress recognized the importance of telehealth by
providing a safe harbor allowing employees who were eligible
participants for Health Savings Account (HSA) high deductible
health plan (HDHP) to receive telehealth services on a ``first-
dollar basis.'' Under the Coronavirus Aid, Relief, and Economic
Security Act (CARES Act), these employees (and their
dependents) were given relief from the requirement to meet
their deductible under the HDHP before receiving telehealth
services paid for by their employer (or their employer-provided
insurance coverage).\21\
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\21\CARES Act, Pub. L. No. 116-136, Sec. 3701 (2020). President
Trump signed the CARES Act into law on March 27, 2020. The ``first-
dollar basis'' telehealth relief for HSA-eligible HDHP participants
extended to plan years beginning before Dec. 31, 2021.
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Congress extended the ``first dollar basis'' telehealth
relief for the period from April 1, 2022 to December 31, 2022,
in the Consolidated Appropriations Act, 2022.\22\ Congress
further extended the ``first dollar basis'' telehealth relief
through December 31, 2024, under the Consolidated
Appropriations Act, 2023.\23\
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\22\Pub. L. No. 117-103, Sec. 307 (2022).
\23\Pub. L. No. 117-328, Sec. 4151 (2022).
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However, Congressional relief has not yet extended to
allowing employers to provide stand-alone telehealth to
employees (and their dependents) who may not otherwise be
covered under an employer's group health plan. The Departments'
relief ends at the beginning of an employer's plan year that
begins after May 11, 2023.\24\ As a result, there is a critical
need to extend relief through Congressional action.
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\24\FAQs Part 43, supra note 15.
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Telehealth coverage for employees not covered by a group health plan
The Kaiser Family Foundation reports that while almost all
employers with 200 or more employees offer group health
coverage, only 39 percent of employers with three to nine
employees, and only 51 percent of all employers, offer health
care coverage.\25\ More than 20 percent of employees offered
group health insurance by their employers did not take up
coverage in 2022.\26\ Allowing employers to offer telehealth,
telemedicine, or other remote care services to employees (even
employees not covered by an employer-sponsored group health
plan or group health insurance) will provide critical coverage
that may be lacking when the Departments' relief expires.
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\25\Kaiser Family Found., supra note 3, Health Benefits Offer
Rates, Fig. 2.2, at 45.
\26\Kaiser Family Found., supra note [4]. Take-Up Rate, at 62.
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H.R. 824, as reported by the Committee, ensures that
beneficiaries are informed that this coverage is an additional
benefit and not full major medical coverage. This benefit in no
way alleviates large employers from their obligations under the
employer mandate of the ACA to offer full medical coverage to
employees.
Support for creating options and flexibility for small businesses
The Council for Affordable Health Coverage; the Self-
Insurance Institute of America, Inc.; ERIC; the Partnership for
Employer Sponsored Coverage; the Alliance to Fight for Health
Care; Mercer; the Society for Human Resources Management; the
U.S. Chamber of Commerce; the American Telemedicine
Association; and other employer and telehealth companies
support H.R. 824 because it provides flexibility for all
employers to offer stand-alone telehealth services. The
legislation will expand access to affordable benefits that best
meet the needs of workers and their families.
With the end of the COVID-19-designated PHE, legislation is
necessary to allow employees who do not qualify for group
health plans to continue enjoying access to stand-alone
telehealth benefits. In testimony before the HELP Subcommittee,
Mr. Joel White, President of the Council for Affordable Health
Coverage, stated that after the PHE, ``this flexibility will
end. Seasonal and part-time workers will also lose access to
telehealth services in many cases.''\27\ Tracy Watts, Senior
Partner of Mercer, testified that ``this is a benefit that is
hugely valued by employees--but employers need permanent
legislation for this coverage to be restored.''\28\ Echoing the
importance of stand-alone telehealth in testimony before the
Committee, HHS Secretary Becerra, stated, ``the sooner that
Congress moves forward to change the statutes on telehealth, to
give us that flexibility in the areas where we've seen
tremendous success, the better off the American people will
be.''\29\ Unless stand-alone telehealth benefits are extended
and remain separate from traditional group health plans, many
workers across industries like retail, hospitality, and health
care will lose access to key services on which they have come
to rely.
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\27\Reducing Health Care Costs for Working Americans and Their
Families: Hearing Before the H. Subcomm. on Health, Employment, Labor,
and Pensions, 118th Cong. (2023) (statement of Joel White, President,
Council for Affordable Health Coverage).
\28\Id. (statement of Tracy Watts, Senior Partner, Mercer).
\29\Examining the Policies and Priorities of the U.S. Department of
Health and Human Services: Hearing before the Comm. On Education and
the Workforce, 117th Cong. (2022) (statement of the Honorable Xavier
Becerra, Secretary, U.S. Department of Health and Human Services).
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H.R. 824, THE TELEHEALTH BENEFIT EXPANSION FOR WORKERS
ACT OF 2023
H.R. 824, the Telehealth Benefit Expansion for Workers Act
of 2023, amends ERISA and the Code to preserve and expand
employee access to services delivered by telehealth and to
lower costs. The bill promotes a healthy workforce by treating
benefits for telehealth, telemedical, or other remote care
services (including services for medical, mental health, or
substance use disorders) as an excepted benefit. The bill
permits an employer of any size to offer telehealth,
telemedical, or other remote care services to any or some of
its employees as a stand-alone benefit separate from a group
health plan or group health insurance, whether or not the
employees are covered by an employer-sponsored group health
plan or group health insurance. H.R. 824 reaffirms that plans
may not discriminate against individuals with preexisting
conditions, discriminate against participants based on health
status, and it prohibits recissions. It also requires a
disclosure informing the beneficiary that the coverage is not
major medical coverage.
CONCLUSION
H.R. 824, the Telehealth Benefit Expansion for Workers Act
of 2023, preserves and expands employee access to telehealth
and lower costs. The Act promotes a healthy workforce by
treating benefits for telehealth, telemedical, or other remote
care services (including services for medical, mental health,
or substance use disorders), as an excepted benefit when
provided separately from an employer sponsored group health
plan or employer provided group health coverage.
Summary
H.R. 824 SECTION-BY-SECTION SUMMARY
Section 1. Short title
Section 1 provides that the short title is ``Telehealth
Benefit Expansion for Workers Act of 2023.''
Section 2. Treating benefits for telehealth services offered under a
group health insurance plan or group health insurance coverage
as excepted benefits
Section 2 amends ERISA and the Code to preserve and expand
employee access to telehealth and to lower costs. Section 2
treats benefits for telehealth, telemedical, or other remote
care services (including services for medical, mental health,
or substance use disorders) as an excepted benefit. Section 2
also permits an employer of any size to offer telehealth,
telemedical, or other remote care services to any of its
employees as a standalone benefit separate from a group health
plan or group health insurance, whether or not such employees
are covered by an employer-sponsored group health plan or group
health insurance. This will allow employers to offer standalone
telehealth coverage to any employee and ensure that employees
currently enjoying increased access to telehealth services can
maintain access to this benefit after the end of their plan
year.
In addition, Section 2 reaffirms that plans may not
discriminate against individuals with preexisting conditions or
discriminate against participants based on health status, and
it prohibits recissions. It also requires plans to include a
disclosure informing the beneficiary that the coverage is not
major medical coverage. The Secretary of Labor is directed to
create model disclosure language with input from the public.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the body of this report.
Application of Law to the Legislative Branch
Section 102(b)3 of Public Law 104-1 requires a description
of the application of this bill to the legislative branch. H.R.
824 takes important steps to preserve and expand employee
access--including access for any eligible employees of the
Legislative Branch--to telehealth services and to preserve and
expand employer flexibility to offer telehealth coverage after
the expiration of the PHE by treating such coverage as an
excepted benefit.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This issue is addressed in the CBO letter.
Earmark Statement
H.R. 824 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of House rule XXI.
Roll Call Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
Statement of General Performance Goals and Objectives
In accordance with clause (3)(c) of House rule XIII, the
goal of H.R. 824 is to preserve and expand employee, including
any eligible employees of the Legislative Branch, access to
telehealth services and to preserve and expand employer
flexibility to offer telehealth coverage after the expiration
of the PHE by treating such coverage as an excepted benefit.
Duplication Of Federal Programs
No provision of H.R. 824 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the committee's oversight findings and recommendations are
reflected in the body of this report.
Required Committee Hearing and Related Hearings
In compliance with clause 3(c)(6) of rule XIII the
following hearings held during the 118th Congress were used to
develop or consider H.R. 824: on April 24, 2023, the HELP
Subcommittee held a hearing entitled ``Reducing Health Care
Costs for Working Americans and Their Families.'' In addition,
on January 28, 2020, the HELP and WP Subcommittees held a joint
hearing entitled ``Expecting More: Addressing America's
Maternal and Infant Health Crisis;'' on April 15, 2021, the
HELP Subcommittee held a hearing entitled ``Meeting the Moment:
Improving Access to Behavioral and Mental Health Care;'' on
June 9, 2021, the Committee held a hearing entitled ``Examining
the Policies and Priorities of the U.S. Department of Labor;''
on June 16, 2021, the Committee held a hearing entitled
``Examining the Policies and Priorities of the U.S. Department
of Health and Human Services;'' on February 17, 2022, the HELP
Subcommittee held a hearing entitled ``Exploring Pathways to
Affordable, Universal Health Coverage;'' on April 6, 2022, the
Committee held a hearing entitled ``Examining the Policies and
Priorities of the U.S. Department of Health and Human
Services;'' and on June 10, 2022, the Committee held a hearing
entitled ``Examining the Policies and Priorities of the U.S.
Department of Labor.''
New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, a cost estimate was not made
available to the Committee in time for the filing of this
report. The Chairwoman of the Committee shall cause such
estimate to be printed in the Congressional Record upon its
receipt by the Committee.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 824. However,
clause 3(d)(2)(B) of that rule provides that this requirement
does not apply when, as with the present report, the committee
adopts as its own the cost estimate of the bill being prepared
by the Director of the Congressional Budget Office under
section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974
* * * * * * *
TITLE I--PROTECTION OF EMPLOYEE BENEFIT RIGHTS
* * * * * * *
Subtitle B--Regulatory Provisions
* * * * * * *
Part 7--Group Health Plan Requirements
* * * * * * *
Subpart B--Other Requirements
* * * * * * *
SEC. 715. ADDITIONAL MARKET REFORMS.
(a) General Rule.--Except as provided in subsection (b)--
(1) the provisions of part A of title XXVII of the
Public Health Service Act (as amended by the Patient
Protection and Affordable Care Act), other than section
2722 of such Act, shall apply to group health plans,
and health insurance issuers providing health insurance
coverage in connection with group health plans, as if
included in this subpart; and
(2) to the extent that any provision of this part
conflicts with a provision of such part A (other than
such section 2722) with respect to group health plans,
or health insurance issuers providing health insurance
coverage in connection with group health plans, the
provisions of such part A shall apply.
(b) Exception.--Notwithstanding subsection (a), the
provisions of sections 2716 and 2718 of title XXVII of the
Public Health Service Act (as amended by the Patient Protection
and Affordable Care Act) shall not apply with respect to self-
insured group health plans, and the provisions of this part
shall continue to apply to such plans as if such sections of
the Public Health Service Act (as so amended) had not been
enacted.
* * * * * * *
Subpart C--General Provisions
* * * * * * *
SEC. 732. SPECIAL RULES RELATING TO GROUP HEALTH PLANS.
(a) General Exception for Certain Small Group Health Plans.--
The requirements of this part (other than section 711) shall
not apply to any group health plan (and group health insurance
coverage offered in connection with a group health plan) for
any plan year if, on the first day of such plan year, such plan
has less than 2 participants who are current employees.
(b) Exception for Certain Benefits.--The requirements of this
part shall not apply to any group health plan (and group health
insurance coverage) in relation to its provision of excepted
benefits described in section 733(c)(1).
(c) Exception for Certain Benefits if Certain Conditions
Met.--
(1) Limited, excepted benefits.--[The requirements]
(A) In general._Except as provided in
subparagraph (B) and subject to subparagraph
(C), the requirements. of this part shall not
apply to any group health plan (and group
health insurance coverage offered in connection
with a group health plan) in relation to its
provision of excepted benefits described in
section 733(c)(2) if the benefits--
[(A)] (i) are provided under a
separate policy, certificate, or
contract of insurance; or
[(B)] (ii) are otherwise not an
integral part of the plan.
(B) Application of provisions.--The
requirements of sections 2704, 2705, and 2712
of the Public Health Service Act, as applied
under section 715, shall apply to any group
health plan or group health insurance coverage
in relation to its provision of excepted
benefits described in section 733(c)(2)(C).
(C) Requirement for provision of notice with
respect to telehealth excepted benefits.--
Subparagraph (A) shall not apply to any group
health plan (and group health insurance
coverage offered in connection with a group
health plan) in relation to its provision of
excepted benefits described in section
733(c)(2)(C) unless such plan or coverage (as
applicable) provides to each participant or
beneficiary enrolled under such plan or
coverage (and to each individual seeking to
enroll under such plan or coverage) a notice
that distinguishes between the benefits
provided under a group health plan or group
health insurance that meets the requirements of
this part and the benefits provided under a
group health plan or group health insurance
coverage that provides only excepted benefits
described in section 733(c)(2)(C).
(2) Noncoordinated, excepted benefits.--The
requirements of this part shall not apply to any group
health plan (and group health insurance coverage
offered in connection with a group health plan) in
relation to its provision of excepted benefits
described in section 733(c)(3) if all of the following
conditions are met:
(A) The benefits are provided under a
separate policy, certificate, or contract of
insurance.
(B) There is no coordination between the
provision of such benefits and any exclusion of
benefits under any group health plan maintained
by the same plan sponsor.
(C) Such benefits are paid with respect to an
event without regard to whether benefits are
provided with respect to such an event under
any group health plan maintained by the same
plan sponsor.
(3) Supplemental excepted benefits.--The requirements
of this part shall not apply to any group health plan
(and group health insurance coverage) in relation to
its provision of excepted benefits described in section
733(c)(4) if the benefits are provided under a separate
policy, certificate, or contract of insurance.
(d) Treatment of Partnerships.--For purposes of this part--
(1) Treatment as a group health plan.--Any plan,
fund, or program which would not be (but for this
subsection) an employee welfare benefit plan and which
is established or maintained by a partnership, to the
extent that such plan, fund, or program provides
medical care (including items and services paid for as
medical care) to present or former partners in the
partnership or to their dependents (as defined under
the terms of the plan, fund, or program), directly or
through insurance, reimbursement, or otherwise, shall
be treated (subject to paragraph (2)) as an employee
welfare benefit plan which is a group health plan.
(2) Employer.--In the case of a group health plan,
the term ``employer'' also includes the partnership in
relation to any partner.
(3) Participants of group health plans.--In the case
of a group health plan, the term ``participant'' also
includes--
(A) in connection with a group health plan
maintained by a partnership, an individual who
is a partner in relation to the partnership, or
(B) in connection with a group health plan
maintained by a self-employed individual (under
which one or more employees are participants),
the self-employed individual,
if such individual is, or may become, eligible to
receive a benefit under the plan or such individual's
beneficiaries may be eligible to receive any such
benefit.
SEC. 733. DEFINITIONS.
(a) Group Health Plan.--For purposes of this part--
(1) In general.--The term ``group health plan'' means
an employee welfare benefit plan to the extent that the
plan provides medical care (as defined in paragraph (2)
and including items and services paid for as medical
care) to employees or their dependents (as defined
under the terms of the plan) directly or through
insurance, reimbursement, or otherwise. Such term shall
not include any qualified small employer health
reimbursement arrangement (as defined in section
9831(d)(2) of the Internal Revenue Code of 1986).
(2) Medical care.--The term ``medical care'' means
amounts paid for--
(A) the diagnosis, cure, mitigation,
treatment, or prevention of disease, or amounts
paid for the purpose of affecting any structure
or function of the body,
(B) amounts paid for transportation primarily
for and essential to medical care referred to
in subparagraph (A), and
(C) amounts paid for insurance covering
medical care referred to in subparagraphs (A)
and (B).
(b) Definitions Relating to Health Insurance.--For purposes
of this part--
(1) Health insurance coverage.--The term ``health
insurance coverage'' means benefits consisting of
medical care (provided directly, through insurance or
reimbursement, or otherwise and including items and
services paid for as medical care) under any hospital
or medical service policy or certificate, hospital or
medical service plan contract, or health maintenance
organization contract offered by a health insurance
issuer.
(2) Health insurance issuer.--The term ``health
insurance issuer'' means an insurance company,
insurance service, or insurance organization (including
a health maintenance organization, as defined in
paragraph (3)) which is licensed to engage in the
business of insurance in a State and which is subject
to State law which regulates insurance (within the
meaning of section 514(b)(2)). Such term does not
include a group health plan.
(3) Health maintenance organization.--The term
``health maintenance organization'' means--
(A) a federally qualified health maintenance
organization (as defined in section 1301(a) of
the Public Health Service Act (42 U.S.C.
300e(a))),
(B) an organization recognized under State
law as a health maintenance organization, or
(C) a similar organization regulated under
State law for solvency in the same manner and
to the same extent as such a health maintenance
organization.
(4) Group health insurance coverage.--The term
``group health insurance coverage'' means, in
connection with a group health plan, health insurance
coverage offered in connection with such plan.
(c) Excepted Benefits.--For purposes of this part, the term
``excepted benefits'' means benefits under one or more (or any
combination thereof) of the following:
(1) Benefits not subject to requirements.--
(A) Coverage only for accident, or disability
income insurance, or any combination thereof.
(B) Coverage issued as a supplement to
liability insurance.
(C) Liability insurance, including general
liability insurance and automobile liability
insurance.
(D) Workers' compensation or similar
insurance.
(E) Automobile medical payment insurance.
(F) Credit-only insurance.
(G) Coverage for on-site medical clinics.
(H) Other similar insurance coverage,
specified in regulations, under which benefits
for medical care are secondary or incidental to
other insurance benefits.
(2) Benefits not subject to requirements if offered
separately.--
(A) Limited scope dental or vision benefits.
(B) Benefits for long-term care, nursing home
care, home health care, community-based care,
or any combination thereof.
(C) Benefits for telehealth services.
[(C)] (D) Such other similar, limited
benefits as are specified in regulations.
(3) Benefits not subject to requirements if offered
as independent, noncoordinated benefits.--
(A) Coverage only for a specified disease or
illness.
(B) Hospital indemnity or other fixed
indemnity insurance.
(4) Benefits not subject to requirements if offered
as separate insurance policy.--Medicare supplemental
health insurance (as defined under section 1882(g)(1)
of the Social Security Act), coverage supplemental to
the coverage provided under chapter 55 of title 10,
United States Code, and similar supplemental coverage
provided to coverage under a group health plan.
(d) Other Definitions.--For purposes of this part--
(1) COBRA continuation provision.--The term ``COBRA
continuation provision'' means any of the following:
(A) Part 6 of this subtitle.
(B) Section 4980B of the Internal Revenue
Code of 1986, other than subsection (f)(1) of
such section insofar as it relates to pediatric
vaccines.
(C) Title XXII of the Public Health Service
Act.
(2) Health status-related factor.--The term ``health
status-related factor'' means any of the factors
described in section 702(a)(1).
(3) Network plan.--The term ``network plan'' means
health insurance coverage offered by a health insurance
issuer under which the financing and delivery of
medical care (including items and services paid for as
medical care) are provided, in whole or in part,
through a defined set of providers under contract with
the issuer.
(4) Placed for adoption.--The term ``placement'', or
being ``placed'', for adoption, has the meaning given
such term in section 609(c)(3)(B).
(5) Family member.--The term ``family member'' means,
with respect to an individual--
(A) a dependent (as such term is used for
purposes of section 701(f)(2)) of such
individual, and
(B) any other individual who is a first-
degree, second-degree, third-degree, or fourth-
degree relative of such individual or of an
individual described in subparagraph (A).
(6) Genetic information.--
(A) In general.--The term ``genetic
information'' means, with respect to any
individual, information about--
(i) such individual's genetic tests,
(ii) the genetic tests of family
members of such individual, and
(iii) the manifestation of a disease
or disorder in family members of such
individual.
(B) Inclusion of genetic services and
participation in genetic research.--Such term
includes, with respect to any individual, any
request for, or receipt of, genetic services,
or participation in clinical research which
includes genetic services, by such individual
or any family member of such individual.
(C) Exclusions.--The term ``genetic
information'' shall not include information
about the sex or age of any individual.
(7) Genetic test.--
(A) In general.--The term ``genetic test''
means an analysis of human DNA, RNA,
chromosomes, proteins, or metabolites, that
detects genotypes, mutations, or chromosomal
changes.
(B) Exceptions.--The term ``genetic test''
does not mean--
(i) an analysis of proteins or
metabolites that does not detect
genotypes, mutations, or chromosomal
changes; or
(ii) an analysis of proteins or
metabolites that is directly related to
a manifested disease, disorder, or
pathological condition that could
reasonably be detected by a health care
professional with appropriate training
and expertise in the field of medicine
involved.
(8) Genetic services.--The term ``genetic services''
means--
(A) a genetic test;
(B) genetic counseling (including obtaining,
interpreting, or assessing genetic
information); or
(C) genetic education.
(9) Underwriting purposes.--The term ``underwriting
purposes'' means, with respect to any group health
plan, or health insurance coverage offered in
connection with a group health plan--
(A) rules for, or determination of,
eligibility (including enrollment and continued
eligibility) for benefits under the plan or
coverage;
(B) the computation of premium or
contribution amounts under the plan or
coverage;
(C) the application of any pre-existing
condition exclusion under the plan or coverage;
and
(D) other activities related to the creation,
renewal, or replacement of a contract of health
insurance or health benefits.
* * * * * * *
----------
PUBLIC HEALTH SERVICE ACT
* * * * * * *
TITLE XXVII--REQUIREMENTS RELATING TO HEALTH INSURANCE COVERAGE
* * * * * * *
PART A--INDIVIDUAL AND GROUP MARKET REFORMS
* * * * * * *
Subpart 2--Exclusion of Plans; Enforcement; Preemption
SEC. 2722. EXCLUSION OF CERTAIN PLANS.
(a) Limitation on Application of Provisions Relating to Group
Health Plans.--
(1) In general.--The requirements of subparts 1 and 2
and part D shall apply with respect to group health
plans only--
(A) subject to paragraph (2), in the case of
a plan that is a nonfederal governmental plan,
and
(B) with respect to health insurance coverage
offered in connection with a group health plan
(including such a plan that is a church plan or
a governmental plan).
(2) Treatment of nonfederal governmental plans.--
(A) Election to be excluded.--Except as
provided in subparagraph (D) or (E), if the
plan sponsor of a nonfederal governmental plan
which is a group health plan to which the
provisions of subparts 1 and 2 otherwise apply
makes an election under this subparagraph (in
such form and manner as the Secretary may by
regulations prescribe), then the requirements
of such subparts insofar as they apply directly
to group health plans (and not merely to group
health insurance coverage) shall not apply to
such governmental plans for such period except
as provided in this paragraph.
(B) Period of election.--An election under
subparagraph (A) shall apply--
(i) for a single specified plan year,
or
(ii) in the case of a plan provided
pursuant to a collective bargaining
agreement, for the term of such
agreement.
An election under clause (i) may be extended
through subsequent elections under this
paragraph.
(C) Notice to enrollees.--Under such an
election, the plan shall provide for--
(i) notice to enrollees (on an annual
basis and at the time of enrollment
under the plan) of the fact and
consequences of such election, and
(ii) certification and disclosure of
creditable coverage under the plan with
respect to enrollees in accordance with
section 2701(e).
(D) Election not applicable to requirements
concerning genetic information.--The election
described in subparagraph (A) shall not be
available with respect to the provisions of
subsections (a)(1)(F), (b)(3), (c), and (d) of
section 2702 and the provisions of sections
2701 and 2702(b) to the extent that such
provisions apply to genetic information.
(E) Election not applicable.--The election
described in subparagraph (A) shall not be
available with respect to the provisions of
subparts I and II.
(F) Sunset of election option.--
(i) In general.--Notwithstanding the
preceding provisions of this
paragraph--
(I) no election described in
subparagraph (A) with respect
to section 2726 may be made on
or after the date of the
enactment of this subparagraph;
and
(II) except as provided in
clause (ii), no such election
with respect to section 2726
expiring on or after the date
that is 180 days after the date
of such enactment may be
renewed.
(ii) Exception for certain
collectively bargained plans.--
Notwithstanding clause (i)(II), a plan
described in subparagraph (B)(ii) that
is subject to multiple agreements
described in such subparagraph of
varying lengths and that has an
election described in subparagraph (A)
with respect to section 2726 in effect
as of the date of the enactment of this
subparagraph that expires on or after
the date that is 180 days after the
date of such enactment may extend such
election until the date on which the
term of the last such agreement
expires.
(b) Exception for Certain Benefits.--The requirements of
subparts 1 and 2 and part Dshall not apply to any individual
coverage or any group health plan (or group health insurance
coverage) in relation to its provision of excepted benefits
described in section 2791(c)(1).
(c) Exception for Certain Benefits If Certain Conditions
Met.--
(1) Limited, excepted benefits.--[The requirements]
(A) In general._Except as provided in
subparagraph (B), the requirements. of
subparts 1 and 2 and part Dshall not apply to
any individual coverage or any group health
plan (and group health insurance coverage
offered in connection with a group health plan)
in relation to its provision of excepted
benefits described in section 2791(c)(2) if the
benefits--
[(A)] (i) are provided under a
separate policy, certificate, or
contract of insurance; or
[(B)] (ii) are otherwise not an
integral part of the plan.
(B) Application of provisions in the case of
individual health insurance coverage for
certain excepted benefits.--The requirements of
subparts I and II shall apply to any individual
health insurance coverage in relation to its
provision of excepted benefits described in
section 2791(c)(2)(C).
(2) Noncoordinated, excepted benefits.--The
requirements of subparts 1 and 2 and part Dshall not
apply to any individual coverage or any group health
plan (and group health insurance coverage offered in
connection with a group health plan) in relation to its
provision of excepted benefits described in section
2791(c)(3) if all of the following conditions are met:
(A) The benefits are provided under a
separate policy, certificate, or contract of
insurance.
(B) There is no coordination between the
provision of such benefits and any exclusion of
benefits under any group health plan maintained
by the same plan sponsor.
(C) Such benefits are paid with respect to an
event without regard to whether benefits are
provided with respect to such an event under
any group health plan maintained by the same
plan sponsor or, with respect to individual
coverage, under any health insurance coverage
maintained by the same health insurance issuer.
(3) Supplemental excepted benefits.--The requirements
of this part and part Dshall not apply to any
individual coverage or any group health plan (and group
health insurance coverage) in relation to its provision
of excepted benefits described in section 27971(c)(4)
if the benefits are provided under a separate policy,
certificate, or contract of insurance.
(d) Treatment of Partnerships.--For purposes of this part and
part D--
(1) Treatment as a group health plan.--Any plan,
fund, or program which would not be (but for this
subsection) an employee welfare benefit plan and which
is established or maintained by a partnership, to the
extent that such plan, fund, or program provides
medical care (including items and services paid for as
medical care) to present or former partners in the
partnership or to their dependents (as defined under
the terms of the plan, fund, or program), directly or
through insurance, reimbursement, or otherwise, shall
be treated (subject to paragraph (2)) as an employee
welfare benefit plan which is a group health plan.
(2) Employer.--In the case of a group health plan,
the term ``employer'' also includes the partnership in
relation to any partner.
(3) Participants of group health plans.--In the case
of a group health plan, the term ``participant'' also
includes--
(A) in connection with a group health plan
maintained by a partnership, an individual who
is a partner in relation to the partnership, or
(B) in connection with a group health plan
maintained by a self-employed individual (under
which one or more employees are participants),
the self-employed individual,
if such individual is, or may become, eligible to
receive a benefit under the plan or such individual's
beneficiaries may be eligible to receive any such
benefit.
* * * * * * *
Part C--Definitions; Miscellaneous Provisions
SEC. 2791. DEFINITIONS.
(a) Group Health Plan.--
(1) Definition.--The term ``group health plan'' means
an employee welfare benefit plan (as defined in section
3(1) of the Employee Retirement Income Security Act of
1974) to the extent that the plan provides medical care
(as defined in paragraph (2)) and including items and
services paid for as medical care) to employees or
their dependents (as defined under the terms of the
plan) directly or through insurance, reimbursement, or
otherwise. Except for purposes of part C of title XI of
the Social Security Act (42 U.S.C. 1320d et seq.), such
term shall not include any qualified small employer
health reimbursement arrangement (as defined in section
9831(d)(2) of the Internal Revenue Code of 1986).
(2) Medical care.--The term ``medical care'' means
amounts paid for--
(A) the diagnosis, cure, mitigation,
treatment, or prevention of disease, or amounts
paid for the purpose of affecting any structure
or function of the body,
(B) amounts paid for transportation primarily
for and essential to medical care referred to
in subparagraph (A), and
(C) amounts paid for insurance covering
medical care referred to in subparagraphs (A)
and (B).
(3) Treatment of certain plans as group health plan
for notice provision.--A program under which creditable
coverage described in subparagraph (C), (D), (E), or
(F) of section 2701(c)(1) is provided shall be treated
as a group health plan for purposes of applying section
2701(e).
(b) Definitions Relating to Health Insurance.--
(1) Health insurance coverage.--The term ``health
insurance coverage'' means benefits consisting of
medical care (provided directly, through insurance or
reimbursement, or otherwise and including items and
services paid for as medical care) under any hospital
or medical service policy or certificate, hospital or
medical service plan contract, or health maintenance
organization contract offered by a health insurance
issuer.
(2) Health insurance issuer.--The term ``health
insurance issuer'' means an insurance company,
insurance service, or insurance organization (including
a health maintenance organization, as defined in
paragraph (3)) which is licensed to engage in the
business of insurance in a State and which is subject
to State law which regulates insurance (within the
meaning of section 514(b)(2) of the Employee Retirement
Income Security Act of 1974). Such term does not
include a group health plan.
(3) Health maintenance organization.--The term
``health maintenance organization'' means--
(A) a Federally qualified health maintenance
organization (as defined in section 1301(a)),
(B) an organization recognized under State
law as a health maintenance organization, or
(C) a similar organization regulated under
State law for solvency in the same manner and
to the same extent as such a health maintenance
organization.
(4) Group health insurance coverage.--The term
``group health insurance coverage'' means, in
connection with a group health plan, health insurance
coverage offered in connection with such plan.
(5) Individual health insurance coverage.--The term
``individual health insurance coverage'' means health
insurance coverage offered to individuals in the
individual market, but does not include short-term
limited duration insurance.
(c) Excepted Benefits.--For purposes of this title, the term
``excepted benefits'' means benefits under one or more (or any
combination thereof) of the following:
(1) Benefits not subject to requirements.--
(A) Coverage only for accident, or disability
income insurance, or any combination thereof.
(B) Coverage issued as a supplement to
liability
insurance.
(C) Liability insurance, including general
liability insurance and automobile liability
insurance.
(D) Workers' compensation or similar
insurance.
(E) Automobile medical payment insurance.
(F) Credit-only insurance.
(G) Coverage for on-site medical clinics.
(H) Other similar insurance coverage,
specified in regulations, under which benefits
for medical care are secondary or incidental to
other insurance benefits.
(2) Benefits not subject to requirements if offered
separately.--
(A) Limited scope dental or vision benefits.
(B) Benefits for long-term care, nursing home
care, home health care, community-based care,
or any combination thereof.
(C) Benefits for telehealth services.
[(C)] (D) Such other similar, limited
benefits as are specified in regulations.
(3) Benefits not subject to requirements if offered
as independent, noncoordinated benefits.--
(A) Coverage only for a specified disease or
illness.
(B) Hospital indemnity or other fixed
indemnity insurance.
(4) Benefits not subject to requirements if offered
as separate insurance policy.--Medicare supplemental
health insurance (as defined under section 1882(g)(1)
of the Social Security Act), coverage supplemental to
the coverage provided under chapter 55 of title 10,
United States Code, and similar supplemental coverage
provided to coverage under a group health plan.
(d) Other Definitions.--
(1) Applicable state authority.--The term
``applicable State authority'' means, with respect to a
health insurance issuer in a State, the State insurance
commissioner or official or officials designated by the
State to enforce the requirements of this title for the
State involved with respect to such issuer.
(2) Beneficiary.--The term ``beneficiary'' has the
meaning given such term under section 3(8) of the
Employee Retirement Income Security Act of 1974.
(3) Bona fide association.--The term ``bona fide
association'' means, with respect to health insurance
coverage offered in a State, an association which--
(A) has been actively in existence for at
least 5 years;
(B) has been formed and maintained in good
faith for purposes other than obtaining
insurance;
(C) does not condition membership in the
association on any health status-related factor
relating to an individual (including an
employee of an employer or a dependent of an
employee);
(D) makes health insurance coverage offered
through the association available to all
members regardless of any health status-related
factor relating to such members (or individuals
eligible for coverage through a member);
(E) does not make health insurance coverage
offered through the association available other
than in connection with a member of the
association; and
(F) meets such additional requirements as may
be imposed under State law.
(4) COBRA continuation provision.--The term ``COBRA
continuation provision'' means any of the following:
(A) Section 4980B of the Internal Revenue
Code of 1986, other than subsection (f)(1) of
such section insofar as it relates to pediatric
vaccines.
(B) Part 6 of subtitle B of title I of the
Employee Retirement Income Security Act of
1974, other than section 609 of such Act.
(C) Title XXII of this Act.
(5) Employee.--The term ``employee'' has the meaning
given such term under section 3(6) of the Employee
Retirement Income Security Act of 1974.
(6) Employer.--The term ``employer'' has the meaning
given such term under section 3(5) of the Employee
Retirement Income Security Act of 1974, except that
such term shall include only employers of two or more
employees.
(7) Church plan.--The term ``church plan'' has the
meaning given such term under section 3(33) of the
Employee Retirement Income Security Act of 1974.
(8) Governmental plan.--(A) The term ``governmental
plan'' has the meaning given such term under section
3(32) of the Employee Retirement Income Security Act of
1974 and any Federal governmental plan.
(B) Federal governmental plan.--The term ``Federal
governmental plan'' means a governmental plan
established or maintained for its employees by the
Government of the United States or by any agency or
instrumentality of such Government.
(C) Non-Federal governmental plan.--The term ``non-
Federal governmental plan'' means a governmental plan
that is not a Federal governmental plan.
(9) Health status-related factor.--The term ``health
status-related factor'' means any of the factors
described in section 2702(a)(1).
(10) Network plan.--The term ``network plan'' means
health insurance coverage of a health insurance issuer
under which the financing and delivery of medical care
(including items and services paid for as medical care)
are provided, in whole or in part, through a defined
set of providers under contract with the issuer.
(11) Participant.--The term ``participant'' has the
meaning given such term under section 3(7) of the
Employee Retirement Income Security Act of 1974.
(12) Placed for adoption defined.--The term
``placement'', or being ``placed'', for adoption, in
connection with any placement for adoption of a child
with any person, means the assumption and retention by
such person of a legal obligation for total or partial
support of such child in anticipation of adoption of
such child. The child's placement with such person
terminates upon the termination of such legal
obligation.
(13) Plan sponsor.--The term ``plan sponsor'' has the
meaning given such term under section 3(16)(B) of the
Employee Retirement Income Security Act of 1974.
(14) State.--The term ``State'' means each of the
several States, the District of Columbia, Puerto Rico,
the Virgin Islands, Guam, American Samoa, and the
Northern Mariana Islands.
(15) Family member.--The term ``family member''
means, with respect to any individual--
(A) a dependent (as such term is used for
purposes of section 2701(f)(2)) of such
individual; and
(B) any other individual who is a first-
degree, second-degree, third-degree, or fourth-
degree relative of such individual or of an
individual described in subparagraph (A).
(16) Genetic information.--
(A) In general.--The term ``genetic
information'' means, with respect to any
individual, information about--
(i) such individual's genetic tests,
(ii) the genetic tests of family
members of such individual, and
(iii) the manifestation of a disease
or disorder in family members of such
individual.
(B) Inclusion of genetic services and
participation in genetic research.--Such term
includes, with respect to any individual, any
request for, or receipt of, genetic services,
or participation in clinical research which
includes genetic services, by such individual
or any family member of such individual.
(C) Exclusions.--The term ``genetic
information'' shall not include information
about the sex or age of any individual.
(17) Genetic test.--
(A) In general.--The term ``genetic test''
means an analysis of human DNA, RNA,
chromosomes, proteins, or metabolites, that
detects genotypes, mutations, or chromosomal
changes.
(B) Exceptions.--The term ``genetic test''
does not mean--
(i) an analysis of proteins or
metabolites that does not detect
genotypes, mutations, or chromosomal
changes; or
(ii) an analysis of proteins or
metabolites that is directly related to
a manifested disease, disorder, or
pathological condition that could
reasonably be detected by a health care
professional with appropriate training
and expertise in the field of medicine
involved.
(18) Genetic services.--The term ``genetic services''
means--
(A) a genetic test;
(B) genetic counseling (including obtaining,
interpreting, or assessing genetic
information); or
(C) genetic education.
(19) Underwriting purposes.--The term ``underwriting
purposes'' means, with respect to any group health
plan, or health insurance coverage offered in
connection with a group health plan--
(A) rules for, or determination of,
eligibility (including enrollment and continued
eligibility) for benefits under the plan or
coverage;
(B) the computation of premium or
contribution amounts under the plan or
coverage;
(C) the application of any pre-existing
condition exclusion under the plan or coverage;
and
(D) other activities related to the creation,
renewal, or replacement of a contract of health
insurance or health benefits.
(20) Qualified health plan.--The term ``qualified
health plan'' has the meaning given such term in
section 1301(a) of the Patient Protection and
Affordable Care Act.
(21) Exchange.--The term ``Exchange'' means an
American Health Benefit Exchange established under
section 1311 of the Patient Protection and Affordable
Care Act.
(e) Definitions Relating to Markets and Small Employers.--For
purposes of this title:
(1) Individual market.--
(A) In general.--The term ``individual
market'' means the market for health insurance
coverage offered to individuals other than in
connection with a group health plan.
(B) Treatment of very small groups.--
(i) In general.--Subject to clause
(ii), such terms includes coverage
offered in connection with a group
health plan that has fewer than two
participants as current employees on
the first day of the plan year.
(ii) State exception.--Clause (i)
shall not apply in the case of a State
that elects to regulate the coverage
described in such clause as coverage in
the small group market.
(2) Large employer.--The term ``large employer''
means, in connection with a group health plan with
respect to a calendar year and a plan year, an employer
who employed an average of at least 51 employees on
business days during the preceding calendar year and
who employs at least 2 employees on the first day of
the plan year.
(3) Large group market.--The term ``large group
market'' means the health insurance market under which
individuals obtain health insurance coverage (directly
or through any arrangement) on behalf of themselves
(and their dependents) through a group health plan
maintained by a large employer.
(4) Small employer.--The term ``small employer''
means, in connection with a group health plan with
respect to a calendar year and a plan year, an employer
who employed an average of at least 1 but not more than
50 employees on business days during the preceding
calendar year and who employs at least 1 employees on
the first day of the plan year.
(5) Small group market.--The term ``small group
market'' means the health insurance market under which
individuals obtain health insurance coverage (directly
or through any arrangement) on behalf of themselves
(and their dependents) through a group health plan
maintained by a small employer.
(6) Application of certain rules in determination of
employer size.--For purposes of this subsection--
(A) Application of aggregation rule for
employers.--all persons treated as a single
employer under subsection (b), (c), (m), or (o)
of section 414 of the Internal Revenue Code of
1986 shall be treated as 1 employer.
(B) Employers not in existence in preceding
year.--In the case of an employer which was not
in existence throughout the preceding calendar
year, the determination of whether such
employer is a small or large employer shall be
based on the average number of employees that
it is reasonably expected such employer will
employ on business days in the current calendar
year.
(C) Predecessors.--Any reference in this
subsection to an employer shall include a
reference to any predecessor of such employer.
(7) State option to extend definition of small
employer.--Notwithstanding paragraphs (2) and (4),
nothing in this section shall prevent a State from
applying this subsection by treating as a small
employer, with respect to a calendar year and a plan
year, an employer who employed an average of at least 1
but not more than 100 employees on business days during
the preceding calendar year and who employs at least 1
employee on the first day of the plan year.
* * * * * * *
----------
INTERNAL REVENUE CODE OF 1986
* * * * * * *
Subtitle K--Group Health Plan Requirements
* * * * * * *
CHAPTER 100--GROUP HEALTH PLAN REQUIREMENTS
* * * * * * *
Subchapter C--GENERAL PROVISIONS
* * * * * * *
SEC. 9832. DEFINITIONS.
(a) Group health plan.--For purposes of this chapter, the
term ``group health plan'' has the meaning given to such term
by section 5000(b)(1).
(b) Definitions relating to health insurance.--For purposes
of this chapter--
(1) Health insurance coverage.--
(A) In general.--Except as provided in
subparagraph (B), the term ``health insurance
coverage'' means benefits consisting of medical
care (provided directly, through insurance or
reimbursement, or otherwise) under any hospital
or medical service policy or certificate,
hospital or medical service plan contract, or
health maintenance organization contract
offered by a health insurance issuer.
(B) No application to certain excepted
benefits.--In applying subparagraph (A),
excepted benefits described in subsection
(c)(1) shall not be treated as benefits
consisting of medical care.
(2) Health insurance issuer.--The term ``health
insurance issuer'' means an insurance company,
insurance service, or insurance organization (including
a health maintenance organization, as defined in
paragraph (3)) which is licensed to engage in the
business of insurance in a State and which is subject
to State law which regulates insurance (within the
meaning of section 514(b)(2) of the Employee Retirement
Income Security Act of 1974, as in effect on the date
of the enactment of this section). Such term does not
include a group health plan.
(3) Health maintenance organization.--The term
``health maintenance organization'' means--
(A) a federally qualified health maintenance
organization (as defined in section 1301(a) of
the Public Health Service Act (42 U.S.C.
300e(a))),
(B) an organization recognized under State
law as a health maintenance organization, or
(C) a similar organization regulated under
State law for solvency in the same manner and
to the same extent as such a health maintenance
organization.
(c) Excepted benefits.--For purposes of this chapter, the
term ``excepted benefits'' means benefits under one or more (or
any combination thereof) of the following:
(1) Benefits not subject to requirements.--(A)
Coverage only for accident, or disability income
insurance, or any combination thereof.
(B) Coverage issued as a supplement to liability
insurance.
(C) Liability insurance, including general liability
insurance and automobile liability insurance.
(D) Workers' compensation or similar insurance.
(E) Automobile medical payment insurance.
(F) Credit-only insurance.
(G) Coverage for on-site medical clinics.
(H) Other similar insurance coverage, specified in
regulations, under which benefits for medical care are
secondary or incidental to other insurance benefits.
(2) Benefits not subject to requirements if offered
separately.--(A) Limited scope dental or vision
benefits.
(B) Benefits for long-term care, nursing home care,
home health care, community-based care, or any
combination thereof.
(C) Benefits for telehealth services.
[(C)] (D) Such other similar, limited benefits as are
specified in regulations.
(3) Benefits not subject to requirements if offered
as independent, noncoordinated benefits.--(A) Coverage
only for a specified disease or illness.
(B) Hospital indemnity or other fixed indemnity
insurance.
(4) Benefits not subject to requirements if offered
as separate insurance policy.--Medicare supplemental
health insurance (as defined under section 1882(g)(1)
of the Social Security Act), coverage supplemental to
the coverage provided under chapter 55 of title 10,
United States Code, and similar supplemental coverage
provided to coverage under a group health plan.
(d) Other definitions.--For purposes of this chapter--
(1) COBRA continuation provision.--The term ``COBRA
continuation provision'' means any of the following:
(A) Section 4980B, other than subsection
(f)(1) thereof insofar as it relates to
pediatric vaccines.
(B) Part 6 of subtitle B of title I of the
Employee Retirement Income Security Act of 1974
(29 U.S.C. 1161 et seq.), other than section
609 of such Act.
(C) Title XXII of the Public Health Service
Act.
(2) Governmental plan.--The term ``governmental
plan'' has the meaning given such term by section
414(d).
(3) Medical care.--The term ``medical care'' has the
meaning given such term by section 213(d) determined
without regard to--
(A) paragraph (1)(C) thereof, and
(B) so much of paragraph (1)(D) thereof as
relates to qualified long-term care insurance.
(4) Network plan.--The term ``network plan'' means
health insurance coverage of a health insurance issuer
under which the financing and delivery of medical care
are provided, in whole or in part, through a defined
set of providers under contract with the issuer.
(5) Placed for adoption defined.--The term
``placement'', or being ``placed'', for adoption, in
connection with any placement for adoption of a child
with any person, means the assumption and retention by
such person of a legal obligation for total or partial
support of such child in anticipation of adoption of
such child. The child's placement with such person
terminates upon the termination of such legal
obligation.
(6) Family member.--The term ``family member'' means,
with respect to any individual--
(A) a dependent (as such term is used for
purposes of section 9801(f)(2)) of such
individual, and
(B) any other individual who is a first-
degree, second-degree, third-degree, or fourth-
degree relative of such individual or of an
individual described in subparagraph (A).
(7) Genetic information.--
(A) In general.--The term ``genetic
information'' means, with respect to any
individual, information about--
(i) such individual's genetic tests,
(ii) the genetic tests of family
members of such individual, and
(iii) the manifestation of a disease
or disorder in family members of such
individual.
(B) Inclusion of genetic services and
participation in genetic research.--Such term
includes, with respect to any individual, any
request for, or receipt of, genetic services,
or participation in clinical research which
includes genetic services, by such individual
or any family member of such individual.
(C) Exclusions.--The term ``genetic
information'' shall not include information
about the sex or age of any individual.
(8) Genetic test.--
(A) In general.--The term ``genetic test''
means an analysis of human DNA, RNA,
chromosomes, proteins, or metabolites, that
detects genotypes, mutations, or chromosomal
changes.
(B) Exceptions.--The term ``genetic test''
does not mean--
(i) an analysis of proteins or
metabolites that does not detect
genotypes, mutations, or chromosomal
changes, or
(ii) an analysis of proteins or
metabolites that is directly related to
a manifested disease, disorder, or
pathological condition that could
reasonably be detected by a health care
professional with appropriate training
and expertise in the field of medicine
involved.
(9) Genetic services.--The term ``genetic services''
means--
(A) a genetic test;
(B) genetic counseling (including obtaining,
interpreting, or assessing genetic
information); or
(C) genetic education.
(10) Underwriting purposes.--The term ``underwriting
purposes'' means, with respect to any group health
plan, or health insurance coverage offered in
connection with a group health plan--
(A) rules for, or determination of,
eligibility (including enrollment and continued
eligibility) for benefits under the plan or
coverage;
(B) the computation of premium or
contribution amounts under the plan or
coverage;
(C) the application of any pre-existing
condition exclusion under the plan or coverage;
and
(D) other activities related to the creation,
renewal, or replacement of a contract of health
insurance or health benefits.
* * * * * * *
MINORITY VIEWS
INTRODUCTION
Committee Democrats oppose H.R. 824, the Telehealth Benefit
Expansion for Workers Act of 2023. This misguided legislation
would create loopholes in important consumer protections, put
individuals at risk of misleading marketing practices and
substandard coverage, and undermine access to quality,
coordinated health care for workers and their families.
GROUP HEALTH PLAN CONSUMER PROTECTIONS AND
``EXCEPTED BENEFITS''
Group health plans and health insurance issuers are subject
to a number of requirements that protect consumers and ensure
health coverage meets minimum standards. These laws include the
Health Insurance Portability and Accountability Act (HIPAA),\1\
the Mental Health Parity and Addiction Equity Act (MHPAEA),\2\
the Genetic Information Nondiscrimination Act (GINA),\3\ and
the Patient Protection and Affordable Care Act (ACA).\4\ More
than 164 million workers and their dependents\5\ rely on these
consumer protection laws to ensure that the coverage they
receive through a job-based health plan is adequate and
affordable. These standards apply to group health plans and
issuers primarily through Part 7 of the Employee Retirement
Income Security Act (ERISA),\6\ Title 27 of the Public Health
Service Act (PHSA),\7\ and Chapter 100 of the Internal Revenue
Code (IRC)\8\ and are enforced by the Departments of Labor,
Health and Human Services, and the Treasury, respectively.
---------------------------------------------------------------------------
\1\Pub. L. No. 104-191 (1996).
\2\Pub. L. No. 110-343 (2008).
\3\Pub. L. No. 110-233 (2008).
\4\Pub. L. No. 111-148 (2010).
\5\Kaiser Family Found., Health Insurance Coverage of the Total
Population (2021), https://www.kff.org/other/state-indicator/health-
insurance-coverage-of-the-total-population-cps.
\6\29 U.S.C. Part 7.
\7\42 U.S.C. Subch. XXV.
\8\IRC Chap. 100.
---------------------------------------------------------------------------
Although these consumer protections apply broadly to
insurance and group health plans sponsored by both private
entities and nonfederal governments, federal law enumerates
certain categories of ``excepted benefits'' that are exempt
from these requirements.\9\ Excepted benefits include insurance
products that are distinct from health coverage--such as
liability insurance, disability benefits, and workers'
compensation--as well as certain health expenses that
historically have been treated separately from group health
coverage--such as long-term care, limited scope dental or
vision benefits, and hospital indemnity or fixed indemnity
insurance.\10\ Status as an excepted benefit provides the plan
or coverage with a sweeping exemption from all requirements of
Part 7 of ERISA, Title 27 of PHSA, and Chapter 100 of IRC.
---------------------------------------------------------------------------
\9\29 U.S.C. Sec. 1191a, IRC Sec. 9831, 42 U.S.C. Sec. 300gg-21.
\10\29 U.S.C. Sec. 1191b, IRC Sec. 9832, 42 U.S.C. Sec. 300gg-91.
---------------------------------------------------------------------------
H.R. 824 COULD UNDERMINE IMPORTANT CONSUMER PROTECTIONS
H.R. 824 amends ERISA, PHSA, and IRC to provide that
standalone telehealth-only plans offered by an employer would
be treated as excepted benefits. This would exempt these plans
from consumer protections and lower the quality of health
coverage provided to workers and their dependents. The
Republican Amendment in the Nature of a Substitute (ANS) that
was adopted at the Committee's markup applied three limited
consumer protections that prohibit rescissions of coverage,
preexisting condition exclusions, and discrimination based on
preexisting conditions or health status. However, the ANS fails
to address the overwhelming majority of other loopholes created
by this legislation that could leave workers vulnerable. As an
excepted benefit, all telehealth-only plans would be exempt
from critical ACA consumer protections, including:
prohibition on annual or lifetime dollar
limits on the amount of care provided;
prohibition on waiting periods for coverage;
right to external review of benefit denials;
and
medical loss ratio standards that require
insurers to spend at least 80 percent (85 percent in
the large group market) of premium dollars on health
claims.
Telehealth-only plans in the small-group market would also
be exempt from state and federal review of large premium hikes,
could raise premiums for older workers beyond the 3:1 ratio
permitted under the ACA, and would not have to provide coverage
of essential health benefits.
In addition, H.R. 824 would severely undermine the
requirement of MHPAEA that plans and issuers that cover mental
health and substance use disorder benefits do so at parity with
medical and surgical benefits. Under current law, there is no
federal requirement that self-insured small employer plans or
large employer-sponsored plans (whether self-insured or fully
insured) provide any behavioral health benefits, only that, if
they do so, they comply with MHPAEA. Therefore, under H.R. 824,
an employer could opt not to cover behavioral health care in
their traditional group health plan and instead carve out a
separate behavioral health benefit delivered through a
telehealth-only policy. As an excepted benefit, the telehealth-
only plan would be exempt from MHPAEA, therefore allowing the
plan sponsor to impose otherwise impermissible treatment
limitations on patients. Because of this loophole, major
organizations that advocate for mental health and substance use
disorder care oppose H.R. 824, including American Psychological
Association, Kennedy Forum, National Alliance on Mental
Illness, Mental Health America, and Eating Disorders
Coalition.\11\
---------------------------------------------------------------------------
\11\Letter from Mental Health and Substance Use Disorder
Organizations to Chair Virginia Foxx and Ranking Member Bobby Scott, H.
Comm. on Educ. & the Workforce, Full Committee Markup (June 6, 2023)
(on file with author).
---------------------------------------------------------------------------
H.R. 824 COULD REDUCE QUALITY BY SEGMENTING TELEHEALTH FROM IN-PERSON
CARE
Telehealth can be a useful tool in delivering certain
health services and can offer convenience and the ability to
provide care to people with mobility limitations.\12\ However,
making standalone telehealth policies an excepted benefit would
encourage the segmentation of an important modality of
delivering care to patients. Consumer advocates and health care
providers have expressed serious concerns that this approach
could make accessing important health services more difficult
and could severely lower the quality of care that patients
receive.\13\
---------------------------------------------------------------------------
\12\Stephanie Watson, Telehealth: The advantages and disadvantages,
Harvard Health Publ'g (Oct. 12, 2020), https://www.health.harvard.edu/
staying-healthy/telehealth-the-advantages-and-disadvantages.
\13\Elizabeth Rosenthal, Telemedicine Is a Tool. Not a Replacement
for Your Doctor's Touch, NY Times (Apr. 29, 2021), https://
www.nytimes.com/2021/04/29/opinion/virtual-remote-medicine-covid.htm.
---------------------------------------------------------------------------
Currently, the vast majority of employers already provide
coverage for telehealth as part of their traditional group
health plan. In 2022, 96 percent of large employer plans and 87
percent of small employer plans included telehealth coverage as
part of an integrated health benefit.\14\ However, rather than
expanding coverage of telehealth as part of a comprehensive
benefit package that includes both in-person and virtual care,
H.R. 824 would simply encourage employers to carve out
telehealth from their group health plan. This could lead to
segmentation of care and potentially worse outcomes for
patients. In a recent letter, more than 30 leading patient
groups--including American Cancer Society Cancer Action
Network, American Heart Association, American Lung Association,
March of Dimes, Susan G. Komen, and the Leukemia & Lymphoma
Society--wrote:
---------------------------------------------------------------------------
\14\Gary Claxon et. al., 2022 Employer Health Benefits Survey,
Kaiser Family Found. (Oct. 27, 2022), at 191, https://files.kff.org/
attachment/Report-Employer-Health-Benefits-2022-Annual-
Survey.pdf.
Even in the best-case scenario, where an individual enrolls
in a comprehensive employer plan and the telehealth-only
policy, we are concerned that a telehealth- only policy could
create significant frustration and confusion for consumers who
need in-person care to diagnose and treat their symptoms . . .
[T]he telehealth provider and in-person provider may be two
different providers within two different medical systems. As a
result, the telehealth provider would not necessarily have
access to the patient's medical history and thus would be
hampered in their ability to adequately treat and diagnose the
patient.\15\
---------------------------------------------------------------------------
\15\Patient Community Concerns About the Detrimental Impact of
Policies Included in HR 2868, the Association Health Plans Act; HR 824,
the Telehealth Benefit Expansion for Workers Act; and HR 2813, the
Self-Insurance Protection Act, Letter to Chair Virginia Foxx and
Ranking Member Bobby Scott, H. Comm. on Educ. & the Workforce, Full
Committee Markup (June 6, 2023) (on file with author).
Studies have shown that telehealth can benefit patients
when it is part of integrated care that improves coordination
between in-person and telehealth providers.\16\ However,
telehealth also suffers from numerous limitations and is
frequently inappropriate because it does not offer the ability
of a provider to perform examinations, evaluations, treatments,
and other health services that can only be provided in-
person.\17\ Regrettably, by encouraging employers to remove
telehealth from their comprehensive group health plans in favor
of standalone policies, H.R. 824 would exacerbate the
segmentation of care and increase the risk that telehealth is
used as an inappropriate substitute for in-person care.
---------------------------------------------------------------------------
\16\See, e.g., Holly D. McKissick, et al., The Impact of Telehealth
and Care Coordination on the Number and Type of Clinical Visits for
Children with Medical Complexity, 31 J. Pediatric Health Care 452 (Dec.
22, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5481493/.
\17\See, e.g., Manouchehr Saljoughian, The Benefits and Limitations
of Telehealth, 46 U.S. Pharmacist 8 (2021) (``Telemedicine visits are
not a complete substitute for in-person visits; nor they are feasible
for all patients or clinical situations. For example, technology does
not always work smoothly, and technical difficulties may interfere with
delivery of care.'').
---------------------------------------------------------------------------
H.R. 824 COULD PLACE CONSUMERS AT RISK OF DECEPTIVE
MARKETING PRACTICES
H.R. 824 could expose consumers to deceptive marketing
practices that could lead to individuals enrolling in
telehealth-only plans under the mistaken impression that they
are receiving comprehensive coverage. Navigating health
coverage is extremely complex for consumers and health policy
experts have identified the marketing of excepted benefits as a
growing area of concern for individuals covered by job-based
health plans.\18\ As Sabrina Corlette, Research Professor and
Co-Director of the Center on Health Insurance Reforms at
Georgetown University's McCourt School of Public Policy noted
during her testimony before the Subcommittee on Health,
Employment, Labor, and Pensions on April 26, 2023:
---------------------------------------------------------------------------
\18\Christen Linke Young and Kathleen Hannick, Fixed Indemnity
Health Coverage Is a Problematic Form of ``Junk Insurance,'' Brookings
Inst. (Aug. 4, 2020), https://www.brookings.edu/blog/usc-brookings-
schaeffer-on-health-policy/2020/08/04/fixed-indemnity-health-coverage-
is-a-problematic-form-of-junk-insurance/.
Numerous market studies have found that many unscrupulous
insurers and brokers deceptively market excepted benefit
products such as fixed indemnity insurance as substitutes for
comprehensive insurance, when in fact they are anything but.
Too often, consumers believe they are purchasing health
insurance coverage that will provide financial protection if
they get sick or injured, only to find out that the plan does
not cover even a small fraction of their costs.\19\
---------------------------------------------------------------------------
\19\Reducing Health Care Costs for Working Americans and Their
Families: Hearing Before the Subcomm. on Health, Empl., Lab., &
Pensions of the H. Comm. on Educ. & the Workforce, 118th Cong. 10
(2023) (testimony of Sabrina Corlette, Research Professor and Co-
Director, Center on Health Insurance Reforms at the Georgetown
University McCourt School of Public Policy).
Similarly, a 2020 analysis by the Brookings Institution
identified numerous cases in which excepted benefits have been
designed to mimic traditional health benefits and are marketed
to workers, often paired with a group health plan that offers
very little coverage of basic care and does not meet minimum
standards under the ACA.\20\ These arrangements may violate the
employer shared responsibility requirement, prompting Committee
Democrats to encourage the U.S. Department of Labor to increase
its oversight activities in this area.\21\
---------------------------------------------------------------------------
\20\Young and Hannick, supra note 18.
\21\Scott, Wilson to DOL: Protect Workers' Access to Comprehensive
Health Benefits, H. Comm. on Educ. & Labor, U.S. House of
Representatives (Oct. 7, 2020), https://democrats-
edworkforce.house.gov/media/press-releases/scott-wilson-to-dol-protect-
workers-access-to-
comprehensive-health-benefits.
---------------------------------------------------------------------------
Broadening excepted benefits under H.R. 824 would present
similar risks for consumers. Although the ANS would require
employers to provide a notice to consumers warning them that
the coverage is limited, similar notices\22\ exist in the
individual excepted benefits market, yet experts continue to
observe misleading marketing and consumer confusion.\23\
Moreover, the notice does not require consumers be informed
that coverage through the ACA Marketplaces is available, which
would likely be a more appropriate option for individuals whose
employer offers a plan that does not provide coverage that
meets standards for affordability and comprehensiveness.
---------------------------------------------------------------------------
\22\45 C.F.R. Sec. 148.220.
\23\Dania Palanker and Kevin Lucia, Limited Plans with Minimal
Coverage Are Being Sold as Primary Coverage, Leaving Consumers at Risk,
Commonwealth Fund (Sept. 10 2021), https://www.commonwealthfund.org/
blog/2021/limited-plans-minimal-coverage-are-being-sold-primary-
coverage-leaving-consumers-risk.
---------------------------------------------------------------------------
DEMOCRATIC AMENDMENT OFFERED DURING MARKUP OF H.R. 824
Committee Democrats put forward one amendment to improve
the bill. Offered by Rep. Mark DeSaulnier (D-CA-10), this
amendment would have ensured that the legislation would not
reduce the quality of care received by patients by preventing
the legislation from taking effect unless the U.S. Secretary of
Labor certifies that it will not limit access to in-person care
or reduce care coordination. Committee Republicans rejected
this amendment.
------------------------------------------------------------------------
Amendment Offered By Description Action Taken
------------------------------------------------------------------------
#2......... Mr. DeSaulnier... To provide that bill Defeated
will not take effect
unless the Secretary
of Labor certifies
that it will not
undermine
coordination of care
or reduce access to
in-person care.
------------------------------------------------------------------------
CONCLUSION
Committee Democrats agree that telehealth--as part of a
comprehensive benefit package that is subject to strong
guardrails that protect consumers--can be a useful method of
delivering care to patients. However, H.R. 824 fails to meet
necessary standards to ensure that the bill furthers the
appropriate use of telehealth. Instead, it would create harmful
loopholes in consumer protection laws, expose individuals to
potential misleading marketing and less comprehensive coverage,
and further fragment the delivery of care.
For the reasons stated above, Committee Democrats opposed
H.R. 824 when the Committee on Education and the Workforce
considered it on June 13, 2023. We urge the House of
Representatives to do the same.
Robert C. ``Bobby'' Scott,
Ranking Member.
Joe Courtney.
Gregorio Kilili Camacho Sablan.
Suzanne Bonamici.
Mark Takano.
Mark DeSaulnier.
Jahana Hayes.
Haley M. Stevens.
Jamaal Bowman.