Congress has passed and the President has signed government funding legislation called the Consolidated Appropriations Act, 2023 (CAA-23) (Pub. L. No. 117-328, H.R. 2617 (Dec. 29, 2022)). Among other benefits-related provisions, the CAA-23 further extends rules regarding access to telehealth services in the health savings account (HSA) context that were enacted in March 2020 in response to COVID-19 (Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. 116-136, § 3701 (2020); see Legal Update, CARES Act Contains Numerous Employee Benefit Provisions, Including Changes to COVID-19 Testing Mandate). As discussed below, however, several provisions of interest to health plans were not included in the CAA-23 as enacted.

The CAA-23 also includes the SECURE 2.0 Act of 2022, which contains extensive provisions addressing retirement plans (see Legal Update, SECURE 2.0 Act Makes Comprehensive Changes to Retirement Plans).

The CAA-23 extends COVID-19-related relief provisions involving telehealth and HSA eligibility. As background, the CARES Act amended the HSA rules under the Internal Revenue Code (Code) to permit high-deductible health plans (HDHPs) to provide telehealth and other remote care services without first meeting the plan's minimum deductible (26 U.S.C. § 223(c)(2); see Practice Note, Defined Contribution Health Plans: Definition of High Deductible Health Plan (HDHP)). Without this rule, access to telehealth services before satisfying the HDHP deductible could have meant the loss of HSA eligibility. Under the CARES Act provision, however, a health plan did not fail to be treated as an HDHP merely because it did not have a deductible for telehealth and other remote care services for plan years beginning on or before December 31, 2021. An individual covered under this type of health plan could contribute to an HSA.

This provision was effective on the CARES Act's enactment date (March 27, 2020), and could be applied retroactively to January 1, 2020 (IRS Notice 2020-29).

Enacted in March 2022, the CAA-22 prospectively extended this CARES Act rule by making it applicable for months beginning:

For more information, see Legal Update, CAA-22 Legislation Includes Expanded Access to Telehealth Services.

The CAA-23 further extends this relief by making it applicable for plan years beginning after December 31, 2022, and before January 1, 2025.

For more information, see Practice Notes:

The CAA-23 also includes provisions addressing compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA) (Section 2726 of the Public Health Service Act (PHSA) (42 U.S.C. § 300gg-26)). MHPAEA generally prohibits coverage limits in health plans that apply more restrictively to mental health/substance use disorder (MH/SUD) benefits than for medical/surgical benefits. For resources addressing group health plan and health insurer compliance with MHPAEA's requirements, which include relatively recent requirements under the Consolidated Appropriations Act, 2021 (CAA-21), see Mental Health Parity (MHPAEA) Toolkit and Practice Note, Mental Health Parity Requirements Under the CAA-21.

Early on in the COVID-19 pandemic, the federal administrative agencies recognized that:

These services helped individuals seek treatment from health providers in their home, without having to go to a medical office or hospital, thereby reducing the risk of exposure to COVID-19.

The CAA-23's further extension of the original CARES Act relief for telehealth and HSAs suggests that plans and insurers should continue to promote the use of telehealth and other remote care services. As with the CARES Act rules, participants and beneficiaries should be timely notified of the availability of this relief (see Standard Document, Summary of Material Modifications (SMM) Describing COVID-19 Benefits Option).

Notably, several other provisions of interest to health plans were not included in the CAA-23 as enacted. First, the legislation did not include provisions that would have expanded funding for Department of Labor (DOL) enforcement of MHPAEA and permitted the DOL to impose civil money penalties for MHPAEA violations. Accompanying provisions would have prohibited forced arbitration agreements in plans and provisions that afford plan decisionmakers a favorable standard of review regarding benefit determinations and plan interpretations (see Practice Note, ERISA Litigation: Standard of Review and ERISA Litigation Toolkit).

Second, the legislation did not include a provision that would have allowed providers of dialysis services to obtain higher reimbursements from health plans. This provision would have been a response to a Supreme Court ruling from last June in which the Court held that a group health plan's reimbursement provisions did not violate the Medicare Secondary Payer (MSP) rules regarding individuals with end stage renal disease (ESRD) (Marietta Mem'l Emp. Health Benefit Plan v. Davita Inc., 142 S. Ct. 1968 (2022); see Legal Update, Supreme Court: Health Plan's Dialysis Coverage Did Not Violate Medicare Secondary Payer Rules).