Bill

Thanks for your reply. I think the arrangement I described may be a group health plan, but it seems to me that there is a decent argument that it is not. Here is why. Under the analysis adopted by some courts, the fact that the Donovan prongs are clearly met does not mean there is an employer plan for purposes of ERISA. See, e.g., Lanpher v. Unum (D. Minn. 2015) . In my case, the employer has no discretion or administrative responsibilities whatsoever. So, there may well not be an ERISA plan at all. If the arrangement I described is not an ERISA plan, then maybe the arrangement is not a group health plan. As you know, a "group health plan" is defined under the ACA in part as being "an employee welfare benefit plan to the extent that the plan provided medical care . . ." It seems credible to take the position that there cannot be a group health plan if there is no employee welfare benefit plan, i.e., no ERISA plan. Make sense?

Small employer currently has no group health plan. If the employer pays a "minute clinic" a flat per head fee (say $200) that entitles its employees to utilize the limited medical services the minute clinic provides at a discounted rate (say $40 per visit instead of regular $90 walk-in rate), has the employer established a group health plan subject to the ACA and ERISA? The problem here, of course, is that if this arrangement is a group health plan, it does not comply with the ACA and ERISA for several reasons, including, no free preventive services and no documentation of the "plan."