Nurse Service Program -- Health Plan?

[sloble@crowleyfleck.com]

Employer has a "nurse service program" where the employer pays an annual premium for employees to visit nurses --usually at a clinic off-site --for reduced rates. This program also enables a nurse to come to the office of the employer and administer flu shots. The employer has no involvement except to renew its annual contract to pay premiums and to distribute a brochure created by the clinic to employees. Employees are responsible for calling the clinic and no information about participants (health or otherwise) passes through the employer. I am concerned about ERISA, HIPAA, etc.

[Jbentz]

As for HIPAA privacy regs, you are not affected becuase you are not a covered entity. The company that you contract may be, if they are part of a clinic or a hospital, but that depends on how the have catagorized themselves under HIPAA. The company may have to pass out Notices, etc... (the Occ Med department at my clinic does.)

[sloble@crowleyfleck.com]

So you don't think the plan is a covered entity? (I know the employer isnt) Health plans are covered entities under HIPAA unless excepted.

ANYONE ELSE--I'm also wondering whether this type of plan could be subject to ERISA--e.g., established or mainatined by the employer to provide welfare/medical benefits?? I know there is an analysis that you must go through... I just can't recall it. THANKS

[Guest kowen]

If the employer is doing anything more than forwarding payroll deductions you should probably be concerned with both ERISA and HIPAA.

[Jbentz]

No, I don't the plan is a CE, based on the following Q&A from the OCR's website:

"Are the following types of insurance covered under HIPAA: long/short term disability; workers'compensation; automobile liablity that includes coverage for medical payments?

Answer

No, the listed types of policies are not health plans. The HIPAA Administrative Simplification regulations specifically exclude from the definition of a “health plan” any policy, plan, or program to the extent that it provides, or pays for the cost of, excepted benefits, which are listed in section 2791©(1) of the Public Health Service Act, 42 U.S.C. 300gg-91©(1). See 45 CFR 160.103. As described in the statute, excepted benefits are one or more (or any combination thereof) of the following policies, plans or programs:

- Coverage only for accident, or disability income insurance, or any combination thereof.

- Coverage issued as a supplement to liability insurance.

- Liability insurance, including general liability insurance and automobile liability insurance.

- Workers’ compensation or similar insurance.

- Automobile medical payment insurance.

- Credit-only insurance.

- Coverage for on-site medical clinics

- Other similar insurance coverage, specified in regulations, under which benefits for medical care are secondary or incidental to other insurance benefits. "

I think you have an arugument whether it is on-site or off-site, because it it secondary or incidental to your other insurance benefits.

It also does not sound like you have any type of enrollment, etc....

[sloble@crowleyfleck.com]

THANKS--helpful

Kowan: There are no salary reductions. Employees pay at reduced rates at the clinic--NOTHING passes through the employer--no money, no health info, no enrollment figures. The employer simply writes a premium check annually and the clinic handles the rest. BUT the employer does maintain the program in the sense that it pays the premiums, and it does endorse the program in the sense that it does not provide employees with other options to choose from. Does this change you answer? THANKS

jbentz: that provision is helpful--it seems odd that on-site clinics would be exempt but not off-site clinics. Thank you for your view.

[Jbentz]

AshleyL,

I know the on-site, off-site makes no sense to me either. We have both, so I always throw in the "medical care is secondary or incidental" part of the regs.

My first requirement in my HIPAA employee training to "please leave your common sense outside. You will not be needing it for the next two hours." )