Congress has passed and the President has signed government funding legislation called the Consolidated Appropriations Act, 2022 (CAA-22). The CAA-22 temporarily and prospectively 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, the disease that results from SARS-CoV-2 and its variants (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 background, the CARES Act amended the HSA rules under the Internal Revenue Code (Code) to state that a high-deductible health plan (HDHP) could 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), but could be applied retroactively to January 1, 2020 (IRS Notice 2020-29). For example, an otherwise eligible individual who had HDHP coverage and who also received coverage beginning February 15, 2020, for telehealth and other remote care services under a non-HDHP arrangement—and before satisfying the HDHP deductible—was not disqualified from contributing to an HSA during 2020.

The CAA-22 prospectively extends this CARES Act rule by making it applicable for months beginning:

For more information, see Practice Notes:

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

These services helped individuals to 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-22's 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). In addition, the federal agencies have encouraged plans and insurers to provide coverage of telehealth and other remote care services:

In implementing guidance addressing the CARES Act amendments to the Code's HSA rules, the federal agencies took the view that the amendments:

The federal agencies will presumably take this interpretive view regarding the CAA-22 extensions, though guidance clarifying that point would be helpful.