“Just as your employer doesn’t know if you’re going to the doctor to treat any other medical condition, they couldn’t find out that you’ve been reimbursed for the trip to request an abortion in a state where you’re legal,” Harvey Cotton said. who advises employers in profit management as a director of the law firm Ropes & Gray. “That’s why it’s so important for this benefit to work through the medical plan.”
The Health Insurance Portability and Liability Act of 1996, known as the HIPAA, protects the privacy of patients ’medical activity, whether care or travel, Cotton said.
The dating app company Match, for example, offers a travel benefit for reproductive care that may not be available in an employee’s home state. The program is managed through their health insurance plans, which he said are confidential.
“Match Group’s reproductive benefits are structured through third parties to ensure employee privacy and confidentiality,” he said in a fact sheet, noting that the care and support services an employee seeks are never shared with the company.
Similarly, Yelp, the collective review platform, said it will not have access to travel reimbursement records related to employee abortion.
“The privacy of our employees was critical to how we would introduce this benefit, which as noted above is administered through our health insurance provider, further ensuring confidentiality,” a spokeswoman told CNN in an email. “Yelp will never receive any information about who has filed a claim and / or received a refund.”
But there are other ways to set up the travel benefit. One in particular, a taxable reimbursement program, could raise issues about how employers verify expenses while maintaining workers ’privacy.
Offer travel refund
Recently, a large number of large employers have announced that they will pay for their workers to travel to providers where abortions are still legal.
A procedural abortion during the first trimester usually costs $ 575 by 2020, according to a recent study by researchers at the University of California at San Francisco. But pregnant women in states where abortion is banned or will soon be banned may have to spend hundreds, or even thousands of dollars, to travel to states where abortion is allowed. In addition to Match (MTCH) and Yelp (YELP), the list of companies that cover travel expenses for abortions include Microsoft (MSFT), Kroger (KR), Starbucks (SBUX), JPMorgan Chase (JPM), Netflix ( NFLX) and Levi Strauss (LEVI), among others.
About 11% of companies are implementing travel and accommodation benefits for abortions, and 23% are considering doing so due to changes in state laws that are still being developed, according to a survey of Mercer which has been taking place since early June.
Larger corporations are more likely to offer this benefit because they are self-insured, which means they pay their workers ’claims and hire an external administrator, usually an insurer, to manage the health plan. Self-insurance plans are subject to federal regulation, which does not limit attention to abortion. But many small and medium-sized businesses have fully insured plans, which are subject to state oversight and would have more difficulty offering benefits for abortion or travel reimbursement to states where the procedure is prohibited.
How the repayment plan might work
There are several ways in which companies can set up these programs, although the most common is expected to be through existing health insurance plans. Some employers already cover workers ’travel expenses if they need some medical care, such as heart procedures, orthopedic surgeries, or cancer treatment.
Insurers generally have or will create forms and processes that allow workers to claim reimbursement for travel, accommodation and other covered expenses related to abortion and submit receipts. It could be similar to the way workers file out-of-network physician claims and then be reimbursed, said Julie Campbell, Mercer’s director of health and benefits practice.
According to experts, some companies are looking to establish these repayment programs in the coming weeks or months.
Other ways employers could cover travel expenses are through health reimbursement agreements, known as HRAs, through employee assistance programs or EAPs, or as taxable reimbursement.
For example, employers could turn to HRAs if the insurer they work with can’t add a mid-year reimbursement program, or they could choose EAPs if they want to cover a wider range of employees, not just employees. covered by the company’s health plan, he said. Jonathan Zimmerman, partner at Morgan Lewis and co-leader of the firm’s reproductive rights working group.
Both options are subject to HIPAA privacy rules, but can be more complicated to set up and include more restrictions. For example, the maximum reimbursement for an HRA this year is $ 1,800. In addition, not all vendors who administer HRA and EAP can or will agree to quickly establish an abortion-related travel reimbursement program.
Offering the benefit as a taxable refund, however, could be more complicated to manage for companies, depending on how it is set up. You may not be subject to HIPAA. And companies might have to balance the need to justify travel claims and employees ’desire for privacy.
What to watch out for
Employees who want to access their corporate travel benefit must read the fine print before assuming that all their expenses will be paid.
Workers may have to meet their deductibles before they can be reimbursed for abortion-related travel expenses, especially if they are on high-deductible health insurance plans.
Some companies may also say that the travel benefit is only available to those who cannot access abortion services within 50 or 100 miles of their home. Some may require workers to go to the nearest state for care, while others may give employees the flexibility to go where they can get appointments as soon as possible.
In addition, while companies can reimburse reasonable airfare without tax consequences, the IRS limits hotel expenses to $ 50 per night for a patient and another $ 50 per night for a companion, if necessary, for a total of $ 100 per night. Therefore, some employers may limit accommodation coverage to avoid additional tax headaches.
For those driving to other states, employers can ask them to send gasoline bills or refund them at a flat rate of 22 cents per mile, which is the 2022 rate set by the IRS.
And workers will need to check whether the out-of-state providers they see will be considered in-network or out-of-network. The latter could be much more expensive.
However, some employees may still have trouble covering the cost of leaving the state for the procedure, as they may not be reimbursed for weeks. This is especially true for low-wage workers.
“A reimbursement mechanism will only work for people who can get that money,” said Alina Salganicoff, director of women’s health policy at the Kaiser Family Foundation. “If you don’t have a credit card, if you don’t have that kind of money saved, for your employer to tell you, ‘We’ll pay you back for it,’ you have to borrow money somewhere to get it. ho “.
Can states participate?
What remains to be seen is whether state law enforcement officials could obtain claims related to abortion and travel services if that state passes legislation that seeks to limit the reproductive care that its residents can get outside its borders.
There are certain exceptions under HIPAA related to law enforcement that could allow state agencies to obtain health care records, said Tzvia Feiertag, a partner in the practice group of benefits for law firm employees Epstein Becker & Green.
But some other states where abortion is still legal are passing laws to restrict access to medical information and to prohibit courts and law enforcement from cooperating with abortion-related cases within its borders.
In addition, the U.S. Department of Health and Human Services Office of Civil Rights last week released a guide that says protected health information can only be shared with law enforcement and without permission. of the patient “only in limited circumstances adapted to protect the person’s privacy and support their access.” to health care, including abortion care. “
“Much of it is currently unknown and varies from state to state,” said Katharine Marshall, director of the law and policy group at Mercer, a for-profit consulting firm.