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CMS FAQ - 1987
Is a flexible spending
account or a cafeteria plan a covered entity for
purposes of the Privacy Rule and the HIPAA
Administrative Simplification standards?
Answer
A “group health plan” is a covered
entity under HIPAA, and must comply with all of the
HIPAA regulations. A “group health plan” is defined as
an “employee welfare benefit plan,” as that term is
defined by the Employee Retirement Income Security Act (ERISA),
to the extent that the plan provides medical care. See
42 USC § 1320d(5)(A) and 45 CFR 160.103. Thus, to the
extent that a flexible spending account or a cafeteria
plan meets the definition of an employee welfare benefit
plan under ERISA and pays for medical care, it is a
group health plan, unless it has fewer than 50
participants and is self-administered. Employee welfare
benefit plans with fewer than 50 participants and that
are self-administered are not group health plans.
Flexible spending accounts and cafeteria plans are not
excluded from the definition of “health plan” as
excepted benefits. See 45 CFR 160.103, paragraph (2)(i)
of the definition of “health plan.”
From the Privacy Final Rule
As defined in section 1171(5), a
“health plan” is an individual plan or group health plan
that provides, or pays the cost of, medical care. This
definition includes, but is not limited to the 15 types
of plans (e.g., group health plan, health insurance
issuer, health maintenance organization) listed in the
statute, as well as any combination of them.
“Health Plan” included the
following, singly or in combination:
(1)
A group health plan, defined as an employee
welfare benefit plan (as currently
defined in section 3(1)
of the Employee Retirement Income and Security Act of
1974, 29 U.S.C. 1002(1)),
including insured and self-insured plans, to the extent
that the plan provides
medical care (as defined in section 2791(a)(2) of the
Public Health Service
Act, 42 U.S.C. 300gg-91(a)(2)), including items and
services paid for as
medical care, to employees or their dependents directly
or
through insurance or
otherwise, that:
(i) Has 50 or more participants;
or
(ii) Is administered by an entity
other than the employer that established and maintains
the plan.
(2) A health insurance issuer,
defined as an insurance company, insurance service,
or insurance organization
that is licensed to engage in the business of insurance
in a state and is subject
to state or other law that regulates insurance.
(3) A health maintenance
organization, defined as a federally qualified health
maintenance organization,
an organization recognized as a health maintenance
organization under state
law, or a similar organization regulated for solvency
under state law in the
same manner and to the same extent as such a health
maintenance organization.
(4) Part A or Part B of the
Medicare program under title XVIII of the Act.
(5) The Medicaid program under
title XIX of the Act.
(6) A Medicare supplemental
policy (as defined in section 1882(g)(1) of the Act, 42
U.S.C. 1395ss).
(7) A long-term care policy,
including a nursing home fixed-indemnity policy.
(8) An employee welfare
benefit plan or any other arrangement that is
established
or maintained for the
purpose of offering or providing health benefits to the
employees of two or more
employers.
(9) The health care program
for active military personnel under title 10 of the
United States Code.
(10) The veterans health care
program under 38 U.S.C. chapter 17.
(11) The Civilian Health and
Medical Program of the Uniformed Services
(CHAMPUS), as defined in
10 U.S.C. 1072(4).
(12) The Indian Health Service
program under the Indian Health Care Improvement
Act (25 U.S.C. 1601, et
seq.).
(13) The Federal Employees
Health Benefits Program under 5 U.S.C. chapter 89.
(14) An approved state child
health plan for child health assistance that meets the
requirements of section
2103 of the Act.
(15) A Medicare Plus Choice
organization as defined in 42 CFR 422.2, with a
contract under 42 CFR
part 422, subpart K.
In addition to the 15 specific
categories, the list includes any other individual plan
or group health plan, or combination thereof, that
provides or pays for the cost of medical care.
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