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November 09, 2022

Travel and Lodging Benefits for Abortion Services

By Sarah Kanter

After the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, many employers have added enhanced travel and lodging benefits to their group health plans. By doing so, employers seek to provide reimbursement for travel and lodging if a participant or dependent must travel a certain distance to obtain abortion services. This article examines the legal framework governing travel and lodging benefits in group health plans, including the Employee Retirement Income Security Act of 1974 (ERISA), the Affordable Care Act (ACA), and the Internal Revenue Code (the Code). 

Dobbs Decision – Overview

At issue in the Dobbs case was whether the Mississippi Gestational Age Act, the Mississippi law that prohibits nearly all abortions after fifteen weeks (i.e., permitting them only prior to fetal viability), was permitted under the Constitution. Prior Supreme Court precedent, including Roe v. Wade (Roe), and Planned Parenthood of Southeastern Pa. v. Casey (Casey), had held that a woman has a constitutional right to an abortion, and states could not prohibit abortion prior to fetal viability.

The Dobbs court disagreed, holding that:

  • The U.S. Constitution does not confer a right to an abortion
  • Prior Supreme Court precedent (including Roe and Casey) were wrongly decided and overruled
  • The authority to regulate abortion is returned to the states, and laws regulating abortion, like other health and welfare laws, are entitled to a “strong presumption of validity.”

Under this new legal framework, the Mississippi Gestational Age Act was upheld as constitutional. Since the Dobbs opinion was issued, abortions in nearly all instances have become effectively banned in many states, and many states ban abortion prior to fetal viability.

This article outlines the specific considerations that employers face when amending their group health plans to provide travel and lodging benefits as described above.

Self-Funded Plans

Prior to Dobbs, many self-funded group health plans already provided travel and lodging benefits when travel was required for certain medical conditions, most commonly organ transplants. In the wake of Dobbs, many employers have enhanced these travel and lodging benefits to cover travel and lodging related to abortion services. For example, a common plan provision is providing up to $4,000 to pay for travel and lodging expenses in the event a participant or dependent must travel over 50 miles to obtain an abortion.

Some employers have expanded the travel and lodging benefit more broadly to provide travel and lodging benefits to any covered medical or behavioral health service, if the participant cannot access such covered service from a local provider within 50 miles from their home or within the state they reside.

Self-insured group health plans that are sponsored by private-sector employers, and multiemployer trusts, are typically governed by ERISA. Due to ERISA’s broad preemption of state law, self-funded ERISA plans are not subject to the state health insurance laws; accordingly, they have greater flexibility in plan benefit design. (The extent to which ERISA preemption will apply to state abortion laws that contain civil and/or criminal aiding and abetting provisions is addressed in Considering ERISA Preemption of State Laws Following Dobbs v. Jackson Women’s Health Organization in this issue.)

Fully Insured Plans

Employers who only offer fully insured medical benefits are faced with less straightforward options than those that offer a self-funded plan. Fully insured plans are subject to state insurance laws; accordingly, fully insured plans offered in states with abortion bans will not cover abortion services, and employers have no control over plan design.

Employers with fully insured plans who wish to cover abortion services and related travel and lodging benefits may consider creating a Health Reimbursement Arrangement (HRA) that would cover abortion services and reimburse associated travel and lodging benefits. An HRA is an employer-funded arrangement that reimburses employees for certain medical care expenses incurred by employees and their dependents. An HRA must be paid solely by the employer. An HRA is considered to be a self-funded group health plan under applicable federal laws. Accordingly, an HRA is subject to the ACA market reform requirements (e.g., coverage of preventive care with no cost-sharing, prohibitions on annual/lifetime limits for essential health benefits). Because by its very nature, an HRA cannot comply with these ACA requirements, it must be “integrated” with the employer’s medical plan to be a compliant group health plan. There is specific IRS guidance addressing the rules regarding integration. Generally, this means that only those employees (and dependents) who are covered by an employer’s group health plan or are covered by another employer’s group health plan (such as through a spouse or parent’s employer) can be covered by the HRA. The HRA could pay for abortion services and reimburse for associated travel and lodging expenses.

Offering an HRA that covers abortion services and travel and lodging expenses is more complicated if the employer also offers a high-deductible health plan (HDHP), as an employee’s participation in the HRA could cause the individual to be ineligible to contribute to a health savings account (HSA) until the HDHP’s annual deductible has been met. This means that coordination between the health insurer and the vendor that administers the HRA will be required to ensure that the HRA does not pay for any benefits prior to the HDHP deductible being met. Insurers in states with abortion bans may be unwilling to coordinate with an HRA vendor for this purpose.

Internal Revenue Code Considerations

In general, a group health plan can only reimburse, on a non-taxable basis, “medical care” as that term is defined under Internal Revenue Code Section 213(d). The following is considered “medical care” under the Code:

  • Coverage of legal abortion services: “Medical care” does not include any amounts expended for illegal operations or treatment. However, the IRS will generally look at the locality where an item or service was obtained to determine whether it was legally procured. This means that a medical plan can reimburse for abortion services that were legally obtained. Many employers have added language to their group health plans clarifying that the plan will only cover services legally obtained in the locality where the service is performed.
  • Travel: “Medical care” includes amounts paid for transportation that is primarily for, and essential to, medical care. This can include buses, taxis, or plane fares as well as the transportation expenses of a parent who must go with a child who needs medical care. The 2021 IRS Publication 502 (“Medical and Dental Expenses”) states the following with regards to cars:

    You can include out-of-pocket expenses, such as the cost of gas and oil, when you use a car for medical reasons. You can’t include depreciation, insurance, general repair, or maintenance expenses. If you don’t want to use your actual expenses for 2021, you can use the standard medical mileage rate of 16 cents a mile. You can also include parking fees and tolls.

    Note: For 2022, the standard medical mileage rate has been increased from 16 cents to 22 cents.
  • Lodging: “Medical care” includes the cost of lodging not provided in a hospital if certain conditions (listed below) are met. This amount is limited to $50/night ($100/night if a parent is traveling with a child who is the patient). Any amount reimbursed in excess of $50/night (or $100/night, if applicable) will be taxable compensation to the employee (i.e., W-2 wages). The conditions that must be met include:
    • The lodging is primarily for and essential to the medical care;
    • The medical care is provided by a doctor in a licensed hospital or in a medical care facility related to or equivalent of a licensed hospital;
    • The lodging isn’t lavish or extravagant; and
    • There is no significant pleasure, recreation, or vacation in the travel.

We note that meals that are not provided at a hospital or similar institution are not considered medical care under the Code.

In conclusion, plan sponsors of self-funded group health plans have more flexibility in amending their plan to provide for travel and lodging benefits to obtain abortion services, but need to be mindful of applicable IRS rules and limits.  Plan sponsors of fully insured plans will face more difficulty in trying to offer these benefits and will likely need to engage outside vendors to assist in administering the benefit. 

    Sarah Kanter

    Trucker Huss APC, San Francisco, CA

    Sarah Kanter is an employee benefits attorney at the law firm Trucker Huss, APC in San Francisco, CA. She focuses her practice on helping her clients navigate the many complex federal and state laws applicable to health and welfare plans, such as ERISA, the ACA, the Health Insurance Portability and Accountability Act (HIPAA), and the No Surprises Act. Sarah regularly gives presentations on employee benefit matters to clients and professional organizations. She is currently vice chair of the ABA Health Law Section’s Cancer Legal Advocacy Interest Group.

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