1. EEOC’s Wellness Regulations: Another Layer of Confusion
Presented by: Lorie Maring Phone: (404)

2. Today’s Agenda
Explain the EEOC’s new wellness regulations under ADA and GINA
Explain the differences between the EEOC's new wellness rules and those issued under ERISA, and what this means for employers
Discuss the heightened scrutiny over wellness programs that involve biomedical screenings or health risk assessments
Discuss the impact of regulations that only allow employers to obtain results of health risk assessments or biomedical screenings on an aggregate level
Discuss the EEOC's view of the ADA "safe harbor" language
Provide tips for 2017 benefit plan design

3. Wellness Overview Wellness programs can take may forms
Limited or comprehensive
Covering employees, spouses, other family members
Standalone program or part of larger GHP
Common goal is to promote health and lower health plan costs by using tools such as—
Health education and healthy lifestyle promotion
Health-related communications
Health risk assessments
Disease prevention and management
Wide range of rewards or penalties

4. WHY DOES IT SEEM SO COMPLICATED?

5. Multiple Compliance Concerns
ERISA
GINA
ADA
Tax Code
HIPAA
Wellness programs
ADEA
COBRA
STATE LAWS
FLSA
TITLE VII
HCR

6. Americans with Disabilities Act (ADA)
Prohibits discrimination by employers on basis of disability in regard to terms, conditions and privileges of employment.
Discrimination includes:
Requiring medical examinations; and
Making inquiries as to whether employee has disability unless such exam or inquiry is:
Job-related and consistent with business necessity
Must provide equal opportunity for disabled employees to participate in programs and offer reasonable accommodations.

7. Americans with Disabilities Act (ADA)
Final Regulations Issued in May of 2016
Effective July 18, 2016
Employers must comply for plan years beginning on or after January 1, 2017
Addresses primary concerns of EEOC:
Employer’s use of disability-related inquiries
Incentives rendering “voluntary” program involuntary

8. Genetic Information Nondiscrimination Act (GINA)
Prohibits discrimination by GHPs, insurers, and employers due to individual’s “genetic information”
Title I restricts collection and use of genetic information by GHPs and insurers
Enforced by DOL, IRS, and HHS
Title II prohibits employment discrimination based on genetic information
Enforced by EEOC

9. Genetic Information Nondiscrimination Act (GINA)
“Genetic Information” includes
Manifestation of disease or disorder in family members (“family medical history”)
Can be discerned from family medical history questions or biometric screenings of family members
“Family” includes spouses and adopted children and dependents of spouses; as well as biological family.

10. GINA – Title I Title I generally prohibits group health plans from:
Adjusting premium or contributions amounts based on genetic information;
Requesting/requiring genetic testing;
Requesting/requiring/purchasing genetic information for underwriting purposes or in connection with open enrollment.
No HRA during open enrollment

11. GINA – Title II
Title II generally prohibits employers from discriminating against employees or applicants because of genetic information
DOL/HHS/IRS enforce GINA Title I
EEOC enforces GINA Title II (employment)
Exception for voluntary wellness program.
Individuals must provide prior knowing, voluntary and written authorization.
Final Regulations issued May 2016

12. Wellness Background: HIPAA/ACA
HIPAA prohibits discrimination by group health plans based on “health factors.”
Wellness Program Exception!
ACA expanded HIPAA to encourage more wellness programs

13. Healthcare Reform/HIPAA
Which Plans are Subject to HIPAA and ACA rules?
Participatory
Health Contingent (Activity Only)
Health Contingent (Outcome-Based)

14. Healthcare Reform/HIPAA
To qualify for wellness program exception, the program must meet certain conditions:
Participatory programs must only be offered to “similarly situated” individuals.
No limit on financial incentives – but ADA/GINA
Health-contingent programs must meet 5 factor test.

15. Healthcare Reform/HIPAA
Distinction between participatory and “health contingent” is whether reward it tied to:
HEALTH STATUS

16. Healthcare Reform/HIPAA
Participatory program examples:
Fitness center membership reimbursement
Reward for participating in health assessment
Waiver of health plan cost-sharing for preventive items or services
Reward for attending health education seminar

17. Healthcare Reform/HIPAA
Two types of “health-contingent” programs:
Activity-Only
Tobacco cessation coaching programs
Diet programs (but not biggest loser!)
Walking or other exercise programs
Health coach meeting required only of employees showing risk factors on HRA
Outcome-Based
BMI below 30
Cholesterol below 200
Tobacco-free
Weight loss goals met
Both must meet 5 factor test.

18. Healthcare Reform/HIPAA
Five Factor-Test:
Qualify for the reward at least once/year.
Total reward may not exceed 30% (50% for tobacco prevention programs) of total cost of coverage (EE or Family).
Reasonable design to promote health or prevent disease.

19. Healthcare Reform/HIPAA
Five Factor Test (cont.):
Full reward must be available to all similarly situated individuals.
Must provide reasonable alternative standard (or waiver of standard)
For Activity-Only may require proof unreasonably difficult to participate due to medical condition
Must allow reasonable alternative to any outcome-based program to anyone who does not meet the initial standard (effectively eliminates employer’s ability to enforce any outcome- based standard against a participant)
5. Disclosure of reasonable alternative standard (or waiver) in all plan materials describing the wellness program terms.
SPD
Open Enrollment
Sample language on DOL website

20. Healthcare Reform/HIPAA
Other Requirements:
Reward may not be paid in subsequent plan year and employer must provide retroactively to plan year for which incentive is earned
Must assist employees in finding paying for educational or smoking cessation classes (but may require employee to pay for cost of food in weight reduction program, e.g.)
Reasonable Time Commitment (Beware FLSA issues in requiring employees to devote unpaid time to wellness activities)

21. Americans with Disabilities Act (ADA)
Carves out exception for “voluntary” medical exams part of employee wellness program.
Pre-regulatory EEOC Enforcement Guidance said wellness program is voluntary as long as employer neither:
Requires participation; nor
Penalizes employees who do not participate
Final Regulations provide clarification on “Voluntary”

22. Americans with Disabilities Act (ADA)
Safe harbor for administering terms of bona fide benefit plan
Based on underwriting risks, classifying risks or administering such risks.
Applies whether exam/inquiry is voluntary or not.
Two Courts have extended application of safe harbor beyond programs involving medical exams or DRI: Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012) and EEOC v. Flambeau, Inc., Case No. 14-CV-638 (Dec. 31, 2015).

23. Final Rules: ADA Primary Requirements: Voluntary
30% incentive limits (no increases for tobacco/dependents)
Applies to participatory programs
Reasonable Alternatives
Employee notice regarding medical information collection
Reasonably designed to promote health
Privacy/security protections with regard to wellness information

24. Final Rules: ADA Require Wellness Program to Meet ADA
Disability-related Inquiry
Medical Exams
Require Wellness Program to Meet ADA

25. Final Rules: ADA VOLUNTARY: No requirement to participate
No denial of coverage in a benefit option for non-participation (i.e. no “gatekeeper design”)
No adverse employment action or retaliation against, interference with, coercion, intimidation, or threatening of employees

26. Final Rules: ADA Incentive limits
30% of total cost of self-only coverage under GHP, if employer requires enrollment in that GHP
If employer offers only 1 GHP, but employees need not enroll: 30% of cost of self-only coverage under the GHP
If employer offers more than 1 GHP but does not require enrollment in a particular plan: 30% of employer’s lowest-cost self-only comprehensive medical coverage
If employer does not offer any GHP: 30% of the total cost to a 40-year old non- smoker purchasing self-only coverage under the second-lowest-cost “silver” plan on the Exchange in same location as employer’s principal place of business.
No additional 20% for smoking cessation or increased incentives if wellness program includes families

27. Final Rules: ADA Reasonable Alternatives
Provided for employees for whom it is unreasonably difficult due to medical condition to complete disability related inquiry or medical exam
Reasonably designed to promote health or prevent disease
Should provide follow-up after collecting medical information
Not just about collecting information

28. Final Rules: ADA Notice requirement Notice must clearly explain—
What medical information will be obtained
How it will be used
Who will receive it
Restrictions on disclosure
Model notice on EEOC website
Notice requirement applies whether or not wellness program is offered through a GHP

29. Final Rules: ADA Confidentiality requirement
Employer may only receive medical information in aggregate form except as needed for administration of a health plan.
Comply with HIPAA privacy requirements/separate those who handle individually identifiable health information from those who make employment related decisions/use TPA
Employee may not be required to agree to sale, exchange, sharing, transfer, or other disclosure or medical information except to extent permitted to carry out specific activities related to wellness programs.
Employer may not require employee to waive ADA’s confidentiality protection as condition for participating in wellness program or receiving incentive

30. Final Rules: ADA Safe Harbor
An insurer or entity that administers benefit plans is not prohibited from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan based on underwriting risk, classifying risks, or administering such risks that are based on or not inconsistent with state law.
Question is whether bona fide benefit plan safe harbor applies even if program not voluntary
Courts and EEOC disagree
Employers should exercise caution relying on court position

31. GINA: Final Rules Wellness program must be—
Reasonably designed to promote health or prevent disease
Same standard as HIPAA and ADA rules
Voluntary
No penalties for withholding genetic information
No incentives for providing genetic information
Authorized
Individual must give voluntary, knowing, and written authorization after proper notice, before providing genetic information
Notice must describe information that will be obtained, general purposes for which it will be used, and disclosure restrictions
Similar to notice requirements in ADA regulations (although ADA regulations do not require prior written authorization)

32. GINA: Final Rules Confidentiality requirement
Individually identifiable information must be kept confidential (similar to ADA restrictions)
Incentives for family members
Medical history of spouse or other family member is employee’s genetic information
Offering incentives in return for a spouse providing health information would seem to violate GINA
Final GINA regulations provide a compromise for spouses under Title II, but not Title I

33. GINA: Final Rules
Final regulations: Employer may offer incentive in return for spouse’s information if—
Part of wellness program providing health or genetic services
Questions ask only about spouse’s past or current health status (“manifestation of disease and disorder”)
No family medical history or genetic test results
No health or genetic information about employee’s children
Maximum incentive does not exceed 30% of total cost of self-only coverage for each of the employee and spouse
Total combined incentive cannot exceed twice the amount of 30% of the cost of self-only coverage
Calculation method differs based on whether employee is enrolled in employer’s GHP (same calculation method as ADA)

34. Practical Tips for Plan Design
Take advantage of fewer requirements for participatory programs
No DRI or medical exams for family wellness or smoking cessation programs to take advantage of higher limits
Be cautious of programs including spouses and children under GINA and review incentive limits carefully
Look out for “gatekeeper” programs under ADA
Consider risks of relying on bona fide benefit plan safe harbor to sidestep “voluntary” requirement

35. Consideration of Other Laws
ERISA
Compliance requirements for ERISA plans include From 5500, SPD, claims procedures
Tax Code
Example: Cash or gift cards of any amount are taxable
COBRA
GHPs must provide notices and offer continuation coverage
HIPAA privacy and security rules apply to GHPs
Employment discrimination laws (e.g., Title VII)
State laws (e.g., smoker protection laws)
NLRB – employers with union employees may need to bargain for wellness incentives

36. Final Questions
Presented by: Lorie Maring Phone: (404)

37. Thank You
Presented by: Lorie Maring Phone: (404)