The Equal Employment Opportunity Commission (EEOC) issued two sets of final wellness regulations on May 16, 2016 that relate to the Genetic Information Non-discrimination Act (GINA) and the Americans with Disabilities Act (ADA). The rules apply to wellness plans that require participants to undergo medical exams and/or respond to disability related questions and those that ask for family health information.
To whom do the final GINA and ADA wellness regulations apply?
The ADA final wellness rules apply to employees enrolled in a health plan sponsored by an employer with 15 or more employees. The GINA final wellness rules apply to all employer-sponsored wellness programs regardless of whether they are part of a group health plan.
Both of these rules will apply to any health plan that requires medical examinations, or the completion of a questionnaire that makes disability-related inquiries, as a condition of enrollment. A disability-related inquiry is a question that is designed to elicit information about a disability, such as asking for medical history or prior workers’ compensation history.
When must plans comply with the final regulations?
Both of these final regulations will apply to wellness programs beginning with plan years on or after January 1, 2017.
What do the final regulations say?
The final regulations make some important clarifications and changes. We’ve listed the main points of the final regulations below.
|Category||ADA Regulations||GINA Regulations|
- Provide clarification on the definition of voluntary health plan and add a requirement for reasonable design.
- For a plan to be considered voluntary it:
- May not require an employee to participate.
- May not deny an employee coverage or prohibit them from enrolling in a specific plan.
- May not cause an adverse effect on an employee who does not participate, including increased premiums for those not participating.
- A plan is considered to be reasonably designed if it abides by the following parameters:
- Programs must be reasonably designed to promote health or prevent disease. Information from a test/screening must be used to provide results or assist the member in addressing any identified symptoms A wellness program must offer different, reasonable means of qualifying for a reward if an individual does not meet the standard measurement, test or screening.*
- Programs must have a reasonable chance of improving health or preventing disease, and not be overly burdensome for individuals.
- Programs must be reasonably designed to be available to all similarly situated individuals and again make alternatives available to qualify for the reward.
- As with ADA requirements, wellness plans must be reasonably designed (please see the information regarding reasonable design at left).
- Incentives may not be given to a spouse for providing genetic information, including submitting to genetic testing.
- Employees and their families may not be denied coverage in a health plan based on a spouse’s failure to complete a health assessment.
- Information regarding tobacco use is not considered to be genetic information.
|Calculation of Maximum Incentives
The GINA and ADA incentive limits are now identical at 30%** of the cost of coverage. Four scenarios were clarified for determining how to calculate the incentive for wellness plans:
- Employee must be enrolled in an employer plan to participate in wellness program: Limit is 30% of total cost of self-only coverage
- Employer has a single plan and employees do not have to enroll to participate in wellness program: Limit is 30% of cost of self-only coverage offered by employer
- Employer offers several plans but does not require enrollment in any particular plan to participate in wellness program: Limit is 30% of the employer’s lowest cost for self-only coverage
- Employer offers no health plan, but does have a standalone wellness plan: Limit is 30% of cost for a 40-year-old non-smoker to purchase a silver self-only plan in a state or federal exchange where the employer business operates
- The calculation requirements are the same for GINA and ADA.
- Incentives may be offered to an employee when their spouse shares their personal health information as part of a health assessment. This applies as long as all other regulatory requirements are met and the information comes directly from the spouse.
- Incentives are prohibited for providing genetic information about children, regardless of age.
||If a health plan will require employees to answer disability questions or undergo medical examinations, the employer must provider a notice to employees regarding how their information will be safeguarded. The notice must include the following information:
The EEOC has advised that they will be preparing and posting a sample notice that may be used to satisfy the requirements.
- What medical information will be obtained
- How will the medical information be used
- Who will receive the medical information
- Restrictions in place on the disclosure of medical information
- Personal health information is prohibited from being sold, exchanged, transferred or otherwise disclosed as a condition of wellness plan participation or receiving incentives.
- Employers may only receive medical information and/or history for wellness programs if they do not specify the individual’s name.
|As with the ADA requirements, an employee may not be asked to waive their confidentiality requirements regarding their genetic information.
*As a reminder, plans should be including a statement in all wellness plan materials which makes it clear that alternatives are available. The DOL has provided sample language to assist with this requirement.
** 50% limit continues to apply for tobacco cessation programs. Simply asking if a member uses tobacco does not constitute a wellness plan and therefore the 50% percent may not apply in this case.
If you have any questions, please contact your Client Solutions team.
Compliance Quarterly is being provided as an informational tool. It is recommended that plans consult with their own experts or counsel to review all applicable federal and state legal requirements that may apply to their group health plan. By providing this publication and any attachments, Meritain Health is not exercising discretionary authority over the plan and is not assuming a plan fiduciary role, nor is Meritain Health providing legal advice.