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Oct. 29 — The Equal Employment Opportunity Commission issued a proposed rule under the Genetic Information Nondiscrimination Act that would allow employers that offer wellness programs to provide limited inducements for an employee's covered spouse to disclose his or her personal health information.
GINA doesn't prohibit employers from offering limited financial or in-kind incentives to employees for their spouses completing health risk assessments as part of voluntary wellness programs, the agency said in the proposed rule, issued Oct. 29. But the individual from whom genetic information is being obtained must give prior, knowing, voluntary and written authorization, the EEOC said. Any health or genetic services an employer offers also must be “reasonably designed” to promote health or prevent disease, the agency said.
Employer wellness programs have become increasingly popular as a means of reducing health-care costs, and the Affordable Care Act and its regulations encourage employers to adopt such plans. But GINA and the Americans with Disabilities Act restrict employers' ability to require medical exams or obtain employees' medical or genetic information, which is broadly defined to include family health history.
The EEOC's proposed rule addresses a narrow GINA exception that permits employers to obtain protected information when an employee voluntarily accepts health or genetic services offered by an employer, including a wellness program.
Earlier this year, the EEOC issued proposed rules under the ADA regarding wellness program incentives for employees and received about 340 public comments in response.
The current EEOC proposal revises its existing regulations under GINA, which were issued in November 2010.
Employers under GINA can't offer an employee inducements in exchange for information about the past or current health status of the employee's children, either biological or adopted, the EEOC said in its proposal. But an employer may offer health or genetic services, including participation in a wellness program, to an employee's children on a voluntary basis, the EEOC said. The employer may ask questions about a child's current or past health status in providing such services, the agency said.
Employer representatives commenting on the EEOC's proposal were pleased the agency said GINA permits inducements for spousal health information and that the permissible amount could be up to 30 percent of the cost of family health coverage.
In the proposed ADA regulation, the EEOC had limited the permissible incentive for voluntary wellness plans to 30 percent of the cost of employee-only coverage.
“I was nervous waiting for the proposed regulations, but am pleased with the direction the EEOC is taking,” said Gretchen Young, senior vice president of health policy for the ERISA Industry Committee in Washington.
“While it does seem that employers should unquestionably be permitted to incentivize spouses to achieve better health, the EEOC lawsuits [filed in 2014] gave us significant cause for concern,” Young said in a statement. “I am relieved that the agency has backtracked on this issue.”
Under the proposed GINA rule, incentives provided to an employee and his or her spouse for participating in a wellness program can total up to 30 percent of family coverage for the health plan in which they are enrolled. “This is a positive step forward and I hope we can see this reflected in the final ADA regulations on wellness as well,” Young said. The organization “looks forward to working with the EEOC on finalizing the regulations.”
A major concern among employers and wellness plan providers was that the ADA proposed rule deviated from regulations issued by the Labor Department, the Treasury Department and the Department of Health and Human Services under the ACA and Health Insurance Portability and Accountability Act.
Those “tri-agency” regulations allow employer incentives of up to 50 percent for enrollment in tobacco cessation programs, as well as measuring permissible incentives for wellness programs based on the cost of family health coverage.
The EEOC's GINA proposal that allows employer incentives of up to 30 percent of family coverage may be “telegraphing” the agency is planning to allow that same level of incentive under the ADA as well, said Mark Girouard, a partner with Nilan Johnson Lewis in Minneapolis.
On the downside, the EEOC's failure to mention the 50 percent incentive for tobacco cessation programs in the GINA proposal may indicate it's not going to budge on that issue in its final ADA rule either, Girouard told Bloomberg BNA.
The “good news” for employers is the EEOC authorizes limited incentives for information that may be covered by GINA, said Frank Morris, a partner with Epstein Becker & Green in Washington. The EEOC also says those incentives may be rewards or penalties, which seems contrary to the agency's litigation position taken just a year ago, Morris told Bloomberg BNA.
The proposed rule says the inducement may be up to 30 percent of the costs of family coverage for employee and spouse, which seems to be different than the ADA proposal, which limited allowable incentives to 30 percent of the cost of individual coverage, Morris said.
But the “bad news” is that the EEOC proposal again seems to give the agency a right to determine what is “reasonable design” in a wellness plan, Morris said.
There’s a real question whether that lies within the EEOC’s authority or expertise, he said. Wellness plan design should be the province of HHS, if anywhere in the federal government, and the EEOC “ought not to be butting its administrative nose” into that issue, Morris said.
It’s also problematic that the EEOC would allow inducements for spousal information but not for information from other employee dependents such as minor children, Morris said. He questioned why permissible inducements should be limited to spouses when wellness plans may cover other dependents as well and the whole point is to improve health outcomes for all individuals covered under health-care plans. It’s “not at all clear” there will be a legislative fix, so this may contribute to uncertainty among employers and plan providers, Morris said.
Employers and plan providers are showing “a certain amount of caution” while the EEOC's proposals are pending, Morris said. For example, they are holding off on plan design changes until the EEOC rules become final, he said.
The best advice to employers is to ensure their wellness programs comply with the tri-agency regulations, which should put them in good stead before a reviewing court, Morris said. Legislation has been introduced in Congress to protect wellness plans that comply with the ACA, Morris said. That bill's future might turn on how far the EEOC's final rules under the ADA and GINA depart from the tri-agency regulations, he said.
While employers are taking a “wait and see” attitude toward the EEOC rules, they are still rolling out wellness programs that comply with the ACA rules, Girouard said.
Employers see “so much value” in wellness programs as a health-cost-reduction strategy that they’re not delaying implementing such programs, Girouard said. If the EEOC final rules turns out to be significantly different from the tri-agency regulations, employers might have to modify their programs, he said.
The proposed rule is scheduled to be published in the Federal Register on Oct. 30 and comments are due Dec. 29.
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Text of the proposed rule is at http://src.bna.com/OF.
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