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Feb. 5 — An Equal Employment Opportunity Commission proposed rule that would allow employers to offer limited inducements for employees' spouses to participate in wellness programs is drawing fire from all sides, as neither disability rights advocates nor employer representatives favor the agency's proposed changes to its Genetic Information Nondiscrimination Act regulations.
In issuing the proposed amendment to its existing GINA regulations, the EEOC said it was seeking an “effective balance” between the Affordable Care Act's encouragement of workplace wellness programs and the antidiscrimination law. The EEOC said it also was responding to questions from employers and health benefit plans about permissible inducements for wellness plan participation.
But the results appear to please no one, as the EEOC's efforts to ensure only voluntary disclosure of private health information while allowing employers to offer limited financial incentives drew sharp criticism from agency stakeholders.
More than 90 individuals and organizations, including Republican senators, advocates for persons with disabilities and groups representing employers and health benefit plan administrators, submitted comments on the GINA proposal during a public comment period that ended Jan. 28.
The EEOC has said it plans to issue final rules regarding wellness plan incentives under GINA and the Americans with Disabilities Act some time this spring.
The EEOC issued its proposed rule in October 2015 (RIN 3046-AB02; 80 Fed. Reg. 66853).
The employer and benefit plan groups generally applauded the EEOC's position that GINA allows limited financial inducements for employees' spouses to answer questions about their current or past health status.
But they said the EEOC's proposed regulations conflict with the ACA and the “tri-agency” regulations implementing the health-care law promulgated by the departments of Treasury, Labor and Health and Human Services. The EEOC proposal, if finalized as written, would only confuse employers and discourage them from establishing or expanding workplace wellness programs that can reduce health-care costs and benefit employees and their families, the business groups said.
Meanwhile, disability rights advocates said the EEOC proposal would violate the text and purposes of GINA by approving employers' imposition of significant financial penalties against employees and their spouses if they decline to provide genetic information, which includes family health data, as part of a health risk assessment.
The size of those penalties—which could amount to more than $5,600 a year for an employee with family health coverage—means that employees and their spouses would feel coerced to divulge private health information that GINA expressly intended to protect, the rights groups said.
The risks of involuntary disclosure of genetic information and of employment discrimination based on disability or health status would increase if the EEOC proposal is implemented, the disability rights groups warned.
In June, the EEOC had received comments on proposed regulations under the Americans with Disabilities Act regarding incentives for employee participation in employer-sponsored wellness programs .
The comments received on the GINA proposal largely track the positions the same groups had expressed regarding the ADA proposed rule.
A group of 10 Republican senators, the U.S. Chamber of Commerce and other organizations representing employers and benefit plan administrators urged the EEOC to align its rules affecting wellness plans with those under the ACA and the tri-agency regulations.
The senators and business groups said they are gratified that the EEOC said GINA permits employers to offer limited inducements for employees' spouses' participation in wellness programs. But the GINA proposal conflicts with the ACA rules in many respects, they said.
The EEOC also exceeded its statutory authority and its expertise by proposing to add requirements to the ACA mandate that wellness programs be “reasonably designed” to promote health and prevent disease, the senators and business groups said
The AFL-CIO, AARP and organizations representing persons with disabilities warned that the EEOC proposal, if implemented, would encourage health-care “cost-shifting” to employees and their spouses who decline to surrender their private health information.
The EEOC should retain its current GINA regulations, which provide that employers can't penalize employees or their spouses for not answering questions on a health risk assessment that implicate family medical history, said the Consortium for Citizens with Disabilities, a coalition of 24 advocacy groups.
“There has been and remains only one way to read the EEOC’s current GINA regulations: they ban employers from financially coercing (via penalties or inducements) the disclosure of genetic information,” AARP said in its comments. “This [proposed] rulemaking doesn’t ‘clarify’ anything; rather, it’s a straightforward, clear reversal of this previous, statutorily based regulation with no further rationale offered other than ‘the business community raised questions.’ ”
The EEOC's proposal that employers can offer up to 30 percent of the costs of family coverage, to be apportioned between the employee and spouse, is inconsistent with the ACA and its implementing regulations, the Republican senators commented.
Under the ACA, the limit on monetary inducements for participation only applies to health-contingent wellness plans, those in which collecting the reward depends on achieving specific health outcomes. The ACA and its implementing regulations don't limit the incentives offered for participatory wellness programs, including those in which an employee or spouse fills out a health risk assessment and undergoes biometric tests but no further steps are required.
But the EEOC's proposed limits on employer incentives apply both to participatory plans and health-contingent plans. The EEOC in its ADA proposed rule said an incentive greater than 30 percent of the cost of employee-only coverage would make it coercive and render the plan involuntary for purposes of the ADA.
Under the EEOC's GINA proposed rule, the permitted incentive is greater, as employers can offer up to 30 percent of the cost of family coverage for an employee spouse's completion of a health risk assessment.
But the EEOC proposal also requires apportionment of the incentive between the employee and spouse, with the employee able to recover no more than 30 percent of the costs of employee-only coverage. The spouse then would receive 30 percent of the costs of family coverage minus the 30 percent of employee-only coverage that the employee receives.
The EEOC's proposed incentive amounts and its apportionment scheme both conflict with the ACA and have no legal or practical reasons to support them, the employer and benefit plan representatives said.
Any EEOC final rule on wellness plans must be harmonized with the Affordable Care Act regulations, the U.S. Chamber of Commerce said.
The ACA also permitted the tri-agencies to authorize incentives of up to 50 percent of an employee's health-care costs. The departments of Labor, Treasury and HHS therefore allowed employers to offer up to 50 percent off group health-care premiums for employees in tobacco cessation programs.
Also, the EEOC proposed rules conflict with the ACA regulations by counting “in-kind” rewards, such as gift cards or discounts on gym memberships, as part of the 30 percent cap.
The EEOC should apply its incentive limits only to health-contingent wellness programs, drop its apportionment requirement and clarify that employers that offer 50 percent premium rewards for employees or spouses in tobacco cessation programs comply with GINA and the ADA, Sen. Lamar Alexander (R-Tenn.) and nine other GOP senators commented.
By not conforming its rules regarding employer incentives with the ACA regimen, the EEOC confuses employers and discourages their adoption of potentially beneficial wellness programs, the HR Policy Association said.
The EEOC's proposed GINA rule “would significantly and inappropriately limit the financial incentives that employers are allowed to offer employees under the ACA for the employee's spouse to engage in a health risk assessment as part of a participatory wellness program,” according to the Washington-based association, which represents the chief human resource officers of large corporations.
The EEOC should “modify the proposed GINA rule to recognize, consistent with the ACA, that health risk assessments and diagnostic testing programs under the GINA regulations are participatory wellness programs” not subject to any limits on employer incentives, the association said.
The EEOC's proposed GINA rule, like its earlier ADA proposal, will deter employers from innovating and offering workplace wellness programs, contrary to congressional intent, the ACA, the tri-agency regulations and the Obama administration's stated position, the U.S. Chamber of Commerce said.
“While the ACA strengthens and promoted employer-sponsored wellness programs, the [EEOC] proposed rule weakens them and impermissibly assumes that the EEOC’s interpretation of GINA (and the ADA) becomes the overriding constraint upon wellness programs regardless of what Congress and the Cabinet-level agencies have determined,” the Chamber said.
The EEOC “has embarked on a continuous campaign to saddle wellness programs with onerous requirements not grounded in legislation or the consensus of public policy,” the Chamber said. “Accordingly, we insist that any final rule interpreting the ADA or GINA adopted by the EEOC relating to workplace wellness programs be harmonized with the existing federal standards under ACA, [Health Insurance Portability and Accountability Act] and the tri-agency regulations.”
But the AFL-CIO said the EEOC's proposal would allow employers to shift health-care costs to employees and that the significant “penalties” imposed for not participating in wellness programs would force employees and their spouses to hand over private health information that GINA was intended to protect.
The business groups that commented referred to “inducements,” “incentives,” “awards” and “rewards,” but the AFL-CIO, AARP and the disability rights organization consistently called the financial inducements “penalties” that inhibit employees seeking to assert their civil rights under GINA or the ADA.
A Kaiser Family Foundation survey found that the average annual premium cost for family coverage in 2015 was $17,545 and the average worker contribution was $4,955, the AFL-CIO said. If the EEOC's GINA proposal is implemented, a “penalty” of up to $5,263 could be imposed on an average employee with family coverage whose spouse declined to participate in a wellness program, the labor federation said. The EEOC proposal would erode GINA's protections by placing such a high cost on employees asserting their statutory rights, the AFL-CIO said.
“Medical questions that an employee and spouse may only decline to answer if they agree to pay penalties of this magnitude can hardly be called ‘voluntary,’ ” the Consortium of Citizens with Disabilities commented.
Employers say such penalties are necessary to boost participation in health risk assessments as few employees and family members choose to participate of their own volition, the consortium said. “Making penalties so high that individuals feel they have little choice but to participate is the opposite of ‘voluntary,’ ” the consortium said.
The EEOC got the balance right in its 2010 GINA regulations, which said an employer offering a wellness program can't penalize employees completing health risk assessments for not answering questions involving genetic information, the consortium said.
The EEOC proposal also would increase the risks that confidential health data could be compromised, as wellness plan administrators get access to more valuable personal data, AARP said in its comments.
The AFL-CIO “has concerns about the potential impact of the [EEOC] proposed rule on workers and their families, ranging from confidentiality and privacy issues, the voluntary nature of program participation in light of the permitted level of inducements/penalties and the efficacy of the wellness programs it sanctions,” the labor federation said.
The EEOC's proposal to import into its GINA regulations the ACA's requirement that wellness programs be “reasonably designed” to promote health or prevent disease also drew criticism.
The EEOC said incorporating the ACA standard would make its revised GINA regulations consistent with the agency's proposed ADA rule, “which permits employers to collect medical information as part of a wellness program only if the program and the disability-related inquiries and medical examinations that are part of the program are reasonably designed to promote health or prevent disease.”
The EEOC in its GINA proposal said a wellness program isn't reasonably designed “if it imposes, as a condition of obtaining a reward, an overly burdensome amount of time for participation, requires unreasonably intrusive procedures, or places significant costs related to medical examinations on employees.” A program isn't reasonably designed “if it exists merely to shift costs from the covered entity to targeted employees based on their health,” the EEOC said.
As they did in reacting to the EEOC's ADA proposed rule, business groups said the agency lacks the statutory authority or expertise to regulate the design of wellness programs.
Instead, that power lies with the federal departments that interpret the ACA and the Health Insurance Portability and Accountability Act (HIPAA) and the EEOC should defer to their determinations on whether wellness programs are reasonably designed, the business groups said.
The EEOC's addition of a reasonable design requirement to its GINA regulations could cause “non-uniform interpretation and enforcement” of this requirement among the federal agencies that regulate wellness programs, the ERISA Industry Committee warned.
If the EEOC feels compelled to discuss reasonable design, it should specify that a wellness program meeting the ACA standards also satisfies the GINA requirement, ERIC said.
Better yet, the EEOC should get out of the reasonable design business, the Chamber of Commerce said.
“Although the EEOC is obviously well-versed in federal anti-discrimination laws, the EEOC cannot possibly know whether or when a wellness program is ‘reasonably designed,’ ” the Chamber wrote. “Such a question is simply beyond the expertise of the commission. Therefore, the EEOC must restrict itself to adopting the statutory and tri-agency definition, not synthesizing and restating it in different language.”
But the AFL-CIO, AARP and disability rights organizations said the EEOC should beef up the minimum requirements for wellness programs that offer inducements for protected health information.
The EEOC's proposed reasonable design standard “remains too weak to be meaningful,” the AFL-CIO said.
“We urge the EEOC to require that wellness programs be evidence-based and show scientific evidence they will promote health and prevent disease,” the labor federation said. “In addition, these programs should be limited in the information that may be collected. Only the minimum necessary health information needed to directly support the specific wellness program activities, interventions and advice should be obtained.”
The Chamber of Commerce and AARP each recommended that the EEOC withdraw its proposed rule.
The EEOC should develop a new rule that's better aligned with the ACA and the existing federal regulations governing employer-sponsored wellness programs, the Chamber said.
“Congress and the administration recognized the clear benefit of wellness programs, but the EEOC did not in its proposed rule,” the Chamber said. “Instead, the EEOC’s proposed rule will chill employers from offering such programs, impose roadblocks to a healthier American public, and, potentially, take money away from American workers. Therefore, the proposed rule should be withdrawn, and, if necessary, re-proposed based on the comments received.”
Meanwhile, AARP said the EEOC shouldn't amend its existing GINA regulations, which correctly interpret the act not to allow employers to coerce employees and their spouses into divulging private health information.
If the EEOC does proceed, it should revise its GINA proposal to provide greater protections against potential privacy breaches and discrimination against employees who turn over family health data, AARP said.
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Text of comments filed electronically is available at http://www.regulations.gov/#!docketDetail;D=EEOC-2015-0009.
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