By Danielle Capil­la,
Chief Com­pli­ance Offi­cer at Unit­ed Ben­e­fit Advisors

apple and tapeFed­er­al agen­cies recent­ly released a Pro­posed Rule to amend reg­u­la­tions and pro­vide guid­ance on imple­ment­ing Title I of the Amer­i­cans with Dis­abil­i­ties Act (ADA) as it relates to employ­er well­ness programs.

Title I of the ADA applies to employ­ers with 15 or more employ­ees, pro­hibits dis­crim­i­na­tion against peo­ple with dis­abil­i­ties, and requires equal oppor­tu­ni­ty in pro­mo­tion and ben­e­fits, among oth­er things. Under the Pro­posed Rule, well­ness pro­grams that are part of or are pro­vid­ed by a group health plan or by a health insur­ance issuer (car­ri­er) offer­ing group health insur­ance in con­junc­tion with a group health plan are required to pro­vide a notice and describe the use of incen­tives. In the Pro­posed Rule, “group health plan” refers to both insured and self-insured group health plans. All of the oth­er pro­posed changes relate to “health pro­grams,” which include well­ness pro­grams regard­less of whether they are offered as part of or out­side of a group health plan or group health insur­ance cov­er­age. The term “incen­tives” includes finan­cial and in-kind incen­tives for par­tic­i­pa­tion such as awards of time off, prizes, or oth­er items of value.

Rules for well­ness pro­grams have been in effect since 2007, with addi­tion­al rules that went into effect for the 2014 plan year under the Patient Pro­tec­tion and Afford­able Care Act (PPACA). Well­ness pro­grams are either “par­tic­i­pa­to­ry” or “health-con­tin­gent.” A par­tic­i­pa­to­ry pro­gram is one that either has no reward or penal­ty (such as pro­vid­ing free flu shots) or sim­ply rewards par­tic­i­pa­tion (such as a pro­gram that reim­burs­es the cost of a mem­ber­ship to a fit­ness facil­i­ty or the cost of a sem­i­nar on nutri­tion). As long as a par­tic­i­pa­to­ry pro­gram is equal­ly offered to all sim­i­lar employ­ees, no spe­cial require­ments will apply to the program.

Health-con­tin­gent well­ness pro­grams are either clas­si­fied as “activ­i­ty only” or “out­come based.” Health-con­tin­gent well­ness pro­grams are pro­grams that base incen­tives or require­ments in any way on an employ­ee’s health sta­tus. Health sta­tus includes things like body mass index (BMI), blood glu­cose lev­el, blood pres­sure, cho­les­terol lev­el, fit­ness lev­el, reg­u­lar­i­ty of exer­cise, and nico­tine use. A well­ness pro­gram with health-con­tin­gent require­ments must meet all of these requirements:

  • Give employ­ees a chance to qual­i­fy for the incen­tive at least once a year
  • Cap the incen­tive at 30 per­cent of the total cost of employ­ee-only cov­er­age under the plan, includ­ing both the employ­ee and employ­er con­tri­bu­tions, with a 50 per­cent cap for tobac­co ces­sa­tion or reduction
  • Be rea­son­ably designed to pro­mote health or pre­vent disease
  • Pro­vide that the full reward must be avail­able to all sim­i­lar­ly sit­u­at­ed indi­vid­u­als with a “rea­son­able alter­na­tive” method of qual­i­fy­ing for the incen­tive for some individuals
  • Describe the avail­abil­i­ty of the alter­na­tive method of qual­i­fy­ing for the incen­tive in writ­ten pro­gram materials

The ADA restricts employ­ers from obtain­ing med­ical infor­ma­tion from employ­ees by gen­er­al­ly pro­hibit­ing them from mak­ing dis­abil­i­ty-relat­ed inquiries or requir­ing med­ical exam­i­na­tions, with an excep­tion for vol­un­tary med­ical exam­i­na­tions for well­ness pro­grams. The Pro­posed Rule announced that fed­er­al agen­cies decid­ed that allow­ing cer­tain incen­tives relat­ed to a well­ness pro­gram, while lim­it­ing them to pre­vent eco­nom­ic coer­cion that could make the pro­gram invol­un­tary, is the best way to achieve the pur­pos­es of the well­ness pro­gram pro­vi­sions of both the ADA and HIPAA.

Down­load UBA’s PPACA Advi­sor, “Pro­posed Rule on Well­ness Pro­grams Under the Amer­i­cans with Dis­abil­i­ties Act” for com­pre­hen­sive infor­ma­tion on how the Pro­posed Rule:

  • Defines “vol­un­tary”
  • Address­es the dis­clo­sure of med­ical information
  • Lim­its incentives
  • Defines when smok­ing ces­sa­tion pro­grams would be sub­ject to incen­tive limitations
  • Would pro­tect indi­vid­u­al­ly iden­ti­fi­able health information

The Pro­posed Rule request­ed com­ments from the indus­try on well­ness pro­grams gen­er­al­ly as well as pro­vid­ing a list of spe­cif­ic top­ics on which it seeks input.

Read More …