UBP blog

01/13/2010

Recent anti-discrimination laws make rules on wellness program questionnaires a lot tougher

A new year is under way and companies everywhere are getting started with their 2010 resolutions. Given the rising health care costs that have plagued us all lately, it’s no surprise that improving employee wellness is a popular one.

Many employers are beginning to incorporate wellness programs and initiatives into their overall group health plan design. When implementing a wellness program, health risk assessments (HRAs) are a great tool employers can use to track employee progress and generate plan effectiveness metrics.

However, for employers that use HRAs in wellness programs, there are quite a few Federal rules to follow. Recent Federal laws such as the Americans with Disabilities Act Amendment (ADAA) and Genetic Information Nondiscrimination Act (GINA) have only made the rules tougher.

The new, tougher anti-discrimination rules as they stand:

ADA (and ADAA amendment):

Health risk assessments included in a group health plan’s wellness program (even if they are HIPAA compliant) still run the risk of being non-compliant with the ADA.

As amended by the ADAA, the ADA prohibits employers from requiring employees to undergo medical examinations or inquiries unless they are made on a post-job offer basis and they’re either job-related or designed to meet a specific business need. Also, medical examinations and questionnaires that are voluntary and part of a worksite wellness program do not violate the ADA.

So, essentially, if employees can opt-in to or opt-out of taking your wellness program’s HRA and their incentive/penalty does not violate HIPAA (i.e. the value of the incentive or penalty cannot exceed 20% of the cost of an employee’s coverage on the group health plan), then your group should be fine with ADA compliance.

GINA:

Effective the first of the plan year following December 7, 2009, employers must comply with the Genetic Information Nondiscrimination Act (GINA). But, how does GINA affect wellness program HRAs?

The GINA Act’s interim final rule prohibits (in most cases) the use of an HRA in conjunction with a wellness program if “genetic information” (i.e. result’s of an employee’s genetic tests or information on family medical history) is collected for “underwriting purposes”.

In the context of GINA, collecting information for “underwriting purposes” does not just mean you’re collecting it for the purpose of setting rates, the definition is very broad.  The Act’s “underwriting” exclusion restricts employers from collecting, requesting and requiring genetic information in connection with an incentive (i.e. premium discount or rebate, reduction in co-pays or deductibles). So, if you have an incentive-based wellness program, it’s better to be safe than sorry and leave genetic information out of your questionnaires.

What employers need to do:

To avoid costly excise taxes and civil penalties, employers that have or are considering incentive based HRAs for HIPAA-compliant wellness programs should consider the following:

  1. Partner up with your legal counsel and perform an objective review of your current wellness program. From this review you should determine whether or not your plan complies with GINA and ADA as amended. Also, if your plan’s not compliant, know what steps you’ll need to take to bring it into compliance.
  2. Keep the lines of communication open with your legal counsel on new developments related to HRAs in incentive-based wellness programs.
  3. Involve your service providers in developing HRAs, employee communication and wellness plan features that will comply with GINA and the ADA.
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