If your organization offers, or is in the process of considering a Wellness Program…HOLD THE PHONE!  There is pending litigation involving the American Association of Retired Persons (AARP) and the U.S. Equal Employment Opportunity Commission (EEOC) that could profoundly alter the regulatory and compliance requirements associated with certain Wellness Programs. Generally speaking, the rules and regulations affecting Wellness Programs, apply to those defined as “health contingent” and “outcome based”.

See – http://sstevenshealthcare.blogspot.com/2013/06/wellness-programs-and-affordable-care.html

At present, there are a myriad of rules, agencies and regulations that regulate certain Wellness Programs, including:

  • Health Insurance Portability and Accountability Act (HIPAA) – prohibits discrimination in premiums or plan eligibility based on health-related factors, but offers exceptions to certain wellness programs.
  • Affordable Care Act (ACA) – expanded HIPAA exceptions to allow for up to a 30% incentive/penalty for wellness program participation; and 50% for tobacco use.
  • Americans with Disabilities Act (ADA) – generally does not allow discrimination, within a wellness program, based on disability*.
  • Genetic Information Nondiscrimination Act (GINA) – generally does not allow wellness programs to use genetic information to discriminate participants*.

* In July of 2016, the EEOC released regulations allowing for the use of both ADA and GINA protected information by wellness programs. The regulations, which took effect 1/1/2017, established that employers could request otherwise ADA/GINA protected data, provided there was no more than a 30% incentive/penalty; and the related disclosures by program participants was not involuntarily provided.

At the heart of the disagreement between AARP and the EEOC is whether a wellness program can be construed as voluntary (versus involuntary).  Despite the EEOC’s efforts to clarify the impact of both the ADA and GINA’s impact on wellness programs through issued regulations, AARP contended that “the EEOC failed to adequately establish that a 30% incentive does not render a wellness program involuntary”.  The Washington, D.C. based District Court agreed with AARP, and granted a judgment ordering the EEOC to vacate their regulations and submit a notice of proposed rule making (by 8/31/2018), and file a status report by 3/30/18.  On 3/30/3018, the EEOC reported it had yet to promulgate new regulations, blaming a delay in Senate confirmation of its new Chair and Commissioner.  (Note: As of the date of this blog post, these confirmations were still pending.)

So, as of the writing of this blog post, the court order for the EEOC to vacate their wellness program related regulations, effective 1/1/2019, remains intact.  All of this leaves affected employers, offering or considering offering health contingent/outcome based wellness programs, with five (5) options:

1. If your Wellness Program involves answering health related questions (e.g. a health risk assessment) or medical testing (e.g., venipuncture/biometric screening), discontinue these practices.

2. Continue following the EEOC regulations (affecting incentive limits, providing separate wellness program notices, etc.), knowing these regulations have been ordered to be vacated effective 1/1/19.

3. Disregard the EEOC regulations and instead defer to the less restrictive HIPAA regulations and ACA amendments that followed.

4. If not currently offering a wellness program, postpone until the 2020 plan year; although there are  no assurances this matter will be resolved by then. 

5.  Establish a totally voluntary, non-outcome based wellness program that is not subject to the aforementioned regulations.

Affected organizations might consider consulting with their wellness program vendor, insurance carrier, third party administrator, benefits attorney, etc. for guidance, as situations, programs, rules, etc. vary significantly.