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A Look Into the Final EEOC Wellness Regulations
Art & Science of Health Promotion Conference
March 29, 2017
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Today’s Discussion
• Applicable federal regulations:
• HIPAA
• ACA
• ADA
• GINA
• Inconsistencies in the regulations and how to navigate
• Group participation: example plan designs to identify issues or concerns
• Practical actions and best practices
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20062010
-2013
Affordable Care
Act(only applies to health plan)
HIPAA
Final Wellness Rules(only applies to health plan)
• Discrimination permitted
based on a health status.
• Limited to premium
contribution differentials and
cost-sharing within the plan.
• Did not create financial limits
on participation-based
incentives or penalties
(did not supersede other
applicable laws).
Safe Harbors for Discrimination
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2011
ADA
Safe Harbor
Seff vs. Broward County
2015
Proposed Amendments
to ADA and GINA
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2015 Preserving
Employee
Wellness Programs(Congressional Bill)
2016 Final ADA and GINA
Wellness
Regulations(EEOC)
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Sept
2016
Dec
2016
EEOC vs. Orion
Oct
2016
https://www.eeoc.gov/eeoc
/events/webcast-
wellness.cfm
Jan
2017
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Federal Wellness Rules on Incentives
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HIPAA
(2006)
Affordable Care Act
(2010)
ADA/GINA (EEOC)
(2016)
Size of financial impact:
20% of total cost employee
enrolled in (assuming other
dependents may access as
well)
Same as HIPAA but 30% and
up to 50% if amount > 30% is
limited to tobacco use
30% of total cost for
employee-only coverage in
least expensive option.
Tobacco included if tested via
“exam” but not if attestation.
Applicable types of
incentives:Outcomes-based
Health contingent activity-
only and outcomes-based
(note impact to affordability
calculation)
Participation and Health
Contingent that require and
exam or answer to health
question(s) deemed
“disability related”
Incentive method(s):Premium contributions and/or
cost-sharing mechanisms
within health plan
Same as HIPAA
All forms (cash, PTO days,
merchandise, de-minimus
rewards, cost-sharing etc.)
Reasonable alternative
standard:
Required if medically
inadvisable or unreasonably
difficult due to medical issue
Same as HIPAA for
participatory and activity-only
but required for all outcomes-
based regardless of medical
issue
Required for all disability-
related and same as ACA for
outcomes-based
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Federal Wellness Rules Continued….
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HIPAA
(2006)
Affordable Care Act
(2010)
ADA/GINA (EEOC)
(2016)
Applicable to: Health plan participants Health plan participantsAll employees (and
spouses via GINA)
Design requirements:“Reasonably designed to
promote health and prevent
disease”
Same as HIPAA plus
“minimum of report to
summarize health risks
and recommendations”
Same as ACA
Privacy notice:Follows health plan privacy
notice
Follows health plan
privacy notice
Model notice issued June
2016
Frequency: Not specified At least 1 time per year At least 1 time per year
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• Incentives and/or penalties (a.k.a. “inducements”) are clearly permissible
and will not be deemed “involuntary” if compliant with requirements.
• Clear path to include those outside of health plan without fear of wage
discrimination.
• Rules largely mirror the ACA’s and HIPAA’s existing regulations.
• Not retroactive: Financial Inducement caps applied 1/1/17 plan year or
upon renewal after 1/1 must comply. Should be in compliance with all
other provisions now.
ADA & GINA: My Perspective, the Good News
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• Participation cannot be a gatekeeper for coverage.
• Not simply for coverage overall, but for any plan.
• Must offer access for non-participants to “buy up” to the better plan.
Example before: Non-participant earns Bronze plan; participant who passes fewer
than 4 of 6 goals earns Silver; participant who passes 4 to 6 earns Gold.
Example after: Same except Bronze participant can also pay $X to opt into Silver or
$Y to opt into Gold (provides basis for 30% test as well).
• Common question: “Are we now required to include non-health-plan participants in the
program? – No. Also may include in wellness program but not offer an incentive.
The Headlines: What’s in There?
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• Children (even adult children) may not be included in incentive program soliciting
health information or requiring exam, but spouses can.
• Outcomes and participation-based incentives count toward cap.
• “In-Kind” incentives (paid time off, movie tickets, t-shirts) count; even de-minimus.
• October 2016 opinion indicates that only the elements that require an exam or require
individuals to answer disability-related questions count. HRA’s may not count if
questions can be skipped.
• Incentives >30% are okay if you can earn maximum rewards without exam or DI
questions
• Privacy notice requirements adopted: model notice issued, June 2016.
The Headlines: What’s in There?
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New 30% rule varies based on four scenarios:
• If there is only one health plan offered to employees, use 30% of the cost of
employee-only coverage in that plan for all employees (whether in the plan or not).
• If multiple health plan options are offered and wellness inducements are offered
regardless of which plan an employee enrolls in, use 30% of the cost of employee-
only coverage in the least expensive health plan.
• If multiple health plan options are offered but the wellness program and
inducements are only included in certain plan options, use 30% of the cost of
employee-only coverage in the plan in which an individual is actually enrolled.
• If no health plan is offered at all, use 30% of rate for Silver Plan on public
exchange that would apply to a 40 year old non-smoker in the zip code of company
headquarters.
The Headlines: What’s in There?
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Tobacco Inducements
• The EEOC amended the ADA regulations regarding tobacco/nicotine incentives limiting
incentives that require an “exam” to allow 30% of employee-only premium.
• Blood draws and cheeks swabs, for example, are considered an exam. A provider form
that has the provider attest is also incident to an exam.
• Utilizing an attestation to incent tobacco use (instead of an exam), allows a plan design
to increase its inducements to up to 50%.
• Nuance: the 20% can be used for each tier (employee, employee plus spouse,
family).
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Reasonably designed?
• Largely mirrors HIPAA and ACA now.
• Must have a reasonable chance of improving health/preventing disease.
• Must not be overly burdensome or time consuming.
• Must not be a subterfuge for violating ADA or other law.
• Wellness programs that collect medical information through measurement,
screening or test without follow-up information and advice designed to improve
health would not be considered “reasonably designed.”
• Most health risk assessment reports achieve this standard.
The Headlines: What’s in There?
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• Physician attestation in lieu of participation: NOT ADOPTED.
• Applicability of “insurance safe-harbor” provisions: NOT ADOPTED. Final rules
specifically state that the safe harbor does not apply to wellness programs
even if they are part of employer’s health plan. Note: EEOC vs. Orion Energy.
• May require different rules for low income employees: NOT ADOPTED. Note: Option
for wage banded design.
• Requirement to collect prior written acknowledgement of voluntary nature of program
and incentive: NOT ADOPTED.
The Headlines: What’s Not in There?
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Exception to GINA for spouse involvement in wellness programs appears to no longer
be limited to spouses who are participating in the employer sponsored health plan.
• Cannot ask employee for spouse health information. Must directly ask the spouse.
• Spouse must provide their own consent and privacy acknowledgement. Employee
cannot approve on behalf of spouse.
• May ask about spouse’s current and past health status but NOT about the spouse’s
family history or genetic information.
• Cannot “link” results and deny employee incentives because their spouse did or did
not engage in wellness program. Exception for tobacco use!
Other Key Points in GINA Rule
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Changes in the
Last 60 Days
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• AARP lawsuit against EEOC:
• Argues 40% allowance renders programs “involuntary” in violation of
ADA and GINA.
• Lost request for injunction to prevent rules from going into effect
1/1/17.
• Court has not concluded in favor of EEOC at this time, only that the
injunction was not warranted.
• S. 620 and H.R. 1189 -- Preserving Employee Wellness Programs Act --
currently dormant.
An Update
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An Update
• Evidence-based research results concerning the use of incentives.
• EEOC webinar – October 19, 2016
• Victoria Lipnic - New Acting Chair of EEOC
• Repeal of the ACA:• Strong bipartisan support for wellness and incentives.• May temporarily revert back to HIPAA wellness rules (which, when
coupled with EEOC rules, would limit health-contingent portion to 20% of total premium).
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Sample Program Designs
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Embedding Wellness and Incentives into Medical Plan
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Employer Employee
20%
80%
1,000enrolled
employees
$8,000annual
premium/EE
Employer Employee
$1,600,000
$6,400,000
All EmployeesPer Employee
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A Purpose-Driven Portion of the Benefit Plan
3%
20%Original
Employee base
Employees
(as a whole)
are paying
only 3%
more than
the previous
contribution
level
15%
8%
22%55%
All Employees CostPer Employee Costs
1,000enrolled employees
$8,000annual premium/EE
New Employee
Base
Wellness
New Employer
Base
Unearned
Employee
Incentives
Earned
Employee
Incentives
Employee
Base
15%
55%30%
New
Employer
Base
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$244,500Unearned incentives (above what the previous plan
funded) can then be redirected BACK to employees
through targeted interventions such as:
• High risk coaching
• Disease management
• Stress management
• Financial wellness
• On-site clinics, etc.
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Reward
CategoriesNIH (Healthy)
Outcome
Required
Monthly
Incentives
Alternative
Goals
Biometric
Screening & HRA(participation)
n/a n/a $50 n/a
BMI 18.5 – 24.9 kg/m2
≤ 27.5 kg/m2
OR
Waist: < 34.5 F
< 37 M
$50 5% weight loss(or work with doctor)
Blood Pressure 120/80 mmHg ≤ 130/85 mmHg $25 Improve by one
risk category(or work with doctor)LDL Cholesterol ≤ 100 mg/dL ≤ 130 mg/dL $25
Tobacco /
NicotineNegative
Negative
blood test$50
Complete
cessation
program
$8,000 x 30% = $2400 ($200/month)
Incentive Structure A
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Reward
CategoriesNIH (Healthy)
Outcome
Required
Monthly
Incentives
Alternative
Goals
Biometric
Screening & HRA(participation)
n/a n/a $50 n/a
BMI 18.5 – 24.9 kg/m2
≤ 27.5 kg/m2
OR
Waist: < 34.5 F
< 37 M
$50 5% weight loss(or work with doctor)
Blood Pressure 120/80 mmHg ≤ 130/85 mmHg $25 Improve by one
risk category(or work with doctor)LDL Cholesterol ≤ 100 mg/dL ≤ 130 mg/dL $25
Tobacco /
NicotineNegative
Negative
blood test$50
Complete
cessation
program
$5,000 x 30% = $1500 ($125/month)
Incentive Structure B
$50 $25 + $25
Negative Attestation
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Other Open Questions
• Impact of incentives from carriers/fully insured policies? Count it.
• Practical application for non-covered spouses? Not recommended.
• Rules for raffles? Applies to raffle winner (verbal from EEOC).
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Other Open Questions
Where is the line for health inquiries versus disability inquiries?
Avoid:• Asking about a disability and/or employees’ genetic information.• Asking “health questions that are likely to elicit information
about a disability.”• Asking about current prescription drugs or medications.• Asking broad questions about impairments.• General well-being questions (e.g. how are you?) are not
considered disability inquiries.• Questions about tobacco use are not considered “disability
related.”
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Sample Program
Designs:
Compliant or Not?
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• Employer offers health plan participants $25 per week if both the employee and the
spouse meet two out of three biometric goals.
• NO.
• Spouse participation/results should not be a “gatekeeper” to employee rewards.
• Employer offers all employees a free health screening at work as part of their health
fair day. Everyone gets a t-shirt and an entry to win a paid day off.
• YES and NO.
• If everyone gets a t-shirt regardless of participation, this does not need to be
counted towards the maximum allowable.
• The paid day off is tricky in that you will need to calculate the value of a PTO for
each employee that wins. We do not recommend using PTO as an incentive.
Is This Compliant?
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• Employer offers all employees a web portal with an HRA, health challenges, financial wellness
support and coaching videos. Employees can earn up to 10,000 points by completing activities
and use the points to buy merchandise.
• Maybe.
• Depends on how it is structured. This is okay assuming the total of all rewards that require
participation in an exam and/or answering disability-related questions is under the 30%
threshold or there is a way to earn the maximum reward without an exam or answering
questions.
• This is not a best practice as written. There is a question on how to attribute the dollar
amount towards the allowable differential ($3 per point that employer pays rewards vendor
or the value of the toaster?).
• Employees may participate in a free biometric screening at work. If they lose 5% of their weight in
a year, they get $50/month off of their premium. If they aren’t on the plan, they get $600 cash
(taxable compensation).
• YES.
Is This Compliant?
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• Determine date this impacts your incentives.
• Review program design for reasonability.
• Determine population included (Health plan only? All employees? Spouses?).
• List all incentives included (outcomes, improvement, participation, “in-kind”, de-
minimus, trinkets, raffles etc.; note if linked to applicable inquiry or exam).
• Perform 30% test (50% with tobacco attestation), adjust as needed.
• Confirm compliance with ACA (note that 2x employee-only may be more than 2x
employee + spouse…).
• Review and update privacy notice.
• Review appeal, alternatives and exceptions for disabilities.
• Update programming and communications as needed.
What Now?
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Thank You
Jim Pshock
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