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Entries in Consumer-Driven Health Care (8)


EEOC Doubles Down: Final Wellness Program Rules Under ADA and GINA – Part II

Last week the Equal Employment Opportunity Commission (EEOC) issued final rules for wellness programs under both the Americans with Disabilities Act (ADA) (the “Final ADA Rule”) and the Genetic Information and Nondiscrimination Act (GINA) (the “Final GINA Rule”). 

Part I of this two-part series addressed the Final ADA Rule.  In Part II we discuss the Final GINA Rule.  Like the Final ADA Rule, the Final GINA Rule is generally consistent with the proposed rule published by the EEOC in October 2015.  The Final GINA Rule simply clarifies the type of information regulated by the rule and the level of financial incentives that may be offered by an employer in exchange for certain health information about an employee’s spouse and children. 


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EEOC Doubles Down: Final Wellness Program Rules Under ADA and GINA – Part I

The Equal Employment Opportunity Commission (EEOC) has issued final rules for wellness programs under both the Americans with Disabilities Act (ADA) (the “Final ADA Rule”) and the Genetic Information and Nondiscrimination Act (GINA) (the “Final GINA Rule”).  The release is accompanied by Frequently Asked Questions posted to the EEOC website, as well as interpretive guidance discussing the Final ADA Rule.  Employers must comply with both sets of rules as of the first group health plan year that begins on or after January 1, 2017.  Despite a torrent of highly critical comments submitted during the comment period and ongoing litigation surrounding the EEOC’s interpretation of the limits imposed on wellness programs by the ADA and GINA, the final rules differ very little from the proposed rules and continue to depart in significant ways from the final regulations issued by the Department of Labor, Department of the Treasury, and the Department of Health and Human Service under the Health Insurance Portability and Accountability Act (HIPAA) (the “Final HIPAA Regulations”).  In this two part series, we discuss the differences between the proposed and final versions of each rule and highlight changes that may be required to existing wellness programs.  Part I concerns the Final ADA Rule.

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Where There’s Smoke There’s Questions: Designing Compliant Wellness Programs That Target Tobacco Use

The final regulations concerning wellness programs under the Health Insurance Portability and Accountability Act, as amended (HIPAA) continue to generate a number of questions and concerns for employers whose programs seek to promote employee health by curbing tobacco use.  The compliance status of some programs is further complicated by the recent release of Equal Employment Opportunity Commission (EEOC) proposed rules, which depart from the 2013 HIPAA regulations in important ways when it comes to tobacco-related wellness programs.  Here is a sampling of questions we have received from clients, with brief responses that include observations about the proposed rules recently published by the EEOC.

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EEOC Finally Releases Notice of Proposed Rulemaking for Wellness Programs

For nearly a year the U.S. Equal Employment Opportunity Commission (EEOC) has endured harsh criticism from employers, members of the United States Senate, and the benefits community at large for commencing legal actions challenging employer-sponsored wellness programs before issuing guidance regarding the compliance status of those programs under the Americans with Disabilities Act (ADA).  At long last the EEOC has released a Notice of Proposed Rulemaking (the “Notice”) addressing how Title I of the ADA applies to employer wellness programs.  The good news is that the proposed regulations contained in the Notice hew fairly closely to existing regulations published by other federal agencies and are generally limited to programs that involve disability-related inquiries and medical examinations.  There are significant differences, however, regarding maximum rewards for programs that target tobacco use, the application of reward limits to certain participatory wellness programs, and the notice requirements that apply to wellness programs.  Perhaps most importantly, the Notice attempts to address what makes participation in a wellness program “voluntary” and, thus, compliant with one of the safe harbor exceptions to the prohibition on employer-sponsored medical examinations under the ADA.  Nevertheless, several questions affecting the legal compliance status of wellness programs remain.  

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Notice 2015-17: Small-Scale Excise Tax Relief for Small Employers

On February 18, 2015 the Internal Revenue Service issued Notice 2015-17, which provides temporary relief from the excise tax under Code section 4980D for employer programs that reimburse employees for the cost of health insurance coverage purchased on the individual market (including coverage obtained through an Exchange).  The Notice also extends limited excise tax relief to health care arrangements covering 2-percent shareholder-employees, employer reimbursements of Medicare Part B or D premiums, and programs that reimburse the medical expenses of employees enrolled in TRICARE. The Notice provides a brief but welcome respite for small employers that wish to reimburse employees for the cost of obtaining individual health insurance policies (on a pre-tax basis) rather than maintaining a group health insurance plan.

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