Wellness Regulatory Update
HealthCheck360 is a performance based wellness company that does a fabulous job supporting employer programs. They recently put on a webinar to update everyone on the new corporate wellness regulations. Some changes have been made to how employers must notify employees and it’s really important that employers, HR professionals, legal counsel and health coaches are aware of these changes. With all the red tape surrounding corporate wellness programs, it’s all the more reason to hire a company with the understanding and dedication to planning everything perfectly and supporting employers in compliant ways. Below is not a complete list of the rules so please visit the EEOC’s website to learn more.
Before we dive in, let’s discuss how many governmental groups oversee wellness programs at the employer level. We have ACA, the Affordable Care Act of Healthcare Reform, which is directed by Health & Human Services and the IRS; EEOC which is the Equal Employment Opportunity Commission; the Department of Labor which, along with the EEOC, controls the Americans with Disabilities Act and GINA (The Genetic Information Nondiscrimination Act). Needless to say, there are a lot of players here and to make things even more complex, some of their rules override or even contradict one another! It’s pretty much required that you follow a company like HealthCheck360 to stay informed!
When January 1, 2014 rolled around, I was very excited for the future of company wellness, because The Affordable Care Act allowed for all group sizes to benefit from wellness planning in terms of incentivizing employees, premium discounts, tobacco cessation programs, and more. Of course, that came with a slew of rules governing what employers could and couldn’t do within their wellness programs. And this was for good reason, because the EEOC and DOL went after a few high profile companies to sue them for HIPAA, ADA and GINA violations. The courts mostly sided with the companies or threw the cases out, which I think is a positive step, but it’s vital we all know and follow the rules put forth so that wellness programs can do what they’re intended: Provide a culture of wellness to support the long-term health of employees and stifle ever-growing insurance premiums by lowering claims experience across the board.
A Few of the Rules (There are 23 total):
“These final regulations continue to permit plans and issuers flexibility in designing reasonable alternative standards (including using reasonable alternative standards that are health-contingent).” -HealthCheck360
30% is still the magic number when it comes to how much employers are allowed to induce for participation in an HRA or other wellness activities. ACA and the EEOC get very specific here on how that 30% applies to multiple plan options and dependent costs.
Plans must still be voluntary and the EEOC defined that a bit more here:
may not require any employee to participate;
may not deny any employee who does not participate in a wellness program access to health coverage or prohibit any employee from choosing a particular plan; and
may not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health outcomes.
Employers must make accommodations with the same incentives and rewards for employees with disabilities. For example, if an employer creates a walking program, any employee unable to walk needs an alternative option and a full chance to earn any of the same rewards.
More on Notices:
Employers must properly notify employees about data they’re collecting; how they incentivize and penalize employees under wellness programs; and how employers mandate employee participation. Americans with Disabilities Act (“ADA”) rules require employers who offer wellness programs that include disability-related inquiries or medical examinations to provide a written notice to employees. Below is directly from the preamble of the EEOC’s statement mid May:
…to ensure that the program is reasonably designed to improve health and is not a subterfuge for underwriting or reducing benefits based on health status. –The intention of the Departments in these final regulations is that, regardless of the type of wellness program, every individual participating in the program should be able to receive the full amount of any reward or incentive, regardless of any health factor.
The EEOC published a sample notice that employers can use Directly from the EEOC’s website, “Employers that already provide a notice that informs employees what information will be collected, who will receive it, how it will be used, and how it will be kept confidential, may not have to provide a separate notice under the ADA. However, if an existing notice does not provide all of this information, or if it is not easily understood by employees, then employers must provide a separate ADA notice that sets forth this information in a manner that is reasonably likely to be understood by employees.”
The new rules will apply to all employer wellness plans that begin on or after January 1, 2017. Please reach out to me with questions or more info!