ERIC critiques EEOC’s proposed GINA regulations

The ERISA Industry Committee (ERIC) has submitted comments to the Equal Employment Opportunity Commission (EEOC) expressing concerns about discrepancies in wellness reward limits as set forth in both the Genetic Information Nondiscrimination Act (GINA), and the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). The comments reference a recently-issued EEOC proposed rule that clarifies how the EEOC’s rules will affect employer-sponsored wellness programs. ERIC advocates for employee benefit and compensation interest for some of the country’s largest employers.

ERIC says that the promotion of wellness for workers and their families is of extreme importance for ERIC’s members, who are apparently seriously concerned about where wellness provisions found in GINA diverge with those of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), in section 1201. For example, ERIC says that the EEOC would set limits on rewards paid in conjunction with health risk assessments, but the ACA does not limit incentives paid for these assessments or other “participatory” wellness programs.

Consistency concerns. According to ERIC’s Senior Vice President of Health Policy Gretchen Young, “It cannot be emphasized enough how important it is that the rules from the different parts of the government concerning wellness programs be in alignment with each other.” ERIC states that a principal concern is the existence of inconsistent inducement limits, since the EEOC’s inducement limits for health risk assessments are inconsistent with ACA rules, which do not impose incentive limits for participatory wellness programs, including health risk assessments.

The EEOC proposed regulations clarified that an employer-sponsored wellness program may offer limited wellness program inducements to employees and their spouses who complete a health risk assessment. The inducements may be positive or negative, and may be financial or in-kind. An inducement may not exceed 30 percent of the total annual cost of plan coverage in which an employee and any dependents are enrolled. The inducement limit was apparently an attempt by the EEOC to parallel ACA limits on health-contingent wellness programs, but ERIC points out that, under the ACA, health risk assessments are not health-contingent wellness programs subject to incentive limits. ERIC warns that the decision to limit inducements for health risk assessments greatly complicates the administration of ACA-compliant wellness programs, and it is urging the EEOC to eliminate those requirements.

In ERIC’s opinion, inducement limits for health risk assessments are not necessary to protect the voluntary nature of wellness programs because the EEOC’s rules require inducements to be paid whether or not an employee or the employee’s spouse answers questions on genetic information.

ERIC adds that, even if an inducement limit for health risk assessments were necessary, it is also concerned about the so-called “apportionment” rule, which ERIC says its members believe is inconsistent with ACA rules, adding that it may have the perverse effect of permitting greater inducements for spouses and lesser inducements for employees. Under the apportionment rule, the overall inducement limit must be apportioned between an employee and the employee’s spouse, and the employee’s share of the overall limit cannot exceed 30 percent of the cost of employee-only coverage.

ERIC says the apportionment rule is unnecessary, and is inconsistent with ACA rules which recognize that different limitations are appropriate, without apportionment, depending on whether the employee is enrolled in an employee-only coverage tier or whether the employee and his or her spouse are enrolled in a higher tier of coverage. ERIC also says that the apportionment rule is inconsistent with common plan designs that provide uniform health risk assessment inducements for both an employee and the employee’s spouse.

ERIC also complains that there is a lack of clarity regarding the impact of GINA on incentives related to tobacco usage.

Requirement of health risk assessments. The EEOC proposed regulations requested comments on a variety of questions, including whether employers that offer inducements to encourage the spouses of employees to disclose information about current or past health must also offer similar inducements to persons who choose not to disclose such information, but who instead provide certification from a medical professional stating that the spouse is under the care of a physician and that any medical risks identified by that physician are under active treatment. ERIC reports that its members strongly oppose the notion that GINA requires inducements to be offered merely because an employee or the employee’s spouse provide certification from a medical professional, and it reasons that such certification is not comparable to the identification of someone’s risk factors and encouragement to participate in wellness programs designed to mitigate those risk factors.

ERIC adds that employers seek health information from employees in order to identify broad demographic risks, which would enable them to tailor wellness activities for the population as a whole. A doctor’s certification would not provide information on population risks, ERIC points out. ERIC stresses that a health risk assessment process will only be successful at identifying health risks and encouraging their reduction if employers can condition inducements on the completion of health risk assessments. ERIC also asserts that the health risk assessment process has been diminished by existing regulations that already permit someone to obtain a health risk assessment inducement without answering questions on genetic information.

On a positive note, ERIC praised recent attempts to align GINA’s permissible inducement limits with the ACA’s incentive limits, and said its members are encouraged by clarifications confirming that GINA does not preclude inducements for the completion of a health risk assessment by an employee’s spouse.

SOURCE: ERIC’s letter to the EEOC and ERIC press release, January 26, 2016.

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