Regulatory clarifications about wellness incentives lifted a “big cloud” of confusion for employers this year, while new technologies have increased engagement and opportunity. Building upon 2015 wellness trends, benefit experts say 2016 will be the year of “getting real” when it comes to wellness program results.

The Equal Employment Opportunity Commission in April released a proposed rule clarifying how Title I of the Americans with Disabilities Act applies to employer wellness programs.

The proposed rule removes confusion for employers who are complying with the Health Insurance Portability and Accountability Act and the Affordable Care Act rules with respect to their wellness incentives.

Also see: “EEOC to clarify wellness incentive rules under GINA.”

“If you’re complying with HIPAA and ACA rules you shouldn’t have any problems with the ADA,” Steve Wojcik, vice president, public policy with the National Business Group on Health said at the time.

The EEOC proposed rule coincides with an FAQ about wellness programs from the Departments of Labor, Health and Human Services and the Treasury, which aims to clarify what it means for a health-contingent wellness program to be “reasonably designed” and how compliance with DOL and HHS regulations on wellness programs affect compliance with other laws, such as HIPAA and the ADA.

“I think it’s very good news, at the end of the day, for employers. It removes a big cloud that had hung over the wellness program,” added Wojcik.

“Being able to see guidance that harmonizes the ACA and ADA is important,” agrees Cathy Kenworthy, CEO of Interactive Health. “It’s given a constant basis for people to move forward.”

In November, the EEOC issued another proposed rule to amend Title II of the Genetic Information Non-Discrimination Act of 2008 that would “allow employers who offer wellness programs as part of group health plans to provide limited financial and other inducements … in exchange for an employee’s spouse providing information about his or her current or past health status.”

Under the proposed rule, the EEOC will permit employers to offer incentives (in the form of rewards or penalties) to an employee whose spouse, covered by the plan, voluntarily receives health or genetic services provided by the employer as part of the overall employee wellness program. The rule allows employers to be somewhat creative, too, in its incentives, including providing paid time off, prizes, gift cards, and, of course, financial incentives. The only limit is that any incentive cannot exceed 30% of the total cost of self-only coverage, according to John Litchfield, an associate and litigation attorney with Foley & Lardner LLP.

All of these proposed changes appear to be consistent with the EEOC’s April 2015 proposed regulations, he says.

Renewed optimism

Kenworthy says 2015 included a renewed optimism in regards to wellness programs, particularly due to “the explosion” of interest in wearable wellness technologies.

Also see: “High-tech tools make wellness inroads.”

In September, fitness device maker Fitbit said it will now enter into HIPAA business associate agreements with corporations, health plans and self-insured employers that want to offer its wellness platform to employees.

The company said it aims to better support HIPAA-covered entities — and remove an obstacle to business opportunities. “We prioritize protecting our consumers’ privacy and keeping their data secure,” said James Park, CEO of Fitbit, in a written statement. “Our compliance with HIPAA safeguards formalizes this commitment, and, more importantly, it creates opportunities for more effective relationships with corporate wellness customers.”

Kenworthy says there has also been “a huge change in the industry with the amount of energy and voice brought to the topic that wellness is more than just physical. It’s also emotional, mental and financial.”

Linda Keller, Hub International's EVP and west region employee benefits practice leader, agrees, saying, “We have seen a shift from employers moving from traditional outcomes-based wellness programs to a more holistic view.”

Employers and advisers have begun to look at the total value of whole wellness programs, she says. Whereas in the past they tended to focus more on physical health, they are now also looking at the total well-being of individuals.

This includes, Keller says, a lot of organizations providing financial tools to help employees get out of debt, make purchases and alleviate financial stress.

Time to ‘get real’

Kenworthy predicts 2016 will be “the year of getting real” for wellness programs.

“What I mean by that is, there are a number of new capabilities around emotional health, financial, physical, etc. I personally think 2016 will be a maturing year,” she says.

While 2015 had employers and their advisers enticed by new technologies and techniques, 2016 will “give way to a more thoughtful approach.”

The heart of getting real and having programs that work is to identify who the individuals are in a population that need help and then leverage these technologies in a way that will target those individuals who need it, she says.


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