New legislation proposes easing wellness program regulations

Register now

Politicians have been working on other healthcare changes besides the recent failed attempt to replace the Affordable Care Act. Legislation has also been put forward to help alleviate the number of regulations put in place on employer-sponsored wellness and well-being programs. Opponents of existing regulations say they have become contradictory for many wellness advisers and their clients.

Allison Klausner, J.D., principal at Conduent HR Services, recently testified in front of the House Committee on Education and Workforce to explain the trials and tribulations advisers and their clients face when initiating a compliant well-being program.

“In 2010, Congress effectively codified as part of the Affordable Care Act that long-standing wellness regulatory framework under HIPAA,” Klausner says. “Despite these explicit congressional supports of the HIPAA wellness program rules, employers are nevertheless subject to inconsistent federal regs when it comes to wellness plan design and operation.”

Klausner adds that these inconsistencies stem from most recent regulations put in place by the EEOC requiring employers to not only be compliant with HIPAA wellness regulations but also to the EEOC.

“Many wellness programs not subject to HIPAA, which are highly beneficial, such as diabetes management programs, may now be subject to these EEOC requirements,” Klausner says. “The development and implementation of these programs requires a substantial investment of financial, intellectual and human capital on the part of employers.”

Also see: Top 10 trends shaping employee benefits.”

Steps have been taken by Congress to correct inconsistent regulations between HIPAA, EEOC, GINA and the ADA with the Preserving Employee Wellness Programs Act. This bill declares that a workplace wellness program will not be in violation of ADA or GINA if an employer’s wellness program were to offer a reward to participants.

The bill would also deem the collection of information about a family member’s manifested disease or disorder would not be considered an unlawful acquisition of genetic information with respect to another family member participating in a workplace wellness program.

Lydia Mitts, associate director of affordability initiatives at Families USA, says this bill could lead to employer access to sensitive information with no real means of assisting in wellness.

“We have long had concerns with wellness program incentives that vary workers healthcare premiums or other healthcare cost based on completing health screenings or meeting certain health goals,” Mitts says. “Our concerns with these collection practices are elevated, given research showing that over half of workplace wellness programs provide limited services or focus only on providing health screenings.”

Mitts added that the bill is a gateway to employers charging higher healthcare costs if employees refuse to participate in health screenings. “Under current regulations, employers can already charge premium surcharges as high as 30% of the premium for employee only coverage,” Mitts says. “This bill would drastically increase this maximum surcharge to 30% of the cost of family coverage, which closely translates to $5,500, on average.”

Re-introduction of HR 1189 and S 620
Following Klausner’s testimony to the House Committee on Education and Workforce, the House of Representatives reintroduced H.R. 1189, and the Senate reintroduced their own version of the bill (S.620).

Klausner says this bill addresses the concerns she expressed in her testimony and also would allow safe harbor to wellness programs embedded in group healthcare programs allowing them to circumvent separate ACA, ADA and GINA prerequisites.

“When legislation becomes enacted in the future, advisers will have an opportunity, in all likelihood, to advise clients on how to redesign their plans to take advantage of the opportunities and the flexibility that will come from any bill that becomes new law,” Klausner says. “If the law changes in a manner aligned with this new bill, there will be new opportunities and greater flexibility for companies to design programs to maximize wellness for its employees and their families.”

For reprint and licensing requests for this article, click here.
Law and regulation Wellness programs Healthcare-related legislation Non-insurance benefits HIPAA HIPAA regulations ADA EEOC