2233 112th Avenue NE | Bellevue, WA 98004 | 425.709.3600 | 907.562.2225 // 3800 Centerpoint Drive, Suite 601 | Anchorage, AK 99503 // www.psfinc.com

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Q Q&A FROM ASSUREX GLOBAL WEBINAR

Q What does the GINA acronym stand for? A Genetic Information Nondiscrimination Act

Q So you could be in compliance with HIPAA and in violation with ADA over your plan... What do you do?

A To ensure compliance with HIPAA, ADA and GINA regulations, the safest approach is comply with the strictest of the three… For example, in regard to incentive limitations, if the employer never provides an incentive that exceed 30% of the cost of coverage, it will generally comply with all three sets of rules.

Q Does the government plan to make any adjust-ment as you can be in compliance with one law which puts you in violation of another?

A The proposed rules do create closer alignment between the regu-lations, but we’ll have to wait and see what happens once the final EEOC rules are released for ADA and GINA compliance to really understand what is required.

Q With Regan’s example on the $100 insurance, if they employee fails to meet the standard and has to pay $80, doesn’t that violate the ACA rule that the employee has to pay at least 50%.

A The ACA doesn’t actually require a 50/50 contribution split; rather that is generally a carrier requirement. But you are correct that may need to be considered when setting the incentives/penalties.

Q How does an employer equally address employees in the group health plan and not in the group plan?

A Depending upon the plan design, the wellness program may be limited to those that participate in the group health plan; it does not necessarily have to be offered to ALL employees. The rules require that the incentives be offered to “all similarly situated individuals” (e.g. all those enrolled in the major medical plan).

Q Are employers required to offer wellness programs? A No, employers are not required to offer a wellness program; but for those that do, especially those that tie incentives to the group health plan, there are rules that must be followed to avoid violating HIPAA, ADA and GINA regulations.

Q If you have a model in place where the employee and spouse need to meet the outcome in order to get the 30% of the premium employee/spouse rate - if the employee does not meet the outcome are you saying the spouse still needs to get the 30%?

A Not necessarily…if both the employee and spouse are eligible to participate in the wellness program, the rules simply limit the amount of incentive that may be provided. In other words, it would be possi-ble to allow the employee and spouse to qualify individually.

EEOC WELLNESS REGULATIONSFEBRUARY 2016

Q&A FROM ASSUREX GLOBAL WEBINAR // EEOC WELLNESS REGULATIONS

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2

Q We are giving away a limited number of gym memberships ( 1st 100 EE’s who sign up). Would this program satisfy the “all similarly situated individual” requirement?

A As described, this particular incentive does not appear to be tied to a group health plan and therefore does not have to comply with the HIPAA requirement to be provided to “all similarly situated individuals.”

Q Can you clarify on 30% of cost (50% tobacco), is that the EE only cost or the cost for other tiers, such as EE+Spouse?

A Under HIPAA, it is the total cost of coverage in which the individu-als eligible to participate in the wellness program are enrolled. In other words, if the employee and spouse are both eligible for the wellness program and enrolled in employee + spouse coverage, the incentive could be up to 30% (50% for tobacco) of the employee + spouse premium.

Q Can the group set a requirement that for the EE to get any wellness premium credit ($125 month) both the EE, spouse and any adult age depen-dent children must participate in the screenings/HRA requirement?

A It would not be okay under GINA regulations to inquire about the current or past health status of the children as this would be consid-ered “genetic information” of the employee.

It may be okay to require both employee and spouse participation, especially under the GINA proposed regulations (assuming other aspects of the various wellness program regulations are being fol-lowed), although there are a few concerns:

• Is the “both-spouses-or-nothing” approach a reasonable design, not overly burdensome, etc.? What if the spouse is in a nursing home? Why is spousal participation so critical to program effec-tiveness that the employee’s incentive must be linked when there are employees with no spouses, and some that may only have adult children on the plan? These types of concerns may be defensible, but is it worth having to deal with?

• The fact that married employees are being treated differently in that their incentive is linked to another individual’s partic-ipation might be challenged as marital status discrimination. That’s currently not a federal law issue, but could be an issue in particular states.

2233 112th Avenue NE | Bellevue, WA 98004 | 425.709.3600 | 907.562.2225 // 3800 Centerpoint Drive, Suite 601 | Anchorage, AK 99503 // www.psfinc.com

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Q For the reasonable alternative standard (RAS): Does an employee have to demonstrate/prove an inability to meet the normal standard?

A Under HIPAA regulations, the answer depends upon whether the standard is considered to be activity-only or outcome-based. While an activity-only program must offer a reasonable alternative standard to individuals for whom satisfying the program’s standard is unreasonably difficult due to a medical condition (or is medically inadvisable), an outcome-based program must offer an alternative to any individual who does not meet the initial standard (i.e., with-out regard to whether the inability to meet the standard relates to a medical condition). In addition, outcome-based programs can-not require medical verification that compliance with a standard is unreasonably difficult for an individual, but activity-only programs may require such verification.

Q We offer a participatory program where employ-ees can receive rewards up to $200.00 worth of gift cards for participating in multiple programs such as completing a HRA, Biometric Screening, Logging in to check out the website, and com-pleting a phone coaching program

A The wellness program as described does not affect the group health plan and therefore is not generally subject to HIPAA, ADA (outside of reasonable accommodations for a disability) and GINA regula-tions in regard to incentive limitations, reasonable alternative stan-dards, notice requirements, etc. That being said, it is still necessary to consider potential requirements under ERISA, COBRA and health care reform requirements if the wellness program is considered a group health plan, and certainly the taxation of such gift cards.

Q What about wellness programs that are offered and managed completely by the carrier of the health plan?

A Regardless of who is managing the wellness program, if the incen-tives affect the group health plan, it is necessary to comply with the HIPAA regulations and likely the ADA and GINA proposed regula-tions as well.

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