A Look Into the Final EEOC Wellness Regulations. Art & Science of Health Promotion Conference March 29, 2017

Transcription

1 A Look Into the Final EEOC Wellness Regulations Art & Science of Health Promotion Conference March 29,

2 Today s Discussion Applicable federal regulations: HIPAA ACA ADA GINA Inconsistencies in the regulations and how to navigate Group participation: example plan designs to identify issues or concerns Practical actions and best practices 2

3 Safe Harbors for Discrimination 2006 HIPAA Final Wellness Rules (only applies to health plan) Affordable Care Act (only applies to health plan) Discrimination permitted based on a health status. Limited to premium contribution differentials and cost-sharing within the plan. Did not create financial limits on participation-based incentives or penalties (did not supersede other applicable laws). 3

4 ADA Safe Harbor Proposed Amendments to ADA and GINA Seff vs. Broward County 4

5 2015 Preserving Employee Wellness Programs (Congressional Bill) 2016 Final ADA and GINA Wellness Regulations (EEOC) 5

6 Sept 2016 Oct 2016 Dec 2016 Jan /events/webcastwellness.cfm EEOC vs. Orion 6

7 Federal Wellness Rules on Incentives HIPAA (2006) Affordable Care Act (2010) ADA/GINA (EEOC) (2016) Size of financial impact: 20% of total cost employee enrolled in (assuming other dependents may access as well) Same as HIPAA but 30% and up to 50% if amount > 30% is limited to tobacco use 30% of total cost for employee-only coverage in least expensive option. Tobacco included if tested via exam but not if attestation. Applicable types of incentives: Outcomes-based Health contingent activityonly and outcomes-based (note impact to affordability calculation) Participation and Health Contingent that require and exam or answer to health question(s) deemed disability related Incentive method(s): Premium contributions and/or cost-sharing mechanisms within health plan Same as HIPAA All forms (cash, PTO days, merchandise, de-minimus rewards, cost-sharing etc.) Reasonable alternative standard: Required if medically inadvisable or unreasonably difficult due to medical issue Same as HIPAA for participatory and activity-only but required for all outcomesbased regardless of medical issue Required for all disabilityrelated and same as ACA for outcomes-based 7

8 Federal Wellness Rules Continued. HIPAA (2006) Affordable Care Act (2010) ADA/GINA (EEOC) (2016) Applicable to: Health plan participants Health plan participants All employees (and spouses via GINA) Design requirements: Reasonably designed to promote health and prevent disease Same as HIPAA plus minimum of report to summarize health risks and recommendations Same as ACA Privacy notice: Follows health plan privacy notice Follows health plan privacy notice Model notice issued June 2016 Frequency: Not specified At least 1 time per year At least 1 time per year 8

9 ADA & GINA: My Perspective, the Good News Incentives and/or penalties (a.k.a. inducements ) are clearly permissible and will not be deemed involuntary if compliant with requirements. Clear path to include those outside of health plan without fear of wage discrimination. Rules largely mirror the ACA s and HIPAA s existing regulations. Not retroactive: Financial Inducement caps applied 1/1/17 plan year or upon renewal after 1/1 must comply. Should be in compliance with all other provisions now. 9

10 The Headlines: What s in There? Participation cannot be a gatekeeper for coverage. Not simply for coverage overall, but for any plan. Must offer access for non-participants to buy up to the better plan. Example before: Non-participant earns Bronze plan; participant who passes fewer than 4 of 6 goals earns Silver; participant who passes 4 to 6 earns Gold. Example after: Same except Bronze participant can also pay $X to opt into Silver or $Y to opt into Gold (provides basis for 30% test as well). Common question: Are we now required to include non-health-plan participants in the program? No. Also may include in wellness program but not offer an incentive. 10

11 The Headlines: What s in There? Children (even adult children) may not be included in incentive program soliciting health information or requiring exam, but spouses can. Outcomes and participation-based incentives count toward cap. In-Kind incentives (paid time off, movie tickets, t-shirts) count; even de-minimus. October 2016 opinion indicates that only the elements that require an exam or require individuals to answer disability-related questions count. HRA s may not count if questions can be skipped. Incentives >30% are okay if you can earn maximum rewards without exam or DI questions Privacy notice requirements adopted: model notice issued, June

12 The Headlines: What s in There? New 30% rule varies based on four scenarios: If there is only one health plan offered to employees, use 30% of the cost of employee-only coverage in that plan for all employees (whether in the plan or not). If multiple health plan options are offered and wellness inducements are offered regardless of which plan an employee enrolls in, use 30% of the cost of employeeonly coverage in the least expensive health plan. If multiple health plan options are offered but the wellness program and inducements are only included in certain plan options, use 30% of the cost of employee-only coverage in the plan in which an individual is actually enrolled. If no health plan is offered at all, use 30% of rate for Silver Plan on public exchange that would apply to a 40 year old non-smoker in the zip code of company headquarters. 12

13 Tobacco Inducements The EEOC amended the ADA regulations regarding tobacco/nicotine incentives limiting incentives that require an exam to allow 30% of employee-only premium. Blood draws and cheeks swabs, for example, are considered an exam. A provider form that has the provider attest is also incident to an exam. Utilizing an attestation to incent tobacco use (instead of an exam), allows a plan design to increase its inducements to up to 50%. Nuance: the 20% can be used for each tier (employee, employee plus spouse, family). 13

14 The Headlines: What s in There? Reasonably designed? Largely mirrors HIPAA and ACA now. Must have a reasonable chance of improving health/preventing disease. Must not be overly burdensome or time consuming. Must not be a subterfuge for violating ADA or other law. Wellness programs that collect medical information through measurement, screening or test without follow-up information and advice designed to improve health would not be considered reasonably designed. Most health risk assessment reports achieve this standard. 14

15 The Headlines: What s Not in There? Physician attestation in lieu of participation: NOT ADOPTED. Applicability of insurance safe-harbor provisions: NOT ADOPTED. Final rules specifically state that the safe harbor does not apply to wellness programs even if they are part of employer s health plan. Note: EEOC vs. Orion Energy. May require different rules for low income employees: NOT ADOPTED. Note: Option for wage banded design. Requirement to collect prior written acknowledgement of voluntary nature of program and incentive: NOT ADOPTED. 15

16 Other Key Points in GINA Rule Exception to GINA for spouse involvement in wellness programs appears to no longer be limited to spouses who are participating in the employer sponsored health plan. Cannot ask employee for spouse health information. Must directly ask the spouse. Spouse must provide their own consent and privacy acknowledgement. Employee cannot approve on behalf of spouse. May ask about spouse s current and past health status but NOT about the spouse s family history or genetic information. Cannot link results and deny employee incentives because their spouse did or did not engage in wellness program. Exception for tobacco use! 16

17 Changes in the Last 60 Days 17

18 An Update AARP lawsuit against EEOC: Argues 40% allowance renders programs involuntary in violation of ADA and GINA. Lost request for injunction to prevent rules from going into effect 1/1/17. Court has not concluded in favor of EEOC at this time, only that the injunction was not warranted. S. 620 and H.R Preserving Employee Wellness Programs Act -- currently dormant. 18

19 An Update Evidence-based research results concerning the use of incentives. EEOC webinar October 19, 2016 Victoria Lipnic - New Acting Chair of EEOC Repeal of the ACA: Strong bipartisan support for wellness and incentives. May temporarily revert back to HIPAA wellness rules (which, when coupled with EEOC rules, would limit health-contingent portion to 20% of total premium). 19

20 Sample Program Designs 20

21 Embedding Wellness and Incentives into Medical Plan 1,000 enrolled employees $8,000 annual premium/ee Per Employee 20% 80% $1,600,000 All Employees $6,400,000 Employer Employee Employer Employee 21

22 A Purpose-Driven Portion of the Benefit Plan 20% Original Employee base 1,000 enrolled employees $8,000 annual premium/ee New Employee Base Wellness 30% 15% 55% 3% Employees (as a whole) are paying only 3% more than the previous contribution level 8% 22% 15% 55% Employee Base Unearned Employee Incentives Earned Employee Incentives New Employer Base Per Employee Costs All Employees Cost New Employer Base 22

23 $244,500 Unearned incentives (above what the previous plan funded) can then be redirected BACK to employees through targeted interventions such as: High risk coaching Disease management Stress management Financial wellness On-site clinics, etc. 23

24 Incentive Structure A $8,000 x 30% = $2400 ($200/month) Reward Categories Biometric Screening & HRA (participation) NIH (Healthy) Outcome Required Monthly Incentives Alternative Goals n/a n/a $50 n/a BMI kg/m kg/m2 OR Waist: < 34.5 F < 37 M $50 5% weight loss (or work with doctor) Blood Pressure 120/80 mmhg 130/85 mmhg $25 Improve by one risk category LDL Cholesterol 100 mg/dl 130 mg/dl $25 (or work with doctor) Tobacco / Nicotine Negative Negative blood test $50 Complete cessation program 24

25 Incentive Structure B $5,000 x 30% = $1500 ($125/month) Reward Categories Biometric Screening & HRA (participation) NIH (Healthy) Outcome Required Monthly Incentives Alternative Goals $50 n/a n/a $50 n/a $25 + $25 BMI kg/m kg/m2 OR Waist: < 34.5 F < 37 M $50 5% weight loss (or work with doctor) Blood Pressure 120/80 mmhg 130/85 mmhg $25 Improve by one risk category LDL Cholesterol 100 mg/dl 130 mg/dl $25 (or work with doctor) Tobacco / Nicotine Negative Negative Attestation blood test $50 Complete cessation program 25

26 Other Open Questions Impact of incentives from carriers/fully insured policies? Count it. Practical application for non-covered spouses? Not recommended. Rules for raffles? Applies to raffle winner (verbal from EEOC). 26

27 Other Open Questions Where is the line for health inquiries versus disability inquiries? Avoid: Asking about a disability and/or employees genetic information. Asking health questions that are likely to elicit information about a disability. Asking about current prescription drugs or medications. Asking broad questions about impairments. General well-being questions (e.g. how are you?) are not considered disability inquiries. Questions about tobacco use are not considered disability related. 27

28 Sample Program Designs: Compliant or Not?

29 Is This Compliant? Employer offers health plan participants $25 per week if both the employee and the spouse meet two out of three biometric goals. NO. Spouse participation/results should not be a gatekeeper to employee rewards. Employer offers all employees a free health screening at work as part of their health fair day. Everyone gets a t-shirt and an entry to win a paid day off. YES and NO. If everyone gets a t-shirt regardless of participation, this does not need to be counted towards the maximum allowable. The paid day off is tricky in that you will need to calculate the value of a PTO for each employee that wins. We do not recommend using PTO as an incentive. 29

30 Is This Compliant? Employer offers all employees a web portal with an HRA, health challenges, financial wellness support and coaching videos. Employees can earn up to 10,000 points by completing activities and use the points to buy merchandise. Maybe. Depends on how it is structured. This is okay assuming the total of all rewards that require participation in an exam and/or answering disability-related questions is under the 30% threshold or there is a way to earn the maximum reward without an exam or answering questions. This is not a best practice as written. There is a question on how to attribute the dollar amount towards the allowable differential ($3 per point that employer pays rewards vendor or the value of the toaster?). Employees may participate in a free biometric screening at work. If they lose 5% of their weight in a year, they get $50/month off of their premium. If they aren t on the plan, they get $600 cash (taxable compensation). YES. 30

31 What Now? Determine date this impacts your incentives. Review program design for reasonability. Determine population included (Health plan only? All employees? Spouses?). List all incentives included (outcomes, improvement, participation, in-kind, deminimus, trinkets, raffles etc.; note if linked to applicable inquiry or exam). Perform 30% test (50% with tobacco attestation), adjust as needed. Confirm compliance with ACA (note that 2x employee-only may be more than 2x employee + spouse ). Review and update privacy notice. Review appeal, alternatives and exceptions for disabilities. Update programming and communications as needed. 31

32 Thank You Jim Pshock 32