This week, NAHU submitted comments to the Equal Employment Opportunity Commission (EEOC) on a proposed rule regarding the Genetic Information Nondiscrimination Act of 2008 (GINA) and its impact on employer group wellness programs. Our comments generally asked that rulemaking defer to rules that are already in place through existing regulations so that new rules do not create added complexity or confusion for employers who wish to adopt wellness programs, as that could deter employers from offering these cost-saving measures. We noted the need for consistent and integrated rulemaking, advising that the proposed rule should complement existing state and federal wellness program requirements, and that the rules should prioritize coordination and consistency with existing federal rules. We noted in our comments that employers offer their workers access to wellness programs because of the flexibility in design and implementation and we recommend that any new rulemaking continue to allow for this flexibility by providing clear and fair standards that can be easily and economically adopted, and that inconsistent, confusing, and costly rules could lead to employers dropping wellness programs.
Specifically, our comments addressed:
- Consistency in Effective Dates: We requested that the EEOC tie the compliance date for new requirements for group health plans to the group plan year date. Since according to ERISA, making significant changes mid-year could significantly disrupt existing employee coverage requirements.
- Reasonable Design Standard: We advised that additional regulation by the EEOC relative to reasonable design is unnecessary given existing HIPAA and ACA rules.
- Authorization for GINA from Spouses: We requested that the EEOC provide employers with model language to satisfy the requirements for employers to include on health risk assessment forms.
- Allowable Incentive Amounts for Spouses: We expressed concerns with the proposed rule requiring incentives to be apportioned between spouses as that could result in uneven incentives with spouses having a greater incentive than the employee, and noted that it is inconsistent with other employer wellness programs, including HIPAA and ACA. We also requested clarification regarding the proposed incentive limiting requirements for smoking cessation programs and their allowable incentives as this would be outside the scope of GINA and do not limit an employer from including a tobacco-reduction component.
- Incentives for Spouses Not Completing a HRA: We noted that spouses who provide certification from a medical professional instead of disclosing genetic information or past or current health status does not constitute the need for a reasonable alternative standard and that inducements should not be required.
- De Minimus Incentives: Given the uncommon use of de minimus rewards for outcome-based programs, including those that would require a health risk assessment, we believe that forgoing the authorization requirement for such programs would be appropriate. We requested clarification in the final rule as to how this EEOC requirement will interplay with already existing rulemaking.
- Data Security: We do not believe that genetic information protection needs separate or different privacy standards than what is generally required of employers, insurers, and other covered entities, and we believe the EEOC should allow existing state and federal privacy standards for employers, insurers, and other business associates and covered entities to apply.
- Restrictions on Collecting Information: We advise that there is not any need for additional regulation by the EEOC on collecting information as existing rules regulating employer-sponsored wellness programs under HIPAA and the ACA require the use of a reasonable-design standard to ensure that employer-sponsored wellness programs promote health, prevent disease and are nondiscriminatory.
- Wellness Programs outside Group Plans: We advise that EEOC regulation of health insurance issuer participatory programs that are fully outside the bounds of employer control would be inappropriate and request a safe harbor for employers with regard to general participatory programs offered to beneficiaries of health insurance issuers.