Federal court actions have called to question wellness programs which offer incentives for employees to participate in clinical testing or require disclosure of personal health information (PHI). This legislative update is intended to provide resources for guidance on these regulations.
Due to the complexity of this topic, quick refresh on the history of federal wellness rules is worth exploring here, and here, before we dive into the ins and outs of the 2019 wellness regulation update.
To help explain possible next steps for 2019 wellness program planning, please view our infographic to accompany this post.
Breaking the news: no "new" news
Currently, it is possible that there may not be clarity given on a resolution to the wellness regulations — or at least, not in time for employers and plan sponsors alike to adjust their wellness plans and programs for the 2019 plan year.
What remains is the question of whether incentives are voluntary. The current limit is 30 percent savings on an employee's annual premium — an amount set in a 2016 Equal Employment Opportunity Commission (EEOC) rule for what an employer can offer. For smoking cessation programs, the 50% limit applied if the employer did not test for nicotine.
However, this 30 percent ruling is a point subjective. One employee's 30-percent "optional" incentive may be a significant savings for another who feels obligated due to financial hardship. As a result, critics suggest that when incentives become significant enough, employees no longer feel that participation is voluntary.
Okay, so now what?
Employers and plan sponsors will need to make a decision as to whether they should continue with their current wellness programs or modify their plans without guidance from the the EEOC. It is unknown whether 2019 premium differentials caused by a participant’s refusal to be screened could survive an employee legal challenge. And, HIPAA regulations still apply for wellness programs.
Will this affect me?
The AARP/EEOC ruling affects any employer or plan sponsor intending to sponsor a wellness program for 2019 that asks participants to answer health-related questions or undergo medical testing - and HIPAA regulations still apply.
Overall, it seems unlikely that there will be a resolution in time for 2019 wellness program planning. In the meantime, reference our infographic below for possible next steps for employers and plan sponsors to do - recognizing that the biggest hurdle of all may be that employers cannot measure the risk of wellness plans at this time.
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