13. How does an employer calculate incentive limits when an employer has more than one group health plan but offers a wellness program that does not require employees to participate in a particular plan?
When an employer offers more than one group health plan but participation in a wellness program is open to all employees regardless of whether they are enrolled in a plan, the employer may offer a maximum incentive of 30 percent of the lowest cost major medical self-only plan it offers.
For example, if an employer offers three different major medical group health plans ranging in cost for self-only coverage from $5,000 to $8,000 and wants to offer an incentive to employees for participating in a wellness program and completing a HRA, the employer could offer a maximum incentive of $1,500 (30 percent of its lowest cost plan).
14. May an employer offer an incentive to employees to participate in a wellness program if it does not offer health insurance?
Yes. If an employer does not offer health insurance but wants to offer an incentive for employees to complete a HRA or to have annual tests that check their glucose and cholesterol levels, the employer could offer an incentive up to 30 percent of the cost that a 40-year-old non-smoker would pay for self-only coverage under the second lowest cost Silver Plan on the state or federal health care Exchange in the location that the employer identifies as its principal place of business. If such a plan would cost an employee $4,000, the employer could offer a maximum incentive of $1,200.
15. What is the second lowest cost Silver Plan, and why does the rule use this plan to calculate wellness program incentives where an employer does not offer health insurance?
The second lowest cost Silver Plan is used as a benchmark for determining an individual’s entitlement to a premium tax credit for purchasing health insurance on the Exchanges. The rule uses this plan because it is the most popular plan on the Exchanges, and information about its costs is readily available. Additionally, using the cost of the Silver Plan for someone who is 40 years old and a non-smoker — a plan that is neither the least nor the most expensive plan offered on the Exchanges — reflects the Congressional goal in HIPAA, as amended by the Affordable Care Act, of allowing incentives that may encourage meaningful participation in wellness programs, while avoiding incentive limits that are so high as to be considered coercive.
16. Why does the rule set the incentive limit at 30 percent of the cost of self-only coverage?
This is the incentive limit under HIPAA regulations that applies to health-contingent wellness programs that require employees to perform an activity or achieve certain health outcomes. (See Q and A 4.)
17. Are the incentive limits related to smoking cessation programs the same as for all other wellness programs?
Like the proposed rule, the final rule makes a distinction between smoking cessation programs that require employees to be tested for nicotine use and programs that merely ask employees if they smoke. A wellness program that merely asks employees whether or not they use tobacco (or whether they ceased using tobacco by the end of the program) is not a wellness program that asks disability-related questions. Therefore, the rule’s 30 percent incentive limit does not apply and, an employer can offer an incentive up to 50 percent of the cost of self-only coverage, consistent with HIPAA, as amended by the Affordable Care Act. However, where an employer requires any biometric screening or other medical procedure that tests for the presence of nicotine or tobacco, the rule’s 30 percent incentive limit applies.
18. What confidentiality requirements apply to the medical information employees provide when they participate in wellness programs?
The final rule does not change language concerning confidentiality (including any exceptions to confidentiality) that was already part of EEOC’s existing ADA regulations, but adds two new requirements. First, a covered entity only may receive information collected by a wellness program in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as is necessary to administer a health plan. Second, an employer may not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information, or to waive confidentiality protections under the ADA as a condition for participating in a wellness program or receiving an incentive for participating, except to the extent permitted by the ADA to carry out specific activities related to the wellness program.
19. Are there any other federal laws that protect the confidentiality of medical information obtained through a wellness program?
Yes. For example, where a wellness program is part of a group health plan, HIPAA’s privacy, security, and breach notification rules protect information collected from or created about participants that can be used to identify them (such as their address or birth date) and that relates to any past or present health condition and sets limits on the uses and disclosures that may be made of such information. An employer that sponsors a group health plan may receive this information but must certify to the plan that it will safeguard and not improperly use or share it. Generally, wellness programs can comply with EEOC’s final rule by complying with their obligations under the HIPAA Privacy Rule, and employers can comply with their obligations by certifying that they will not use any personally identifiable information for employment purposes and abiding by that certification.
Coordination with Other Federal Agencies
20. Did the EEOC coordinate with the agencies that enforce the wellness program rules under HIPAA, as amended by the Affordable Care Act?
Yes. As with the proposed rule, EEOC coordinated extensively with the Department of Labor, the Department of Health and Human Services, and the Department of Treasury, Internal Revenue Service. EEOC sought to promote consistency, to the extent possible, with HIPAA, as amended by the Affordable Care Act, with respect to wellness program incentives, while also recognizing the protections against discrimination established by Title I of the ADA.
21. When do employer wellness programs have to comply with this rule?
The new provisions of the final rule concerning the requirement to provide a notice that clearly explains to employees what medical information will be obtained and how it will be used (see Q & A 9) and the limits on incentives (see Qs & As 12 – 14) apply only prospectively to wellness programs as of the first day of the first plan year that begins on or after January 1, 2017, for the health plan used to determine the level of incentives permitted under this rule. For example, if the health plan that is used to calculate the permissible incentive limit begins on January 1, 2017, that is the date on which the rules on incentives and the notice requirements apply to the wellness program. If the plan used to calculate the level of incentives begins on March 1, 2017, the provisions on incentives and notice requirements will apply to the wellness program as of that date. The rest of the provisions of the rule, which simply clarify existing obligations, apply both before and after publication of the final rule.
22. What is the difference between the rule’s effective date and its applicability date?
The effective date is the date on which the rule will be in the Code of Federal Regulations, the official publication for federal regulations. The applicability date is the date on which employers have to comply with the requirement to provide a notice and the provisions limiting incentives.
Other EEOC Guidance on Wellness Programs
23. Has the EEOC provided any other guidance to employers about wellness programs and whether incentives can be offered as part of such programs?
Yes. On May 17, 2016, the same day that the ADA file rule was published, the EEOC issued a final rule amending the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA). This rule says that employers may offer limited inducements (incentives) for an employee’s spouse to participate in a wellness program. (See Questions and Answers about EEOC’s Final Rule on Employer Wellness Programs and Title II of GINA.)