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Contrasting EEOC rules dial up the complexity of wellness incentive regulations

Posted On: May. 15, 2016 12:00 AM CST

Complying with often-conflicting laws that govern wellness programs can be a source of frustration for employers, benefits experts say.

Wellness programs are governed by the Health Information Portability and Accountability Act as amended by the Patient Protection and Affordable Care Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

Sometimes, the laws don't gel.

The U.S. Equal Employment Opportunity Commission last week released final rules under the ADA and GINA for voluntary workplace wellness programs.

Employers likely will find them “problematic,” said J.D. Piro, Norwalk, Connecticut-based senior vice president at Aon Hewitt and co-author of the U.S. Chamber of Commerce's “Winning with Wellness” April report that outlines effective workplace wellness strategies.

For one, “the incentive calculation is still different than the way it's calculated under HIPAA, so that's going to be an issue for employers,” Mr. Piro said.

HIPAA limits incentives to 30% of the total annual cost of the elected group health plan coverage, and 50% of coverage for tobacco-cessation programs.

The EEOC wellness rules that take effect Jan. 1, 2017, allow incentives of up to 30% of the total cost of employee-only coverage, rather than elected coverage. For an employee's spouse, incentives also are limited to 30% of employee-only coverage.

That means employers may “have to scale back” their incentives, said Steve Wojcik, vice president of public policy with the National Business Group on Health in Washington.

HIPAA's incentive limits apply only to outcomes-based incentives, while the ADA expands that to participation-based wellness programs.

Additionally, the ADA prohibits an employer from denying access to a particular health plan because an employee does not participate in a wellness program, while HIPAA allows such practices as long as they are within the incentive limits.

Now that the rules are finalized, “it's going to be much more complicated for employers to structure a program that complies with all three sets of regulations, which aren't exactly the same,” Mr. Piro said.