"Voluntary" is the key word in today's wellness programs, after EEOC rules were tested in court.
Wellness programs, promoted under the Affordable Care Act (ACA), have caused controversy in recent years as regulators tried to balance the desire to promote healthy behavior against privacy rights enshrined in earlier laws. Now that the ACA may be repealed, there’s a new tide of uncertainty. Here are 5 things to know:
1. Employers faced a conflict between the ACA and other laws
Some employers took full advantage of the ability to compel employees to “weigh in” or take biometric screenings, in an effort to rein in health plan costs. But the pushback came quickly, as workers cited their rights under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
2. EEOC became the referee
The Equal Employment Opportunity Commission (EEOC) was forced to promulgate new rules, which became final in May 2016, to resolve conflicts of the ACA, the ADA, and GINA. The new rule limits the incentives employers can offer to entice workers to disclose information to 30% of the cost of single coverage.
3. What does “voluntary” mean?
The idea behind the new EEOC rule is that wellness programs should be voluntary—that employers can encourage participation, but if the enticements create too large of gap between those who participate and those who don’t, then the program ceases to be voluntary. The group AARP, formerly the American Association of Retired Persons, argued that even the new EEOC rules didn’t create programs that were truly voluntary.
4. AARP lost its lawsuit, so what now?
A judge dismissed AARP’s claims early this month, saying the group could not show its members would suffer irreparable harm. The group responded by saying it would continue to ensure that any disclosure of personal information is truly voluntary. Lisa Suter, of Welltok, told The American Journal of Managed Care that many employers are moving away from incentives on their own in favor of more positive approaches.
5. A repeal of the ACA may create more uncertainty
Suter said that if the ACA is fully repealed, EEOC may have to scramble to redo regulations it just issued. But if a replacement plan retains the wellness features of the original ACA, that may not be necessary. Employers with wellness programs must stay in touch with what happens with the healthcare law, she said.