After great effort to resolve apparent conflicts between the ACA and older statutes, including the Americans with Disabilities Act, a repeal of the healthcare law may send regulators back to the drawing board.
As President Donald J. Trump takes office, the future of the Affordable Care Act (ACA) has many unknowns, including whether wellness provisions that have proved controversial will remain.
The ACA sought to give employers a stronger hand in encouraging workers to develop healthier habits, but the law ran into conflicts with 2 other statutes, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). These laws, designed to protect patient privacy, limited when employers offering health plans could demand information.
In May 2016, the Equal Employment Opportunity Commission (EEOC) sought to resolve the conflicts with a new rule, which said employers could offer inducements to encourage employers and spouses to disclose health information, but these carrots could not exceed 30% of the cost of self-coverage, as called for the Health Insurance Portability and Accountability Act (HIPAA).
The AARP, formerly the American Association of Retired Persons, sued anyway, saying the new rule would be unfair to older workers (AARP offers membership to anyone age 50 or older). A key point of AARP’s complaint was whether such programs are truly “voluntary,” which was a requirement under the new EEOC rule. The Kaiser Family Foundation said the cost of not participating would be about $2000 for most workers, if companies levied the full penalty.
AARP’s suit was not successful, but the group remains engaged in the cause of helping older workers protect their rights. Lisa Suter, a rewards service director of Welltok, explained the road ahead for wellness programs in an interview with The American Journal of Managed Care.
According to Suter, “more and more employers were moving away from the penalty aspect” of wellness programs. She’s seen more than one employer revise a program to make it more personalized to individual workers. “The trend we are starting to see is that they want to do the right thing–they want wellness programs to be a positive thing.”
Suter said it’s been hard for employers to gauge whether wellness programs are delivering health plan savings based on what is being spent. “It’s difficult to gauge (return on investment),” she said. It’s hard for a program to be successful if it increases stress.
In addition, Suter said, the definition of what constitutes “wellness” is shifting. Promoting good “financial wellness” is an important retention tool, especially with millennials.
Staying abreast of regulations is a key to compliance, she said. And EEOC could find itself needing to revamp regulations again, depending on what happens to the ACA.
“I think it will depend on whether or not there is a full repeal of the ACA, which is still unknown,” Suter said. “If the wellness requirements within the ACA are left intact, I don’t suspect the EEOC will make changes to their regulations. If there is a full repeal, with no immediate replacement, the EEOC may need to act quickly to adjust their current regulations to provide guidelines for wellness programs that may help frame future provisions for a new version of the ACA.”