On Monday, May 16, the Equal Employment Opportunity Commission (EEOC) released its final rule to amend regulations under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). This final rule provides guidance about the extent to which employers may offer a wellness program incentive to an employee for the employee’s spouse to provide information about the spouse’s manifestation of a disease or disorder as part of a health risk assessment (HRA). GINA does not apply to incentives offered in exchange for an employee’s spouse engaging in activities that do not involve questions about the manifestation of disease or disorder, like attending a nutrition class or meeting an exercise requirement.
The final rule is effective prospectively as of the first day of the first plan year beginning on or after January 1, 2017, for the health plan used to determine the wellness program incentives. The final rule applies to wellness programs connected to a group health plan and stand-alone wellness programs with no connection to a group health plan.
We’ve extracted five important takeaways from the GINA final rule for employer wellness programs:
- Prior Authorization Required: Like the proposed rule, the final rule requires that an employer offering an incentive to an employee for the employee’s spouse to complete an HRA or biometric screening must obtain a voluntary written authorization from the spouse. The written authorization must describe the type of genetic information that will be obtained, how it will be used, and the confidentiality protections on the sale, transfer, and disclosure of the genetic information.
- No gateway plans. The GINA final rule closely follows the ADA final rule released the same day, which requires that a wellness program be voluntary and reasonably designed to promote health and prevent disease. Like the ADA final rule, the GINA final rule also prohibits an employer from restricting access to particular benefits based to an employee or his or her family members based on a spouse’s refusal to provide information about the manifestation of disease or disorder in an HRA or biometric screening.
- Incentives for child participation prohibited. The final rule prohibits inducements for information from children of employees. The prohibition applies to both minor and adult children and to both biological and adopted children.
- Separate Incentives for Employees and Spouses. The EEOC does not consider a wellness program to meet the reasonable design requirement referenced above if it penalizes an employee due to a spouse’s failure to participate or achieve a particular health outcome. In other words, plans with a spousal participation component must be designed in such a way that an employee may still receive their own award independent of the spouse’s participation in or results from an HRA or biometric screening.
- Incentives Limited to 30% of the Cost of Self-Only Coverage: An incentive provided to a spouse under the final rule is limited to 30% of the total cost of self-only coverage under the group health plan in which the employee is enrolled, if enrollment is a condition for participation in the wellness program. Like the ADA final rule, the GINA final rule provides three additional methods for calculating the maximum permissible incentive in cases where an employer offers one or more group health plans and enrollment is not a condition of participation in the wellness program, and where an employer does not offer a group health plan. Note that the maximum permissible incentives under both the ADA final rule and the GINA final rule are more restrictive than the maximum permissible incentives under the HIPAA wellness rules. Under the ADA and GINA final rules, the combined total incentive may be no more than twice the cost of 30% of self-only coverage – not the tier of coverage the employee and spouse are enrolled in under the employer’s group health plan.
As employers become more aggressive with wellness program initiatives that may be designed to help improve the health and control costs incurred by employees’ spouses and dependents, employers should review this final rule carefully to ensure compliance. The interaction of HIPAA, GINA, and the ADA can be complicated, and compliance with one set of rules often does not equal compliance with another. Employers are encouraged to work with their legal counsel and benefits consultant to evaluate the impact of this final rule on their wellness program. For more information, review the EEOC’s fact sheet and FAQ on the GINA final rule. Our post about the ADA final rule may be accessed here.