We’ve been anticipating proposed amendments to GINA (Genetic Information Nondiscrimination Act of 2008) for some time now. They were released Thursday October 29, 2015 and there is a 60 day period for public comment.
11 Things You Need to Know about the proposed amendments to GINA:
- Spouses that are participants in an employer’s health plan can be included in the wellness program. Spouses and family members who are not participating in the employer’s health plan are not included in the proposed exceptions under GINA, but the authors have requested comments regarding the extent to which the GINA regulations should allow inducements as part of such programs.
- Programs cannot ask the employee health questions about their spouse. This is already a Bravo standard practice. Spouses must sign separate notice and consent and provide their own information.
- Genetic information as previously defined for employees will include an exception for current or past health status as part of a health risk assessment (HRA) or medical examination (e.g. to detect high blood pressure, or high cholesterol) for spouses who are covered by the health plan. Truly genetic information cannot be requested in conjunction with an inducement (reward or penalty).
- As seen in the proposed amendments to the Americans with Disabilities Act (ADA), the total amount of inducements will be limited to 30% of premium. When spouses are included, 30% of “the cost of coverage in which a person is enrolled” will be permitted. This may not however apply to tobacco use (see #6).
- Here’s a twist – If an employee and spouse participate in the program, the employee’s portion of the reward would be limited to 30% of the cost of employee-only coverage. The difference between 30% of the applicable coverage and that number could be used for the spouse incentives. For example – if the family premium is $14,000, 30% would be $4,200. If the employee only premium is $6,000, 30% is $1,800. A plan could only use $1,800 for health-contingent incentives for employees but they could use the balance ($4,200 – $1,800 = $2,400) for the spouse. OR they could limit the spouse to $1,800 also and use the difference of $600 to reward participation in activities for the employee, spouse or family members (just not health-contingent programs).
- Based on #4 – it looks like the 30% limits will in fact include all participatory and outcomes-based inducements. Under GINA, 50% may be ok if the amount >30% is limited to tobacco/nicotine. Note however that the proposed ADA regulations indicated that only self-reported tobacco use could be used to exceed 30% of premium. If a blood test or other examination was required to determine tobacco or nicotine use, the total of all inducements, including tobacco use, would need to remain under 30% of premium. Final guidance under the ADA has not yet been issued.
- The 30% calculation would include financial and “in-kind” inducements such as prizes and paid time off awards. Although there is a question posed about excluding rewards with a de minimus value. Examples of incentives that would need to be included in the calculation are Paid Time Off, merchandise or other prizes. All of these items should be part of the compliance testing, and not just amounts tied to premiums or plan designs.
- Consistent with the Affordable Care Act (ACA) and proposed ADA regulation amendments, inquiries and inducements must be part of a “reasonably designed wellness program”. They are seeking more comments on what this should minimally include but have currently adopted the ACA definition that the program is reasonably designed to promote health or prevent disease and includes follow up information and health advice (not just a reward or penalty). This is directly in line with the focus of Bravo’s health risk assessment – Know Your Number®. If you do not have this currently as part of your plan, contact us to learn more.
- There are clear prohibitions on selling data gathered through a wellness plan or using it for target marketing to consumers.
- They are requesting comments on some of the same items we saw under ADA. Some of those items include: should a personal certification from a medical professional trump all other requirements, how should data be secured and protected, requirements for the notice, etc.
- They are also asking if wellness programs should be allowed to obtain claims data and/or medical records data.