November 22, 2016 | Compliance

Have Employer Wellness Programs Been Trumped?

I couldn’t wait for November 8. I wish it was because I was so excited about the election and how I felt about our nation’s next leader, but in all honesty, I just wanted it to be over. We are in the battleground state of Ohio so the ads, the phone calls and the political events created a flood of information and stress for several months.

As rough as it was at times, it was nothing compared to what was happening in the world of Facebook and Twitter. Friends, family, colleagues and anyone with a keyboard or (God forbid) a meme creator app, could choose which news feeds and which “fact-checkers” they wanted to believe, then, let the wars begin.

At least it’s over now right? Or is it just beginning?

Our country is incredibly divided and passions and emotions still seem to be escalating. Regardless of whether your candidate won or lost, pray for our nation to heal and for civility to become the norm. Let’s be the change we want to see in this world. It’s hard to believe that with the lofty to-do list laid out by President-Elect Trump, revising the employer-wellness program rules would rank up there with “building a wall,” yet the threat of repealing the Affordable Care Act (ACA) could indeed have an immediate impact on wellness programs.

“Will ACA be repealed?” Experts say that’s unlikely.

“But wait…didn’t experts say that it was impossible for the Donald to win?” I don’t have a crystal ball or an inside track, but I can tell you that there are parts of the ACA that are extremely popular and I don’t envision those being touched.

Whether accomplished via a series of amendments or through a process to repeal and replace large portions, I think that it is unlikely we will go back to individual underwriting or banning people from coverage for pre-existing conditions. These were some of those popular elements. I also think children will be able to remain on their parents plan until age 26 and that all plans will have to pay for certain preventative services at 100 percent. On the chopping block will be the individual mandate and the penalties forced upon individuals and employers. Again, just my guess. I think we’ll see someone like Newt Gingrich heavily involved in the redesign, which means we are likely to see plans cross state lines more easily and we’ll see a big push for health savings accounts (HSAs).

As you may recall, the ACA expanded dollars that could be used for health contingent incentives to 30 percent of premium and up to 50 percent for tobacco use. The ACA modified the reasonable alternative standard requirements to extend to all outcomes-based goals rather than just to outcomes that could not be achieved because of a medical issue. Expanded definitions of “reasonably designed” and other less significant changes were made within the ACA rules as well. Prior to the ACA, we had the HIPAA wellness rules which really addressed these same things. The limit under HIPAA was 20 percent of premium for outcomes-based, and reasonable alternatives were limited to situations where a medical issue made it inadvisable for a person to attempt to achieve a given outcome.

Just a few months ago, the EEOC published new regulations under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA). These rules were more restrictive than the ACA rules because, even though they also use 30 percent of premium, they require programs to combine all incentives in the 30 percent cap rather than just incentives for health-contingent goals. Additionally, the 30 percent is based on the cost of the least expensive employee-only coverage offered rather than the plan in which an individual actually enrolled as with the ACA.

So what does this mean? In the unlikely event of the ACA being completely repealed and the safe harbor for wellness program incentives disappearing from our world, it seems we would revert back to the HIPAA regulations and the recently established EEOC regulations. For most plans, this would mean: take your least expensive employee-only plan and make sure that not more than 20 percent of premium is tied to health contingent goals. You can still tie an additional 10 percent of premium to the plan as long as they are participation-based goals because HIPAA doesn’t care and the EEOC allows up to 30 percent in total. The ADA regulations adopted the reasonable alternative standard language and the definition of “reasonably designed” from the ACA so don’t make any changes to those elements.

As always, be prepared to make adjustments needed to comply with the rules but I think it’s reasonable for plans to expect to have time to comply. I can tell you that across the several hundred programs we administer at Bravo, very few would have a difficult time making small adjustments to comply with HIPAA and the EEOC if the ACA was repealed. Now let’s go back to fixing America!

Topics: Compliance

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