HIPAA, GINA and Wellness

Transcription

1 HIPAA, GINA and Wellness Making sure your wellness program is compliant Diane Andrea, RD, LD Jim Peterson, HR Consultant April 2012 The recommendations and opinions provided herein are based on general Human Resources management fundamentals, practices and principles and are not legal opinions or guaranteed outcomes. We strongly recommend as part of a team approach to management, that clients consult with legal counsel of their choice to address legal concerns related to human resource issues.

2 Overview Understand how to design and use incentives in your employee wellness program Reasons for using wellness incentives Considerations when constructing a wellness incentive plan

3 Incentives A reward we receive for completing a desired action.

4 Incentives Incentive Value Expected participation Trinkets <$ % Cash /merch. $25-$ % Cash /merch. $100-$ % Benefit design n/a 80-90%

5 What Should You Incent? Appropriate medical plan utilization Regular exercise Flu shot Biometric screening A year of healthy living Weight loss Disease management Proper nutrition Preventive health Program attendance HEALTHY BEHAVIORS

6 compliance accomplishment participation maintenance change learning

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8 Incentives $460

9 Incentives Tobacco use % %

10 Incentives for Health Management Financial rewards % %

11 Incentives Complete a health management program/activity % %

12 Health Improvement Incentives

13 Incentives Offering to dependents % %

14 Incentives Use of technology % %

15 Carrot vs. Stick

16 Sticks Smoking (64%) Disease management and lifestyle behavior programs (50%) Biometric screenings (45%)

17 Beware of unintended consequences!

18 Types of Incentive Rewards Tangible Intangible

19 Tax Implications Tax Neutral Premium waiver/reduction Deductible reduction Access to favored plan Employer contributions to medical savings account Paid time off Merchandise of de minimis value (water bottles, hats, etc.) Taxable Cash Gift cards/certificates Debit cards Merchandise that exceeds de minimis value.

20 Guidelines for Powerful Incentive Programs Planning Process Design Implementation Transition Evaluation

21 Weighing the Legal Implications ADA/ADAAA GINA HIPAA ADEA NLRA Lifestyle Laws (State)

22 Conflicting Laws and Wellness Objectives Federal laws designed to prohibit discrimination ADA GINA HIPAA Programs designed to encourage healthy lifestyles Wellness Initiatives Health Care Reform

23 Americans with Disabilities Act as Amended (ADAAA)

24 ADA/ADAAA Q: How does this affect your Wellness Program?

25 ADA/ADAAA The EEOC Technical Assistance Manual says that the ADA permits employers to: conduct voluntary medical examinations and inquiries as part of an employee health program (such as medical screening for high blood pressure, weight control, and cancer detection), provided that: participation in the program is voluntary;

26 Genetic Information Nondiscrimination Act of 2008 (GINA) GINA prohibits employment discrimination against individuals based on genetic information. Genetic information is defined as: Information about the individual s genetic tests or.the genetic tests of family members, or The manifestation of a disease or disorder in.family members of such individual (i.e. family.medical history), or Any request of or receipt by the individual or.family members of genetic services.

27 Genetic Information Nondiscrimination Act of 2008 (GINA) Allows employers to offer voluntary wellness programs..voluntary means the employees are neither required to.participate nor penalized for nonparticipation..a program can collect genetic information through an.health Risk Assessment s (HRA s) as long as NO rewards.are provided (and if request is not made prior to or in.connection with enrollment). A program can provide rewards for completing the HRA as.long as the HRA does not collect genetic information.

28 HIPAA Prohibits Consideration of: Health Status Medical Condition (including physical and mental illness) Claims Experience Receipt of Health Care Medical History Genetic Information Evidence of Insurability Disability

29 What is a Bona Fide Wellness Program?

30 Bona Fide Wellness Program 1. Program discount may not exceed 20% of the cost of employee/family coverage under employer s health plan. 2. Program must be reasonably designed to promote health or prevent disease. 3. Program must provide eligible individuals with the opportunity to qualify for the discount at least once per year. 4. Program must offer reasonable alternative standard. 5. Program sponsor must publicize the availability of this alternative standard in all program materials.

31 WellSteps Compliance Checker

32 Age Discrimination in Employment Act (ADEA) Prohibits age discrimination in employment Disparate impact is also prohibited

33 National Labor Relations Act (NLRA)

34 NLRA Q: Does this affect your Wellness Program?

35 NLRA Wellness topics that require bargaining: Employee benefits such as health insurance plans. Health and safety issues. Programs that require employees to submit to physical examinations. Significant changes to dining alternatives in the cafeteria.

36 Lifestyle Discrimination Laws (State) Missouri and Illinois Employers may not discriminate on the basis of off-duty tobacco or alcohol use unless it interferes with the employee's performance or employer's business.

37 The Bottom Line

38 Q& A Diane Andrea Wellness Consultant (314) dandrea@jwterrill.com Jim Peterson HR Consultant (314) jpeterson@jwterrill.com The recommendations and opinions provided herein are based on general Human Resources management fundamentals, practices and principles and are not legal opinions or guaranteed outcomes. We strongly recommend as part of a team approach to management, that clients consult with legal counsel of their choice to address legal concerns related to human resource issues.