House Education & Workforce Committee Issues Report on Preserving Employee Wellness Programs Act (Part 1 of 2)
Excerpts of the report follow:
Purpose
H.R. 1313, the Preserving Employee Wellness Programs Act, clarifies that if an employer-sponsored wellness program complies with the Patient Protection and Affordable Care Act (ACA)1 and its regulations, the program will be considered to comply with the applicable sections of the Americans with Disabilities Act of 1990 (
1Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (2010), and Health and Education Reconciliation Act, Pub. L. No. 111- 152 (2010) [hereinafter Affordable Care Act or ACA].
2Americans with Disabilities Act of 1990, Pub. L. 101-336 (1990).
3Genetic Information Nondiscrimination Act of 2008, Pub. L. 110- 233 (2008).
Committee Action
112TH
Full Committee Hearing Examining the Impact of the Health Care Law on the Economy, Employers, and the Workforce
On
Subcommittee Hearing Examining the Recent Health Care Law: Consequences for
On
Subcommittee Hearing Examining Health Care: Challenges Facing Pennsylvania's Workers and Job Creators
On
Subcommittee Hearing Examining Barriers to Lower Health Care Costs for Workers and Employers
On
113TH
Subcommittee Hearing Examining Health Care Challenges Facing North Carolina's Workers and Job Creators
On
Subcommittee Hearing Examining the Regulatory and Enforcement Actions of the
On
Subcommittee Hearing Regarding the Employer Mandate: Examining the Delay and Its Effect on Workplaces
On
Subcommittee Hearing Regarding Health Care Challenges Facing Kentucky's Workers and Job Creators
On
Subcommittee Hearing on Providing Access to Affordable, Flexible Health Plans through
On
Subcommittee Hearing Examining the Effects of the
On
114TH
Subcommittee Hearing on H.R. 548, Certainty in Enforcement Act of 2015; H.R. 549, Litigation Oversight Act of 2015; H.R. 550, EEOC Transparency and Accountability Act; H.R. 1189, Preserving Employee Wellness Programs Act
On
Subcommittee Hearing on Five Years of Broken Promises: How the
On
4Five Years of Broken Promises: How the
Comment Letter to EEOC Regarding the Proposed Rule on Amendments to Regulations Under the
On
Comment Letter to EEOC Regarding the Proposed Rule Amending Regulations Implementing GINA
On
115TH
Full Committee Hearing on Rescuing Americans from the Failed Health Care Law and Advancing Patient-Centered Solutions
On
5Rescuing Americans from the Failed Health Care Law and Advancing Patient-Centered Solutions: Hearing Before the H. Comm. on Educ. and the Workforce, 115th Cong. (2017) (opening statement of
Full Committee Hearing on Legislative Proposals to Improve Health Care Coverage and Provide Lower Costs for Families
On
Introduction of H.R. 1313, Preserving Employee Wellness Programs Act
On
6H.R. 1313, 115th Cong. (2017).
Committee Passes H.R. 1313, Preserving Employee Wellness Programs Act
On
7H.R. 1313, Preserving Employee Wellness Programs Act: Markup Before the H. Comm. on Educ. and the Workforce, 115th Cong. (
Summary of H.R. 1313
Currently, wellness programs are subject to three different sets of statutory and regulatory provisions: the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the
Specifically, the bill provides that if a workplace wellness program offered in conjunction with an employer- sponsored group health plan complies with the provisions relating to wellness programs in HIPAA, then it shall be considered to comply with the applicable provisions relating to wellness programs in the
At its core, H.R. 1313 is about allowing workers to participate voluntarily in programs that lower their health care costs and contribute to improving their health and the health of their families.
Committee Views
Legal Background
For decades, employers have developed and implemented wellness programs to improve the health of employees and their families, increase productivity, and reduce overall health care costs. Wellness programs typically focus on health promotion and disease prevention and can be offered directly by the employer or their insurance company. To encourage participation in a wellness program, an employer or insurance company may offer incentives, such as insurance premium discounts, cash rewards, or free health club memberships.
HIPAA generally prohibits group health plans and insurers from discriminating against individuals' eligibility, benefits, or premiums based on a health factor.8 However, the law exempts from this prohibition premium discounts or rebates in return for adherence to a wellness program.9 The ACA included provisions that expanded incentives for health-contingent wellness program participation. These wellness provisions were among the few in the law that received bipartisan support. New rules implementing these provisions then increased the maximum reward from 20 percent to 30 percent of premiums for employee participants in health-contingent wellness programs, and up to 50 percent for smoking cessation programs.10 Under the ACA regulations, participatory programs are compliant with the nondiscrimination provisions as long as participation is available to all similarly situated individuals, regardless of health status.
842 U.S.C. Sec. 300gg-4 (2010).
942 U.S.C. Sec. 300gg-4(j)(3)(A) (2010). Wellness programs that are operated separately from a group health plan are not subject to HIPAA nondiscrimination regulations, but may be subject to other federal or state nondiscrimination laws.
10Incentives for Nondiscriminatory Wellness Programs in Group Health Plans, 78 Fed. Reg. 106 (
Generally, the
11ADA Sec. 102(d)(4)(A), 42 U.S.C. Sec. 12112(d)(4)(A); GINA Sec. 202(b)(2), 42 U.S.C. Sec. 2000ff-1(b)(2).
1242 U.S.C. Sec. 12112(d)(4)(B); 42 U.S.C. Sec. 2000ff- 1(b)(2)(A).
ACA-compliant wellness programs have come under legal attack from EEOC. On
13EEOC v. Honeywell Int'l, Inc., No.14-4517, 2014 WL 5795481 (
14See EEOC v.
After its unsuccessful efforts in EEOC v.
15See Letter from
In
16Regulations Under the Americans With Disabilities Act; Final Rule, 81 Fed. Reg. 31126 (
Across the country, workers and families are enjoying increasing access to voluntary employee wellness plans. According to a
17Karen Pollitz &
18Tanya Mulvey, 2016 Employee Benefits: Looking Back at 20 Years of Employee Benefits Offerings in the
The prospect of a healthier workforce has compelled a growing number of companies to develop and implement wellness strategies. . . . The remarkable take-up of these programs by employers and employees, combined with the capacity and incentives for growth, make wellness an area of tremendous promise for the future of health care and employer-sponsored benefits.19
19Legislative Proposals to Improve Health Care Coverage and Provide Lower Costs for Families: Hearing Before the H. Comm. on Educ. and the Workforce, 115th Cong. (2017) (written statement of
These programs have the potential to contribute to several positive outcomes, such as improving the health of employees, lowering overall health care costs, increasing productivity, improving workforce morale, and reducing absenteeism. Ms.
2015, stating:
While improving worker productivity and reducing presenteeism (the practice of attending work while sick) is cited as the most important wellness program objective on a global basis (with 82 percent of respondents calling it very important or extremely important), these programs hold the promise of more direct economic benefits under the principle that successful preventive actions, better-managed chronic conditions and fewer episodes of care will result in reduced health service utilization and fewer claims.20
20H.R. 548, "Certainty in Enforcement Act of 2015", H.R. 549, "Litigation Oversight Act of 2015", H.R. 550, "EEOC Transparency and Accountability Act", and H.R. 1189, "Preserving Wellness Programs Act': Hearing Before the Subcomm. on Workforce Prot's. of the H. Comm. on Educ. and the Workforce, 114th Cong. 36 (2015) (written testimony of
Additionally,
of the positive results of wellness programs, saying:
A
The available evidence also supports the aspirational goals of wellness programs--like improving productivity, morale and safety. Data from the RAND survey shows 78 percent of responding employers stated that their wellness program has decreased absenteeism and 80 percent stated that it has increased productivity. Likewise, 32 percent of respondents to a 2014
These results support published research findings that workplace wellness programs can improve health status, as measured with physiological markers (such as body mass index, cholesterol levels and blood pressure).21
21Klausner, supra note 19.
Offering a reward can be an important part of encouraging participation in wellness programs. According to
22Id.
23Id.
EEOC Regulations are Inconsistent with Regulations Under the ACA
24See 42 U.S.C. 300gg-4(j) ("Programs of health promotion or disease prevention").
25See EEOC v. Honeywell Int'l, Inc., No.14-4517, 2014 WL 5795481 (
[T]he future of workplace wellness programs remains at risk. Despite explicit Congressional support of wellness programs in recent years . . ., employers continue to face complex and inconsistent regulations for the design and administration of these programs, . . . Unfortunately, the EEOC's recently finalized rules . . . are not consistent with the well-established and employee-protective regulatory framework under HIPAA. The result is that many wellness programs already subject to regulation under HIPAA may now also be subject to incongruent and competing regulations under Title II of GINA and the ADA.26
26Klausner, supra note 19.
27Genetic Information Nondiscrimination Act, 81 Fed. Reg. at 31146.
28Klausner, supra note 19.
Another area of concern relates to disease management as part of a voluntary wellness program. HIPAA permits disease management programs; however, it is unclear how they will be treated under EEOC's
Under these programs, individuals with a health factor may be provided financial incentives to engage with the wellness program--but at all times they must be treated better than similarly situated employees who lack the health factor. Many employers sponsor disease management programs under this rubric, such as healthy mother/health baby programs, or diabetes management programs. One example is that a plan may charge a copay for the purchase of insulin, but may waive the copay for their enrollees with diabetes given the clinical evidence supporting the importance of properly managing blood sugar levels.
While these programs are excepted from HIPAA's prescriptive regime--which is appropriate given the favorable treatment under these programs of persons with an adverse health status--the 2016
29Id.
With respect to smoking cessation programs, the HIPAA regulations and the
30Regulations Under the Americans with Disabilities Act, 81 Fed. Reg. at 31136.
The result of the inconsistencies between the HIPAA,
Notwithstanding the important role of wellness programs in promoting the health and productivity of employees and their families, the inconsistent federal regulatory framework under HIPAA, GINA, and the
31Klausner, supra note 19.
Worker Protections
The Committee is concerned with protecting the privacy and confidentiality of employee information, including health and genetic information, and protecting employees from discrimination. Specifically, workers are protected in the following ways:
The HIPAA Privacy Rule32 protects against the unauthorized disclosure or transfer of private health information by health plans. Under H.R. 1313, health plans, including wellness programs, will still be subject to the HIPAA Privacy Rule. In addition, wellness programs will still be subject to
3245
33See 42 U.S.C. Sec. 12112(4)(C); 42 U.S.C. Sec. 2000ff-5.
HIPAA's provisions prohibiting discrimination against individuals on the basis of health status will continue to apply to health plans, including wellness plans. Moreover, under the
Under the bill, employers cannot force employees to submit to genetic testing. Wellness programs have always been completely voluntary. They were voluntary under the ACA, as well as under regulations issued by the Obama administration. They remain voluntary under H.R. 1313.
GINA prohibits employment discrimination on the basis of genetic information, including information acquired through a wellness program. This prohibition will remain under H.R. 1313.
Under the bill, employers cannot charge smokers more for health insurance than non-smokers. As is already the case under current law, employees have a choice of whether to enroll in a smoking cessation program to receive a reduction in their health insurance premiums. If they choose not to enroll, they are not paying any more for health care premiums than non-smokers who choose not to enroll.
Conclusion
For many years, voluntary employee wellness programs have helped to lower health care costs and improve the quality of life of employees and their families. Today tens of millions of Americans have access to an employee wellness plan, a testament to the broad support and popularity of these voluntary programs. H.R. 1313 will bring uniformity to the regulation of wellness programs under HIPAA, the
Section-by-Section
The following is a section-by-section analysis of the Amendment in the Nature of a Substitute offered by
Section 1. Short title
Section 1 provides the short title is the "Preserving Employee Wellness Programs Act."
Section 2. Findings
Section 2 describes the findings of H.R. 1313 regarding
Section 3. Nondiscriminatory workplace wellness programs
Section 3(a)(1) provides that a wellness program offered in conjunction with an employer-sponsored health plan, if the program complies with the non-discrimination provisions in HIPPA relating to wellness programs, shall be considered to be in compliance with certain provisions relating to the voluntary collection of health information in the
Section 3(a)(2) provides that programs offering more favorable treatment for adverse health factors, as described in the Code of Federal Regulations, shall be considered to be in compliance with certain provisions relating to the voluntary collection of health information in the
Section 3(a)(3) provides that programs not offered in conjunction with an employer-sponsored health plan, if the program complies with the maximum reward amounts for wellness programs as set forth in HIPAA, shall be considered to be in compliance with certain provisions relating to the voluntary collection of health information in the
Section 3(b) provides that the collection of information in a voluntary wellness program about the manifested disease or disorder of a family member shall not be considered an unlawful acquisition of genetic information in violation of GINA. This provision is not intended to indicate GINA's other rules are otherwise inapplicable to wellness programs with respect to an employee's spouse or child.
Section 3(c) provides that an employer offering a wellness program may require an employee, within 45 days from the date the employee first has the opportunity to earn a reward, to request a reasonable alternative standard or waiver of the standard. An employer may also impose a reasonable time period, based on all the facts and circumstances, during which the employee must complete the reasonable alternative standard.
Explanation of Amendments
The amendments, including the amendment in the nature of a substitute, are explained in the body of this report.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a description of the application of this bill to the legislative branch. H.R. 1313 will create consistency among the laws that govern wellness programs by providing a uniform set of rules under which wellness programs can be considered compliant.
Unfunded Mandate Statement
With respect to the requirements of Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104-4), the Committee has requested but not received from the Director of the
Earmark Statement
H.R. 1313 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9 of House Rule XXI.
Roll Call Votes
Clause 3(b) of rule XIII of the Rules of the
Statement of General Performance Goals and Objectives
In accordance with clause (3)(c) of House Rule XIII, the goal of H.R. 1313 is to create consistency among the laws that govern wellness programs by providing a uniform set of rules under which wellness programs can be considered compliant.
Duplication of Federal Programs
No provision of H.R. 1313 establishes or reauthorizes a program of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the Government Accountability Office to
Disclosure of Directed Rule Makings
The committee estimates that enacting H.R. 1313 does not specifically direct the completion of any specific rule makings within the meaning of 5 U.S.C. 551.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) of rule X of the Rules of the
With respect to the requirements of clause 3(c)(2) of rule XIII of the Rules of the
U.S.
Hon.
Chairwoman,
Dear Madam Chairwoman: The
If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is
Sincerely,
Director.
Enclosure.
H.R. 1313--Preserving Employee Wellness Programs Act
H.R. 1313 would exempt workplace wellness programs from some provisions of the Americans with Disabilities Act (
If H.R. 1313 were enacted, the
The bill would not directly affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 1313 would not increase net direct spending or on-budget deficits in any of the four consecutive 10-year periods beginning in 2028.
H.R. 1313 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is
Changes in Existing Law Made by the Bill, as Reported
The requirements of clause 3(e) of rule XIII of the Rules of the
Continues with Part 2 of 2
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