The EEOC draft would regulate the value of the incentives that an employer can offer employees, and spouses of employees, who provide health information through voluntary assessment programs.
The regulations would apply to health risk assessment programs that include medical questionnaires or screening exams. The value of the incentives for an employee could equal to up to 30 percent of the total cost of the employee’s coverage.
For a spouse, the maximum value of an incentive would be 30 percent of the difference between the total cost of coverage and the total cost of employee-only coverage.
Comments on the proposed regulations are not due until Dec. 29, but Jim Steinberger, chief executive officer of Steinberger Construction Inc. of Logansport, Ind., has already asked in a comment that the EEOC set incentive limits at least as high as the limits allowed by the Patient Protection and Affordable Care Act (PPACA) wellness incentive rules.
Many employees and spouses went into the Steinberger Construction wellness program for the incentives, then “became very appreciative because of what they have learned as a result and the positive impact the program has had on their lives,” Steinberger says.
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In the past, the Obama administration has said, in connection with PPACA wellness incentive rules, that incentives can amount to 30 percent of the coverage value for most wellness programs and up to 50 percent of the coverage value for tobacco cessation programs.
Any new EEOC regulations that reduced the cap on spousal health information inducements below the current PPACA limits “would basically be undoing one of the more positive features of the ACA,” Steinberger writes.
Several other commenters have written anonymously to say the EEOC should revise or kill the proposed regulations.
“How is anything that costs thousands of dollars a year ‘voluntary’?” one commenter asked.
Another commenter has attacked a provision that would let an employer tie incentives to “particular health goals” if the incentives were “reasonably designed.” An employer would have to make reasonable accommodations for employees with disabilities, but “‘reasonably designed’ is so vague that it invites more confusion,” the commenter said. “Now corporations will design their programs to pass as much costs as possible on to disabled people who simply cannot pass the metrics because of their permanent health problems.”
A third commenter said an employer should not be able to ask a spouse to disclose information about stigmatized disorders, such as mental health disorders.
The EEOC is drafting the regulations to help employers comply with an employee spouse health screening provision in the Genetic Information Nondiscrimination Act of 2008 (GINA).
Many health policy experts see health risk assessment and health risk management programs as key to improving Americans’ health. PPACA drafters included provisions that encourage employers to offer wellness programs.
EEOC began looking into potential conflicts between the PPACA wellness provisions and GINA. GINA does let employers ask employees about genetic information through purely voluntary programs, without the involvement of any inducements with a financial value. But another GINA provision prohibits employers from using inducements to persuade employees to provide genetic information. GINA also prohibits an employer from “conditioning inducements” on getting information about the current or past health of an employee’s relatives, including spouses. The ban is supposed to keep an employer from using information about the employee’s relatives to make educated guesses about the employee’s genes.
Few U.S. employees are likely to be closely related to their spouses, but EEOC officials say in the preamble to the proposed regulations that they have drafted the proposed regulations to make it clear that employers can use incentives to get general health information about spouses.