Good afternoon, and welcome to the ADA Audio Conference. The ADA Audio Conference is a collaborative effort of the ADA National Network. You can reach your regional ADA Center by calling 800-949-4232, or you can visit www.adata.org to get information about your regional ADA Center. And to get information on the Americans with Disabilities Act.
We are very pleased to have with us today Joyce Walker Jones. Joyce is a Senior Attorney Advisor with the U.S. Equal Employment Opportunity Commission. You can find Joyce's full bio on the audio-audio.org website.
So at this time, I will turn the session over to Joyce, who is going to provide us with an overview of the EEOC Notice of Proposed Rulemaking on Wellness Programs and the Americans with Disabilities Act.
Joyce, welcome.
Good afternoon, everyone. I am sure many of you have heard me speak, and despite that are tuned in for today's presentation. Peter, are we on the opening slide? Because Peter is going to be advancing the slides for me, so I just want to know where we are.
We are on slide number 12.
Okay. So today's presentation, as the title slide says, is on EEOC's Notice of Proposed Rulemaking on the ADA and Wellness Program. So far I have only done these presentations on wellness programs for employers and EEOC attorneys, so this will be the first time I try to explain it in plain English to an audience who probably just wants to know how it affects employees, particularly those with disabilities, who are reluctant to disclose their medical information to their employers. So here goes. Next slide.
The NPRM on wellness program was published in the Federal Register on April 20. Maybe many of you have read it. What it does is it proposes to amend Section 1630.14(d) of EEOC's ADA regulations implementing Title I of the ADA. The regulations of 1630.14(d) apply to address the kinds of medical information employers may get from applicants and employees. And that section provides an exception to the general rule that says that employers cannot get medical information from employees except in very limited circumstances. The regulation makes an exception for wellness programs—voluntary wellness programs. That comes straight from the statute.
So members of the public will have 60 days from the date of publication to submit comments, and then EEOC will consider the comments, revise the NPRM if necessary, and issue a Final Rule. And if you have not seen the NPRM, you can find it at regulations.gov and just put EEOC ADA NPRM in the search engine, and it will come up. You can also, then, submit your comment on regulations.gov.
Next slide. So along with the NPRM, we released—we issued a press release, and then we issued a Q&A document that I think you have as part of your materials. And we issued a fact sheet for small businesses. So for those of you who wish to find out more information about, you know, what we've said about the wellness program and to see the questions and answers, many of which probably are questions that you have, you may find those in the information listed on this slide.
Next slide. So what are we going to try to do today? Today I am just going to try to present an overview that talks a little bit about what are wellness programs, what does the ADA say about such programs, what other laws regulate employer wellness programs, and then spend most of the time talking about exactly what the NPRM does.
Next slide. So employer wellness programs. According to a 2013 study by Rand Health—and this was a study commissioned by U.S. Department of Labor—50% of U.S. employers offer wellness programs. These programs may include Employee Assistance Programs, nutrition classes, on-site exercise facilities, weight loss and smoking cessation programs, coaching to help employees meet health goals, monitoring for conditions such as high blood pressure, high cholesterol, or diabetes. So basically, in a nutshell, the idea behind wellness programs is that they are supposed to save employers money because healthier employees have lower health costs.
So the typical wellness programs are designed to stop the progression of certain diseases, such as diabetes and hypertension; cause chronic overeaters to permanently lose weight or maybe they are not even chronic overeaters—people who are overweight to lose weight for whatever their reasons—and get smokers to quit smoking.
Next slide. Many employers use financial and other incentives, such as a reduction or increase in healthcare premiums; cash or prizes to encourage participation in these programs or to encourage employees to achieve certain outcomes, such as lowering their blood pressure or cholesterol. Some wellness programs simply require employees to undertake some activity to earn an incentive, so those may be programs that require an employee to attend a class, a nutrition class, or a smoking cessation class, but others require employees to answer questions about their health or to take medical examinations.
And many of these questions about health are included on what's called health risk assessments. Health risk assessments very often include questions that we deem to be disability-related inquiries, and that's how the ADA plays into the wellness program scenario.
So some employers use awards while others impose penalties, and when we were starting to draft the regulations, we were looking at whether or not a distinction could be made about between giving someone a reward or imposing penalties. And some of you may know we had a meeting in May 2013 where we had stakeholders come to address their perspective on wellness programs, so we had advocates for people with disabilities, we had Jennifer Mathis was there. We had advocates for employers. And basically, they agreed that whether you called it a reward or penalty doesn't matter because it's pretty much two sides of the same coin. And I just recently saw that someone said, “It doesn't make a difference if your mother said, ‘if you eat your vegetables, you can have dessert’ or ‘if you don't eat your vegetables, you can't have dessert.’” So the outcome was pretty much the same. That's why there's no distinction in our NPRM as there's no distinction in the Federal Care Act whether an employer can offer a reward or impose a penalty.
Slide 17. So as I said, that Title 7 generally says that—sorry—Title 1 of the ADA generally says that employers cannot ask disability-related questions or require employees to undergo a medical examination unless it's job related consistent with business necessity. And so we basically said that means that an employer has to have a reasonable belief, based on objective evidence, either that an employee is unable to perform the essential functions of a job because of a medical condition or would pose a direct threat because of a medical condition. So obviously, but for the exception wellness programs would not meet this standard.
So the ADA says employers may conduct disability-related inquiries or conduct medical examinations as part of a wellness program as long as the inquiries or examinations are voluntary.
Prior guidance on disability-related inquiries and medical examination of employees that was issued in 2000, we said that a wellness program is voluntary as long as the employer neither requires participation nor penalizes employees who do not participate.
So clearly, back in 2000—and before that when we started drafting the regulation because it was issued in 2000, we probably started writing it—and I wrote it, but I think that I probably started writing it certainly in 1998. We were thinking that there could be a distinction made between rewards and penalties, and that's why we said you can't penalize employees who do not participate.
But when this guidance was issued in 2000, wellness programs looked completely different. So then employees typically gave employees small or the minimum rewards to complete, say, a health risk assessment or for attending a class. So they either didn't involve disability-related health inquiries—health programs—or when they did, the rewards for completing a health risk assessment were, you know, not very large. So we weren't thinking in terms of the kinds of incentives that employers are offering now.
Next slide, slide 18. But the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act, does allow incentives. So in 1996, the HIPAA regulation allowed incentives or—which include both awards and penalties—up to 20% of the cost of total healthcare coverage. However, the Affordable Care Act, which amended the HIPAA, allows up to 30%. And I will talk a little bit more about HIPAA and the Affordable Care Act in the next couple of slides.
Slide 19. So even though when wellness programs do not include disability-related inquiries or medical examinations, because they are privileges, like all privileges and benefits of employment, they must not discriminate in violation of EEO laws, and they must offer reasonable accommodations that allow employees with disabilities to participate and earn whatever incentive an employer offers.
So for example, suppose a wellness program just requires people to participate in a nutrition class to learn more about how to eat healthy. So they are not asking any questions about your current health. They are just saying if you go to this class, you can get an award. So it doesn't involve disability-related inquiries and medical examinations, but this is considered a benefit of employment, so the class would have to be accessible for someone with a disability, say someone who was hearing impaired and needed a sign language interpreter or if any materials were going to be given out in that class, they would have to be in alternate format.
Next slide, slide 20. So let's talk now a little bit about HIPAA and the Affordable Care Act. So generally, group health plans must not discriminate against participants based on health factor. An exception in the HIPAA and Affordable Care Act allows premium discounts or rebates or modifications to cost sharing in return for adherence to certain programs of health promotion or disease prevention. So just like the ADA, HIPAA and the Affordable Care Act have an exception for wellness programs.
And the interesting thing about the—how the Affordable Care Act came to raise the incentive from 20% that was allowed under HIPAA to 30% that's currently allowed is this increase is generally—well, I guess known in the industry as a Safeway amendment because Safeway CEO's presented compelling evidence that his company's wellness program has substantially reduced health spending. They searched the legislative history for Affordable Care and really could not find any, whether they were empirical studies that were done that said, well, 20% is yielding this much of a result, and so an extra 10% would yield an even bigger savings to employers. There really isn't very much in the Affordable Care Act. For all the debate and all the discussions, all the hearings, and all the opposition and the support for the Affordable Care Act, there really isn't very much legislative history.
So the Safeway CEO testified that there was compelling evidence that wellness programs could substantially reduce healthcare spending, and so that largely informed the Congress's decision to say that now instead of just the 20% incentive, employers could offer a 30% incentive.
Around the same time, an article was published in Health Affairs, written by two Harvard economists, also saying that workplace wellness programs can generate savings. So from what we can tell, this formed the basis of the premise that, you know, incentives work, and as a carrot and penalties, you know, work as a stick, and so these were important components in getting employees to participate in wellness programs.
Slide 21. So under the HIPAA and Affordable Care Act, the nondiscrimination provisions, which allow incentives for wellness programs, they discussed two types of wellness programs.
Participatory programs. These are programs that either do not provide a reward or do not include any conditions for obtaining a reward based on an individual satisfying a standard related to a health factor.
The other type of wellness program is a health-contingent wellness program. These programs may be activity only, so they may require somebody to walk a certain number, you know, to log a certain amount of steps to obtain a reward or to exercise X number of minutes per week to obtain a reward. So these usually require people to perform some activity to obtain a reward or to avoid a penalty. The other type of health-contingent program is called outcome based, and these require individuals to satisfy a standard related to a health factor to obtain a reward to avoid a penalty.
Slide 21. So examples of participatory wellness programs. As I said before, completing the health risk assessment. So that's a kind of program that doesn't look at whether or not people achieve outcomes. It's just to participate to get the rewards, you have to complete a health risk assessment. As I said, many of these health risk assessments ask questions that are disability related because they ask questions such as do you have diabetes? Do you have hypertension? Have you ever been diagnosed with any number of list of questions—I mean, any list of conditions. You know, so they ask a wide range of questions. As I say, many of them we would consider disability related. They also ask a wide range of questions about lifestyle that would not be considered disability related, questions such as, you know, do you buckle your seatbelt when you are in your car? They may ask questions about relationships, you know, whether a person is married or not. So they run the gamut. But certainly, the bulk of them include questions that we consider to be disability related.
They also may ask—participatory programs may also ask a person just to attend a smoking cessation or weight loss class, regardless of whether employee actually stops smoking or loses weight. So these are participatory programs considered one type of wellness programs.
Examples of health-contingent wellness programs, these programs generally require an employee to attain certain health outcomes, such as attaining a certain blood pressure, cholesterol, or blood glucose level, walking or exercising a certain amount each week. Next slide.
Incentives under the HIPAA and the Affordable Care Act are not limited for participatory programs, so this is huge. Because these programs are not considered programs that discriminate based on a health factor, HIPAA does not regulate the—how large an incentive or how large a penalty an employer can impose. HIPAA regulations are—were issued by three agencies—Department of Labor, Department of Health and Human Services, and Department of Treasury, specifically IRS. So any of you who may be interested in finding more about what the tri-agency regulations say, these are the regulations issued by these three agencies explaining HIPAA and Affordable Care Act requirements as they relate to wellness programs. So again, so participatory programs, employees—employers or health plans can offer any amount of an award or any amount of a penalty if they are only requiring employees to participate in order to obtain that reward or to avoid the penalty.
But incentives under health-contingent programs are limited—health-contingent programs are limited, and those cannot exceed the 30% of the total cost of coverage under the plan, including both employee and employer contributions. So say that a health plan, health insurance, costs $6,000. That's both the employee's and the employer's contribution. So this would mean that incentives can't be any greater than 30% or $1800. However, it can be as high as 50% such to the extent that the additional percentage is attributable to tobacco prevention or reduction. So an incentive can be as much as $3,000 or penalty as much as $3,000 if that percentage—if that is attributable to tobacco prevention or reduction plan.
An important concept, though, under health contingent programs under HIPAA and Affordable Care Act is that employers must—health plans must offer reasonable alternative standards for obtaining the reward or avoiding a penalty. So this means if there's any reason why a person can't, say, for example, achieve a certain health outcome—say the employer is giving an award for someone who lowers their glucose levels, but a person with—glucose levels, but a person with glucose says even though my diabetes is maintained, I cannot lower my glucose to that level. Then the employer health plan has to offer a reasonable alternative standard.
If a person says that I can't walk for—log 10,000 steps because this would be an activity-only health contingent wellness program—because I use a wheelchair, then the employer has to offer a reasonable alternative standard. Now, obviously, a person who uses a wheelchair as means of getting around on a full-time basis is likely a person with a disability, but a person can say I cannot log 10,000 steps because I have arthritic knees, even though the arthritis in their knees may not rise to the level of a substantially limiting impairment. Under the HIPAA rules, the Affordable Care Act rules, even that person is entitled to a reasonable alternative standard if the doctor says this person can't do this.
So then what employer health plan has to do is give that person an alternative. Instead of 10,000 steps, they say you have to log some sort of exercise for an hour every day, whatever that might be. If that person complies with the alternative standard, then the employee is entitled to the reward. It could be that the employer or health plan may have to totally waive the requirement and say, well, we just can't even have this. So for example, if they have a BMI standard, a body mass index, and say that people who lower their BMI to a certain level will receive an award, maybe for a person who is—who has severe obesity that even lowering the BMI may not be within the realm of what a person is able to do. So for that person, the health plan may have to just waive that standard.
So the important thing to remember is the reasonable alternative standard is a much broader standard than the reasonable accommodation standard under the ADA. Reasonably looking at what the EEOC would say about wellness programs we thought that reasonable accommodation would be big because this would be a way to say even though there's HIPAA and Affordable Care Act out there, ADA has different purpose, different intent, is designed to provide additional protections. But after looking closely at the reasonable alternative standard, which, as I said, someone can ask for reasonable alternative standard based on a health condition that does not rise to the level of a disability—there really isn't very much sort of territory that we felt like reasonable accommodations would have to cover, except for programs that are participatory and, you know, someone needs an accommodation to participate in that program.
So I know I may be going fast and throwing a lot of information at you, so I hope that even though we are holding questions to the end that you are either taking notes or jotting down—if you printed out the slide presentation are jotting down questions as we go along. I also anticipate that we probably will finish—we will probably finish in ample enough time for you to ask any number of questions.
And also Joyce, real quickly, for those in the webinar room, you can submit your questions while Joyce is speaking in the Chat room area.
Thanks, Peter.
Slide 24. So what does our NPRM or Notice of Proposed Rulemaking do? It explains what an employee health program is. It defines what it means for employee health programs to be voluntary. It clarifies that an employer may offer limited incentives as part of wellness programs that are part of a group health plan and include disability-related inquiries and/or medical examinations. It explains the confidentiality requirements applicable to information obtained as part of voluntary employee health programs. And explains the relationship of rules governing wellness programs to other EEO laws.
So again, if you have our Q&A that we—I sent to Robin, it's also available on our website—it goes through this sort of outline and explains things in the order in which they are addressed in the NPRM. Next slide.
So what is a health program? And why do we use the word "health program" instead of "wellness program"? That's because the statute uses the word "health program." By the way it was described in the legislative history, it was clear that health programs include wellness programs. But the statute did not define "health program" when we issued our enforcement guidance on disability-related inquiries and medical examinations and included a question as to when a wellness program would be considered voluntary, then we used the word "wellness program," we also did not define it.
So the NPRM defines "health program," which it says includes "wellness programs." So a health program must be reasonably designed to promote health or prevent disease. Now, we took this language from the HIPAA regulations, which define wellness programs this way. So this means it must have a reasonable chance of improving health, preventing disease. But we also say must not be overly burdensome, or subterfuge to evade the ADA or other EEO laws, or highly suspect in the manner chosen to promote health or prevent disease. So this means that basically we are saying it can't be a sham. An employer can't offer a health—you know, say here's a health risk assessment that asks wide-ranging questions about a person's health and call it a wellness program if the employer doesn't intend to do anything with this information.
Next slide. Slide 26. So for a health program that includes disability-related inquiries or medical examinations to be voluntary, the NPRM says they can't require employees to participate. So that's still taken from our—that's consistent with what we said in our enforcement guidance on disability-related inquiries and medical examinations. We said it's voluntary if it does not require employees to participate. It can't deny access to health coverage for nonparticipation. And we didn't say that in formal guidance, but we had been saying that in informal discussion letters that we had been getting for a number of years on when is a wellness program or health program voluntary, and we have consistently said that in programs that deny access to health coverage for nonparticipation is not voluntary.
It cannot limit coverage under its health plans or particular benefits packages within a group health plan for such employees, except in certain circumstances, and those certain circumstances are generally when the incentives comply with the limits that are set out in the NPRM. And it can't take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees as prohibited under the ADA. So that means that it's not voluntary, obviously, if an employer says, well, if you don't participate in this wellness program, then you are going to be demoted or you are going to be disciplined or you are going to be denied training. Any of those actions would render the wellness program involuntary, even if the incentive limit complied with HIPAA and the Affordable Care Act or with the limit set forth in the NPRM.
Slide 27. So a wellness program that is part of a group health plan also must provide employees with a notice clearly informing them—this is all part of what makes it voluntary—what medical information will be obtained, how it will be used, who will receive it, and how it will be kept confidential.
So in addition to it not requiring, not taking adverse actions, in order for it to be considered voluntary, it has to provide a notice. And we thought that this was important because many employers give out a health risk assessment as part of their wellness program without explaining why they are, number one, giving the person a health risk assessment, and certainly without explaining how they are going to use the health risk assessment. So in our proposed rule, we said that employers—employees won't voluntarily participate or won't decide to participate—many of them—unless they know how their medical information will be used, what kind of information is going to be obtained, who—importantly—is going to receive it, and what steps are going to be made to keep it confidential.
Next slide. So the reason—you are probably aware that EEOC has gotten criticized for not issuing formal guidance on what makes a wellness program voluntary, and instead…and instead—I’ m sorry. There was a—am I still connected?
You’re still on.
Okay. We have been criticized for filing charges saying that employers' wellness program violated the ADA without issuing formal guidance. So two of those cases I am going to talk about a little now. One was EEOC v. Orion. In that case, we alleged that Orion shifted the entire cost of health insurance to an employee and then fired her because she refused to participate in a wellness program that included disability-related questions and medical examinations. We claimed that the inquiries and examinations were not job related and consistent with business necessity as would be allowed under the ADA, and they were not voluntary, as would be allowed under the exceptions that allows employers to ask questions as part of voluntary wellness programs. There were also claims for retaliation and interference with ADA. So clearly, even before we issued the NPRM, we said shifting entire cost of insurance to an employee and then firing her would be adverse actions that would render a wellness program involuntary.
Next slide. In the second case, EEOC v. Flambeau, the wellness program provided for cancellation of health insurance and shifting of entire cost of coverage and other unspecified discipline for employees who did not submit to biometric screening and complete a health risk assessment. Again, we contended that inquiries and exams are not job related and consistent with business necessity and this program was not voluntary. So once again, even before NPRM, which clearly makes such practices unlawful because they render a program involuntary, we believe these kinds of practices and activities would be involuntary under the ADA, even without issuing specific guidelines.
Next slide. So what kind of incentives are permitted? Generally, an employer may offer incentives as part of a wellness program, and these wellness program are part of group health plans. As I will talk about a little bit later, one of the questions we ask and we ask for comment on is how should we look at wellness programs that are offered outside of group health plans? For example, in the federal government, many of our wellness activities and programs are not tied to particular insurance, so they are not part of our Blue Cross Blue Shield or whatever other coverage people have, but they are just offered as sort of benefits and privileges of employment. So one of the questions we ask is should we say that the ADA limits wellness programs that are offered—incentives that are offered as part of wellness programs that are outside of group health plans? So we say that when wellness programs are offered as part of a group health plan that includes disability-related inquiries and medical examinations, the incentives are okay as long as they do not exceed 30% of the total cost of employee-only coverage. And again, this coverage includes both the employees and employer's share of health plan premium. So the earlier example I gave, so if the total cost of health insurance is $6,000, then any reward or penalty excluding programs that are designed to prevent or reduce smoking, the limit is 30%. So that would be $1800 if a plan was $6,000.
Next slide. What the NPRM focuses a lot on what kind of confidentiality requirements apply, and the NPRM says employers may receive information only in aggregate terms that do not reveal and are not likely to reveal the identity of specific employees. So for example, an employee cannot use the result of anybody's HRA and make that public to say that Joyce's HRA reveals that her blood pressure is 150 over 100, that her BMI is X. It can say an aggregate that we have X number of employees who have—who seem to have hypertension or who are pre-diabetic but they cannot disclose the identity of any specific employees. Wellness programs that are HIPAA-covered entities will generally meet this obligation by complying with HIPAA's privacy and security rules. Employers generally comply by certifying that they will not use or disclose any individually identifying information for employment purposes. The interpretive guidance accompanying the regulation describes some confidentiality best practices. So in addition to amending the actual regulations, we amended the interpretive guidance. As many of you know, provides details and usually provides examples, and this provides more sort of discussion of what in any particular part of the regulation.
Next slide. So the NPRM also discusses this part of the regulation's interaction with other EEO laws, and it says that compliance with provisions in the proposed section 1630.14(d), including limits on incentives, does not ensure compliance with other EEO laws. For example, a wellness program may not discriminate based on race, sex, national origin, age, or genetic information. So even if it complies with the limitations set out in the NPRM, the incentive limitations, if it discriminates on the basis of race, sex, national origin, age, or genetic information, then it is a discriminatory wellness program.
Other issues. As I said earlier, employers must provide reasonable accommodations for individuals with disabilities to participate in wellness programs and to earn whatever incentives an employer offers. So reasonable accommodations might include sign language interpreters to attend a particular class, be it a nutrition class or smoking cessation class. This includes—reasonable accommodation may include materials in an accessible format—electronic, Braille, or large print. Obviously, a class must be held in an accessible location so that employees with disabilities can attend. In some cases, a reasonable accommodation may be an alternative to blood tests for people who have medical conditions that make it difficult or dangerous to draw blood. But this also may be a requirement as a reasonable alternative standard. As I said earlier, reasonable alternatives must be offered to people who cannot meet a particular health outcome because of a medical condition, even if that medical condition doesn't rise to the level of a disability.
Next slide. The NPRM, we did not address a number of questions. One of the big questions that we did not address is whether or not employees may offer incentives for family member participation in wellness programs. This issue will be the subject of future rulemaking under Title II of the Genetic Information Nondiscrimination Act. In our regulatory agenda, we said that we would be making revisions to GINA's provisions as they apply to wellness programs because as written, it appears that an employer will not be able to offer incentives to, for example, a person's spouse, giving his or her medical information because a spouse's medical information is considered family medical information of the employee. So we will be issuing, after the Commission's approval, an NPRM that addresses whether or not employers or health plans can offer incentives for family participation, in which case, right now the NPRM says that the incentive is based on employee-only coverage. If the the Commission approves the amendments or revisions to the GINA regulations, then the incentive most likely would be of family coverage.
Next slide. Slide 35. There are other outstanding questions in the NPRM. As I said, one of those questions is whether we should issue regulations governing wellness programs that are not part of a group health plan. Obviously part of—the challenge will be how to limit incentives because those incentives would not be tied to health insurance coverage. As I said, I know in the federal government, our wellness program activities are not tied to our insurance, so for example, could an employer offer an incentive to get people to use our fitness center? Just to participate in it would not be—would not involve asking disability-related inquiries or requiring a medical examination, although some fitness centers, as we have discovered, are set up so that people have to do certain sort of—log in certain information when they use it, such as they have to monitor, for example, their heart rate as they are using the machines. Some of them look at your oxygen input and outtake. So those would be likely—those kind of programs likely would implicate the ADA, as an argument certainly could be made that not only is employer requiring you to just exercise, but also to give medical information by asking you to perform certain sort of tests or functions that could be considered medical examinations. So the question would be, then, what kind of incentive can an employer offer or penalty could they impose for employees who did not participate?
Another question we ask is whether additional protections are needed to ensure that incentives are not coercive and whether consent should be required in addition to notice. As I said earlier, the regulations right now just say the employers have to give a notice informing employees of what kind of medical information will be obtained, how it will be used, what kind of confidentiality protections there are. But we are asking whether or not our stakeholders believe that in addition to notice, employees should have to consent, much like they do under GINA. GINA requires knowing—written authorization. So the question we are interested to know whether or not people think that not only must employees be given notice, but actually sign something acknowledging that they understand the notice.
Again, we are also wondering if people think that a notice requirement should be part of what makes a wellness program voluntary, we want to know if that notice requirement should apply to programs that only offer the minimum incentive. So if an employee has a program that only offers, you know, a mug or, you know, movie tickets or discount meal plans, should an employer have to also ensure that a person signs a notice saying that they understand that their participation is voluntary if the rewards are only the minimum? This question, we have started getting some comments, so some employers feel like imposing a notice requirement certainly would implicate the Paperwork Reduction Act. I won't go into details about that, but anytime, you know, the government asks stakeholders, employers to generate paper reporting requirements or any kind of requirement that requires them to produce paper, some kind of a notice, that we have to meet the requirement or the rules, the parameters set forth in the Paperwork Reduction Act.
Another question we ask, are there any best practices that would ensure that wellness programs will not be used to impermissibly shift cost? As I said, we are getting some comments. So far, we have not gotten very many. I think we have gotten 13 comments. Most have been from employer groups or advocates who pretty much say that they agree with wellness programs. Some raise some issues as to saying the EEOC has gone too far in requiring employers to meet certain requirements that are not required under HIPAA and the Affordable Care Act. Some people have just used the opportunity to just generally grouse about things they don't like, either about the EEOC or about how unrelated charge is being processed. But again, anyone can include—can submit comments on the wellness programs by going to regulations.gov, so we certainly encourage you to do so, and obviously, the more detailed the comments are, the more it will help us as we consider what people's concerns are as we go before we issue final regulations.
So if you want more information on HIPAA, slide 36 gives you the link to HIPAA's nondiscrimination requirements and HIPAA's privacy and security rules. I am sorry. If you want more information about the NPRM that I am not able to answer in the next—if we go the next, you know, 40 minutes, then you certainly can contact me by sending me an email at joyce.walker-jones@eeoc.gov or calling at 202-663-7031, or calling Chris at 663-4665. Many of you all know Chris Kuczynski. He is head of our ADA Policy Division, he also does a lot of speaking on ADA issues in general, and has also done considerable speaking already on our wellness reg. Or you could send him an email at christopher.kuczynski@eeoc.gov.
I think I will stop at this point. This certainly is the end of your slide deck. And I have found that I pretty much can only go about 45, 50 minutes talking by myself. Most programs are easier if there's a co-presenter. So I will stop now, and we can open it up to questions if people have any.
Alright, thank you very much, Joyce. A whole lot of information you covered in a short amount of time. That was great.
Just, again, the document, the question-and-answer document that Joyce had referenced, that is available presently under the session materials link when you log into your account at ada-audio.org. You can download the document there. After the session materials, the PowerPoint presentation that Joyce just went through is also available under the session materials link under account manager. The question-and-answer document may also be found on the EEOC website, EEOC.gov, if you go to the homepage, you can link to all sorts of information regarding the NPRM. You can link to a fact sheet, the questions and answer document, and also gain access to where you can submit your public comment.
And as Joyce mentioned, with all federal rulemaking, the public input has an impact on the final rule. So this is the process by which stakeholders, people with disabilities, organizations that work with people with disabilities, employers have an opportunity to submit public comment. And this is your opportunity to submit your question.
I would like to interject that many of you know that we revised the ADA regulations after the ADA Amendments Act in 2008. We issued those in 2011. And a lot of the Final Rule did factor in the comments that we had received in terms of, you know, what we said about substantially limits, what we said about impairments that, you know, are easily likely to be considered disabilities. So we did factor in a lot of the input that we received, certainly, from advocates of people with disabilities and individuals with disabilities. And in our preamble to those regulations, we talked about the kind of comments we received and address why we made changes to the NPRM or why, you know, we did not make changes based on the comments we received. And we will do the same thing with the Final Rule on wellness programs.
And Tanya, if you could just make sure all the phones are muted, our participants. We are getting some background noise there.
But Joyce, that's an excellent, excellent point. When you look at rulemaking, under any federal law, but in particular, the ADA, when you look at the Justice Department regulations, EEOC regulations, the federal agency, as part of their federal—their requirements, respond, as Joyce mentioned, to comments that are submitted and why changes were or were not made as a result to the comments that were submitted.
So Tanya, if you could come on now and give our telephone participants instructions on how they can ask questions. Again, for those of you in the webinar room, you can submit your questions in the chat area, control-M for assistive technology users, will put focus in the Chat area. For those of you using a mouse, simply click on the Chat area, submit your question. You will not see your question once it has been submitted, but the moderators and presenters will have access to the questions. For those of you using mobile applications, submit your questions in the Chat area or questions can be emailed to webinars@ADAconferences.org. So Tanya, if you could give instructions for our telephone participants, I would appreciate that now.
Certainly. Ladies and gentlemen, if you do have a question at this time, please press * then 1 on your touchtone telephone. If your question has been answered and you wish to remove yourself from the queue, please press the # key.
And Joyce, while we are waiting for any questions to come in on the telephone, I had a question submitted during the session wondering if you can just provide a brief overview of the difference—the distinction between the participatory health programs and health-contingent programs.
Okay. Sure. That's a good question, and we—it took us a while, and we've been immersed in this for years to try to dissect and understand HIPAA regulations and the the Affordable Care Act. So it's quite understandable if people are confused. Participatory programs are just that. They just require someone to participate in a health or wellness program. So again, those are programs that say here's a health risk assessment. Complete it. That would be a participatory program because all that's being asked is that someone complete a task. It's not going to be—they are not asking a person to submit to any kind of biometric screening, to perform any activities; simply to participate. And again, the most common participatory sort of activities are those, one, asking a person to complete a health risk assessment. Others are to attend a class, a nutrition class, a smoking cessation class, a weight loss class, you know, without it being—your reward or penalty being contingent on whether or not you achieve certain outcomes.
Health-contingent programs, however, are those that are activity based, and activity based means walk a certain number of steps, exercise a certain amount of time, and these are considered health-contingent programs because they are sort of based on a health factor, a person's ability to even engage in the activity may be contingent upon whether or not they do not have any disabling conditions. The other kind of health-contingent programs are those programs that ask people to submit to biometric screening. So to, you know, go to a healthcare provider and to have blood drawn so that their cholesterol can be measured, their flew coast levels can be measured, to submit to a medical exam so that their blood pressure is measured. So health contingent programs are programs that seek medical information and are based on—rewards or incentives are based on health clubs, and participatory programs just require participation without any regard to whether or not a person achieves any health outcome.
Okay. And as long as we are on this particular topic, follow up with another question we received in terms of, again, if you could provide, again, a brief overview of the different incentives that are allowed based on whether it is a participatory or it is, you know, a health-related program.
Okay. Another good question. So as I said earlier, HIPAA and Affordable Care Act don't place any limitations on the kind of incentives or penalties employers can offer, just for somebody to participate. So a health plan could say if you participate in this—if you complete this HRA, then you don't have to pay anything towards the the cost of your health insurance. We haven't seen any plans like that, but they could because there are no limits on participatory programs under the Affordable Care Act.
An important distinction between the Affordable Care Act and HIPAA and what our NPRM does is we say that even though there are no limits on participatory programs under those laws, the 30% limit applies to both participatory and health contingent programs under the ADA. So participatory programs are require someone to complete an HRA. Even if that's all they are asking an employee to do, we say the 30% limit applies, even though the HIPAA and Affordable Care Act have no limits. The reason is because we think the Congress's intent behind the ADA was protect employees from having to provide their medical information. So asking someone to answer any of a number of questions about their health, even if they'll just get a reward for doing that, we think it has to be limited in order for that to be voluntary because there are any number of reasons why someone might not want to provide their medical information, even if they are not going to have to also achieve certain outcomes.
So the NPRM says the 30% rule applies. You can't offer an incentive any higher or penalty any greater than 30%, even if the program is just participatory. And if the program has two components, say that it's participatory, say the employee gets a reward for completing the HRA and then gets another reward if they achieve certain health outcomes, the total reward could still only be 30%. So that means that employer could not offer 60% if you complete the HRA and then 30% for achieving certain health outcomes. So total rewards still can't exceed 30%.
All right. Great. And folks, you can continue to submit your questions in the Chat area, and before we check on the phone, just one more question related to employers' obligations to provide reasonable accommodations as it relates to any benefits associated with the job which would include the voluntary health participation programs. And you had—the slide that mentioned some accommodations that an employer may need to provide related to auxiliary aids and services, and then you also mentioned offering those programs in accessible locations. Could that possibly include, for instance, if an employer has an employer-provided fitness center, you know, providing, you know, adaptable equipment or accessible equipment? Or if an employer allows employees—you know, gives them some sort of benefit to become a member of a particular fitness program, allowing a different fitness center because they may have accessible equipment, would that also apply?
Yes, just like we said about any benefit or privilege of employment. Much like an employer holds a function, a training or a social function, you know, at a facility because it's considered a benefit, then wherever it's held has to be accessible. The same would hold true if an employer is offering a health facility as a benefit to an employee.
As any other accommodation, it has to be an effective accommodation. So it could be that maybe the employer, because the employer does not own the building, the employer can't make a facility accessible, but then that may mean that it has to offer an employee an opportunity to participate in a health facility that is accessible, you know, barring undue hardship. Or to do some other activity that, you know, if the person says, well, I can't go to a health club because, you know, even though you offer it, it's not accessible, then maybe that—but I want to, you know, as I said, if to another facility or, you know, to do something else other than going to that facility. So maybe that person wants to, you know, say well, I am going to teach exercise in my office using the hand weights. You know, it's probably not likely that that would be an accommodation because an employer probably doesn't have to provide information, but would be an accommodation to allow a person time to do that just like they would allow a person time during the workday to go to a health facility that's in the building.
Okay. Excellent. Tanya, do we have any questions on the telephone at this time?
Again, ladies and gentlemen, if you'd like to ask a question, please press * then 1.
All right. If not, we'll move on. Thanks.
Joyce, you had mentioned the EEOC guidance document on medical examination and inquiries. And I just went and looked at it when you mentioned that, and I see that there is the notice regarding the ADA Amendments Act, that guidance document hasn't been updated yet. Is there a—is there a design to update that once you have a Final Rule regarding the health program?
That's a good question, Peter. A number of our documents still have that notice, and the Commission, you know, is certainly looking at which documents need to be updated, you know, and certainly along with their—you know, the priorities, strategic enforcement priorities, you know, which documents fall within those and should be updated.
It's quite conceivable that we at least will update that question in the inquiries and exam once we have a Final Rule. There are other questions in that document, though, that people have been asking us to update. For example, you know, as I said, we have said that employers can only ask employees disability related questions and require them to submit to medical examination if it's job related and consistent with business necessity, which we said basically means that they have to have a reasonable belief that the person can't do the job or can't do the job safely. And for years, we've been hearing that that standard is too narrow, that business necessity can be broader, and a lot of that is because of how jobs have changed. People are doing more jobs remotely now. And so for example, we've—it's been asked, well, can employers ask somebody to submit to periodic examination because that person is going to be working at a remote job site? And we have issued informal discussion letter saying that does not meet the standard for job related and consistent with business necessity, and many employers have said we are wrong about that. So that's just one example of another issue that we may have to address in that document before we totally revise it. But it is likely that we will at least revise that one question because it pertains to wellness program, and we will have a clear answer after the Final Rule.
Okay. Just more of a procedural question and not a specific question that someone had asked. You know, the EEOC was specifically charged when Congress passed the ADA Amendments Act to be the first agency to create the implementing regulations for that amendment. What was the—the specific driving force behind the EEOC's rulemaking in this instance?
Another good question. For years, we have been getting questions about wellness programs, and we had a meeting in May 2013, two years ago, where, you know, people on both sides, you know, urged us to issue clear guidance, and so there was a discussion as to whether that guidance should be enforcement guidance, and initially that was what the plan was. We were going to issue enforcement guidance, much like the guidance on inquiries and examination. It would be a series of Q and A’s, or like most all the other enforcement guidelines we've issued, one of reasonable accommodations, there would be a series of Q and A’s. However, once we thought, again, earlier, that a lot of the questions would have to do with reasonable accommodation, and that's not the case anymore, and so there was discussion at the Commission that maybe the best way to go about it would just be to amend the regulations that deal specifically with wellness programs, 1634.14(d), that that would be the most efficient mechanism, and then we could issue regulations much like the try-agencies have issued regulations on programs. So that was the thought process that the most efficient way to issue clear guidance was through rulemaking.
This is a follow-up for myself on that topic. I guess if it ever gets to the courts, they are going to be more reliant on the regulations that you have—that the EEOC has published, perhaps more than they would a guidance document if it came down to a question of the, you know, interpretation of the law?
Perhaps, as you are probably aware, Peter, the courts are all over the place. That's a good question. I mean, since unlike, you know, the ADA amendments Acts specifically gave us authority to issue regulations, there is no specific authority to issue regulations on wellness programs. Congress did not do that. So it would be interesting to see whether or not, you know, courts—I think to the extent that they are read to be consistent with HIPAA regulations, that they would give deference because employers have been dealing and the health plans have been dealing with the HIPAA regulations for years and they sort of understand that. So I think to the extent that they read our Final Rule to be consistent with that, that they will give deference. As I said, right now, the one area where it differs is that we say that the 30% applies to participatory and health contingent, whereas HIPAA says there is no limit. We have not, at least in terms of our coordination with the tri-agency, have not gotten any push-back on that. We haven't gotten anyone saying that's ridiculous, employers are not going to comply with that.
The other interesting thing is even though the limit is now 30%, from all the studies and all the research we've done, it seems that no employer, no health plan is anywhere near offering thatch incentive. So it will be interesting to see whether or not they have just been waiting to see—you know, for clear guidance on the EEOC, then they say they will, even though HIPAA has authorized that and the Affordable Care Act authorizes it. I don't know if employers have been reluctant because they only think that they say from EEOC is that wellness program can neither require nor penalize, so if they were reading that literally, it would mean that no incentive, perhaps, could be allowed, even though HIPAA and Affordable Care Act allow that.
So it will be interesting to see whether or not this changes the landscape in terms of what employers offer, but right now, we are unaware of any employer that's offering as much as 30% or 20%.
Just a follow-up, my own curiosity to that end, you had mentioned a couple of different cases at the federal level. Does the—does this proposed rulemaking in any way contradict any of the case law that came from those two cases, or is there any—
The two cases I mentioned are ongoing lawsuits, so we don't have a ruling. There's been very few. There's one case, it's Sass v. Broward County, a case out of Florida, but it was decided under the safe harbor, whether or not wellness programs are exempt, you know, under the safe harbor provision that allows health plans to make certain kinds of—to do certain things because of risk classifying and underwriting. And we don't think that that's the correct interpretation of safe harbor because we don't see that that's what wellness programs are doing. So that's the only case so far that said let's—let's just circumvent EEOC and just go, you know, because EEOC is isn't saying anything, and just say this is okay under the safe harbor provision. We don't think that the safe harbor provision—you know, the employers won't have to rely on that once a Final Rule is out because the Final Rule gives very clear guidelines saying the wellness programs are okay and employers can do this as long as they, you know, comply with the limitations.
Let's go to—I'll stop asking my questions, and we'll—next question is if an employee can't participate in a wellness program, even with reasonable accommodations, does an employer have any obligation to offer them another way or path to access those same benefits or slash rewards?
Yes. Between, another good question. An employee—again, another good question. If an employee cannot participate because of a disability, certainly they are entitled to a reasonable alternative standard. In most cases you are not even going to have to go to reasonable accommodation which requires the submission of documentation to establish that a person has a disability, that the disability substantially limits major life activities. All a doctor has to do is to certify that this person can't do this because of a medical condition. Now, that medical condition may be a disability, it may not be a disability. And then they have to offer them a reasonable alternative standard, which could mean something else to do, as I said, instead of walking, just walking, 30 minutes of examiner—just log in 30 minutes of exercise whatever way you can exercise.
If a person cannot exercise, it may mean that another standard may be to show that you are taking other steps to improve your health, either, you know, could be to log—to do a food diary, say, well, I can't do any exercise because of my medical condition or my disability, but an employer can say, well, then, can you show that you are at least trying to eat healthy? So I want you to log, you know, have a daily food log for X period of time. That could be a reasonable alternative. Or a reasonable alternative in some cases is you just have to waive the standard, meaning the employee doesn't have to do anything to get the reward if they can show that they can't do whatever the prescribed activity is because of a medical condition.
Okay. And a follow-up question on that is related to I think the term is "reasonable alternative," and you had mentioned documentation. So it is permissible for the employer to get some type of documentation that is not considered an impermissible medical request?
Again, it's not the kind of documentation that an employer could get when somebody requests a reasonable accommodation because, right, if somebody is requesting a reasonable accommodation, the person is putting his or her disability on the table and then has to establish that he or she has a disability, which is easier under, certainly, amendments, but still has to show their disability, they have to show whatever—what it is about the impairment that causes limitation. This kind of documentation is more extensive than the documentation that is required under the reasonable alternative standards. The reasonable alternative standards basically just have the doctor say this person can't do this because of a medical condition. And that's—is enough to satisfy the requirement for the person being entitled to a reasonable alternative standard.
And that's going to be an important point for employers as well as employees, you know, to understand that distinction.
Exactly.
And employers aren't out there gathering information that they are not entitled to receive that would lead them to potentially violate the ADA requirements.
Right. The reasonable alternative standard is a requirement under the HIPAA regulation, so I gave you the link to the—for getting more information about the HIPAA nondiscrimination requirements. And they even provide sort of a sample notice. They have to tell employees that, you know, you are entitled to reasonable alternative standard, and so to spell out what that means and spell out what is required. So it's a lot less, again, in terms of a documentation or substantiating that a person is entitled to a reasonable alternative than it is to establish that person is entitled to a reasonable accommodation.
So again, under participatory program, you know, most cases, even then, the kinds of accommodations are not the accommodations, obviously, that will allow somebody to perform functions which then sometimes requires extensive documentation. So obviously, if a person is deaf, an employer is going to know that. So in those cases, saying I need a sign language interpreter to attend a nutrition class, we would certainly hope a an employer is not going to ask somebody to provide information substantiating that they are sur stanchionly limited hearing. An employer would then just consider whether or not to provide an interpreter is an undue hardship. So in most cases, even for participatory programs, where a person would need a reasonable accommodation, we certainly hope that employers understand that they are not entitled to ask for extensive documentation.
Right. And that's—I guess that's a good point, Joyce. As you said, the employer no some instances—in some instances is already going to be aware of the employee's disability, and there's not going to be a need to get an additional document to provide an accommodation related to a benefit offered.
Uh-huh. Right.
What guidance is the EEOC offering to employers at this point as to how—you know, they have some requirements or obligations or incentives under the Affordable Care Act to offer health programs. What is the EEOC guidance in terms of what should employers do to make sure that they're staying in compliance with the ADA?
That's a great question. One of the questions on the Q&A is what can employers do, and you know, obviously, this is a Notice of Proposed Rulemaking, so it's not final. Employers, obviously—they can comply with the Notice of Proposed Rulemaking, and they can do things such as limit the incentive to participatory and health contingent programs to 30%. As right now required by the NPRM, they don't have to do that. I think that some of the things that they should do are things that we said—or they should not do are things we've always said that they should not do. They should not make health insurance coverage contingent upon whether a person participates in a wellness program. We reemphasize this in the NPRM, but this is something certainly we have said before that, that that would violate the ADA. They should not take any adverse action against someone for not participating in a wellness program. You know, they should not—you know, they should not limit an employee's access to benefit packages based on whether or not they participate in a wellness program. These are things we've always said, you know, employers should not do. These things are—would be violations of the ADA.
So there are some very definite things they could do. Obviously, there are some best practices that we mention in the NPRM in terms of maintaining the confidentiality of wellness programs, so certainly employers should do that. And I should say, again, that HIPAA covered entities have to comply with HIPAA privacy rules. Employers are just not HIPAA covered entities. There are already regulations. The ADA says you cannot commingle disability information with personnel files. Those requirements are still part of the regulations say that, you know, that you have to maintain the confidentiality of medical information. So they certainly should do that. I think that employers should—even tow they are not required till it becomes codified in our Final Rule in terms of providing information to employers about why are you collecting this medical information? We certainly would hope that they would do that as a part of full disclosure to employees to get them to participate.
I have seen some who do that right on the health assessment, saying you are being asked for this information for the following reasons. Some say so we can use this information to design a wellness program for our workforce. So we're asking these questions to see how many people have certain conditions. Some of you probably have heard of disease management programs, which some people argue are a subset of wellness program. I think benefits, people say they are certainly outside our wellness programs or are a cousin to wellness programs because they are saying once a person has a disease, then it doesn't fit our definition of health program, which we say is either designed to promote health or prevent disease, and disease management programs are only dealing with people who already have certain disease, like diabetes or hypertension. And so I think in terms of full disclosure, employers should say on a health assessment that we are getting this information so we can design a disease management program. If we discover through the health risk questions on the health risk assessment that a number of people are diabetic or are pre-diabetic—because other than people asking for accommodation for these conditions, right, an employer would not know who in the workforce has certain conditions. That's, again, one of the primary purposes of the ADA, that people should not have to disclose their medical information.
So an employer may not know that 10% or 30% of their population has diabetes. So based on the answers to health risk assessment, an employer may design either a wellness program that involves healthy eating or exercise or education classes or if people already have the condition they may design a disease management program.
All right. Great. We had one specific question, a situation that came in regarding an employee that is blind, works for a Title II entity, uses a screen reader, and the health benefits for the employer—and I think a health wellness program—is accessed through a website that is inaccessible. So the question is does the employee have the right to say to the employer, you know, you need to make the website accessible, or could the employer offer, you know, alternative accommodations making the information available in some other format or manner?
Good question again. It depends on what would be effective. So if it will only be effective by making the software accessible, then the employer would have to do that. If the employer can provide all the information that, you know, the employee would otherwise get from the website in an alternative format, Braille or audio tape, then argue plea, you know, an employer wouldn't have to make it accessible. But just would have to provide the same information in an accessible format.
Excellent. We are near the bottom of the hour, and—bottom of the hour, and I want to give, Joyce, you a chance to again give folks instructions on how they can submit public comments on the proposed rule.
Okay. Public comments on the proposed rule, you go to regulations.gov. Every agency's regulations or proposed regulations are on this website. You put in EEOC in the search engine, ADA wellness, and you will get a link that allows you to submit public comment.
The other thing I would say, that if people have questions or—again, this is fairly new for us. The NPRM was issued on April 20. And as I said, most of—we haven't given a lot of presentations on it. We have answered, you know, calls that have come in. We have certainly talked to our coworkers in our other offices, but this will be, I think Chris may have done one of the presentations for people who have—participants who are not employers or benefits people. So if there's anything, any suggestions you have that would help us shape these kind of presentations in the future, you know, the people have until July 19 to submit comments. But it's—you know, you know how things go in the government. It's not like we have until July 19 to submit comments and will you have a Final Rule on July 1. Wouldn't that be great? So this is going to be an ongoing process. So if we continue to try to explain what the NPRM says and what is revised, if there's anything people have a suggestion, I would greatly appreciate it and certainly will pass it on to other people in my office who are giving these presentations. We know it's a lot to digest, and usually we get questions like this is so confusing. We don't really understand what this has to do with the ADA or what this has to do with HIPAA and the Affordable Care Act. If you still have those kind of concerns after my presentation, please let me know. Again, we take evaluations seriously, so if there is something we can do better, certainly I will try to do it better next time.
The other thing is if you need more information on the context, you know, why is this something that you should be interested in, certainly, you know, let me know that. So whatever comments you have in terms of just the regulations itself should go to regulations.gov. Any comments you have about this presentation or how we should go forth, please let me know.
Excellent. Thank you very much Joyce. And for those of you who didn't have a chance to download the questions and answers document from the session material page on ADA-audio.org, that document, along with the EEOC fact sheet on the NPRM are available by visiting www.EEOC.gov, the EEOC homepage. You can find a link to the NPRM and access those documents.
I want to at this time thank Joyce Walker-Jones for joining us today. I know that it can be difficult to be the spokesperson for a federal agency, and when there's a proposed rule out there and there are limitations on what you can say, but Joyce, thank you very much for all the excellent information and the in-depth answers to the questions that the participants had for you today.
Thank you. Thank you, Peter, for your questions because that's, again, by the questions we get, we know what kinds of things to emphasize in making the presentation or certainly to try to explain more clearly because these are questions not that you have but that we've heard before.
Excellent. As a reminder, we will give an audio transcript of today's session available at www.ADA-audio.org within 48 hours, within 14 days—10 business days, we plan to have an edited transcript available for today's session. Again, ADA-audio.org. And before we say good-bye to you today, just a reminder that the next audio conference, the session will take place on June the 16th, and that is entitled Cognitive Innovations to Promote Independence in the Home and in the Community and our presenter for that day will be Sandy Hannebrink. You can get information about that session and registration information again at ADA-audio.org.
The ADA Audio Conference program is a collaborative effort of the ADA National Network. You, again, can reach your ADA regional Center by dialing 800-949-4232 or by visiting www.adata.org.
Again, thanks to Joyce for her wonderful presentation today, and thanks to all of you for participating, and we look forward to you joining us in the future. Thank you, everyone. And good day.
Thank you. Good-bye.
Ladies and gentlemen, this concludes today's conference. Thank you for your participation, and have a wonderful day.