As group health plan sponsors, employers are responsible for ensuring compliance with the prescription drug data collection (RxDC) reporting requirements added to ERISA by the Consolidated Appropriations Act of 2021 (CAA). Under ERISA section 725, enforced by the US Department of Labor (DOL), group health plans (not account-based plans, e.g., health reimbursement arrangements and health
As many expected based on the draft opinion that was leaked months ago, the U.S. Supreme Court has held the U.S. Constitution does not protect the right to obtain an abortion. Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022).
Dobbs overturns nearly 50 years of precedent from the Court’s decision in
Testing for COVID-19 certainly has evolved over the past 18 months or so. As supply and allocation continue to face challenges, guidance on serological/antibody versus viral testing, testing in the workplace, informed consent, among other things have emerged to help guide coronavirus testing in the workplace. President Biden’s Path out of the
According to Forbes.com, more employers are considering imposing a premium surcharge on employees participating in the company’s health plan who are not vaccinated for COVID-19. Whether positioned as rewards or penalties, wellness program incentives have become vehicles of choice for encouraging behaviors believed to be healthy and reducing health plan costs. For years, tobacco
The Department of Health and Human Services (HHS) announced Monday it now interprets—and will enforce—Section 1557 of the Affordable Care Act (ACA) to prohibit discrimination based on sexual orientation and gender identity, effective immediately. Section 1557 generally prohibits discrimination based on race, color, national origin, sex, age, and disability in any health program or activity
The Biden administration reportedly has called for all people at least 18 to be eligible for the COVID-19 vaccine by April 19, 2021, two weeks earlier than its prior goal of May 1, and less than a week away. Most states have already done so. Without the barriers created by state-by-state priority rules, the
The Consolidated Appropriations Act, 2021 (Act) provides certain COVID-19-related relief, including temporary additional flexibility regarding flexible spending accounts (FSAs). Employers have several practical considerations when deciding whether to adopt one or more of the changes in their plans.
Under the FSA changes, employees need not lose the benefit of the dollars they set aside
Since 1996, when Congress passed the Health Insurance Portability and Accountability Act (HIPAA), employers have been struggling with whether and to what extent they could offer incentives to employees to participate in certain “wellness programs.” The Equal Employment Opportunity Commission’s (EEOC) position on these programs has been a significant driver of those struggles, primarily due to concerns about whether such programs are “voluntary.”
On January 7, the EEOC proposed a new approach that may provide employers some certainty, particularly as many employers are wondering about incentives to encourage employees to receive a COVID-19 vaccine. The agency proposed regulations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) which, for those interested, provides a brief history of wellness programs, and EEOC’s evolving position concerning same.
A (Very) Brief History
In short, the EEOC stated its position on voluntariness in 2000, in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act: a wellness program is “voluntary” as long as an employer “neither requires participation nor penalizes employees who do not participate.” See Q/A 22.
During that time and moving forward, however, other federal agencies which regulated group health plans (Health and Human Services, Department of Labor, and Internal Revenue Service) provided a regulatory path for employers to incentivize employees to participate in certain wellness programs. A version of those rules were codified in the Affordable Care Act (referred to herein as the “ACA/HIPAA rules”), evidencing Congress’ intent to permit such incentives, albeit subject to other federal laws, such as ADA and GINA. The EEOC’s initial attempt to harmonize by regulation its position on wellness programs with the ACA/HIPAA rules failed when its regulations addressing incentives were judicially vacated. These new proposed regulations take a different approach.
The Proposed Regulations.
The EEOC proposed two sets of regulations – one under the ADA and one under GINA:
ADA.
Under the ADA proposed rule, a wellness program is a program of health promotion or disease prevention that includes disability-related inquiries or medical examinations. Disability-related inquiries, such as health risk assessments and biometric screenings, generally include a series of questions “likely to elicit information about a disability,” while medical examinations are procedures or tests that seek information about an individual’s physical or mental impairments or health. Programs that do not include disability-related inquiries or medical examinations (e.g., rewarding employees for attending a smoking cessation class) would not be subject to the ADA proposed rule. The rule also would incorporate essentially the same subcategories of wellness programs as under the ACA/HIPAA rules – participatory and health contingent.
Continue Reading Wellness Programs and Water Bottles, the EEOC Proposes New Rules under the ADA and GINA
The Consolidated Appropriations Act, 2021, generally provides the annual funding for the federal government and, in almost 5,600 pages, contains several important rules giving further COVID-19 relief, including the expansion of eligibility for the Paycheck Protection Program (PPP) and the Employee Retention Tax Credit.
The Act also relaxes several health, welfare, and retirement plan rules
The Ohio Department of Insurance (ODI) has issued guidance pursuant to Governor Mike DeWine’s emergency declaration and March 9, 2020, order directing state agencies to implement procedures consistent with recommendations from the Department of Health. The ODI guidance applies to insurance companies, multiple employer welfare arrangements, non-federal governmental health plans, and other entities subject to