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• The program’s reward is not conditioned on the satisfaction of a standard that is related to a health factor (or the program does not provide a reward)
• Examples:– Reimbursement for the cost of a gym membership
– Waiver of cost sharing for pre-natal or well-baby visits
– Reward or reimbursement for participating in smoking- cessation program, regardless of whether one quits
• Only one HIPAA condition: Must be available to all similarly situated individuals, regardless of health status
Second Condition: Limits on the Second Condition: Limits on the RewardReward• Reward cannot exceed 30% of the cost of the
group health plan coverage, including employee and employer contributions. For tobacco-related incentives, 50% of total costs.– Example: Employee pays $200 for self-only
coverage. Employer pays $800. Non-tobacco-related reward cannot exceed $300/month ($3600/year).
– Limit applies to total cost for family coverage.
Fourth Condition: RAS for Fourth Condition: RAS for Activity-Only ProgramsActivity-Only Programs• Must offer an alternative way to obtain the reward for
individuals for whom the program is:– Unreasonably difficult due to a medical condition; or
– Medically inadvisable
• Can require verification from physician if reasonable under the circumstances
• Can determine RAS at time of the request or can just waive alternative and give reward
Fourth Condition: RAS for Fourth Condition: RAS for Outcome-Based ProgramsOutcome-Based Programs• Must offer an alternative way to obtain the reward for all
individuals who do not meet the initial standard, regardless of whether the program is medically inadvisable or unreasonably difficult due to a medical condition
• Cannot require verification from physician that health factor makes it unreasonably difficult or medically inadvisable
• Can also just offer waiver and give the reward• RAS (or waiver) must be offered every year
Fourth Condition: Where RAS is Fourth Condition: Where RAS is an Educational Programan Educational Program• If RAS is completion of an educational program (to either
type of wellness program):– Plan must find (or help find) the educational program
– Plan must pay for the educational program• Diet program: Plan does not have to pay for food
– Time commitment must be reasonable• One hour a night is not reasonable
– Plan must give reward for completion, even if the program does not achieve the desired result• Smokers receive reward even if they do not quit smoking
• Do not need to give reward if educational program is not completed
Fourth Condition: Where RAS is Fourth Condition: Where RAS is an Activity-Only Programan Activity-Only Program• If RAS is an activity-only program, a sub-RAS (or
waiver) must be offered to individuals for whom the RAS is medically inadvisable or unreasonably difficult due to a medical condition.– Example: Reward is lower premiums for employees in a
running program (activity-only program)
– RAS: Walking program (activity-only program)
– Walking program must provide RAS (or waiver) for persons for whom walking is medically inadvisable or unreasonably difficult due to a medical condition
Fourth Condition: RAS for Fourth Condition: RAS for Outcome-Based ProgramsOutcome-Based Programs• Additional rules for RAS for outcome-based program
– Cannot require individual to meet a different level of the same standard without offering additional time to comply that takes into account his/her circumstances
– Example:• Standard is BMI of less than 30 as of a specified date
• RAS cannot require individual to achieve BMI of less than 31 as of the same specified date
• RAS can require a small reduction in BMI over a realistic time period, such as within a year
Fourth Condition: RAS and Fourth Condition: RAS and PhysiciansPhysicians• Plan may seek medical verification of an individual’s need for
RAS with respect to an activity-only program, but not an outcome-based program
• But, for all programs, if an individual’s personal physician states that a standard is not medically appropriate for the individual, the plan must provide an RAS that accommodates the recommendations of the individual’s physician– Even if the plan’s medical professional suggested a different alternative
Fifth Condition: Full Disclosure Fifth Condition: Full Disclosure
• All program/plan materials describing the terms of the wellness program must disclose that it is possible to satisfy the standard with a reasonable alternative or to have the standard waived – This rule does not apply to communication that
merely mentions a wellness program is available without describing its terms• Example: Not required in SBCs
• Anyone who qualifies for the reward must be paid the full reward upon completion of the reasonable alternative– On January 1st all non-smokers get $300/month
Considerations Under Health Considerations Under Health Care ReformCare Reform• Applicable large employers avoid a pay-or-play
penalty by offering minimum value, affordable coverage to full-time employees
• Affordability and minimum value are determined assuming that:– All employees will earn a non-smoking incentive– No employee will earn any other type of incentive
GINA and Wellness Programs GINA and Wellness Programs (cont’d)(cont’d)
• For HRAs and similar inquiries outside a health plan:– Request must be made via a wellness program
– Employee must provide prior, knowing, voluntary, written authorization
– Only employee and licensed medical professional receive individually identifiable information
– Individually identifiable information is available only for purposes of program and not disclosed to employer except in non-specified, aggregate terms
Americans with Disabilities ActAmericans with Disabilities Act (cont’d)(cont’d)
• If wellness program requires medical examination, EEOC suggests that program does not violate ADA if:– Employee medical information is kept confidential and separate
from employment records; and
– Plan is “voluntary”• Employer does not require participation
• Employer does not penalize persons who do not participate
• EEOC approves of nominal, non-cash rewards such as t-shirts or caps
• Possibility that program fully compliant with HIPAA is illegal under ADA