Are employer wellness programs under attack by the EEOC?

Many employers or their group health insurance plans offer wellness programs to promote healthier lifestyles for their employees. These employer wellness programs (EWPs) often involve medical questionnaires, health risk assessments (HRAs), and weight, cholesterol, glucose and blood pressure screenings. Some employer and group health insurance plans offer financial and other types of incentives to participating employees or to those who achieve certain targeted health outcomes.

Until 2014, it seems to have been clear sailing for employers on the EWP front as long as they complied with certain federal nondiscrimination provisions. In 2014, however, the U.S. Equal Employment Opportunity Commission (EEOC) starting filing lawsuits against employers alleging that their EWPs were not voluntary as required by Title I of the Americans with Disabilities Act (ADA). While the courts have uniformly ruled in favor of the employers in these cases, the EEOC, nevertheless, proceeded to propose new regulations under the ADA and Title II of the Genetic Information Nondiscrimination Act (GINA) that imposed new standards and ignored an existing ADA “safe harbor” provision for bona fide employer benefit plans. Despite both Congressional concerns and numerous industry comments asking the EEOC to align its new ADA and GINA final rules with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) (P.L. 104-191) and the HIPAA privacy and security breach notification requirements, with which employers had worked so hard to comply, the final rules made no concessions to these concerns.

This White Paper first examines the federal law applicable to EWPs, the recent court challenges by the EEOC, the new ADA and GINA final rules, and the status of proposed legislation to void the rules. It closes by providing the results of a Q&A session with industry experts and advice on what employers should do to ensure that their EWPs pass muster with the new EEOC rules, both applicable on January 1, 2017.

Read further, “Are employer wellness plans under attack by the EEOC?

$6.50 not the max for PHI record fees

The HHS Office for Civil Rights (OCR) is reminding covered entities (CEs) that they there is no cap on the fees they may charge individuals or their personal representatives for providing them, or third parties to whom the CEs are directed, with copies of protected health information (PHI)—within specific limits. Rather, in a new FAQ, the office states that CEs that would prefer not to engage in arduous calculations have the option to charge a flat fee of not more than $6.50 for electronic copies of PHI maintained electronically.

Permissible fees

The Health Information Portability and Accountability Act (HIPAA) (P.L. 104-191) Privacy Rule permits CEs to charge fees for copies of PHI. Charges may only include labor, supplies, and postage (45 C.F.R. sec. 164.524(c)(4)). Labor for copying includes only labor for creating and delivering the copy in the form and format (electronic or paper) agreed upon, once the relevant PHI has been identified, gathered, and prepared for copying; search and retrieval costs are not permitted. Labor to prepare a summary or explanation may be included if the individual requests such a summary or explanation and agrees to the costs in advance. Supply costs include costs for paper and toner costs for paper copies and the cost of portable electronic media, if the individual requests a copy on portable media.  However, individuals have the right to ask that PHI is simply mailed or emailed.  CEs may not charge fees when they simply fulfill a HIPAA access request using its certified electronic health record technology (CEHRT) view, download, and transmit feature.  CEs must notify individuals of the approximate fees they will charge in advance of providing the copies.

Flat fee

CEs may calculate actual costs individually for each request or develop a schedule of labor costs based on the average costs required to fulfill standard requests. CEs may not charge per-page fees for PHI maintained electronically, even when individuals request paper copies. The FAQ clarifies that CEs may charge a flat fee not to exceed $6.50 for standard requests, although they may wish to calculate actual costs in the event of non-standard requests. The OCR reminds CEs, in those situations, that they must still notify individuals of the approximate fee they will charge in advance of providing the copies. Actual costs and average costs may exceed $6.50, provided the fees comply with 45 C.F.R. sec. 164.521(c)(4).