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Center for Health Law Equity, LLC  July 2015 Newsletter
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Oh GINA!  Why do you confuse us so?

 

Last week I had the honor of speaking at the 40th Anniversary National Wellness Conference in Minneapolis.  Attendees at my talk on the Affordable Care Act (ACA) had numerous questions about the legal parameters in designing workplace wellness programs.  All the questions were excellent, and I will be exploring each of them over the next several issues of this newsletter.  But the one law that seems to give wellness professionals and organizations a lot of angst is GINA.
The Genetic Information Nondiscrimination Act (GINA) has two titles of relevance to workplace wellness program design.  Title I applies to “group health plans” and Title II applies to employers.  Generally speaking, GINA prohibits group health plans and employers from using “genetic information” for discriminatory purposes.  “Genetic information” includes information about the “manifestation of disease or disorder in “family members.”  In other words, genetic information includes “family medical history” information or information about whether a family member has or could reasonably be diagnosed as having a disease or disorder, such as hypertension or diabetes.
“Family member” includes individuals related to the employee by blood, marriage or adoption.  Therefore, GINA considers an employee’s spouse or adopted child a family member subject to the rule. 
GINA concerns arise when a workplace wellness program conducts health assessments that ask family medical history questions of the employee and family members or conducts biometric screens of an employee’s family members.  So, if your program asks employees and family members questions about whether anyone in their family has or had a disease or disorder, your health assessment may violate GINA if you tie financial incentives to answering those questions.  Financial incentives may include premium differentials, cash incentives, employer contributions to a health savings account, among others. 
Furthermore, if your workplace wellness program ties a financial reward to an employee’s family member’s participation in a biometric screen, you may be in violation of GINA.  This was the issue in the EEOC v. Honeywell case.  In that case, Honeywell tied a health savings account contribution and imposed a $1000 tobacco surcharge on High Deductible Health Plan participants whose spouses refused to undergo a biometric screen.  The EEOC argued in its brief seeking a temporary restraining order against Honeywell that “Honeywell’s medical testing is designed to reveal, among other things, information relating to the manifestation of diseases such as hypertension and diabetes [in the employee’s spouse], [and therefore], Honeywell is seeking family medical history (or genetic information) within the meaning of GINA.” 
Although Honeywell lost its motion for temporary restraining order, the court in that case did not decide the merits of the EEOC’s arguments.  In fact, the court noted that “great uncertainty persists in regard to how the ACA, [American’s with Disabilities Act] ADA and other federal statutes such as GINA are intended to interact.”  See EEOC v. Honeywell Intern., Inc., 2014 WL 5795481, at 5 (2014).  In addition to the EEOC proposed rules on how the ADA should interact with the ACA, the EEOC has also promised further guidance on how GINA should interact with the ACA.  Until we receive that guidance, however, there are certain precautions wellness professionals and organizations can take to minimize their risk under GINA:

  1. Steer clear of asking family medical history questions in health assessments.
  2. If you do ask those questions, take steps to ensure that answers are provided voluntarily, such as:
    1. Do not tie financial rewards to answering those questions
    2. Obtain an employee’s or family member’s written authorization to include those questions and the answers to those questions
    3. Do not let co-workers or supervisors have access to individually identifiable data obtained from the health assessment or biometric screen
    4. Conduct the biometric screen and/or health assessment after open enrollment (to minimize the risk that answers would be used in connection with eligibility for plan benefits.
    5. Use two separate health assessments:  one that collects family medical history which is conducted after and unrelated to enrollment and is not tied to a reward, and another that does not request family medical history information and is tied to a reward.
  3. Do not tie financial rewards to family member participation in biometric screens.
Also, GINA permits group health plans to reward participation in an annual physical examination with a physician or other health care professional who is providing services to the individual, even if the physician may ask for family medical history as part of the examination.  A wellness program can also provide more favorable cost-sharing for preventive services, including genetic screening, without violating GINA.  Group health plans may also reward participation in certain disease management or prevention programs to employees who voluntarily provide family medical history information through a health assessment (that is, do not feel compelled to provide the information in order to qualify for a reward) without running afoul of GINA.  However, in this latter circumstance, the disease management or prevention program and incentives tied to those programs must be available to individuals who qualify for the program but have not volunteered family medical history information through a health assessment.
Bottom line:   Until we receive more guidance from the government on how GINA interacts with workplace wellness programs, avoid asking family medical history questions through an employee health assessment if you can, or at least do not tie any financial rewards to answering those questions.  Also, avoid tying financial incentives to family member participation in biometric screens that could reveal the manifestation of disease or disorder in that family member. 
If you would like your workplace wellness program compliance audit to ensure compliance with GINA or any other wellness law, please email bzabawa@cfhle.com or call 608-579-1267.  We would be happy to help!

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Did You Miss Barbara Zabawa’s Radio Interview?
No worries!  It is now archived HERE.  Listen to Barbara talk about wellness law, the Affordable Care Act and the significance of the King v. Burwell Supreme Court case.
Speaking of the Honeywell case…
A recent visit to PACER, a web site that gives current status on cases filed in federal courts across the United States, shows that the EEOC v. Honeywell case is closed.  The last activity in the case was last December, 2014.  As a result, it is quite possible that the case has settled between the EEOC and Honeywell, in which case, the court will not decide the merits of the EEOC’s arguments under the ADA or GINA.
About King v. Burwell…
Stay tuned for a special update from the Center for Health Law Equity, LLC regarding the outcome of the King v. Burwell case, which on Thursday, June 25th, was decided in favor of keeping the Affordable Care Act subsidies intact in the Federally Facilitated Marketplaces.   CFHLE will provide a summary of the Court’s decision and what it might mean for health and wellness professionals and organizations going forward.
Any Other Questions?
If you have any questions or ideas that might be useful to share in this monthly newsletter, please forward those questions or ideas to us at bzabawa@cfhle.com.  We want to make this newsletter a helpful resource.
Copyright © 2015 The Center for Health Law Equity, LLC, All rights reserved.


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