Wellness bill has serious implications for people with 'stigmatized' conditions

Barbells and a scale
A new Republican bill could expand employers' powers to seek personal health data and punish employees who decline to participate in genetic testing.

A proposed House bill that would pave the way for employers to expand wellness programs to include genetic screenings could have significant implications for people with certain "stigmatized" health conditions, according to a new analysis.

H.R. 1313 (PDF), introduced last month, would adjust the way that the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) intersect with the Affordable Care Act’s (ACA) rules for wellness programs, according to a report from the Kaiser Family Foundation. Under the bill, wellness programs would be considered in compliance with the ADA and GINA if such programs pass the ACA’s compliance standards. Under current regulations, about 71% of large employers collect employees' health data through wellness programs, according to the report.

This poses a concern for employees, according to the analysis, as it would allow employers to seek more personal health information and potentially increase their power to punish employees who refuse to comply.

The ADA and GINA currently limit ways that employers can push employees to disclose personal health information, as was outlined in a series of federal rules released last year. The guidelines are designed to prevent employers and payers from discriminating against people with certain conditions, and KFF estimates that close to 30% of people with employer-sponsored insurance have one or more of the conditions that would trigger these privacy concerns. 

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The rules under the ACA apply to programs that are health-contingent, which only covers about 10% of workplace wellness programs, according to the analysis. So, under H.R. 1313, limits to penalties employers can use to induce employees to release sensitive health data would be virtually eliminated.

Self-insured employers would still not see individual results due to regulations under the Health Insurance Portability and Accountability Act (HIPAA), according to an article from Harvard Business Review, but those rules do not extend to independent wellness vendors who are not regulated by HIPAA.

In that case, employers would be able to see which employees chose not to participate in testing and could fine them for noncompliance, up to 30% for nonsmokers and 50% for smokers, multiplied by the full cost of the family policy rather than just his or her individual policy. For instance, if an employer is paying $5,000 to insure an individual and $10,000 to insure a family, the cap on penalties would increase from $1,500 to $3,000 under the bill.

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The Kaiser Family Foundation concluded that it “remains to be seen” how future legislation would balance the dual goals of protecting people with pre-existing conditions from discrimination in wellness programs and gathering more data to allow wellness programs to improve health and cut costs.

HBR noted that it is not clear at present if employers will take advantage of the loosened restrictions, as it would likely be costly, fairly ineffective and unpopular with employees.

“The potential for workplace wellness programs to improve health and save costs continues to hold great appeal for employers and policymakers, alike,” HBR notes.

“The challenge is to balance this potential with protections to ensure programs do not discriminate against people with health problems or compel disclosure of health information people want to keep private.”