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CUPA-HR Files Comments on EEOC’s GINA Wellness Plan Proposed Rule

On December 29, CUPA-HR, along with other employer groups, filed comments on the U.S. Equal Employment Opportunity Commission (EEOC)’s wellness plan proposed rule under Title II of the Genetics Information Nondiscrimination Act (GINA).

The proposed rule, issued in the Federal Register in October, clarifies that employers that offer wellness programs as part of group health plans are allowed to offer limited incentives — up to 30 percent of the cost of what an employee would pay to participate in a group health plan — in exchange for an employee’s spouse providing information about his or her current and past health status. The rule requested comments on the best ways to promote good health with employee incentives while safeguarding employees’ personal health information and on possible additional changes to the GINA regulations.

Our comments address our concerns with the proposal’s failure to adopt incentive limits and reasonable design requirements consistent with those established under the ACA and regulations issued under the Health Insurance Portability and Accountability Act (HIPAA). The comments also oppose any requirement that incentives be available to those who do not participate in employer wellness programs but rather “medically certify” that any issues are under treatment. We also urge the Commission to refrain from any rulemaking regarding electronic storage of records and emphasize the need for a significant amount of time for employers to come into compliance with any new requirements.

Last summer, CUPA-HR submitted comments outlining many similar concerns to those discussed here on the EEOC’s wellness plan proposed rule under the American with Disabilities Act (ADA). In those comments we express concern with the Commission’s inappropriate treatment of the ADA’s insurance safe harbor. Since those comments were filed, further evidence that the commission has incorrectly characterized the insurance safe harbor in its proposed ADA regulations has materialized. As such, we urge the Commission to revisit the ADA regulations and revise its interpretation of the insurance safe harbor.

According to the Administration’s Unified Regulatory Agenda, both the ADA and GINA changes will become final by the end of this month.

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