[House Report 115-459]
[From the U.S. Government Publishing Office]
115th Congress } { Rept. 115-459
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
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PRESERVING EMPLOYEE WELLNESS PROGRAMS ACT
_______
December 11, 2017.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Ms. Foxx, from the Committee on Education and the Workforce, submitted
the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1313]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 1313) to clarify rules relating to
nondiscriminatory workplace wellness programs, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preserving Employee Wellness Programs
Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) Congress has a strong tradition of protecting and
preserving employee workplace wellness programs, including
programs that utilize a health risk assessment, biometric
screening, or other resources to inform and empower employees
in making healthier lifestyle choices;
(2) health promotion and prevention programs are a means to
reduce the burden of chronic illness, improve health, and limit
the growth of health care costs;
(3) in enacting the Patient Protection and Affordable Care
Act (Public Law 111-148), Congress intended that employers
would be permitted to implement health promotion and prevention
programs that provide incentives, rewards, rebates, surcharges,
penalties, or other inducements related to wellness programs,
including rewards of up to 50 percent off of insurance premiums
for employees participating in programs designed to encourage
healthier lifestyle choices; and
(4) Congress has struck an appropriate balance among
employees, health care providers, and wellness plan sponsors to
protect individual privacy and confidentiality in a wellness
program which is designed to improve health outcomes.
SEC. 3. NONDISCRIMINATORY WORKPLACE WELLNESS PROGRAMS.
(a) Uniformity Across Federal Agencies.--
(1) Programs offered in conjunction with an employer-
sponsored health plan.--
(A) In general.--Notwithstanding any other provision
of law, a workplace wellness program and any program of
health promotion or disease prevention offered by an
employer in conjunction with an employer-sponsored
health plan that complies with section 2705(j) of the
Public Health Service Act (42 U.S.C. 300gg-4(j)) (and
any regulations promulgated with respect to such
section by the Secretary of Labor, the Secretary of
Health and Human Services, or the Secretary of the
Treasury) shall be considered to be in compliance with
the following provisions (to the extent such programs
are subject to the Acts described in such provisions):
(i) the acceptable examinations and inquiries
set forth in section 102(d)(4)(B) of the
Americans with Disabilities Act of 1990 (42
U.S.C. 12112(d)(4)(B));
(ii) section 2705(d) of the Public Health
Service Act (42 U.S.C. 300gg-4(d)); and
(iii) section 202(b)(2) of the Genetic
Information Nondiscrimination Act of 2008 (42
U.S.C. 2000ff-1(b)(2)).
(B) Safe harbor.--Notwithstanding any other provision
of law, section 501(c)(2) of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12201(c)(2)) shall
apply to any workplace wellness program or program of
health promotion or disease prevention offered by an
employer in conjunction with an employer-sponsored
health plan.
(2) Other programs offering more favorable treatment for
adverse health factors.--Notwithstanding any other provision of
law, a workplace wellness program and a program of health
promotion or disease prevention offered by an employer that
provides for more favorable treatment of individuals with
adverse health factors as described in section 146.121(g) of
title 45, Code of Federal Regulations (or any successor
regulations) shall be considered to be in compliance with--
(A) the acceptable examinations and inquiries set
forth in section 102(d)(4)(B) of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12112(d)(4)(B));
(B) section 2705(d) of the Public Health Service Act
(42 U.S.C. 300gg-4(d)); and
(C) section 202(b)(2) of the Genetic Information
Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-
1(b)(2)).
(3) Programs not offered in conjunction with an employer-
sponsored health plan.--
(A) In general.--Notwithstanding any other provision
of law, a workplace wellness program and any program of
health promotion or disease prevention offered by an
employer that are not offered in conjunction with an
employer-sponsored health plan that is not described in
section 2705(j) of the Public Health Service Act (42
U.S.C. 300gg-4(j)) that meet the requirement set forth
in subparagraph (B) shall be considered to be in
compliance with--
(i) the acceptable examinations and inquiries
as set forth in section 102(d)(4)(B) of the
Americans with Disabilities Act of 1990 (42
U.S.C. 12112(d)(4)(B));
(ii) section 2705(d) of the Public Health
Service Act (42 U.S.C. 300gg-4(d)); and
(iii) section 202(b)(2) of the Genetic
Information Nondiscrimination Act of 2008 (42
U.S.C. 2000ff-1(b)(2)).
(B) Limitation on rewards.--The requirement
referenced in subparagraph (A) is that any reward
provided or offered by a program described in such
subparagraph shall be less than or equal to the maximum
reward amounts provided for by section 2705(j)(3)(A) of
the Public Health Service Act (42 U.S.C. 300gg-
4(j)(3)(A)), and any regulations promulgated with
respect to such section by the Secretary of Labor, the
Secretary of Health and Human Services, or the
Secretary of the Treasury.
(b) Collection of Information.--Notwithstanding any other provision
of law, the collection of information about the manifested disease or
disorder of a family member shall not be considered an unlawful
acquisition of genetic information with respect to another family
member as part of a workplace wellness program described in subsection
(a) offered by an employer (or in conjunction with an employer-
sponsored health plan described in section 2705(j) of the Public Health
Service Act (42 U.S.C. 300gg-4(j))) and shall not violate title I or
title II of the Genetic Information Nondiscrimination Act of 2008
(Public Law 110-233). For purposes of the preceding sentence, the term
``family member''has the meaning given such term in section 201 of the
Genetic Information Nondiscrimination Act (Public Law 110-233).
(c) Rule of Construction.--Nothing in subsection (a)(1)(A) shall be
construed to prevent an employer that is offering a wellness program to
an employee from requiring such employee, within 45 days from the date
the employee first has an opportunity to earn a reward, to request a
reasonable alternative standard (or waiver of the otherwise applicable
standard). Nothing in subsection (a)(1)(A) shall be construed to
prevent an employer from imposing a reasonable time period, based upon
all the facts and circumstances, during which the employee must
complete the reasonable alternative standard. Such a reasonable
alternative standard (or waiver of the otherwise applicable standard)
is provided for in section 2705(j)(3)(D) of the Public Health Service
Act (42 U.S.C. 300 gg-4(j)(3)(D)) (and any regulations promulgated with
respect to such section by the Secretary of Labor, the Secretary of
Health and Human Services, or the Secretary of the Treasury).
Purpose
H.R. 1313, the Preserving Employee Wellness Programs Act,
clarifies that if an employer-sponsored wellness program
complies with the Patient Protection and Affordable Care Act
(ACA)\1\ and its regulations, the program will be considered to
comply with the applicable sections of the Americans with
Disabilities Act of 1990 (ADA)\2\ or the Genetic Information
Nondiscrimination Act of 2008 (GINA) relating to wellness
programs.\3\ The bill also clarifies that offering an incentive
to provide medical information for an employee's family member
who is voluntarily participating in the wellness program does
not violate GINA.
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\1\Patient Protection and Affordable Care Act, Pub. L. No. 111-148
(2010), and Health and Education Reconciliation Act, Pub. L. No. 111-
152 (2010) [hereinafter Affordable Care Act or ACA].
\2\Americans with Disabilities Act of 1990, Pub. L. 101-336 (1990).
\3\Genetic Information Nondiscrimination Act of 2008, Pub. L. 110-
233 (2008).
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Committee Action
112TH CONGRESS
Full Committee Hearing Examining the Impact of the Health Care Law on
the Economy, Employers, and the Workforce
On February 9, 2011, the Committee on Education and the
Workforce (Committee) held a hearing entitled ``The Impact of
the Health Care Law on the Economy, Employers, and the
Workforce'' to discuss, among other things, wellness and
prevention plans. The witnesses were Dr. Paul Howard, Senior
Fellow, Manhattan Institute, New York, New York; Ms. Gail
Johnson, President and CEO, Rainbow Station, Inc., Glenn Allen,
Virginia; Dr. Paul Van de Water, Senior Fellow, Center on
Budget and Policy Priorities, Washington, D.C.; and Mr. Neil
Trautwein, Vice President and Employee Benefits Policy Counsel,
National Retail Federation, Washington, D.C.
Subcommittee Hearing Examining the Recent Health Care Law: Consequences
for Indiana Families and Workers
On June 7, 2011, the Health, Employment, Labor, and
Pensions (HELP) Subcommittee held a field hearing in
Evansville, Indiana, entitled ``The Recent Health Care Law:
Consequences for Indiana Families and Workers'' to examine,
among other things, prevention and wellness programs. The
witnesses were the Honorable Mark Messmer, Indiana House of
Representatives, Messmer Mechanical, Jasper, Indiana; Ms. Robyn
Crosson, Company Compliance Services, State of Indiana
Department of Insurance, Indianapolis, Indiana; Ms. Sherry
Lang, Human Resources Director, Womack Restaurants, Terre
Haute, Indiana; Mr. Denis Johnson, VP of Operations, Boston
Scientific, Spencer, Indiana; Mr. David J. Carlson, M.D.,
General Surgeon, Deaconess Hospital, Evansville, Indiana; and
Mr. Glen Graber, President, Graber Post Building, Inc. Odon,
Indiana.
Subcommittee Hearing Examining Health Care: Challenges Facing
Pennsylvania's Workers and Job Creators
On February 22, 2012, the HELP Subcommittee held a field
hearing in Butler, Pennsylvania, entitled ``Health Care:
Challenges Facing Pennsylvania's Workers and Job Creators,'' to
discuss, among other thing, the benefits of wellness plans in
the workplace. The witnesses were the Honorable Donald C.
White, Senator, Pennsylvania State Senate, Harrisburg,
Pennsylvania; Ms. Kathleen Bishop, President and CEO,
Meadville-Western Crawford, County Chamber of Commerce,
Meadville, Pennsylvania; Ms. Georgeanne Koehler, Pittsburg,
Pennsylvania; Ms. Lori Joint, Director of Government Affairs,
Manufacturer & Business Association, Erie, Pennsylvania; Ms.
Patti-Ann Kanterman, Chief Financial Officer, Associated
Ceramics & Technology, Inc., Sarver, Pennsylvania; Mr. Paul T.
Nelson, Owner and CEO, Waldameer Park, Inc., Erie,
Pennsylvania; Mr. Ralph Vitt, Owner, Vitt Insure, Pittsburg,
Pennsylvania; and Mr. Will Knecht, President, Wendell August
Forge; Grove City, Pennsylvania.
Subcommittee Hearing Examining Barriers to Lower Health Care Costs for
Workers and Employers
On May 31, 2012, the HELP Subcommittee held a hearing
entitled ``Barriers to Lower Health Care Costs for Workers and
Employers'' to examine rising health care costs facing
employers and employees, including the destructive impact of
the ACA. During the hearing, members and witnesses discussed
the benefits of wellness programs to lower the cost of health
care. The witnesses were Mr. Ed Fensholt, Senior Vice
President, Lockton Companies, LLC, Kansas City, Missouri; Mr.
Roy Ramthun, President, HAS Consulting Services, Washington,
D.C.; Ms. Jody Hall, Founder and Owner, Cupcake Royale,
Seattle, Washington; and Mr. Bill Streitberger, Vice President
of Human Resources, Red Robin, Greenwood Village, Colorado.
113TH CONGRESS
Subcommittee Hearing Examining Health Care Challenges Facing North
Carolina's Workers and Job Creators
On April 30, 2013, the HELP Subcommittee held a field
hearing in Concord, North Carolina, entitled ``Health Care
Challenges Facing North Carolina's Workers and Job Creators,''
during which the benefits of workplace wellness programs were
discussed. The witnesses were Mr. Chuck Horne, President,
Hornwood Inc., Lilesville, North Carolina; Ms. Tina Haynes,
Chief Human Resource Officer, Rowan-Cabarrus Community College,
Salisbury, North Carolina; Mr. Adam Searing, Director, Health
Access Coalition, Raleigh, North Carolina; Mr. Ken Conrad,
Chairman, Libby Hill Seafood Restaurants, Greensboro, North
Carolina; Mr. Dave Bass, Vice President, Compensation and
Associate Wellness, Delhaize America, Concord, North Carolina;
Mr. Ed Tubel, Founder and CEO, Tricor Inc., Charlotte, North
Carolina; Dr. Olson Huff, Pediatrician, Asheville, North
Carolina; and Mr. Bruce Silver, President and CEO, Racing
Electronics, Concord, North Carolina.
Subcommittee Hearing Examining the Regulatory and Enforcement Actions
of the Equal Employment Opportunity Commission
On May 22, 2013, the Workforce Protections Subcommittee
held a hearing entitled ``Examining the Regulatory and
Enforcement Actions of the Equal Employment Opportunity
Commission'' to discuss, among other things, the Equal
Employment Opportunity Commission's (EEOC) proposed and future
guidance on wellness programs. The sole witness at the hearing
was the Honorable Jacqueline A. Berrien, Chair, EEOC,
Washington, D.C.
Subcommittee Hearing Regarding the Employer Mandate: Examining the
Delay and Its Effect on Workplaces
On July 23, 2013, the HELP Subcommittee and the Workforce
Protections Subcommittee jointly held a hearing entitled ``The
Employer Mandate: Examining the Delay and Its Effect on
Workplaces'' to review the costly impact of the
administration's recent decision to delay the employer mandate
and to discuss wellness programs. Witnesses before the
subcommittees were Ms. Grace-Marie Turner, President, Galen
Institute, Alexandria, Virginia; Mr. Jamie T. Richardson, Vice
President, White Castle System, Inc., Columbus, Ohio; Mr. Ron
Pollack, Executive Director, Families USA, Washington, D.C.;
and Dr. Douglas Holtz-Eakin, President, American Action Forum,
Washington, D.C.
Subcommittee Hearing Regarding Health Care Challenges Facing Kentucky's
Workers and Job Creators
On August 27, 2013, the HELP Subcommittee held a field
hearing in Lexington, Kentucky, entitled ``Health Care
Challenges Facing Kentucky's Workers and Job Creators,'' which
included an examination of the harmful impact of the ACA on
Kentucky's employers and their employees and to discuss
wellness programs. Witnesses before the subcommittee were Mr.
Tim Kanaly, Owner and President, Gary Force Honda, Bowling
Green, Kentucky; Mr. Joe Bologna, Owner, Joes Bologna's--
Italian Pizzeria & Restaurant, Lexington, Kentucky; Ms. Carrie
Banahan, Executive Director, Office of the Kentucky Health
Benefit Exchange, Frankfort, Kentucky; Mr. John Humkey,
President, Employee Benefit Associates, Inc., Lexington,
Kentucky; Ms. Janey Moores, President and CEO, BJM &
Associates, Inc., Lexington, Kentucky; Mr. Donnie Meadows, Vice
President of Human Resources, K-VA-T Food Stores, Inc.,
Abingdon, VA; Ms. Debbie Basham, Southwest Breast Cancer
Awareness Group, Louisville, Kentucky; and Mr. John McPhearson,
CEO, Lectrodryer, Richmond, Kentucky.
Subcommittee Hearing on Providing Access to Affordable, Flexible Health
Plans through Self-Insurance
On February 26, 2014, the HELP Subcommittee held a hearing
entitled ``Providing Access to Affordable, Flexible Health
Plans through Self-Insurance,'' during which witnesses
discussed workplace wellness programs. The witnesses were Mr.
Michael Ferguson, President and CEO, Self-Insurance Institute
of America, Simpsonville, South Carolina; Mr. Wes Kelley,
Executive Director, Columbia Power and Water Systems, Columbia,
Tennessee; Ms. Maura Calsyn, Director of Health Policy, Center
for American Progress, Washington, D.C.; and Mr. Robert
Melillo, National Vice President of Risk Financing Solutions,
USI Insurance, Glastonbury, Connecticut.
Subcommittee Hearing Examining the Effects of the President's Health
Care Law on Indiana's Classrooms and Workplaces
On September 4, 2014, the HELP Subcommittee held a field
hearing in Greenfield, Indiana, entitled ``The Effects of the
President's Health Care Law on Indiana's Classrooms and
Workplaces,'' during which witnesses testified about employee
wellness programs. The witnesses were Mr. Mike Shafer, Chief
Financial Officer, Zionsville Community Schools, Zionsville,
Indiana; Mr. Tom Snyder, President, Ivy Tech Community College,
Indianapolis, Indiana; Mr. Danny Tanoos, Superintendent, Vigo
County School Corporation, Terre Haute, Indiana; Mr. Tom
Forkner, President, Anderson Federation of Teachers, AFT Local
519, Anderson, Indiana; Mr. Mark DeFabis, President and Chief
Executive Officer, Integrated Distribution Services,
Plainfield, Indiana; Mr. Nate LaMar, International Regional
Manager, Draper, Inc., Spiceland, Indiana; Mr. Dan Wolfe,
Owner, Wolfe's Auto Auction, Terre Haute, Indiana; and Mr.
Robert Stone, Director of Palliative Care, IU Health
Bloomington Hospital, Bloomington, Indiana.
114TH CONGRESS
Subcommittee Hearing on H.R. 548, Certainty in Enforcement Act of 2015;
H.R. 549, Litigation Oversight Act of 2015; H.R. 550, EEOC
Transparency and Accountability Act; H.R. 1189, Preserving
Employee Wellness Programs Act
On March 24, 2015, the Workforce Protections Subcommittee
held a hearing entitled ``H.R. 548, Certainty in Enforcement
Act of 2015; H.R. 549, Litigation Oversight Act of 2015; H.R.
550, EEOC Transparency and Accountability Act; H.R. 1189,
Preserving Employee Wellness Programs Act,'' during which
witnesses testified regarding their concerns about the EEOC's
litigation challenging wellness programs, as well as the
history of bipartisan support for employee wellness programs.
Witnesses at the hearing were Ms. Gail Heriot, Professor of
Law, University of San Diego School of Law, San Diego,
California; Ms. Tanya Clay House, Director of Public Policy,
Lawyers' Committee for Civil Rights Under Law, Washington,
D.C.; Mr. Paul Kehoe, Senior Counsel, Seyfarth Shaw LLP,
Washington, D.C.; and Ms. Tamara Simon, Managing Director,
Knowledge Resource Center, Buck Consultants, Washington, D.C.
Subcommittee Hearing on Five Years of Broken Promises: How the
President's Health Care Law is Affecting America's Workplaces
On April 14, 2015, the HELP Subcommittee held a hearing
entitled ``Five Years of Broken Promises: How the President's
Health Care Law is Affecting America's Workplaces,'' which
examined the continued negative impact of the ACA on employer-
sponsored health coverage. Witnesses at the hearing were the
former Deputy Secretary of the Department of Health and Human
Services the Honorable Tevi Troy, Ph.D., President, American
Health Policy Institute, Washington, D.C.; Mr. Rutland Paal,
Jr., President, Rutland Beard Floral Group, Scotch Plains, New
Jersey; Michael Brev, President, Brev Corp. t/a Hobby Works,
WingTOTE Manufacturing, LLC, Laurel, Maryland; and Ms. Sally
Roberts, Human Resources Director, Morris Communications
Company, LLC, Augusta, Georgia. During the hearing, Ms. Roberts
testified that ``some employers are implementing incentive-
based wellness programs as cost-containment strategies'' and
noted concern that EEOC may threaten these programs.\4\
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\4\Five Years of Broken Promises: How the President's Health Care
Law is Affecting America's Workplaces: Hearing Before the Subcomm. on
Health, Employment, Labor, and Pensions of the H. Comm. on Educ. and
the Workforce, 114th Cong. 30 (2015) (statement of Sally Roberts, Human
Resources Director, Morris Communications Co., LLC).
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Comment Letter to EEOC Regarding the Proposed Rule on Amendments to
Regulations Under the ADA
On June 19, 2015, Rep. John Kline (R-MN), then-Chairman of
the Committee, along with other House and Senate members,
submitted a comment letter to EEOC in response to the Notice of
Proposed Rulemaking (NPRM) regarding amendments to regulations
under the ADA. In particular, the letter noted EEOC's proposed
interpretation of the ADA and workplace wellness programs was
inconsistent with the bipartisan intent of Congress in the
wellness provisions of the ACA and requested EEOC not create
further confusion for employees and employers.
Comment Letter to EEOC Regarding the Proposed Rule Amending Regulations
Implementing GINA
On January 28, 2016, then-Chairman John Kline, along with
Rep. Tim Walberg (R-MI), then-Chairman of the Workforce
Protections Subcommittee, and Rep. David ``Phil'' Roe (R-TN),
then-Chairman of the HELP Subcommittee, submitted a comment
letter to EEOC in response to the NPRM regarding amendments to
the regulations implementing Title II of GINA, as they relate
to employee wellness programs. In particular, the letter noted
the Committee's concerns with aspects of the proposed rule
being contrary to law and undermining the effectiveness of
employer programs designed to encourage employees to adopt
health behaviors.
115TH CONGRESS
Full Committee Hearing on Rescuing Americans from the Failed Health
Care Law and Advancing Patient-Centered Solutions
On February 1, 2017, the Committee held a hearing entitled
``Rescuing Americans from the Failed Health Care Law and
Advancing Patient-Centered Solutions,'' which examined failures
of the ACA and the need ``to preserve employee wellness plans
that have been under attack in recent years.''\5\ Witnesses
before the Committee were Mr. Scott Bollenbacher, CPA, Managing
Partner, Bollenbacher & Associates, LLC, Portland, Indiana; Mr.
Joe Eddy, President and Chief Executive Officer, Eagle
Manufacturing Company, Wellsburg, West Virginia; Ms. Angela
Schlaack, St. Joseph, Michigan; and Dr. Tevi Troy, Chief
Executive Officer, American Health Policy Institute,
Washington, D.C.
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\5\Rescuing Americans from the Failed Health Care Law and Advancing
Patient-Centered Solutions: Hearing Before the H. Comm. on Educ. and
the Workforce, 115th Cong. (2017) (opening statement of Rep. Foxx,
Chairwoman, H. Comm. on Educ. and the Workforce).
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Full Committee Hearing on Legislative Proposals to Improve Health Care
Coverage and Provide Lower Costs for Families
On March 1, 2017, the Committee held a hearing entitled
``Legislative Proposals to Improve Health Care Coverage and
Provide Lower Costs for Families,'' which examined H.R. 1101,
the Small Business Health Fairness Act; a discussion draft of
the Self-Insurance Protection Act; and a discussion draft of
the Preserving Employee Wellness Programs Act. Witnesses before
the Committee included Mr. Jon B. Hurst, President, Retailers
Association of Massachusetts, Boston, Massachusetts; Ms.
Allison R. Klausner, JD, Principal, Government Relations
Leader, Conduent, Secaucus, New Jersey; Ms. Lydia Mitts,
Associate Director of Affordability Initiatives, Families USA,
Washington, D.C.; and Mr. Jay Ritchie, Executive Vice
President, Tokio Marine HHC, Kennesaw, Georgia.
Introduction of H.R. 1313, Preserving Employee Wellness Programs Act
On March 2, 2017, Committee Chairwoman Virginia Foxx (R-NC)
introduced the Preserving Employee Wellness Programs Act (H.R.
1313), along with HELP Subcommittee Chairman Tim Walberg.\6\
Chairwoman Foxx introduced the bill to bring uniformity to the
regulation of employee wellness programs by clarifying that if
a program complies with the wellness provisions of the ACA and
the regulations related to those provisions, such program will
be considered to be in compliance with the ADA and GINA.
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\6\H.R. 1313, 115th Cong. (2017).
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Committee Passes H.R. 1313, Preserving Employee Wellness Programs Act
On March 8, 2017, the Committee considered H.R. 1313, the
Preserving Employee Wellness Programs Act.\7\ Rep. Bradley
Byrne (R-AL) offered an amendment in the nature of a substitute
making technical changes to the introduced bill. The Committee
voted to adopt the amendment in the nature of a substitute by
voice vote. Five additional amendments were offered but not
adopted. Rep. Adriano Espaillat (D-NY) offered an amendment,
which failed by a vote of 17 to 22, relating to information
obtained in a wellness program. Rep. Joe Courtney (D-CT)
offered an amendment, which failed by a vote of 17 to 22,
relating to the sale of information obtained in a wellness
program. Rep. Jared Polis (D-CO) offered an amendment, which
failed by a vote of 17 to 22, relating to permission for the
sale of information obtained from a wellness program. Rep.
Polis offered a second amendment relating to the bill's
treatment of family members under a wellness program, which
failed by a vote of 17 to 22. Additionally, Ranking Member
Robert C. ``Bobby'' Scott (D-VA) offered an amendment, which
failed by a vote of 17 to 22, relating to the ADA safe harbor.
The Committee favorably reported H.R. 1313, as amended, to the
U.S. House of Representatives by a vote of 22 to 17.
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\7\H.R. 1313, Preserving Employee Wellness Programs Act: Markup
Before the H. Comm. on Educ. and the Workforce, 115th Cong. (Mar. 8,
2017).
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Summary of H.R. 1313
Currently, wellness programs are subject to three different
sets of statutory and regulatory provisions: the Health
Insurance Portability and Accountability Act of 1996 (HIPAA),
the ADA, and GINA. Chairwoman Foxx introduced H.R. 1313 to
create consistency among the laws that govern wellness programs
by providing a uniform set of rules under which wellness
programs can be considered compliant. Regulatory clarity is
needed due to a number of enforcement actions and regulatory
steps taken in recent years by EEOC. EEOC's actions
contradicted HIPAA, as amended by the ACA, and the rules
promulgated by the Obama administration implementing the ACA.
As a result, employers and employees who want to participate in
these programs are caught in a regulatory trap. By reaffirming
the policies outlined in the ACA with respect to wellness
programs, H.R. 1313 will provide private-sector employers the
legal certainty they need to continue offering these voluntary
programs.
Specifically, the bill provides that if a workplace
wellness program offered in conjunction with an employer-
sponsored group health plan complies with the provisions
relating to wellness programs in HIPAA, then it shall be
considered to comply with the applicable provisions relating to
wellness programs in the ADA and GINA. For programs not offered
in conjunction with a group health plan, the bill provides that
any incentives offered must not be more than the maximum
allowed under the ACA and the ACA's regulations. The bill also
permits a wellness program to provide more favorable treatment
of individuals with adverse health factors.
At its core, H.R. 1313 is about allowing workers to
participate voluntarily in programs that lower their health
care costs and contribute to improving their health and the
health of their families.
Committee Views
Legal Background
For decades, employers have developed and implemented
wellness programs to improve the health of employees and their
families, increase productivity, and reduce overall health care
costs. Wellness programs typically focus on health promotion
and disease prevention and can be offered directly by the
employer or their insurance company. To encourage participation
in a wellness program, an employer or insurance company may
offer incentives, such as insurance premium discounts, cash
rewards, or free health club memberships.
HIPAA generally prohibits group health plans and insurers
from discriminating against individuals' eligibility, benefits,
or premiums based on a health factor.\8\ However, the law
exempts from this prohibition premium discounts or rebates in
return for adherence to a wellness program.\9\ The ACA included
provisions that expanded incentives for health-contingent
wellness program participation. These wellness provisions were
among the few in the law that received bipartisan support. New
rules implementing these provisions then increased the maximum
reward from 20 percent to 30 percent of premiums for employee
participants in health-contingent wellness programs, and up to
50 percent for smoking cessation programs.\10\ Under the ACA
regulations, participatory programs are compliant with the
nondiscrimination provisions as long as participation is
available to all similarly situated individuals, regardless of
health status.
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\8\42 U.S.C. Sec. 300gg-4 (2010).
\9\42 U.S.C. Sec. 300gg-4(j)(3)(A) (2010). Wellness programs that
are operated separately from a group health plan are not subject to
HIPAA nondiscrimination regulations, but may be subject to other
federal or state nondiscrimination laws.
\10\Incentives for Nondiscriminatory Wellness Programs in Group
Health Plans, 78 Fed. Reg. 106 (June 3, 2013).
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Generally, the ADA prohibits mandatory medical examinations
and inquiries, and GINA prohibits the collection of certain
medical information from an employee or the employee's family
member.\11\ However, the ADA and GINA provide exceptions for
wellness programs offered to employees.\12\
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\11\ADA Sec. 102(d)(4)(A), 42 U.S.C. Sec. 12112(d)(4)(A); GINA
Sec. 202(b)(2), 42 U.S.C. Sec. 2000ff-1(b)(2).
\12\42 U.S.C. Sec. 12112(d)(4)(B); 42 U.S.C. Sec. 2000ff-
1(b)(2)(A).
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ACA-compliant wellness programs have come under legal
attack from EEOC. On October 27, 2014, EEOC filed a petition in
federal district court seeking a preliminary injunction to stop
Honeywell International, Inc. from implementing its employee
wellness program, claiming the wellness program's incentives to
participate made it involuntary and therefore in violation of
the ADA and GINA.\13\ On November 3, 2014, the district court
denied the petition, citing uncertainty as to how the ADA,
GINA, and the ACA are intended to interact. The case was later
voluntarily dismissed. Since then, EEOC has unsuccessfully
challenged wellness programs in other cases.\14\
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\13\EEOC v. Honeywell Int'l, Inc., No.14-4517, 2014 WL 5795481 (D.
Minn. Nov. 6, 2014).
\14\See EEOC v. Flambeau, Inc., 131 F.Supp.3d 849 (W.D. Wis. 2015)
(employer's wellness program did not violate the ADA because the
program fell within the ADA's safe harbor for bona fide benefit plans),
aff'd on other grounds, EEOC v. Flambeau, Inc., 846 F.3d 941 (7th Cir.
2017) (not reaching the merits of the ADA claim); EEOC v. Orion Energy
Systems, Inc., No. 14-CV-1019, 2016 WL 5107019 (E.D. Wis. Sept. 19,
2016) (wellness program was voluntary under the ADA where employee who
refused to complete health risk assessment (HRA) had to pay full health
insurance premium while employees who completed the HRA did not have to
pay any premium).
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After its unsuccessful efforts in EEOC v. Honeywell
International, Inc., EEOC issued proposed regulations in April
and October 2015 on the interaction between the ADA, GINA, and
the ACA with regard to wellness programs. The Committee urged
EEOC to make significant changes to the proposed rules.\15\ The
Committee explained that aspects of the proposed rules were
contrary to law and would undermine the effectiveness of
programs designed to encourage healthy behaviors through
wellness programs.
---------------------------------------------------------------------------
\15\See Letter from John Kline, Chairman, House Comm. on Educ. and
the Workforce, et al. to Bernadette Wilson, Acting Exec. Officer, U.S.
Equal Emp't Opportunity Comm'n (Jun. 19, 2015) (on file with author);
Letter from John Kline, Chairman, House Comm. on Educ. and the
Workforce, et al. to Bernadette Wilson, Acting Exec. Officer, U.S.
Equal Emp't Opportunity Comm'n (Jan. 28, 2016) (on file with author).
---------------------------------------------------------------------------
In May 2016, EEOC published final rules on wellness
programs under the ADA and GINA.\16\ While the regulations
permit employers to offer financial rewards to employees
adhering to a wellness program, the EEOC rules are inconsistent
with the ACA and its regulations.
---------------------------------------------------------------------------
\16\Regulations Under the Americans With Disabilities Act; Final
Rule, 81 Fed. Reg. 31126 (May 17, 2016); Genetic Information
Nondiscrimination Act; Final Rule, 81 Fed. Reg. 31143 (May 17, 2016).
---------------------------------------------------------------------------
Wellness Programs Benefit Workers and Their Employers
Across the country, workers and families are enjoying
increasing access to voluntary employee wellness plans.
According to a Kaiser Family Foundation survey, 81 percent of
large businesses and 49 percent of smaller businesses offer a
wellness program.\17\ Another survey indicated 61 percent of
employers offered wellness programs, while 92 percent offered
at least one kind of wellness benefit.\18\ Ms. Allison
Klausner, Principal with Conduent Human Resources, stated the
following in her testimony at a Committee hearing on March 1,
2017:
---------------------------------------------------------------------------
\17\Karen Pollitz & Matthew Rae, Workplace Wellness Programs
Characteristics and Requirements, The Henry J. Kaiser Family Found.
(2016), http://kff.org/private-insurance/issue-brief/workplace-
wellness-programs-characteristics-and-requirements/.
\18\Tanya Mulvey, 2016 Employee Benefits: Looking Back at 20 Years
of Employee Benefits Offerings in the U.S., Soc'y for Human Res. Mgmt.,
51 (2016), https://www.shrm.org/hr-today/trends-and-forecasting/
research-and-surveys/pages/2016-employee-benefits.aspx.
The prospect of a healthier workforce has compelled a
growing number of companies to develop and implement
wellness strategies. . . . The remarkable take-up of
these programs by employers and employees, combined
with the capacity and incentives for growth, make
wellness an area of tremendous promise for the future
of health care and employer-sponsored benefits.\19\
---------------------------------------------------------------------------
\19\Legislative Proposals to Improve Health Care Coverage and
Provide Lower Costs for Families: Hearing Before the H. Comm. on Educ.
and the Workforce, 115th Cong. (2017) (written statement of Allison
Klausner, Principal, Government Relations Leader, Conduent Human
Resource Services).
These programs have the potential to contribute to several
positive outcomes, such as improving the health of employees,
lowering overall health care costs, increasing productivity,
improving workforce morale, and reducing absenteeism. Ms.
Tamara M. Simon, Managing Director with Buck Consultants,
elaborated on wellness program objectives in her testimony
before the Workforce Protections Subcommittee on March 24,
---------------------------------------------------------------------------
2015, stating:
While improving worker productivity and reducing
presenteeism (the practice of attending work while
sick) is cited as the most important wellness program
objective on a global basis (with 82 percent of
respondents calling it very important or extremely
important), these programs hold the promise of more
direct economic benefits under the principle that
successful preventive actions, better-managed chronic
conditions and fewer episodes of care will result in
reduced health service utilization and fewer
claims.\20\
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\20\H.R. 548, ``Certainty in Enforcement Act of 2015'', H.R. 549,
``Litigation Oversight Act of 2015'', H.R. 550, ``EEOC Transparency and
Accountability Act'', and H.R. 1189, ``Preserving Wellness Programs
Act': Hearing Before the Subcomm. on Workforce Prot's. of the H. Comm.
on Educ. and the Workforce, 114th Cong. 36 (2015) (written testimony of
Tamara Simon, Managing Director, Knowledge Resource Center, Buck
Consultants) (quotation marks omitted).
Additionally, Ms. Klausner pointed in her testimony to evidence
---------------------------------------------------------------------------
of the positive results of wellness programs, saying:
A RAND Employer Survey examining wellness program
outcomes, sponsored by the U.S. Department of Labor,
found that while it is not clear at this point whether
improved health-related behavior will translate into
lower health care cost, there is reason to be
optimistic. Fully 60 percent of respondents indicated
that their wellness program reduced health care cost,
with reductions in inpatient costs accounting for 62
percent of the total cost reduction, compared to
outpatient costs (28 percent) and prescription drug
costs.
The available evidence also supports the aspirational
goals of wellness programs--like improving
productivity, morale and safety. Data from the RAND
survey shows 78 percent of responding employers stated
that their wellness program has decreased absenteeism
and 80 percent stated that it has increased
productivity. Likewise, 32 percent of respondents to a
2014 Mercer Survey said specifically that health risks
of the population served by their wellness programs
were improving.
These results support published research findings
that workplace wellness programs can improve health
status, as measured with physiological markers (such as
body mass index, cholesterol levels and blood
pressure).\21\
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\21\Klausner, supra note 19.
Offering a reward can be an important part of encouraging
participation in wellness programs. According to Ms. Klausner,
90 percent of employers with wellness programs responding to a
Conduent survey reported using incentives.\22\ Common
activities tied to incentives include the ``participation in
tobacco cessation programs or workplace health challenges'
(such as walking).'' Studies have shown an increased
participation rate from ``40 percent without an incentive to
more than 70 percent with a $200 incentive and to 90 percent
when incentives are built into health-plan premiums or
deductibles.''\23\
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\22\Id.
\23\Id.
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EEOC Regulations are Inconsistent with Regulations Under the ACA
Congress has long approved policies that help promote the
use of voluntary employee wellness programs, most recently
through the ACA.\24\ However, recent actions by EEOC have
undermined Congress's preferred policy. EEOC's litigation
challenging employee wellness programs thought to be compliant
with the ACA has caused uncertainty for employers.\25\ The many
differences between the wellness regulations under HIPAA and
EEOC's regulations have also created complexity. These
conditions inhibit the development and expansion of wellness
programs, which is contrary to Congress's intent to promote
these programs.
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\24\See 42 U.S.C. 300gg-4(j) (``Programs of health promotion or
disease prevention'').
\25\See EEOC v. Honeywell Int'l, Inc., No.14-4517, 2014 WL 5795481
(D. Minn. Nov. 6, 2014).
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Ms. Klausner expressed the following concerns regarding the
uncertain regulatory environment:
[T]he future of workplace wellness programs remains
at risk. Despite explicit Congressional support of
wellness programs in recent years . . ., employers
continue to face complex and inconsistent regulations
for the design and administration of these programs, .
. . Unfortunately, the EEOC's recently finalized rules
. . . are not consistent with the well-established and
employee-protective regulatory framework under HIPAA.
The result is that many wellness programs already
subject to regulation under HIPAA may now also be
subject to incongruent and competing regulations under
Title II of GINA and the ADA.\26\
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\26\Klausner, supra note 19.
Ms. Klausner gave in her testimony specific examples of
inconsistencies between the HIPAA regulation and EEOC's
regulations. To clarify what constitutes voluntary
participation in a wellness program, EEOC's ADA regulation
permits a maximum reward of 30 percent of the cost of self-only
coverage. This is contrary to HIPAA, which permits a maximum
reward of 30 percent of the total cost of the employee's and
dependent's coverage where a dependent participates in the
wellness program. Additionally, EEOC's GINA regulation has an
entirely different method for calculating the maximum reward.
The permissible reward under the GINA regulation is twice the
cost of 30 percent of self-only coverage if the inducement
applies to both the employee and his or her spouse.\27\ Ms.
Klausner also noted that although HIPAA already requires notice
be provided to employees, the ``final EEOC regulations require
the use of a much more prescriptive and lengthy notice.''\28\
---------------------------------------------------------------------------
\27\Genetic Information Nondiscrimination Act, 81 Fed. Reg. at
31146.
\28\Klausner, supra note 19.
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Another area of concern relates to disease management as
part of a voluntary wellness program. HIPAA permits disease
management programs; however, it is unclear how they will be
treated under EEOC's ADA regulation. Ms. Klausner described how
disease management works and the need to clarify its status
under the ADA regulation, stating:
Under these programs, individuals with a health
factor may be provided financial incentives to engage
with the wellness program--but at all times they must
be treated better than similarly situated employees who
lack the health factor. Many employers sponsor disease
management programs under this rubric, such as healthy
mother/health baby programs, or diabetes management
programs. One example is that a plan may charge a copay
for the purchase of insulin, but may waive the copay
for their enrollees with diabetes given the clinical
evidence supporting the importance of properly managing
blood sugar levels.
While these programs are excepted from HIPAA's
prescriptive regime--which is appropriate given the
favorable treatment under these programs of persons
with an adverse health status--the 2016 ADA regulations
could subject these types of disease management
programs to the regulations' requirements, which would
likely cause many employers to reconsider offering
these very valuable and helpful programs.\29\
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\29\Id.
With respect to smoking cessation programs, the HIPAA
regulations and the ADA regulation are inconsistent. The HIPAA
regulations permit a maximum incentive of 50 percent of the
employee's cost of health care coverage for enrolling in these
programs. However, the ADA regulation only allows a maximum
incentive of 50 percent if the program merely asks the employee
whether he or she uses tobacco. If an additional health
screening tests for tobacco use, then the maximum incentive is
30 percent.\30\
---------------------------------------------------------------------------
\30\Regulations Under the Americans with Disabilities Act, 81 Fed.
Reg. at 31136.
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The result of the inconsistencies between the HIPAA, ADA,
and GINA regulations is that employers are discouraged from
offering employee wellness programs, which is contrary to
bipartisan congressional intent to promote these programs. Ms.
Klausner explained the effects of the regulatory inconsistency,
saying:
Notwithstanding the important role of wellness
programs in promoting the health and productivity of
employees and their families, the inconsistent federal
regulatory framework under HIPAA, GINA, and the ADA has
caused many employers to take a step back or pause in
their implementation of innovative wellness programs.
This is because the new rules under GINA and the ADA
added complexity and inconsistency and have made it
significantly more difficult for employers to structure
programs that comply with all applicable federal
regulatory regimes.\31\
---------------------------------------------------------------------------
\31\Klausner, supra note 19.
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Worker Protections
The Committee is concerned with protecting the privacy and
confidentiality of employee information, including health and
genetic information, and protecting employees from
discrimination. Specifically, workers are protected in the
following ways:
The HIPAA Privacy Rule\32\ protects against
the unauthorized disclosure or transfer of private
health information by health plans. Under H.R. 1313,
health plans, including wellness programs, will still
be subject to the HIPAA Privacy Rule. In addition,
wellness programs will still be subject to ADA and GINA
confidentiality provisions.\33\
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\32\45 C.F.R. Parts 160, 164(A), (E).
\33\See 42 U.S.C. Sec. 12112(4)(C); 42 U.S.C. Sec. 2000ff-5.
---------------------------------------------------------------------------
HIPAA's provisions prohibiting
discrimination against individuals on the basis of
health status will continue to apply to health plans,
including wellness plans. Moreover, under the ADA and
GINA, employers cannot discriminate against employees
or job applicants on the basis of disability or genetic
information.
Under the bill, employers cannot force
employees to submit to genetic testing. Wellness
programs have always been completely voluntary. They
were voluntary under the ACA, as well as under
regulations issued by the Obama administration. They
remain voluntary under H.R. 1313.
GINA prohibits employment discrimination on
the basis of genetic information, including information
acquired through a wellness program. This prohibition
will remain under H.R. 1313.
Under the bill, employers cannot charge
smokers more for health insurance than non-smokers. As
is already the case under current law, employees have a
choice of whether to enroll in a smoking cessation
program to receive a reduction in their health
insurance premiums. If they choose not to enroll, they
are not paying any more for health care premiums than
non-smokers who choose not to enroll.
Conclusion
For many years, voluntary employee wellness programs have
helped to lower health care costs and improve the quality of
life of employees and their families. Today tens of millions of
Americans have access to an employee wellness plan, a testament
to the broad support and popularity of these voluntary
programs. H.R. 1313 will bring uniformity to the regulation of
wellness programs under HIPAA, the ADA, and GINA. The bill will
provide the regulatory clarity and certainty employers need as
they develop and implement these programs. Under the bill,
worker protections will remain in place to ensure these
programs are voluntary and do not discriminate, and health
information remains confidential.
Section-by-Section
The following is a section-by-section analysis of the
Amendment in the Nature of a Substitute offered by Rep. Byrne
and reported favorably by the Committee.
Section 1. Short title
Section 1 provides the short title is the ``Preserving
Employee Wellness Programs Act.''
Section 2. Findings
Section 2 describes the findings of H.R. 1313 regarding
Congress's tradition of protecting and preserving employee
wellness programs; wellness programs as a means to improve
health and lower health care costs; the ACA's provisions
allowing financial incentives; and the balance Congress has
struck to protect individual privacy and confidentiality.
Section 3. Nondiscriminatory workplace wellness programs
Section 3(a)(1) provides that a wellness program offered in
conjunction with an employer-sponsored health plan, if the
program complies with the non-discrimination provisions in
HIPPA relating to wellness programs, shall be considered to be
in compliance with certain provisions relating to the voluntary
collection of health information in the ADA and GINA; provides
that the ADA provision relating to bona fide benefit plans
applies to workplace wellness programs.
Section 3(a)(2) provides that programs offering more
favorable treatment for adverse health factors, as described in
the Code of Federal Regulations, shall be considered to be in
compliance with certain provisions relating to the voluntary
collection of health information in the ADA and GINA.
Section 3(a)(3) provides that programs not offered in
conjunction with an employer-sponsored health plan, if the
program complies with the maximum reward amounts for wellness
programs as set forth in HIPAA, shall be considered to be in
compliance with certain provisions relating to the voluntary
collection of health information in the ADA and GINA.
Section 3(b) provides that the collection of information in
a voluntary wellness program about the manifested disease or
disorder of a family member shall not be considered an unlawful
acquisition of genetic information in violation of GINA. This
provision is not intended to indicate GINA's other rules are
otherwise inapplicable to wellness programs with respect to an
employee's spouse or child.
Section 3(c) provides that an employer offering a wellness
program may require an employee, within 45 days from the date
the employee first has the opportunity to earn a reward, to
request a reasonable alternative standard or waiver of the
standard. An employer may also impose a reasonable time period,
based on all the facts and circumstances, during which the
employee must complete the reasonable alternative standard.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the body of this report.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. H.R. 1313 will create consistency among the laws that
govern wellness programs by providing a uniform set of rules
under which wellness programs can be considered compliant.
Unfunded Mandate Statement
With respect to the requirements of Section 423 of the
Congressional Budget and Impoundment Control Act (as amended by
Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L.
104-4), the Committee has requested but not received from the
Director of the Congressional Budget Office a statement as to
whether the provisions of the reported bill include unfunded
mandates.
Earmark Statement
H.R. 1313 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of House Rule XXI.
Roll Call Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
Statement of General Performance Goals and Objectives
In accordance with clause (3)(c) of House Rule XIII, the
goal of H.R. 1313 is to create consistency among the laws that
govern wellness programs by providing a uniform set of rules
under which wellness programs can be considered compliant.
Duplication of Federal Programs
No provision of H.R. 1313 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The committee estimates that enacting H.R. 1313 does not
specifically direct the completion of any specific rule makings
within the meaning of 5 U.S.C. 551.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
New Budget Authority and CBO Cost Estimate Committee Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following estimate for H.R. 1313 from the Director of the
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 26, 2017.
Hon. Virginia Foxx,
Chairwoman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Madam Chairwoman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1313, the
Preserving Employee Wellness Programs Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Emily King.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 1313--Preserving Employee Wellness Programs Act
H.R. 1313 would exempt workplace wellness programs from
some provisions of the Americans with Disabilities Act (ADA)
and the Genetic Information Nondiscrimination Act (GINA). If
enacted, wellness programs that meet certain requirements in
the Public Health Service Act (PHSA) would be exempt from some
non-discrimination and privacy requirements under the ADA and
GINA. The bill also would allow employers to collect health
information from an employee's spouse or children as a part of
a wellness program, which is currently only permissible if
certain privacy conditions are met.
If H.R. 1313 were enacted, the Equal Employment Opportunity
Commission (EEOC) would likely need to revise existing
regulations on wellness programs. Based on information from the
EEOC, CBO estimates that promulgating those regulations would
cost less than $1 million over the 2018-2022 period; any
spending would be subject to the availability of appropriated
funds.
The bill would not directly affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 1313 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1313 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Emily King. The
estimate was approved by Holly Harvey, Deputy Assistant
Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
The requirements of clause 3(e) of rule XIII of the Rules
of the House of Representatives do not apply to H.R. 1313.
MINORITY VIEWS
Introduction
Committee Democrats strongly oppose H.R. 1313, the
Preserving Employee Wellness Programs Act. The legislation
would allow for unnecessary circumvention of important civil
rights laws and threaten the privacy of workers. The
legislation would, in many instances, give employers access to
sensitive information that they may not even need or want.
Committee Democrats were also troubled by the Majority's
insistence on moving three health-related bills while two other
Committees (Energy and Commerce and Ways and Means)
simultaneously considered legislation to gut the Affordable
Care Act (ACA).
Before the Affordable Care Act Workers Had Few Options
Before the ACA, employer-provided coverage was shrinking
and costs were increasing dramatically. From 1999 to 2010, the
cost of premiums for employer-provided health insurance
increased by 138%.\1\ Additionally, workers often had limited
options for affordable health insurance. Those who were
employed were often locked in to their employment for fear of
losing their health insurance, even if they wanted to retire,
work part-time, or start a new business, due to inadequate
coverage options outside the employer-sponsored system. Workers
with pre-existing conditions were particularly disadvantaged,
since they could be charged higher rates or denied coverage
altogether in the individual market.
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\1\Kaiser Family Foundation, Snapshots: Employer Health Insurance
Costs and Worker Compensation, (February 27, 2011) available at: http:/
/kff.org/health-costs/issue-brief/snapshots-employer-health-insurance-
costs-and-worker-compensation/.
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Further, before the ACA, many families struggled to manage
chronic health conditions that required regular or expensive
treatment. All too often, families would ``cap out''--hitting
an annual or lifetime limitation on benefits. After the cap,
working people commonly ran out of health care benefits and
were left to pay for the services they desperately needed. This
led to financial instability for many families, who were forced
to make tough choices, such as whether to pay for health care
or pay rent.
Progress of the ACA Improves the Health and Wellness of Families
The Affordable Care Act both improved access to health
coverage and also improved benefits for millions of working
families. One of the most important elements of the ACA is its
robust focus on prevention. The ACA expanded access to free
preventive services with no cost-sharing for 137 million
Americans, including 55 million women and 28 million
children.\2\ Simply, this means that if families go to the
doctor for a preventive service, such as annual physicals or
blood pressure screenings, that preventive care is free. This
benefit extends to all private plans, including those with job-
based coverage. Since the cost of care can dissuade many
Americans from getting care, free preventive care encourages
families to seek out the care they need. Now, the share of
adults who report forgoing a needed visit to the doctor because
of the cost has dropped significantly across the country and
more people are taking advantage of routine checkups.\3\
Further, increasing access to preventive care decreases the
likelihood of disability, and individuals who are healthier
enjoy increased productivity on the job, generating higher
incomes for themselves and their families.\4\
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\2\Department of Health and Human Services, About 137 Million
Individuals with Private Insurance are Guaranteed Access to Free
Preventive Services, (May 14, 2015) available at: http://www.hhs.gov/
about/news/2015/05/14/about-137-million-individuals-with-private-
insurance-are-guaranteed-access-to-free-preventive-services.html.
\3\The Commonwealth Fund, A Long Way in a Short Time: States'
Progress on Health Care Coverage and Access, 2013-2015, (December 2015)
available at: http://www. commonwealthfund.org//media/files/
publications/issue-brief/2016/dec/
1922_hayes_long_way_state_coverage_access_ib.pdf.
\4\The National Center for Chronic Disease Prevention, The Power of
Prevention, (2009) available at: https://www.cdc.gov/chronicdisease/
pdf/2009-Power-of-Prevention.pdf.
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The ACA also establishes several safeguards for workers and
families so that an illness in the past or present does not
threaten health coverage in the future. We know that uninsured
people generally receive much less care, both preventive or
care for acute and chronic conditions, than insured people.\5\
Early estimates after the ACA's passage showed that there were
around 129 million Americans with a pre-existing condition, 82
million of whom were enrolled in employer-based coverage.\6\
For these millions of American workers, the ACA now means that
losing a job does not mean losing health insurance coverage. By
prohibiting discrimination based on pre-existing conditions and
creating affordable health coverage options through the
Marketplace, families know they have options to obtain the
coverage they need.
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\5\Mathematica Policy Research, Inc., How Does Insurance Coverage
Improve Health Outcomes? (April 2010), available at: https://
www.mathematica-mpr.com/-/media/publications/.../
reformhealthcare_ibl.pdf.
\6\Department of Health and Human Services, At Risk: Pre-Existing
Conditions Could Affect 1 in 2 Americans: 129 Million People Could be
Denied Affordable Coverage Without Health Reform, (November 1, 2011)
available at: https://aspe.hhs.gov/sites/default/files/pdf/76376/
index.pdf.
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Under the ACA's elimination of lifetime and annual benefit
caps, working people--including those with job-based
insurance--are protected from these coverage limits. Workers
are now safeguarded from incurring unreasonable out-of-pocket
expenses, which can be financially crippling for many families,
especially those struggling to make ends meet while recovering
from a major health issue. These benefits are working together
to improve the health and wellness of American families.
The Republican Replacement Plan Threatens the Health of American
Families
Two days prior to the Committee's consideration of the
three bills, Republicans released their ACA replacement plan,
the American Health Care Act. The Ways and Means and Energy and
Commerce Committees moved the bill forward through the
Committee process, despite the fact that the Congressional
Budget Office had not yet released estimates on the
legislation's impact on coverage or cost. Committee Democrats
expressed their concern about the lack of transparency in
moving the bill forward and also further expressed concern that
the markup in the Education and the Workforce Committee
occurred simultaneous to this process--essentially forcing the
Committee to consider legislation that represents a moving
target.
The American Health Care Act is an inadequate and
unacceptable replacement plan that runs contrary to the goal of
promoting wellness. The legislation eliminates the ACA premium
tax credits that millions of Americans depend on to pay for
health coverage, in favor of a completely inadequate flat tax
credit that leaves working families totally exposed to premium
increases. The tax credits provided by the Affordable Care Act
are based on income and are also tied to the cost of insurance
premiums. In general, the lower an individual's income, the
larger the tax credit and the more expensive the premium, the
larger the credit. Therefore, the tax credit adapts to address
the situation of the individual. However, under the
Republican's plan, the credits range from $2,000 to $4,000
depending on age, but do not take into account income or the
cost of a typical plan in the area.
In addition, the bill dismantles Medicaid as we know it,
endangering the health of 70 million Americans who rely on
Medicaid, including seniors with long-term care needs,
Americans with disabilities, pregnant women, and vulnerable
children. Further, under the Republican bill, American workers
could see their premiums and deductibles skyrocket. The
American public will have fewer protections--including losing
the full protection of the ACA's prohibition against insurers
discriminating against people with pre-existing conditions
under all circumstances. While Republicans increase health
costs for many working families, they give tax breaks to the
wealthy.
Older Americans will be forced to pay premiums five times
higher than what others pay for health coverage, undoing the
current limitation that stipulates that older individuals can
only be charged three times more than younger enrollees are
charged. The Republican bill also shortens the life of the
Medicare Trust Fund.\7\ Additionally, the bill includes a
provision to defund Planned Parenthood for a year, threatening
the health care of millions of women and men throughout the
country.
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\7\Center on Budget and Policy Priorities, House Republican Health
Plan Would Weaken Medicare, (March 14, 2017) available at: http://
www.cbpp.org/blog/house-republican-health-plan-would-weaken-medicare.
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The Congressional Budget Office's analysis of the
proposal--released after Committee consideration--verified that
24 million more would be uninsured by 2026 under the Republican
health care plan.\8\ The report also showed that seven million
fewer individuals would be enrolled in employer-sponsored
insurance.\9\ Further, the report demonstrated that millions
would be worse off under the Republican plan and that millions
more will end up paying more for less coverage.
---------------------------------------------------------------------------
\8\Congressional Budget Office, Cost Estimate of the American
Health Care Act, (March 13, 2017) available at: https://www.cbo.gov/
sites/default/files/115th-congress-2017-2018/costestimate/
americanhealthcareact_O.pdf.
\9\Id.
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For these abovementioned reasons, hospitals, providers,
consumer groups and advocacy groups are opposing Republicans'
attempts to cause irreparable harm to the health and financial
security of Americans. AARP stated that, ``. . . [the] bill
would weaken Medicare's fiscal sustainability, dramatically
increase health care costs for Americans aged 50-64, and put at
risk the health care of millions of children and adults with
disabilities, and poor seniors who depend on the Medicaid
program for long-term services and supports and other
benefits.''\10\ The AFL-CIO maintained that, ``The reality is,
this isn't a healthcare plan at all. It's a massive transfer of
wealth from working people to Wall Street.''\11\ The Consortium
for Citizens with Disabilities stated that, ``[it is] simply
unconscionable to pay for the repeal of the Affordable Care Act
(ACA) by cutting services for low income individuals with
disabilities, adults, older adults, and children.''\12\ Due to
its glaring shortcomings, the American Hospital Association has
stated that it, ``. . . cannot support The American Health Care
Act in its current form.''\13\
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\10\AARP, Letter to Chairmen and Ranking Members of the Energy and
Commerce and Ways and Means Committees, (March 7, 2017) available at:
http://www.aarp.org/content/dam/aarp/politics/advocacy/2017/03/aarp-
letter-to-congress-on-american-healthcare-act-march-07-2017.pdf.
\11\AFL-CIO, Press release: GOP Healthcare Plan Taxes Workers and
Destroys Care, (March 7, 2017) available at: http://www.aflcio.org/
Press-Room/Press-Releases/GOP-Healthcare-Plan-Taxes-Workers-and-
Destroys-Care.
\12\Consortium for Citizens with Disabilities, Statement: CCD
Responds To American Health Care Act, (March 8, 2017) available at:
http://www.c-c-d.org/fichiers/House-statement-3-8-final.pdf.
\13\American Hospital Association, Letter to Congress, (March 7,
2017) available at: http://www.aha.org/advocacy-issues/letter/2017/
170307-let-aha-house-ahca.pdf.
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H.R. 1313 Allows Wellness Programs to Circumvent Civil Rights in Order
To Shift Health Care Costs to Workers
The term ``wellness program'' is used to describe a broad
spectrum of health programs that are ostensibly designed to
incentivize employees to improve their health and lower the
employer's cost of their sponsored health care plan. At the
same time, the Americans with Disabilities (ADA) and Genetic
Information Nondiscrimination Act (GINA) protect workers from
discrimination and being forced to divulge sensitive
information regarding their disabilities or their families'
genetic information. The ADA prohibits discrimination on the
basis of disability in employment, including requesting or
requiring medical information from employees without
justification. The law only allows employers to request or
require medical information from employees if the request is
job-related and consistent with business necessity or is made
as part of a voluntary medical examination that is part of an
employee health program available to employees at a work site.
In enforcement guidance issued in July of 2000, the Equal
Employment Opportunity Commission (EEOC) stated that an
employee health program is voluntary if it neither requires
participation nor penalizes employees who do not
participate.\14\
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\14\EEOC Enforcement Guidance, Disability-Related Inquiries and
medical Examination of Employees Under the Americans With Disabilities
Act (ADA), (July 27, 2000) available at: https://www.eeoc.gov/policy/
docs/guidance-inquiries.html.
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GINA similarly prohibits employers from requesting,
requiring, or purchasing the genetic information of employees
except in certain narrow circumstances. It also broadly
prohibits group health plans from varying premiums or
underwriting on the basis of genetic information. One of the
narrow circumstances in which an employer is allowed to ask for
genetic information is when the information is requested as
part of a voluntary wellness program that offers health or
genetic services. In regulations implementing GINA in 2010, the
EEOC reiterated its 2000 interpretation that an employee health
(or wellness) program is voluntary if it neither requires
participation nor penalizes persons who choose not to
participate.\15\ The regulations further provide that employers
can never condition an incentive on the provision of genetic
information as that would violate the law's prohibition on
underwriting or varying premiums on the basis of genetic
information.
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\15\EEOC Final Rule, Regulations Under the Genetic Information
Nondiscrimination Act of 2008, (November 9, 2010) available at: https:/
/www.federalregister.gov/documents/2010/11/09/2010-28011/regulations-
under-the-genetic-information-nondiscrimination-act-of-2008.
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Many wellness programs require the disclosure of some
medical information by the participant, but it is difficult to
argue that the participants are providing this information
voluntarily, as required by the ADA and GINA, when refusing to
disclose it could result in thousands of dollars of penalties.
After receiving numerous comments, the EEOC issued final
rules in May 2016 regarding the ADA and GINA. The final
wellness rules permit employers to use incentives that do not
exceed 30% of the cost of employee-only coverage. The rule does
not otherwise require employees to participate in the program
(e.g., through intimidation, harassment, or retaliation).
Regarding the GINA wellness rule, the EEOC stated that an
employer can offer incentives to spouses in exchange for
current health information without violating GINA's general
prohibition on offering incentives for genetic information.\16\
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\16\EEOC Final Rule, Genetic Information Nondiscrimination Act,
(May 17, 2016) available at: https://www.federalregister.gov/documents/
2016/05/17/2016-11557/genetic-information-nondiscrimination-act.
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There has been bipartisan criticism of the EEOC's rules.
Democrats, as well as disability and consumer protection
groups, including AARP, which filed a lawsuit against the
rules, objected to the erosion of important civil rights and
privacy protections and the allowance for programs to condition
massive rewards on the provision of sensitive medical and
genetic information.\17\
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\17\On October 24, 2016, AARP filed a claim against the EEOC
arguing that health-contingent wellness programs violate anti-
discrimination laws aimed at protecting workers' medical information.
The suit also alleges that the EEOC's most recent rules allow employers
to prevent the wellness programs from being truly voluntary because the
high price of non-participation AARP unsuccessfully sought an
injunction to prevent the rules from going into effect as of January 1,
2017. (AARP v. United States Equal Employment Opportunity Commission,
Case No 16-cv-2113) http://www.aarp.org/content/dam/aarp/
aarp_foundation/litigation/pdf-beg-02-01-2016/AARP-v-EEOC-
complaint.pdf.
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Under the Preserving Employee Wellness Programs Act,
introduced by Chairwoman Foxx, wellness programs would enjoy
nearly unfettered ability to circumvent civil rights in order
to shift costs to workers. Wellness programs would violate
neither the ADA nor GINA if they impose up to 30% of the family
premium as a penalty for keeping medical information private.
Further, the EEOC's interpretation of GINA to forbid penalties
for choosing not to disclose one's children's health
information would be reversed. In short, this bill would
undermine key privacy and civil rights laws that protect
workers.
Committee Democrats strongly oppose H.R. 1313 because it
allows circumvention of critical privacy and civil rights
protection. Democrats noted the widespread opposition to the
Preserving Employee Wellness Programs Act from groups like the
Consortium of People with Disabilities (and its member
organizations), AARP, American Diabetes Association, the
American Society of Human Genetics (ASHG), Bazelon Center for
Mental Health, the Leadership Conference on Civil and Human
Rights, the Epilepsy Foundation, American Academy of
Pediatrics, March of Dimes, Paralyzed Veterans of America,
National Partnership for Women & Families, the National Women's
Law Center, Families USA, and Huntington's Disease Society of
America, among many others. A coalition signed by 69
organizations, such as AARP and others, noted that, ``Workplace
wellness programs are fully able to encourage healthy behaviors
within the current legal framework: they need not collect and
retain private genetic and medical information to be effective.
. . . individuals ought not be subject to steep financial
pressures by their health plans or employers to disclose their
or their families'' genetic and medical information.''\18\
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\18\Coalition Sign On Letter, Letter to Chairwoman Foxx and Ranking
Members Scott, (March 7, 2017) available at: https://www.aarp.org/en-
us/advocacy-and-policy/federal-advocacy/Documents/
HR1313groupoppositionletter030717.pdf.
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Further, the National Council on Disability (NCD), an
independent federal agency with a mission to provide advice to
the President and Congress regarding disability policy, ``urges
the committee to consider rethinking [provisions of the
legislation] . . . in order to uphold the integrity of the
protections against prohibited inquiries and discrimination
offered to employees with disabilities under the ADA. . . .
[the legislation] carries with it far too much risk of rolling
back the protections of a law that Congress passed on a bi-
partisan basis almost thirty years ago and which has served
people with disabilities well ever since.''\19\
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\19\National Council on Disability, Letter to Chairwoman Foxx and
Ranking Members Scott, (March 7, 2017).
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Committee Consideration of H.R. 1313
Democrats offered a number of amendments that, if accepted,
would have preserved some of the privacy and civil rights
boundaries enacted through the ADA and GINA. Representative
Adams offered an amendment that expressed a sense of Congress
that any health care reform legislation should build on the
current progress of the ACA with CBO analysis that demonstrates
improvements in cost and coverage. That amendment was
withdrawn. Representative Espaillat offered an amendment to
ensure the information obtained through a wellness program
cannot be used in employment decisions, such as hiring or
firing. Representative Espaillat asserted that, ``Employees
should not have to choose between disclosing personal health
information in order to avoid financial penalties and not
disclosing such information for fear they will be discriminated
against based on that very information.'' The amendment,
intended to protect employees who would be exposed to potential
discrimination under the legislation, was rejected on a party
line vote (17-22).
Representative Courtney offered an amendment to protect the
information obtained through wellness programs from being sold.
In explaining the amendment, he stated, ``. . . [those] who are
collecting this information should not be able to turn around
and sell it without the knowledge of the employees who are
again being somewhat coerced in terms of disclosure, whether it
is genetic information, preexisting conditions, disabilities,
which again, I think, are the core of what every American
believes should be private information, and not sold out there
to the higher bidder.'' Representative Polis also offered an
amendment requiring employers to notify workers if information
obtained through a wellness program was sold. He said, ``I
think it is very important that we uphold the principal that
your boss or an insurance company should not be able to sell
data about you without your permission. Not just any data. It
is actually some of the most personal data, like how you want
to start a family, whether you plan to get pregnant--any
medical condition that has no impact on the job.'' Both
amendments to protect the private health and genetic
information of workers and their families were defeated on a
party line vote (17-22).
Ranking Member Scott offered an amendment to remove the
erroneous application of ADA's safe harbor provision to
wellness programs, describing its application as ``overbroad
and dangerous''. The safe harbor provision in the ADA law was
designed to protect actuarial risk assessment as a basis for
developing insurance plans. Title IV of the ADA law expressly
states that the safe harbor ``shall not be construed to
prohibit or restrict
(1) an insurer, hospital or medical service company,
health maintenance organization, or any agent, or
entity that administers benefit plans, or similar
organizations from underwriting risks, classifying
risks, or administering such risks that are based on or
not inconsistent with State law; or
(2) a person or organization covered by this chapter
from establishing, sponsoring, observing or
administering the terms of a bona fide benefit plan
that are based on underwriting risks, classifying
risks, or administering such risks that are based on or
not inconsistent with State law; or
(3) a person or organization covered by this chapter
from establishing, sponsoring, observing or
administering the terms of a bona fide benefit plan
that is not subject to State laws that regulate
insurance.''\20\
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\20\42 U.S.C. Sec. 12201.
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Stated plainly, the safe harbor provision in the ADA law
permits the development of risk models which rely on data and
actuarial models. Congress adopted the safe harbor provision
with the understanding that the information is protected under
the Health Insurance Portability and Accountability Act
(HIPAA). Further, the ADA allows an employee to choose to
reveal their disability to an employer as a condition for
consideration of that employee's need for an accommodation and
the employer's ability to provide a reasonable accommodation.
H.R. 1313, if adopted, would have the effect of extending
the protection that allows health insurance to assess risk
under the ADA, to wellness plans. Some employers have argued
that the safe harbor applies to wellness programs, but many
wellness programs are not part of an actual health plan and
have no role in assisting in underwriting, classifying or
administering risk. It is therefore contradictory to the spirit
of the law to allow wellness programs to avail themselves of a
safe harbor intended only for health insurance, as the
legislation seeks to do. Moreover, while information divulged
in insurance plans have the protection of HIPAA, the
information collected under wellness plans often offers no such
protection. Even worse, in this instance the employer now has
sensitive information, obtained through a wellness program,
which may then undermine the protection of an employee's
reasonable accommodation or retaliation claim. Ranking Member
Scott's amendment would have maintained the ADA's safe harbor
for its original and intended purpose. The amendment was
defeated on a party line vote (17-22).
H.R. 1313 was favorably reported, as amended, on a party
line vote, with all Democratic Members opposing (22-17).
Conclusion
After seven years of disparaging the ACA, Republicans
released a repeal and replacement plan that will leave millions
of Americans worse off. Meanwhile, H.R. 1313 is misguided and
would only serve to shift costs onto vulnerable workers. The
legislation would neither protect the progress of the ACA nor
improve and expand coverage. While wellness programs, if
executed properly, can engage both employers and employees in
their health, they do not and should not require a wholesale
exemption from civil rights laws. There is no compelling
evidence to suggest that civil rights present a barrier to
effective programs that promote healthy behavior and habits and
workers should not be required to divulge sensitive medical
information or face an extreme financial penalty.
Robert C. ``Bobby'' Scott,
Ranking Member.
Raul M. Grijalva.
Marcia L. Fudge.
Gregorio Kilili Camacho Sablan.
Suzanne Bonamici.
Alma S. Adams.
Donald Norcross.
Raja Krishnamoorthi.
Adriano Espaillat.
Susan A. Davis.
Joe Courtney.
Jared Polis.
Frederica S. Wilson.
Mark Takano.
Mark DeSaulnier.
Lisa Blunt Rochester.
Carol Shea-Porter.
[all]