November 17, 2015

A Potpourri of Health Plan Guidance (article)

GINA’s Impact on Spouses Participating in Wellness Programs

The Genetic Information Nondiscrimination Act of 2008 (GINA) is intended to ensure that genetic information and family medical history are not used in a discriminatory way.  The provisions of this law particularly impact both employment practices as well as health plan administration.


With regard to health plan administration, GINA prohibits the use of an individual’s or his/her family member’s genetic information for eligibility and rating purposes by health plans.  Plans are also prohibited from altering a premium or contribution amount based upon an individual’s genetic nature.  Thus, genetic information and family medical history cannot be used for enrollment, or in connection with enrollment, nor can it be used for underwriting purposes. 


On October 30, 2015, the Equal Employment Opportunity Commission (EEOC) released proposed regulations, together with Questions and Answers and Fact Sheet, specifically  addressing compliance with GINA as it relates to wellness programs extended to spouses.  In proposing these regulations, the EEOC is attempting to balance the prohibition against using genetic information to unfavorably discriminate against individuals with the incentive to encourage wellness programs. 


Generally, GINA prohibits the collection of genetic information unless it is provided on a strictly voluntary basis.  The Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA) allow an incentive or disincentive, as the case may be, for a contingent wellness program (see Wellness Programs: EEOC Proposed Rules and Tri-Agency Guidance, Benefit Beat, 5/12/15).  The newly released EEOC proposal attempts to reconcile this standard, which allows the reward to be based on the coverage for whom the wellness program is available.  For example, if the wellness program is available to an employee and spouse, the incentive can be based on the cost of family coverage. 


The comment period on the proposed regulations ends December 29, 2015, after which the governing agencies will work together to issue final regulations.


Tri-Agency Guidance on Certain Health Matters

On October 23, 2015, the Departments of Labor, Treasury and Health and Human Services released their 29th set of implementation FAQs relating to certain Affordable Care Act (ACA) provisions, as well as the mental health parity laws and the use of wellness incentives.  While these FAQs do not break new ground, they do provide good reminders.

  • Coverage for Preventive Services.

As background, the ACA requires non-grandfathered plans in the individual and group markets to provide specified preventive services at no cost to plan participants.

  • With regard to coverage for women’s preventive health services, lactation counseling and related services must be provided without cost sharing.  These FAQs provide guidance about how to ensure these benefits are available, specifically as it relates to network counseling providers, inpatient services and the provision of breastfeeding equipment. 
  • Plans must cover adult obesity screenings and related weight management services without additional cost sharing.
  • With regard to colonoscopies, plans must provide coverage for specialist consultations prior to the procedure, as well as any pathology exam or polyp biopsies without additional cost sharing.


  • Disclosure of Mental Health Coverage

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”) requires that mental health services be treated in a substantially similar manner to all covered medical and surgical services in group health plans.  This includes cost-sharing requirements, such as deductibles, co-payments, coinsurance, and out-of-pocket expenses as well as treatment limitations such as frequency of treatments, number of visits, days of coverage or similar plan limits.  


The FAQ addresses disclosure of plan coverage specifically with regard to whether certain mental health services are medically necessary.  Plan administrators and insurers are required to provide an explanation of the criteria for determining medical necessity determinations to current or potential participants, beneficiaries and health care providers upon request.  This information must be provided within 30 days of the request. 


Further, any denial of reimbursement or payment for services with respect to mental health benefits or substance abuse disorders must be made available to participants and beneficiaries.  In addition, with regard to claims and appeals, plans are required to provide relevant plan information to claimants for purposes of appealing an adverse benefit determination.  This would include providing medical necessity criteria, as well as the processes, strategies, evidentiary standards, and other factors used to apply treatment limitations for both medical/surgical benefits and mental health and substance abuse disorders benefits covered under the plan.


  • Wellness Program Incentives.

Under both HIPAA and ACA, contingent wellness programs, including both outcome-based and activity-only programs, are allowed to utilize a financial incentive or disincentive to encourage participation.  The FAQ affirms that these wellness incentives include both financial incentives, such as a discount or rebate of premium or contribution, as well as non-financial (in-kind) rewards such as gift cards, thermoses, and sports gear.


Repeal of ACA Automatic Enrollment Mandate

The Affordable Care Act (ACA) includes a provision requiring employers employing 200 or more employees to automatically enroll new full-time employees in one of their health benefit plans, as well as automatically continue enrollment of current employees.  Although this provision became effective on the ACA’s enactment date (March 23, 2010), the governing agencies had indicated that employers would not be required to comply with the provision until implementing regulations were issued.  To date, no regulations have been issued.  On November 2, 2015, President Obama signed the Bipartisan Budget Act of 2015 (H.R.1314, now Public Law 114-74).  This law repeals the automatic enrollment provision in its entirety.


The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.

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