One of the purported goals of comprehensive health care reform is, or at least ought to be, improvement in Americans' overall health. Inappropriate utilization of services abets the runaway costs that make our current system unsustainable. The value for employers is obvious: not only is a healthy employee a productive employee, but a healthy work force helps keep health costs affordable for everyone.
In some ways, the pending reform legislation reflects this ideal: comparative effectiveness research would set forth the best practices for health care providers and help eliminate wasteful and unnecessary procedures. Measures to improve quality in the care delivery system, such as the adoption of standardized quality measurement and reporting methodology, can help prevent costly medical errors and lower readmission rates.
Independent of reform legislation, employers have taken steps to encourage workers to adopt healthy lifestyles through wellness programs. These programs often utilize comprehensive "health risk assessments," which incorporate family medical histories, to establish individual risk factors and tailor unique approaches to personal wellness. In some cases, plans may require or provide rewards for completion of an assessment, often with the rewards based simply on completion of the form. Employers have been extremely innovative and forward-thinking in this area and are proud of the results.
The caveat and it's a big one is that these programs soon may not be viable in the face of sweeping government regulations. In October, the U.S. departments of Labor, Treasury and Health and Human Services formally published interim final regulations implementing Title I of the Genetic Information Nondiscrimination Act of 2008. In particular, the regulations include restrictions on the use of wellness programs and health risk assessments in employee group health plans.
Specifically, Title I of GINA and the interim regulations prohibit employer-sponsored group health plans as well as health insurers providing group and individual health insurance from requesting, requiring or purchasing genetic information including family history for "underwriting purposes" or prior to and in connection with enrollment.
The preamble to the regulations explains that underwriting is broadly defined in the statute to include rules for eligibility of benefits and computation of premium or contribution amounts, and therefore, according to the regulations, plans and issuers are generally prohibited from offering rewards in return for collection of genetic information, including family medical history information collected as part of a health risk assessment.
The regulations provide several examples generally illustrating that any reward given for completion of such an assessment that solicits information about the individual's family history violates GINA.
The interim final regulations apply to group health plans and group health insurance issuers for plan years beginning on or after Dec. 7, 2009 (Jan. 1, 2010, for calendar year plans), though the agencies are soliciting comments and suggested revisions through Jan. 5.
To make matters worse, the regulations were issued as numerous companies were in the midst of annual enrollment, when these wellness initiatives are frequently undertaken. The American Benefits Council and other employer and disease management groups launched an effort to obtain clarification and a more "wellness-friendly" interpretation of the rule or at least a delay in its implementation incorporated in health reform legislation.
Ideally, either legislation or final regulations will clarify that the use of genetic information is permissible for the administration of wellness programs.
