As employers and insurers continue to navigate the intricacies of the Patient Protection and Affordable Care Act, they're finding that managing wellness programs and non-discriminatory incentives (or disincentives) can be tricky.

"PPACA extended HIPAA non-discrimination rules as to what is considered a non-discriminatory incentive or disincentive," explains Amy Gordon, a wellness benefits attorney with McDermott Will & Emery. "It used to be that the incentive was capped at 20 percent of the total premium — or total contribution if the employer is self-insured. But PPACA raised that 20 percent to 30 percent for most programs and up to 50 percent for tobacco cessation.

"Just in the last year, when the new incentive and disincentive regulations went into effect, we have definitely seen employers ramping up their penalties and incentives," Gordon says.

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