Written Testimony of Victoria A. Lipnic, Commissioner

Meeting of May 8, 2013 - Wellness Programs Under Federal Equal Employment Opportunity Laws

Good morning, and welcome to our witnesses.  I want to first thank the Chair for convening our meeting this morning.  Some months ago, I mentioned to the Chair that the issues surrounding wellness programs and their interaction with the laws within our jurisdiction was a topic I was hearing more and more about in my conversations with employers, advocates, trade associations, and industry groups.  At that time, I suggested that the Commission would do well to hold a public meeting to air and explore these questions, so that we were all "up to speed" on the issues surrounding wellness plans, and could assess the possibility of future Commission action accordingly.  I thank the Chair and her staff for taking my suggestion and making this meeting a reality today.

As we will hear this morning, the issue of health wellness programs as a component of employer-sponsored health insurance has become a hot topic among employers, workers, advocacy groups, and health benefit plan designers, providers, and administrators.  As the use of wellness programs becomes more and more prevalent - fostered in part by the signature health care initiative of the Administration - we can be certain that these issues will generate more and more interest and scrutiny.

Certainly, as a benefit of employment, employer-sponsored health wellness programs implicate many if not all of the statutes the Commission enforces, including the Americans with Disabilities Act, the Genetic Information Non-Discrimination Act, Title VII, the Age Discrimination in Employment Act, and potentially others.  Insofar as it is our mission to interpret and enforce these laws, I feel it is our duty, where possible, to let the regulated community and all interested stakeholders know exactly what our position on these important questions are.

This issue is not new to the Commission.  Dating back to at least 2000, the Commission has articulated in fits and starts some positions related to wellness plans and compliance with the ADA.  By and large, however, with respect to these programs, we have not provided the kind of certainty that allows employers to structure their wellness plans in a manner where they will be sure they are on sure-footing for compliance with our laws.  Granted, of course, that such certainty must be protective of our statutory obligations.

As we will hear this morning, many of the most pressing questions on wellness programs involve the interaction of the laws within our jurisdiction with other health-related statutes, most notably, the Health Insurance Portability and Accountability Act, or HIPAA.  Among the most common questions raised to me have been:

• If a wellness plan complies with HIPAA non-discrimination requirements, will that mean it satisfies non-discrimination requirements under other federal EEO laws?
• How does the Commission define "voluntary" with respect to wellness programs, and specifically the ADA's exception for disability-related inquires made pursuant to an "employee health program"?
• If financial incentives within a wellness plan fall within the range of acceptable limits under HIPAA, does that mean they are "voluntary" for purposes of the ADA?
• Does the financial form that an incentive takes - that is, a carrot or "reward" versus a stick or "penalty" - inform that question?
• How do standards for voluntary wellness programs under GINA relate to standards under the ADA?

To date, the Commission has not adopted and articulated a position on these matters, leading to confusion, uncertainty, and, I am certain, frustration, among all stakeholders.

A number of our witnesses this morning suggest that we should articulate a standard that deems a wellness plan to be in compliance with the ADA when it satisfies the complex scheme for ensuring that a plan does not discriminate on a health factor, such as disability, under HIPAA.   Given the parallel purposes of both laws - to ensure that a health plan does not discriminate on the basis of disability - I believe we would be on solid legal ground to articulate such a standard, and I believe that it is well within our power as regulators to give meaning to the undefined term "voluntary" in the ADA.  That said, I am most interested in hearing from our witnesses this morning as to both the benefits, and consequences, if any, of that position.

In closing, I would make one final point.  When this hearing was first publicly noticed, a number of people immediately asked whether this meant that the Commission was poised to take imminent action with respect to guidance on wellness programs, or that it had even made a decision to undertake any such effort at all.  Sitting here this morning, at least as far as I am aware, the answer is "no."  As I said at the beginning, I view the purpose of this morning's meeting foremost as education - we, as a Commission, need to know what the tough questions are, so that we may determine whether and how we may answer them.  Let me be clear that it is my hope that we may, after today's meeting, find that there are points of consensus on which we can issue strong and clear guidance on a bipartisan basis, but that remains to be seen, and I look forward to working with my colleagues to determine whether that is possible.

I again welcome our witnesses, and yield back my time.