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Telemedicine – An Expanding Landscape

August 8, 2017

Authors

Serena Yee and Tim Hanson

Telemedicine – An Expanding Landscape

August 8, 2017

by: Serena Yee and Tim Hanson

According to one recent survey, telemedicine services (i.e., remote delivery of healthcare services using telecommunications technology) among large employers (500 or more employees) grew from 18% in 2014 to 59% in 2016.  Common selling points touted by telemedicine vendors include reduced health care costs and employee convenience.  However, state licensure laws imposing restrictions on telemedicine practitioners can often limit the value (or even availability) of telemedicine services to employees.

But that seems to be changing.

Texas Law Change

This summer Texas passed legislation (SB 1107) prohibiting regulatory agencies with authority over a health professional from adopting rules pertaining to telemedicine that would impose a higher standard of care than the in-person standard of care.  With the enactment of SB1107, the Texas Medical Board must revise portions of its existing telemedicine regulations, which had largely been viewed as some of the most restrictive in the country.  Key revisions proposed

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EEOC Clarifies ADA and GINA Wellness Incentive Rules

October 4, 2016

Authors

Chris Rylands and Katharine Finley

EEOC Clarifies ADA and GINA Wellness Incentive Rules

October 4, 2016

by: Chris Rylands and Katharine Finley

stethoscope-and-dollar-billsWhile the litigation over wellness programs rages on, the EEOC is still marching forward with the implementation of its wellness rules that we wrote about previously.  As most people in the wellness space are aware, the EEOC’s rules under ADA and GINA do not align completely with the HIPAA wellness rules, particularly on the issue of the amount of the incentive.  The ADA and GINA rules apply to all wellness programs, whether participation-only or health contingent, and generally limit the incentive that is available to 30% of the cost of self-only coverage.

One open question under the ADA and GINA rules was how to calculate the incentive when an employer offers multiple tiers of coverage (e.g. Gold, Silver, Bronze) under a health plan. The ADA and GINA rules address the calculation

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EEOC Weighs in on the Impact of the ADA and GINA On Employer-Sponsored Wellness Programs

June 16, 2016

Authors

Lisa Van Fleet and Katharine Finley

EEOC Weighs in on the Impact of the ADA and GINA On Employer-Sponsored Wellness Programs

June 16, 2016

by: Lisa Van Fleet and Katharine Finley

Regulations Compliance Puzzle PiecesOn Monday, May 16 the Equal Employment Opportunity Commission (“EEOC”) issued two final regulations providing guidance on how employer-sponsored wellness programs work with the general antidiscrimination requirements of Title I of the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). These rules were published in the May 17th Federal Register.

This blog post is designed to provide background information on wellness programs and the antidiscrimination protections of the ADA and GINA, to highlight the final regulations and note two action items relating to smoking cessation programs and tiered health plan benefit or cost-sharing structures.

What is a Wellness Program?

The term “wellness program” generally refers to programs intended to promote health and disease prevention and

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New IRS Memo Confirms Tax Treatment of Wellness Programs & Incentives

June 14, 2016

Authors

Chris Rylands and Lisa Van Fleet

New IRS Memo Confirms Tax Treatment of Wellness Programs & Incentives

June 14, 2016

by: Chris Rylands and Lisa Van Fleet

Wellness Word CloudIn a recently released IRS Chief Counsel Memo, the IRS confirmed that wellness incentives are generally taxable. The memo also, indirectly, confirmed the tax treatment of wellness programs more generally.

As to the incentives, the IRS held that a cash payment to employees for participating in a wellness program is taxable to the employees. The memo did not deal with incentives paid to dependents, but we presume those would be taxable to the applicable employee as well.  The IRS did say that certain in-kind fringe benefits (like a tee shirt) might be so de minimis as to be exempt as fringe benefits.  Confirming the IRS’s long-standing position, however, cash does not qualify for this exception and is taxable.

This tax treatment also applies to premium reimbursements if

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EEOC Takes Aim at Erroneous Application of ADA “Safe Harbor” to Wellness Programs

June 3, 2016

Authors

Katharine Finley and Serena Yee

EEOC Takes Aim at Erroneous Application of ADA “Safe Harbor” to Wellness Programs

June 3, 2016

by: Katharine Finley and Serena Yee

Challenges AheadIn its preamble to the final regulations under the Americans with Disabilities Act (“ADA”) published May 17, 2016, which will be the topic of an upcoming blog post, the Equal Employment Opportunity Commission (“EEOC”) once again reiterated its disagreement with the district courts’ application of the bona fide plan safe harbor to the wellness programs in Seff v. Broward County and EEOC v. Flambeau, Inc. (discussed in a prior post).

Seff and Flambeau

In both Seff and Flambeau, plaintiffs brought suit arguing that the wellness programs violated the ADA’s prohibition on mandatory medical examinations and inquiries. Both courts disagreed and held that the wellness programs fell under the safe harbor provision, which in pertinent part state that an insurer or any entity that

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EEOC Faces Another Defeat in its War Against Wellness Programs

January 20, 2016

Authors

Serena Yee

EEOC Faces Another Defeat in its War Against Wellness Programs

January 20, 2016

by: Serena Yee

The U.S. Equal Employment Opportunity Commission (“EEOC”) has steadfastly maintained that any wellness program that is not voluntary violates the Americans With Disabilities Act (“ADA”). In 2014, the Chicago District Office of the EEOC filed lawsuits against Orion Energy Systems, Honeywell International, Inc. and Flambeau, Inc. alleging that their respective wellness programs were not voluntary since employees who refused to complete a health risk assessment and/or biometric screening were financially penalized. In a case of first impression in the Seventh Circuit, the U.S. District Court for the Western District of Wisconsin granted summary judgment on December 31, 2015, in favor of the defendant in EEOC v. Flambeau.

Factual Background

Flambeau implemented a wellness program for 2011 in which employees who completed both a health risk assessment and biometric testing received a $600 credit. The health risk assessment included questions about the employee’s medical history,

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Scratch & Sniff the New Health Plan FAQs

November 12, 2015

Authors

Serena Yee and Lisa Van Fleet

Scratch & Sniff the New Health Plan FAQs

November 12, 2015

by: Serena Yee and Lisa Van Fleet

ACA Blue HighlightLast month the U.S. Departments of Labor, Health and Human Services and Treasury published FAQs offering a veritable potpourri of guidance addressing preventive services, wellness programs and mental health parity.  Some potpourris offer a pleasing aroma – other not so much.  Decide for yourself whether this potpourri of guidance is pleasing based on the following summary.

PREVENTIVE SERVICES – New guidance expands coverage obligations.

Non-grandfathered health plan must cover certain preventive services without the imposition of any cost sharing.

Lactation Counseling/Equipment. Among the preventive services that a non-grandfathered health plan must cover in-network without cost-sharing is comprehensive prenatal and postnatal lactation support, counseling, and equipment rental. The Departments provided the following clarifications with respect to such preventive service:

  • If participants do not have access to lactation counseling in-network, the plan
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EEOC Finally Lets the Wellness Cat Out of the Bag

April 16, 2015

Authors

Chris Rylands and Lisa Van Fleet

EEOC Finally Lets the Wellness Cat Out of the Bag

April 16, 2015

by: Chris Rylands and Lisa Van Fleet

WellnessOn April 16, the Equal Employment Opportunity Commission (the “EEOC”) finally gave a peek into its thinking about what constitutes a “voluntary” wellness program under the Americans with Disabilities Act (the “ADA”). Recall that, while there are extensive wellness rules under HIPAA and ACA for these types of programs, there was always a gray area with regard to whether these programs were considered “voluntary” for ADA purposes. The EEOC recently started suing companies over their programs and was heavily criticized for doing so without issuing any guidance (aside from a couple of non-binding opinion letters). These proposed regulations are the beginnings of the guidance the critics have requested. While not binding, they are a good starting point for understanding where the EEOC may end up.

Under the proposed rules,

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EEOC Continues its Rampage Against Wellness

October 31, 2014

Authors

Chris Rylands

EEOC Continues its Rampage Against Wellness

October 31, 2014

by: Chris Rylands

This week, the EEOC filed its third, and perhaps most significant, complaint in a wellness-related case.  The complaint alleges that the wellness program, which involved biometric screening and a surcharge for tobacco users, violates the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA). The ADA complaint is that the program requires a medical examination that is not job-related or consistent with business necessity.  The GINA complaint is that the employer is providing a prohibited inducement to receive genetic information. The maximum penalty under the program is $4,000 per year.

While the details of the program are not fully fleshed out in the complaint, this appears to be an escalation of the EEOC’s focus on wellness programs.  While $4,000 is a significant sum of money, this appears to us to be a typical wellness program.

The frustrating aspect of these wellness program lawsuits is

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The Latest and Greatest ACA FAQs

January 14, 2014

Authors

benefitsbclp

The Latest and Greatest ACA FAQs

January 14, 2014

by: benefitsbclp

Last week, the Departments of Labor, HHS and Treasury issued their 18th set of FAQs intended to answer a smattering of questions regarding the implementation of ACA.  Issues addressed in those FAQs include, among other things:

  • Risk-Reducing Breast Cancer Drugs Must Be Provided Without Copay.  On September 24, 2013, the United States Preventive Services Task Force (USPSTF) revised its “B” recommendation with respect to medications for risk reduction of primary breast cancer in women.  The recommendation now provides that, for women who are at increased risk for breast cancer and at low risk for adverse medication effects, clinicians should offer to prescribe risk-reducing medications, such as tamoxifen or raloxifene.  Given that evidenced-based items or services that have in effect a rating of “A” or “B” must be provided by non-grandfathered group health plans and health insurance coverage without cost-sharing, this means that risk-reducing medications prescribed by clinicians
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