Regardless of your politics, you may wonder what happens next for wellness initiatives under new leadership. Professor Tim Jost wrote a very helpful blog post on the possible fate of the Affordable Care Act (ACA). Although no one at this point knows what avenues the new administration might take regarding the ACA, change is almost certainly on the horizon. As noted by Professor Jost, full repeal is unlikely because such repeal would be subject to a filibuster in the Senate.
However, the ACA provisions that are financial in nature could be subject to budget reconciliation, which only needs a simple majority and would not be subject to a filibuster. Financial provisions that could be subject to such budget reconciliation action include the premium tax credits, the small business tax credit, the individual mandate, the employer mandate, Medicaid expansion for adults up to 138% federal poverty level, and ACA taxes (such as the medical device tax, insurer fee, Cadillac plan tax and tax increases imposed on the wealthy).
“Extraneous provisions” that only incidentally affect revenue and expenditures should not be part of a budget reconciliation process. Extraneous provisions that might be safe from budget reconciliation may include the ban on preexisting condition exclusions and health status underwriting, caps on annual and lifetime dollar limits, actuarial value requirements and age underwriting restrictions.
Wrapped up in the health status underwriting extraneous provision listed above are the ACA wellness incentive rules. Thus, according to Professor Jost, the ACA wellness incentive rules that limit incentives to no more than 30% of the total cost of coverage (and 50% if there is a tobacco cessation component) should remain intact. Also, because the recent ADA and GINA final rules are separate from the ACA, presumably those incentive rules (which limit wellness programs that collect health information to a 30% total cost of self-only coverage incentive) would not be affected by any action against the ACA.
But that is not the end of the story. Professor Jost also points out that the new administration could choose not to enforce the existing wellness incentive regulations. The new president will appoint leaders in the federal agencies who may have a different philosophy about wellness incentive limits or any regulation tied to the ACA. Indeed, the Republican health reform plan is critical of the EEOC’s ADA and GINA regulations, stating that the EEOC’s regulations will “discourage employers from establishing [wellness] plans, resulting in harm to employees’ health – and their pocketbooks. If that is the stance of the new administration, the legal risk involved in violating the current incentive regulations, even if they remain intact, may be reduced. However, just because legal risk might be low in the future, does not mean pushing the envelope on wellness incentives is a good idea. There are still considerations of employee morale, recruitment, retention, culture and risk of other forms of discrimination.
“However, just because legal risk might be low in the future, does not mean pushing the envelope on wellness incentives is a good idea. There are still considerations of employee morale, recruitment, retention, culture and risk of other forms of discrimination.”
The legal implications of the election on wellness laws will continue to unfold in the months and years ahead. The Center for Health and Wellness Law, LLC will stay on top of those changes. But do not let shifting wellness incentive laws deter you from helping people live healthier lives. The election results should be irrelevant to helping others achieve well-being. That is still a goal worth pursuing.