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  • ACOEM Provides Comments to EEOC on the Genetic Information Nondiscrimination Act of 2008

    November 17, 2009

    Stephen Llewellyn
    Executive Officer
    Executive Secretariat
    Equal Employment Opportunity Commission
    131 M Street, NE., Suite 6NE03F
    Washington, DC 20507

    Dear Mr. Llewellyn:

    On behalf of the American College of Occupational and Environmental Medicine, I am writing to you in anticipation of the publication this month of a regulation under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). Based on information letters released by the Equal Employment Opportunity Commission (“EEOC”) over the last several months, occupational physicians are quite concerned that the definition of a “voluntary” wellness program that will be contained in the regulation will severely impair the effectiveness of these programs in the workplace.

    In January, the EEOC issued an opinion letter on what constitutes “voluntary” under the Americans with Disabilities Act (ADA). According to that guidance, if a wellness program complied with the Health Insurance Portability and Accountability Act (“HIPAA”) standards for a voluntary wellness program (specifically the requirement that incentives not exceed 20% of the total annual cost of coverage), the program would be considered “voluntary” for purposes of the ADA.

    In March of this year, the EEOC withdrew that portion of the guidance. Therefore, under the ADA, it is currently unclear whether any incentive offered by an employer would render a program “involuntary,” even one that complies with HIPAA.

    As the medical society devoted to promoting the health of workers, we believe strongly in the efficacy of workplace wellness and prevention programs in reducing health care costs and improving worker productivity and we support them as a fundamental component of health reform. Occupational physicians have been committed to the use and expansion of wellness, prevention, and disease management programs for a number of years. These programs address potential health problems of workers, often before they develop into more costly and deadly chronic disease. These efforts to encourage and guide healthy behavior, which have become increasingly popular within workforces, have helped to control health care costs while improving the quality of life for individuals.

    ACOEM is concerned that the definition of a “voluntary” wellness program in this regulation could severely impair the effectiveness of and participation in these programs in the workplace. Voluntary wellness programs, including incentives for completing a health risk assessment (HRA), can provide significant benefits to the individual. The HRA is a key entry point into employee health and wellness programs. The HRA is a widely used, evidence-based tool to identify individuals with and at risk of chronic conditions and to ensure they receive appropriate and beneficial wellness, prevention and disease management services.

    Many employees need some encouragement to complete a long, detailed HRA and to start participating in a program of healthy living; financial incentives provide a key motivational trigger. Eliminating the employer’s ability to provide a financial incentive to individuals who complete an HRA or participate in a wellness program would effectively end these programs and the positive results they have produced for workers. We do not believe that a family medical history, while useful, is necessary to complete an HRA. We believe that incentives should to used to encourage participation in these programs and should not be tied to health status, biometric results or meeting outcomes from health improvement programs.

    Wellness, prevention, and disease management programs will improve the health and productivity of individuals and control our soaring healthcare costs. Moreover, these are programs that generally are met with enthusiasm by employees, who are often relieved to have the opportunity to move towards a healthier lifestyle. To make our tasks in this regard more difficult, by preventing the use of financial incentives, is an incomprehensible action in view of the need to hold down medical costs and encourage individuals to participate in programs that help them assume more active control of their health.

    The health and productivity of our nation’s workforce will suffer if employers face barriers to promoting healthy lifestyles and behaviors. We appreciate this opportunity to provide comments and would be happy to further discuss our concerns with you.

    Sincerely, 
     Hymel, Pam.gif 
    Pamela Hymel, MD President

    cc:  Robert Kocher, MD, Special Assistant to the President, National Economic Council, The White House
           Ezekiel Emanuel, MD, Special Advisor for Health Policy, Office of the Director, Office of Management
           and Budget