June 19, 2015 Ms. Bernadette B. Wilson, Acting Executive Officer Executive Secretariat U.S. Equal Employment Opportunity Commission 131 M St., NE Washington, DC 20507 RE: RIN 3046-AB01, Amendments to Regulations under the Americans with Disabilities Act Dear Ms. Wilson:

AARP is a nonprofit, nonpartisan organization representing people age 50 and older, with a membership of nearly 38 million, that helps people turn their goals and dreams into real possibilities, strengthens communities, and fights for the issues that matter most to families such as healthcare, equal employment opportunity, retirement planning, and protection from financial abuse. We supported passage – and continue to support implementation – of the Patient Protection and Affordable Care Act (ACA). We have consistently participated in ACA-related policy discussions and rulemaking proceedings regarding wellness programs. AARP has also actively participated in policy discussions by the EEOC regarding the application of the civil rights laws to wellness programs. AARP appreciates this opportunity to offer our comments on the proposed regulations changing the EEOC’s treatment of wellness programs under the Americans with Disabilities Act (ADA). Summary of Comments AARP supports promising, evidence-based strategies to promote wellness as a means of promoting health and reducing health care costs. However, the design and operation of wellness programs must meet well-established civil rights principles and statutory mandates. The Americans with Disabilities Act prohibits employers from making disability-related inquiries or requiring medical examinations of their employees unless they are either job-related and consistent with business necessity, or they are part of a voluntary wellness program. Older workers have a tremendous stake in this rulemaking, both because the incidence of disability rises with age, and because older workers are more likely to have the types of less visible conditions and disabilities that are at risk of disclosure by medical inquiries and exams. The EEOC now proposes to depart from its longstanding rule that “voluntary” means employees cannot be required to participate nor penalized for not participating, and instead is proposing to redefine “voluntary” to allow employers to impose penalties of hundreds or thousands of dollars on those who refuse to provide medical information to their employers. This redefinition is contrary to the plain language of the statute and the EEOC’s own prior guidance, at odds with the self-evident coercive impact on employees, and inconsistent with the more balanced and appropriately protective approach the agency took in its recent regulations under the Genetic Information Nondiscrimination Act (GINA). While encouraging wellness programs in the Affordable Care Act, the Congress did not expressly or implicitly repeal the ADA’s provision on voluntary inquiries and exams. Nor is there

2 any legal or operational conflict between these two statutes. The ACA regulations are clear that the civil rights laws remain fully applicable to wellness programs, and that compliance with the ACA is no safe harbor from compliance with other laws like the ADA. For these reasons, there is no sound foundation for the EEOC’s redefinition of voluntary, and the rule should be withdrawn and rewritten in accord with the approach taken in the GINA regulations. However, if the EEOC decides to retain this new rule allowing employers to exact penalties, it must do much more to mitigate the potential damage created by this new rule, such as place limits on the 30% penalties, create a reasonable medical certification procedure, and strengthen requirements for confidentiality and reasonable design. Introduction AARP supports promising, evidence-based strategies to promote wellness as a means of assisting individuals to pursue healthy behaviors and thereby help reduce health care expenditures and improve health outcomes. However, as a matter of health policy, AARP opposes insurance discrimination based on a person’s health status, lifestyle, or behaviors, and opposes penalties in the form of higher premiums, increased cost-sharing, or other charges based on an insured’s health status. As a matter of employment policy, AARP also opposes discrimination in all aspects of employment, including in compensation and the provision of employee benefits, on the basis of age, disability, sex, race, national origin, religion, sexual orientation, gender identity or expression, and family caregiver status. Older workers have a large stake in this rulemaking about ADA-based constraints on workplace wellness programs. First, workers with disabilities are more likely to be older. Two-thirds of all workers in the labor force who have disabilities are 45 and older.1 Older workers with disabilities, and many older workers who may have conditions that cause them to be “regarded as” having one or more disabilities by their employer, benefit directly from the ADA’s protections from disability discrimination. In addition, older workers have a particularly strong stake in the ADA’s prohibitions on employers making medical inquiries or requiring medical exams of their employees that are not job-related and consistent with business necessity. This is because older workers are more likely to have the very types of less visible conditions and disabilities that are at risk of disclosure by medical inquiries and exams. As the EEOC has recognized:

“Historically, many employers asked applicants and employees to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities -- particularly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer, and mental illness -- despite their ability to perform the job.”2

There is a high correlation between many of these “nonvisible” health conditions and age. For instance, workers age 45-64 are over three times more likely than workers 18-44 to have

1 See Bureau of Labor Statistics, Persons with a Disability: Barriers to Employment, Types of Assistance,

and Other Labor-Related Issues — May 2012, “Table 1. Employment status of the civilian noninstitutional population by disability status and selected characteristics, May 2012” (Apr. 24, 2013), available at http://www.bls.gov/news.release/pdf/dissup.pdf. 2 EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees

under the Americans with Disabilities Act (ADA), General Principles (July 27, 2000) (emphasis added), at http://www.eeoc.gov/policy/docs/guidance-inquiries.html#2 [hereinafter Enforcement Guidance].

3 diabetes.3 Age is also a major risk factor for coronary heart disease4 and for cancer.5 Any workplace wellness program that disadvantages workers with these types of disabilities by charging them more for their health coverage likely violates not only the ADA, but also the Age Discrimination in Employment Act (ADEA), in that it likely has a disparate impact on older workers. Wellness programs frequently use health risk assessments (HRAs), questionnaires that ask employees about their health status and health-related behaviors, and exams in the form of “biometric screenings” that measure blood pressure, blood glucose level, or body mass index.6 The design and operation of some wellness programs are difficult to square with well-established civil rights principles and statutory mandates. While the ACA encouraged use of employer-sponsored wellness programs, the civil rights laws and the EEOC's mandate to enforce them apply with equal force. The EEOC’s proposals in this Notice of Proposed Rulemaking (NPRM) are inconsistent with what is required to faithfully enforce the ADA and adequately protect workers with disabilities. I. The Wellness Approach7 Blessed in the EEOC NPRM Is Contrary to Law

A. Permitting a 30% Penalty Is Incompatible with the ADA’s Statutory Standard of “Voluntary”

1. The proposed penalty is not consistent with the plain language of the statute

The ADA prohibits employers from making disability-related inquiries or requiring medical examinations of their employees unless they are either job-related and consistent with business necessity, or they are part of a voluntary wellness program.8 Medical inquiries and exams, in and of themselves, are defined in the statute as discriminatory, because Congress determined that permitting employer access to disability-related medical information would lead to employment discrimination against persons with disabilities. These provisions are intended to prevent disability discrimination by precluding employers from having this information, unless 1) it is clearly necessary to do the job, in which case the inquiries and exams can be involuntary, or

3 See Centers for Disease Control and Prevention, Incidence of Diagnosed Diabetes per 1,000 Population

Aged 18–79 Years, by Age, United States, 1980–2013 (last updated June 2, 2015) at http://www.cdc.gov/diabetes/statistics/incidence/fig3.htm. 4 See NIH National Heart, Lung, and Blood Institute, Who Is at Risk for Coronary Heart Disease?

(undated), at http://www.nhlbi.nih.gov/health/health-topics/topics/cad/atrisk.html. 5 Cancer.net, Aging and Cancer (Aug. 2012), at http://www.cancer.net/navigating-cancer-care/older-

adults/aging-and-cancer; see also, American Cancer Society, Probability (%) of Developing Invasive Cancers during Selected Age Intervals by Sex, US, 2008-2010 (all sites) (2014), at http://www.cancer.org/acs/groups/content/@research/documents/document/acspc-041784.pdf. 6 It would be a good idea for the EEOC to include a notation in its guidance that new technologies for

measuring biometrics such as Fitbits and Apple watches should be considered “exams” and should also be required to be voluntary. 7 The approach often referred to as “wellness or else” refers to programs that penalize workers who

refuse to participate in certain wellness activities or fail to meet required health targets. See S. Begley, “Coming Soon to a Workplace Near You: 'Wellness or Else,'” N.Y. Times (Reuters, Jan. 13, 2105), at http://www.nytimes.com/reuters/2015/01/13/us/13reuters-usa-healthcare-wellness-insight.html?_r=0; M. De Mooy, “Wellness or Else,” U.S. News & World Rpt. (May 29, 2015), at http://www.usnews.com/opinion/blogs/policy-dose/2015/05/29/eeocs-proposed-rule-on-employee-wellness-programs-threatens-health-privacy. 8 42 U.S.C. § 12112(d)(4)(A) and (B).

4 2) the information is volunteered by the employee because she or he wants to participate in a wellness program. According to the plain language of the ADA, voluntariness is the touchstone of lawfulness for wellness program inquiries and exams. “Words that are not terms of art and that are not statutorily defined are customarily given their ordinary meanings, frequently derived from the dictionary.”9 “Voluntary” is not defined in the ADA, but dictionaries define the term as “without compulsion” and “without valuable consideration.”10 These definitions clearly would not encompass 30% penalties on such a critical employee benefit as health insurance.

2. The proposed penalty is not consistent with the EEOC’s own guidance The EEOC’s formal enforcement guidance and informal discussion letters on wellness program inquiries and exams under the ADA have also emphasized the importance of ensuring voluntariness, in accordance with the statute.

In formal enforcement guidance in 2000, the EEOC articulated the fundamental principle that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.”11

In an informal discussion letter in 2009, the Office of Legal Counsel warned that “even if the health risk assessment could be considered part of a wellness program, it is not voluntary because it penalizes any employee who does not complete the questionnaire by making him or her ineligible to receive reimbursement for health expenses.”12

In another letter on HRAs in 2009, the Office of Legal Counsel stated that an employee’s decision not to participate in an HRA resulted in the loss of the opportunity to obtain health coverage through the employer’s plan. Thus, even if the HRA could be considered part of a wellness program, the program would not be voluntary, because individuals who do not participate in the assessment are denied a benefit (i.e., penalized for non-participation) as compared to employees who participate in the assessment.13

The Office of Legal Counsel’s informal discussion letters have specifically stated that the Commission had not yet taken a position on whether, and to what extent, the ADA permits employers to offer rewards or financial incentives for employees to participate in “wellness programs that include disability-related inquiries (such as questions about current health status asked as part of a health risk assessment) or medical examinations (such as blood pressure

9 L. Eig, Statutory Interpretation: General Principles and Recent Trends 7 (CRS, Dec. 19, 2011), available

at https://mspbwatch.files.wordpress.com/2013/02/statutory-interpretation-general-principles-and-recent-trends.pdf [hereinafter Statutory Interpretation] (See also id., n. 31: “In the absence of a statutory definition, ‘we construe a statutory term in accordance with its ordinary or natural meaning’” citing FDIC v. Meyer, 510 U.S. 471, 476 (1994)); Cf., Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 599 (2004) (refusing to defer to the EEOC’s regulatory interpretation of “age” under the ADEA “because the Commission is clearly wrong.”). 10

The Law Dictionary, at http://thelawdictionary.org/voluntary/. 11

Enforcement Guidance, supra n. 2. 12

EEOC Office of Legal Counsel, ADA: Health Risk Assessments (Aug. 10, 2009), available at

http://www.eeoc.gov/eeoc/foia/letters/2009/ada_health_risk_assessment.html. 13

EEOC Office of Legal Counsel, ADA: Disability-Related Inquiries and Medical Examinations; Health Risk Assessment (Mar. 6, 2009), available at http://www.eeoc.gov/eeoc/foia/letters/2009/ada_disability_medexam_healthrisk.html

5 and cholesterol screening to determine whether an employee has achieved certain health outcomes).”14 The proposed rule now takes a position on rewards. The EEOC proposes to allow employers to impose penalties of up to 30%15 of the total employee-employer cost of employee-only health insurance. The penalty would be imposed in addition to amounts already paid by employees for employer-sponsored health insurance. For instance, if the total cost of employee-only coverage is $1,000/month, with the employee contributing $200/month toward that premium, and the employer contributing $800/month, the EEOC’s proposal would permit a penalty of $300/month (30% x $1,000) on employees for refusing to answer medical questions or agree to medical exams. This means an employee would be paying $500/month ($200 premium + $300 penalty) for health insurance. The penalty might be framed as a reward – everyone pays $500/month for health insurance, but you receive a 30% discount if you answer the medical questions and undergo the exams. Either way, if you do not “volunteer” to participate, you pay hundreds if not thousands of dollars more for your health insurance than similarly situated employees who do “volunteer.” In the preamble, the EEOC claims that the limits it is proposing to place on these penalties will “prevent economic coercion that could render the provision of medical information involuntary.”16 However, in the regulation itself, the EEOC abandons its former position that penalties are coercive, and instead conflates rewards and penalties, such that “the use of incentives (financial or in-kind) in an employee wellness program, whether in the form of a reward or penalty, …will not render the program involuntary….”17 The ACA does not differentiate between penalties and rewards, a position with which AARP has consistently agreed. In this rulemaking, the EEOC also now equates rewards with penalties, but instead of proscribing rewards, the EEOC proposal authorizes penalties. AARP believes the EEOC’s prior guidance on the relationship between penalties and involuntariness was a truer interpretation of the statutory “voluntary” standard. Appropriately, the EEOC proposal maintains the element of its longstanding interpretation of “voluntary” holding that employers may not directly require participation in HRAs or exams.18 Moreover, the EEOC proposal would not permit employers to deny employees coverage altogether,19 e.g., denying health coverage if an employee refused to participate in a biometric screening. This provision is especially welcome and important to maintain in light of the argument made by some that an employee’s decision to enroll in health insurance at all is voluntary, and as a result, all wellness program-related requirements are voluntary (an argument belied by the fact that the individual and employer mandates included in the ACA make the acquisition of health insurance less than voluntary). Finally, the EEOC proposes to bar employers from denying employees access to any particular benefit package, or limiting the extent of benefits,20 as a penalty for refusing to participate in medical inquiries or exams. This is

14

EEOC Office of Legal Counsel, ADA & GINA: Incentives for Workplace Wellness Programs (June 24, 2011), available at http://www.eeoc.gov/eeoc/foia/letters/2011/ada_gina_incentives.html [hereinafter Incentives Letter]. 15

EEOC, Amendments to Regulations under the Americans with Disabilities Act, 80 Fed. Reg. 21659, 21667 (proposed Apr. 20, 2015) (to be codified at 29 C.F.R. Pt. 1630) [hereinafter NPRM]. Note: In these comments, AARP focuses on the 30% across-the-board penalty limit and does not address the interrelationship between this and the 50% limit permitted in the ACA for smoking cessation. 16

Id., Preamble at 21662. 17

Proposed § 1630.14(d)(3) (emphasis added), NPRM, supra n. 15, at 21667. 18

Proposed § 1630.14(d)(2)(i), id. 19

Proposed § 1630.14(d)(2)(ii), id. 20

Id. It would be helpful if the EEOC would clarify the parenthetical exception in the “extent of benefits” limitation in § 1630.14(d)(2)(ii). To paraphrase, it states that medical inquiries/exams will be considered

6 an important clarification and protection, because it is not uncommon for employers with tiered health benefit plans to deny employees access to high-benefit plan options unless they take health risk assessments or undergo exams. The EEOC must preserve these prohibitions in the final rule as they are the minimum necessary to any coherent notion of the ADA’s requirement for voluntariness. Such prohibitions would not bar employers from offering tiered packages, stop them from charging more for higher-benefit plans, or even prevent them from requiring employees to engage in certain wellness activities to “earn” access. However, the EEOC’s requirements would prevent employers from coercing employees into answering medical inquiries and taking medical exams in order to have access to those tiers. 3. The proposed penalty is at odds with the EEOC’s tradition of examining the real-

world impact of discriminatory practices When the EEOC evaluates employment practices that typically involve coercion such as harassment and retaliation, it places great weight on the real-world circumstances faced by employees.21 The realities facing today’s workers are that wages are stagnant, the cost of health insurance continues to rise, and employers are increasingly shifting more of the cost of health insurance to employees in the form of higher premiums and cost-sharing. Requiring an employee to pay hundreds or thousands of dollars more for health insurance premiums, deductibles, and other cost-sharing is self-evidently coercive, whether that surcharge is called a “penalty” or a “failure to earn a reward.” In the preamble to the rule, the Commission seeks input on whether it would be appropriate to import the ACA’s affordability threshold of 9.56% of household income and deem a penalty coercive and involuntary if it made health insurance unaffordable. It would not be appropriate to import the ACA’s affordability threshold into the ADA since the two laws impose different statutory standards, a point discussed further below. Still, even asking the question acknowledges that these penalties are substantial enough to threaten the affordability of health insurance. Penalties-rewards reduce employees’ paychecks, and in the real world, they are coercive well before they make health insurance unaffordable.

4. The proposed penalty is in conflict with the EEOC’s GINA regulations Significantly, the approach taken in the proposed rule is flatly inconsistent with the EEOC’s own recent regulations under the Genetic Information Nondiscrimination Act (GINA), a statute in many respects parallel to the ADA. GINA made it an unlawful practice for employers to request genetic information as part of a wellness program unless “the employee provides prior, knowing, voluntary, and written authorization.”22 In regulations promulgated under that Act,23 the EEOC specifically rejected the approach that the EEOC is now proposing to adopt here: to simply

voluntary as long as the covered entity doesn’t limit the extent of benefits (except as allowed under the 30% allowable penalty) for employees who don’t participate. It appears that the parenthetical may be referring to deductibles, copays, and the like, which is undesirable but consistent with the EEOC’s decision to allow 30% penalties on premiums and cost-sharing elements. But the parenthetical exception could also be interpreted as allowing 30% surcharges on particular benefits packages like high-tier plans, or access to other benefits, perhaps such as dental or vision coverage, unless the employee “volunteers” for the HRAs or screenings. This should be clearly and flatly prohibited. 21

See e.g., Opening Statement of Commissioner Barker, EEOC Meeting on Workplace Harassment (Jan. 14, 2015), at http://www.eeoc.gov/eeoc/meetings/1-14-15/transcript.cfm; see also, EEOC Meeting on Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention (June 17, 2015), at http://www.eeoc.gov/eeoc/meetings/6-17-15/index.cfm. 22

42 U.S.C. § 202(b)(2)(A & B) (emphasis added). 23

Regulations under the Genetic Information Nondiscrimination Act of 2008; Final Rule, 75 Fed. Reg. 68912 (Nov. 9, 2010) (to be codified at 29 CFR Part 1635), available at http://www.gpo.gov/fdsys/pkg/FR-2010-11-09/pdf/2010-28011.pdf.

7 follow the HIPAA framework amended by the ACA.24 Instead, the EEOC promulgated a sound and balanced rule implementing GINA that equated financial inducements with financial penalties, and allowed employers to offer inducements, but only as long as the questions are clearly marked as requesting genetic information, and employees could earn the inducement without answering the questions.

[A] covered entity may not offer a financial inducement for individuals to provide genetic information, but may offer financial inducements for completion of health risk assessments that include questions about family medical history or other genetic information, provided the covered entity makes clear, in language reasonably likely to be understood by those completing the health risk assessment, that the inducement will be made available whether or not the participant answers questions regarding genetic information.25

This is a key distinction: GINA allows employers to ask offending questions about genetic information, and it permits employers to offer rewards to answer them, but they can do so if and only if employees are made aware which questions violate GINA and that they can earn the reward without answering them. In other words, the financial coercion of the reward-penalty is taken out of the equation. Under GINA, EEOC stated that financial inducements are every bit as compromising of the statutory “voluntary” standard as penalties. The EEOC fails to offer any rationale for its opposite treatment of voluntariness under its GINA regulations and the proposed wellness regulations in this rulemaking under the ADA. The difference is not due to statutory language: both statutes say that the wellness program inquiries/exams must be voluntary, and when the same term is used in similar statutes, the term should generally be interpreted in the same way.26 The difference in interpretations is also not due to different contexts: both laws seek to protect employees from involuntary disclosure of medical information as part of wellness programs that could lead to employment discrimination. Nor is the differential treatment due to a difference in timing in relation to the ACA. The GINA regulations were adopted in November, 2010, well after the passage of the ACA earlier that year. The EEOC again validated the equivalency between rewards and penalties which it promulgated under GINA in yet another discussion letter in 2011.27 To the extent the EEOC had any concerns about the interrelationship of the ACA and GINA, it was very recently able to address them without undermining the “voluntary” standard. In the present rulemaking, however, the EEOC has interpreted “voluntary” in a manner directly opposed to the way in which it interpreted that term in GINA, with no explanation for its departure.

5. Congress did not silently repeal the ADA or its longstanding legal standard It is also clear that Congress did not specifically address the ADA or intend a different result. There is nothing in the text of the ACA that countermands the ADA in any respect, and nothing that countermands the application of the civil rights laws generally to wellness programs. In amending HIPAA’s provisions on wellness programs in the ACA, Congress could have repealed Sec. 12112(d)(4)(B) of the ADA. It chose not do so. Moreover, it could have superseded the ADA’s standards in key respects, simply by prefacing the wellness section with the proviso, “Notwithstanding any other provision of law.” In at least 20 instances in the ACA, Congress

24

Id., Preamble at 68923. 25

29 C.F.R. § 1635.8(b)(2)(ii) (emphasis added). 26

Statutory Interpretation, supra n. 9, at 14. 27

Incentives Letter, supra n. 14 (“…the final rule makes clear that covered entities may not offer financial inducements for individuals to provide genetic information as part of a wellness program….”).

8 stated that, “notwithstanding any other provision of law,” the ACA controlled. Congress chose not to include that kind of language with regard to wellness programs. Nor did Congress intend to repeal by implication the ADA’s voluntariness requirement regarding inquiries and exams. “[R]epeals by implication are not favored, ... and will not be found unless an intent to repeal is clear and manifest.”28 The presumption against implied repeals “is all the stronger” if both laws were passed by the same session of Congress.29 The ACA, GINA, and the ADAAA were not passed in the same session of Congress, but they were passed very close in time in adjacent Congresses. In May, 2008, the 110th Congress enacted GINA, a new law modeled in significant part on the ADA, making it unlawful for employers to ask employees about information on their family medical history. Only a few months later, in September, 2008, Congress passed the ADA Amendments Act, a major strengthening of the ADA, without making any changes to Sec. 12112(d). Both the ADA and GINA make exceptions that allow workplace wellness programs to ask medical questions, so long as answering such questions is voluntary. Just 18 months after the ADAAA was enacted, the 111th Congress passed the ACA in March, 2010. Control of both chambers of Congress and relevant Committee chairman (with the exception of Sen. Harkin succeeding Sen. Kennedy) remained the same in both the 110th and the 111th Congresses. Finally, although sometimes later-enacted statutes are deemed to repeal previously enacted laws by implication, there is no reasonable “later-enacted” case to make here with the ADA and ACA.

A court “must read [two allegedly conflicting] statutes to give effect to each if [it] can do so while preserving their sense and purpose.” Only if provisions of two different federal statutes are “irreconcilably conflicting,” or “if the later act covers the whole subject of the earlier one and is clearly intended as a substitute,” will courts apply the rule that the later of the two prevails.30

None of these circumstances apply here. Neither the ACA as a whole nor its provisions making modest changes to preexisting HIPAA provisions were intended to “cover the whole subject” of or be a substitute for the Sec. 12112(d) of the ADA, a very specific provision related to medical inquiries and exams and the narrow circumstances under which workplace wellness program may ask employees to participate in them. The EEOC’s new interpretation of “voluntary” as permitting rewards/penalties of up to 30% on the exercise of such an important right is the functional equivalent of writing key sections of the ADA out of the civil rights laws by silent implication. Quite simply, Congress evidenced no intent in the ACA to expressly or silently repeal the ADA’s definition of discrimination to include involuntary inquiries and exams. Neither should the EEOC.

B. There Is No Need to Harmonize the ADA with the ACA, Because There Is No Conflict

The EEOC does not offer any justification for its proposals or its decision to depart so significantly from the ADA’s statutory language, the EEOC’s prior enforcement guidance, or its well-balanced GINA regulations. The closest it comes to offering a rationale is to imply there is a statutory conflict that needs to be reconciled:

28

Statutory Interpretation, supra n. 9, at 29 (citing Rodriguez v. United States, 480 U.S. 522, 524 (1987)). 29

Id., at 30 (citing Pullen v. Morgenthau, 73 F.2d 281 (2d Cir. 1934)). 30

Id., at 29 (footnotes omitted).

9

A plausible reading of ‘‘voluntary’’ in isolation is that covered entities can only offer de minimis rewards or penalties to employees for their participation (or nonparticipation) in wellness programs that include disability-related inquiries and medical examinations. That reading, however, would make many wellness program incentives tied to the disclosure of health information or the completion of medical examinations expressly permitted by HIPAA impermissible under the ADA. Although it is clear that compliance with the standards in HIPAA is not determinative of compliance with the ADA, the Commission believes that it has a responsibility to interpret the ADA in a manner that reflects both the ADA’s goal of limiting employer access to medical information and HIPAA’s and the Affordable Care Act’s provisions promoting wellness programs.31

In the NPRM, the Commission asks for comments on whether the way in which it has reconciled the ADA’s voluntary requirement with the ACA is appropriate given the intent behind both provisions. It is not. Both the supposed conflict and the need to reconcile it are unfounded.

1. There is no legal conflict Although the ACA and the ADA both address “discrimination,” they have different goals, apply to different actors, and address different types of discrimination. Each law has its own different legal standards, procedures, remedies, and enforcement agencies. The ACA applies to health insurance issuers and group health plans, and was intended to stop discrimination in health insurance on the basis of a health condition. It prohibits insurers from denying insurance based on a preexisting health condition, and it limits insurers’ ability to vary premiums based on health status, age, and certain other characteristics. On the other hand, the ADA applies to employers (including in their capacity as plan sponsors), and has as its goal the promotion of equal employment opportunities for persons with disabilities by barring job discrimination. Both laws contain limited exceptions related to wellness programs, but even here, the two laws diverge widely in approach and scope. The ACA is silent regarding health risk assessments or inquiries, whereas the ADA contains an express prohibition on involuntary medical inquiries. On diagnostic tests/medical exams, which are mentioned in both statutes, the laws do not require employers to implement opposite mandates: one law does not require action prohibited by the other. All of the ACA’s wellness provisions are permissive; they outline what employers may do without violating the ACA. The ADA, on the other hand, specifies some practices that employer must not do or else they violate the ADA. An employer that complies with the ADA’s prohibition on involuntary wellness inquiries and exams is in compliance with the ACA.

2. Even if there was any conflict, the tri-agency regulations settle it Neither Congress nor the three agencies that promulgated the wellness program regulations under the ACA intended that law to be the be-all or end-all with regard to limits on wellness programs. To the contrary, in the preamble to the tri-agency regulations, in a subsection titled “No effect on other laws,”32 the three implementing agencies state in plain language that they have left the 2006 HIPAA provision on the relationship with other laws “unchanged” and that it “remains in effect.” That 2006 regulation made clear that all other applicable laws, explicitly

31

NPRM, supra n. 15, Preamble at 21662 (emphases added). 32

Dept. of the Treasury, Dept. of Labor, & Dept. of Health & Human Services, Incentives for

Nondiscriminatory Wellness Programs in Group Health Plans; Final Rule, 78 Fed. Reg. 33168 (June 3, 2013) (emphasis added) (to be codified at, inter alia, 29 C.F.R. Pt. 2590 (Labor) [hereinafter Tri-Agency ACA Regulations].

10 naming the ADA as an example, remained in full force and effect, and that compliance with the HIPAA wellness regulations was not determinative of compliance with any other laws:

Compliance with this section is not determinative of compliance with any other provision of the Act (including the COBRA continuation provisions) or any other State or Federal law, such as the Americans with Disabilities Act. Therefore, although the rules of this section would not prohibit a plan or issuer from treating one group of similarly situated individuals differently from another (such as providing different benefit packages to current and former employees), other Federal or State laws may require [equal treatment] ….33

Thus, a wellness program’s compliance with the ACA is neither dispositive nor particularly compelling or relevant as to questions of compliance with the civil rights laws enforced by the EEOC. Stated differently, compliance with the ACA is no safe harbor for compliance with the ADA, the Age Discrimination in Employment Act (ADEA), and other civil rights statutes and regulations. To the extent there are any purported conflicts, this tri-agency regulation settles them in favor of giving effect to all applicable laws, not by subordinating other laws such as the ADA to the ACA. Curiously, in light of such a clear direction from the three federal agencies charged with implementing the ACA, the EEOC states that it “believes it has a responsibility” to interpret the ADA in a manner that reflects” the goals of both the ADA’s limitations on employer access to medical information and the ACA’s goal of promoting wellness programs. To the extent this “no effect on other laws” regulation imposes any responsibility on anyone, it imposes a responsibility on wellness program providers to ensure that their programs comply with all applicable laws. For purposes of the ADA, it is employers that have a responsibility to “harmonize” and shape their programs in accord with other legal requirements, most especially the ADA since it was expressly named in the ACA disclaimer. This “no effect” provision did not direct any federal agency or policymaking body that it had a responsibility to change or harmonize its longstanding laws and regulations with the ACA. The proposed rule makes clear that “[c]ompliance with the requirements of paragraph (d) of this section, including the limit on incentives under the ADA, does not relieve a covered entity from the obligation to comply in all respects with” other sections of the ADA and the nondiscrimination provisions of other civil rights laws.34 AARP would strongly support the inclusion of such a disclaimer. However, it is unclear what the EEOC means by this, in light of the fact it is now interpreting the very same type of disclaimer that was included in the tri-agency regulations as providing the Commission license to change the nondiscrimination requirements of one of these laws. Further, this disclaimer is being proposed while a possibly harmful reinterpretation of GINA is next on the EEOC’s agenda. Wellness programs have the potential to discriminate against many groups protected by the civil rights laws, by violating express proscriptions such as here, and by violating prohibitions of discrimination in compensation and benefits, and in the terms, conditions, and privileges of employment, as well as in having a disparate impact on protected groups. With this rulemaking, the civil rights community has every reason to be concerned whether the rights of protected groups will be similarly impaired under other civil rights laws in the service of wellness programs.

33

See e.g., 29 C.F.R. § 2590.702(h) (Labor). 34

Proposed § 1630.14(d)(7), NPRM, supra n. 15, at 21667.

11

3. No operational conflict prevents these laws from peaceful coexistence

As discussed above, the ACA requires nothing that is banned by the ADA. Rather, if not carefully implemented, the ADA prohibits some wellness activities that are permitted under the ACA. The ACA says an employer can offer a wellness program that imposes large penalties on refusals to answer HRAs and succumb to exams, but the ADA demands that the employer not impose penalties-rewards because that would make participation involuntary. Employers can comply with both statutes by making participation voluntary, even though they may prefer the ACA’s more lenient (and punitive) approach. There are many ways in which both of these two laws can be given effect without subverting either law, including for example:

Most obviously, employers can refrain from offering wellness program components that require or penalize participation in any activity.

Employers can require or penalize participation in activities other than medical inquiries or exams.

Employers can offer de minimis incentives for participating in inquiries or exams.

Employers can require employees to answer inquiries that are focused on behavioral or lifestyle components of health, not on medical conditions or disabilities.

Employers can ask both medical and nonmedical questions, but segregate the former and make clear that answering those is voluntary and will not be penalized.

HIPAA and the ADA coexisted long before the ACA was enacted and they can continue to co-exist. Additional guidance from the EEOC was necessary because the EEOC had expressly abstained from articulating a position on “rewards,” thus creating uncertainty for employers who wanted to utilize them in their wellness programs. However, the EEOC could have provided that certainty by clarifying the denial of rewards is the functional equivalent of the imposition of

penalties, and that rewards any larger than a de minimis amount would be considered coercive and therefore involuntary. The tri-agency regulations under ACA gave the EEOC an open invitation to continue its protective interpretations of the ADA. In the preamble, the Commission asks whether there are methods other than the ones it proposed by which the Commission can effectuate the intent of both the “voluntary” requirement and the provisions of the ACA.35 In fact, the EEOC already has a template at its disposal that would achieve these purposes, and it is the one it created for GINA after the passage of the ACA: no meaningful difference between rewards and penalties therefore no financial inducements, differentiation of and prior, knowing notice of unlawful questions, ability to earn rewards despite refusal to answer unlawful questions, etc. Instead, far from harmonizing laws, the EEOC proposals in this NPRM create disharmony between the ADA and GINA, two very similar civil rights laws enforced by the EEOC. The EEOC has announced it will be issuing new “harmonizing” regulations on GINA shortly.36 We are concerned that the EEOC will resolve this new conflict with the ADA by similarly weakening GINA’s statutory protections.

35

NPRM, supra n. 15, Preamble at 22164, Issue 1(c). 36

Oversight of the Equal Employment Opportunity Commission: Examining EEOC’s Enforcement and Litigation Programs, Hearing before the Health, Education, Labor and Pensions Committee, U.S. Senate, 114

th. Cong. 7 (May 19, 2015) (Statement of Jenny R. Yang, Chair, EEOC) 7 available at

http://www.help.senate.gov/imo/media/doc/Yang.pdf (“Our goal is to propose rules that harmonize ADA and GINA requirements with HIPAA and the ACA….”).

12 II. The Protections Proposed to Mitigate the Damage Done by the Proposed Rule Are

Inadequate To its credit, the EEOC’s NPRM recognizes, at least implicitly, that the allowance of a 30% penalty on refusals to participate in HRAs and biometric screenings opens the door to some unacceptable risks of facilitating and permitting workplace discrimination based on disability. As a result, the Commission proposes some protections in addition to any that may be applicable under the ACA. Although these additional protections are welcome, they do not repair the damage done to the “voluntary” standard by the EEOC’s proposed redefinition, and they do not go far enough to mitigate all of the problems that it creates.

A. Scope of the Rule According to the NPRM, the EEOC’s proposals differ based on whether wellness programs are offered as “part of” a group health plan (GHP). The provision allowing 30% penalties/rewards for nonparticipation in medical inquiries and exams associated with wellness programs and the provision requiring advance employee notice of inquiries and exams would only apply to wellness programs that are offered as part of a group health plan (purchased from an insurer or self-insured). The requirements that wellness programs be reasonably designed, provide reasonable accommodations, and protect confidentiality of medical information would apply to all workplace wellness programs, regardless of whether they are part of a group health plan.37 Today, a substantial proportion of wellness programs are offered outside of GHPs. According to Rand, nearly half (49%) of employers that offer wellness programs with “incentives” do so directly to all of their employees,38 meaning the program is not necessarily tied to enrollment in the health plan. Less than one-third (31%) administer their wellness program through their group health plan, and 20% administer incentives through both.39 Moreover, according to the same study, larger employers are more likely than smaller employers to run their wellness programs outside of their health plan. Many employers prefer to administer their wellness plans outside of their group plans so that they are not bound to comply with HIPAA’s confidentiality requirements. The EEOC does not define when a wellness program is “part of” a group health plan. Does being part of a GHP depend on whether the health plan is also the administrator of the wellness program? Does it depend on whether the wellness program is confined to employees actually enrolled in the GHP? Is it sufficient that components of the GHP such as premiums and deductibles are adjusted based on participation, regardless of who administers the program? This failure to define “part of” creates a lack of clarity in the scope of the rule, as well as questions about what rules should apply to the use penalties and rewards in programs outside of GHPs.40 The lack of clarity is understandable in light of the fact that the ADA is concerned with employment practices and, as to the treatment of medical inquiries and exams in wellness programs, there is no statutory distinction regarding whether they are being administered as part of a group health plan or not. On the other hand, in accordance with the ostensive purpose

37

See NPRM, supra n. 15, Preamble at 21660. 38

S. Mattke, H. Liu et al., Workplace Wellness Programs Study, at xxi (Rand, for DOL & HHS, 2013) available at http://www.rand.org/content/dam/rand/pubs/research_reports/RR200/RR254/RAND_RR254.sum.pdf 39

Id. 40

NPRM, supra n. 15, Preamble at 21664, Issue 5.

13 of this rulemaking – to harmonize the ADA with the ACA – there is no “ACA harmony” reason to extend a weaker interpretation of the ADA to programs not covered by the ACA. Thus, to be consistent with its rationale, AARP urges the EEOC to restrict its allowance of penalties to programs that are part of GHPs (however that is defined by the EEOC for purposes of the ADA). The EEOC’s longstanding ban on involuntary inquiries and exams would and should remain in effect for wellness programs that are not part of GHPs.41 This means that all of the indicia of voluntariness in § 1630.14(d)(2)(i-iii) should apply, and no penalties should be permitted. In addition, AARP agrees with the Commission’s observation that the ADA’s safe harbor provision for health insurance is not the “proper basis” for finding wellness programs permissible under the ADA,42 as the 11th Circuit did in Seff v. Broward County.43 However, the EEOC’s treatment of the Seff decision is insufficient. The Commission’s final rule should make clear that Seff was wrongly decided,44 and that for purposes of the ADA’s safe harbor for bona fide insurance plans, wellness programs do not qualify, whether or not they are part of the group health plan. The ADA’s safe harbor is about actuarial risk and the underwriting of actual health insurance plans. This interpretation is bolstered by Sec. 12201(c) of the ADA, which says that its insurance provisions “shall not be used as a subterfuge to evade the purposes of subchapter I…,” which contains the prohibitions on inquiries and exams. Thus, the final rule should also state that Sec. 12201(c) shall not be interpreted to apply to wellness programs and that there is no safe harbor for wellness programs under the insurance provision, even if offered as “part of” a health plan. This is important, because there are indications that employers are being advised to use the Seff defense to evade the voluntariness requirement.45 Finally, the EEOC needs to include all of this in the text of the actual regulations, not in preamble footnotes or even in the interpretive guidance, so that it receives greater deference by the courts.

B. Limits on the 30% Penalties The EEOC is rightly concerned that permitting employers to impose penalties as large as 30% on top of what the employee is already contributing is highly likely to make health insurance unaffordable for many, and would be “therefore in effect coercive.”46 However, the mitigation proposed in the NPRM – to import the ACA’s affordability threshold limiting the resulting cost for the employee to 9.56% (in 2015) of the employee’s household income – is the wrong approach.47

41

Some consultants to the employer community apparently agree. See Groom Law Group, Summary of New Proposed EEOC Requirements with Respect to Wellness Programs under the ADA (Chart, provided by Seth Perretta, Groom Law Group, May 29, 2015, on file with AARP) (Can a wellness program that is not part of the group health plan but does include disability-related inquiries or medical exams provide incentives up to 30%? “Appears No.”). 42

NPRM, supra n. 15, Preamble at 21662, n. 24. 43

Seff v. Broward Cty., Fla., 691 F.3d 1221 (11th Cir. 2012).

44 Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005).

45 See e.g., F. Morris, A.E. Huelle et al., Mainstream Wellness Program Challenged in EEOC v.

Honeywell (Epstein Becker Green, Nov. 20, 2014) at http://www.ebglaw.com/content/uploads/2014/11/HEAL-Advisory_Mainstream-Wellness-Program-Challenged-in-EEOC-v-Honeywell.pdf. 46

NPRM, supra n. 15, Preamble at 22164, Issue 1(b). But see discussion infra at 6 (penalties are coercive well before they makes health insurance unaffordable). 47

Having to assess an employee’s household income to determine whether the ADA had been violated would be an administrative nightmare for both employers and the EEOC, and a further intrusion of privacy for the employee.

14 The civil rights laws are not and have never been means-tested. For instance, Title VII does not permit paying a black employee less than a white employee if the black employee earns enough to be able to afford the pay differential. It is not permissible under the ADEA to terminate an older employee on the basis of age, on the rationale that the worker will have a retirement income to help weather the loss. Under the ADA, a 30% penalty on health insurance does not become “voluntary” or nondiscriminatory because the employee can afford the surcharge. The affordability threshold plays an important role in the larger scheme of the ACA, but in AARP’s view, an “affordability” threshold for claiming the protections of our civil rights laws would represent a fundamental and inappropriate change in the interpretation of these laws. Creating hardship exemptions to penalties under wellness programs would have similar problems under the civil rights laws. There are much better ways to mitigate the unaffordability-coercion problem that are more compatible with civil rights law principles. The best way, of course, would be for the EEOC to interpret “voluntary” in the same way it did for GINA, and to bar employers or wellness program providers from offering financial inducements to individuals to provide genetic information. If the EEOC does not modify its proposal to adopt its own GINA interpretation of “voluntary,” then the EEOC should at a minimum change the basis for calculating the 30% penalty to the employee’s contribution only. The EEOC may have proposed to use the combined employer-employee cost as the denominator against which the 30% penalty is applied because it appears to be consistent with the ACA, but in fact the EEOC’s proposed method for calculating the 30% penalty already differs in significant respects from the ACA calculation. Basing the penalty on the employee’s contribution to employee-only coverage would not eliminate financial coercion from the equation, but it would mitigate it somewhat. To illustrate, using the example from page 4 of these comments, an employee who declined to participate in an HRA or biometric screening could be surcharged $60/month (30% x $200 employee share of premium), on top of the $200/month she or he already pays for health insurance. This amounts to $720/year, an amount that may represent one month’s rent or child care expenses, or several months of 401(k) contributions. This $720/year penalty would still be coercive – no employee would pay this penalty voluntarily if given a choice – but this approach would mitigate the severe impact of the EEOC’s new rule. The NPRM contains some other less effective but still beneficial provisions that limit the cost of wellness penalties to employees:

30% limit applies to participatory programs - Requiring an employee to take an HRA or biometric screening or else pay double for their health insurance is perfectly permissible under the ACA; there is no limit to the penalties that may be imposed on participatory programs under the ACA. By applying the 30% limit to inquiries and exams, the Commission thus limits penalties for some participatory programs, something the ACA does not do.

30% limit is imposed on all wellness penalties combined – Because penalties on participatory programs can be unlimited under the ACA, the ACA disregards any penalties associated with them for purposes of computing the 30% limit;48 it only counts penalties on outcome-based programs. To the extent inquiries and exams are involved, the EEOC appears to be proposing a 30% limit on all component penalties combined, whether they are associated with the participatory or health-contingent programs. This is a helpful measure.

48

Compare, Example 4, Tri-Agency ACA Regulations, supra n. 32, with NPRM, supra n. 15, Interpretive Guidance at 21668, Section 1630.14(d)(3): Limitations on Incentives.

15

30% limit calculated on basis of employee-only coverage – The ACA calculates the 30% penalty based on the total employer-employee premium for the coverage in which the employee is enrolled, which could include family coverage if the employer requires the family to participate in the wellness program too. The EEOC is proposing to calculate the 30% penalty based on the total employer-employee premium for employee-only coverage, regardless of whether the employee’s family is in the insurance plan. This is good as far as it goes. However, the EEOC has failed to address how penalties on family members would be handled.49 If an employee’s family members are enrolled in the health plan, and the employer requires all of the family members to participate in the wellness program HRAs or exams, could the employer impose a penalty of up to 30% of the total employer-employee premium for employee-only coverage on each of them as well?50 The EEOC should make clear how it intends this to be handled because these cumulative penalties will have an additional coercive effect on the employee as well as the family. The EEOC should require employers to use the formula that yields the lowest penalty.

AARP urges the EEOC to retain all of these limitations in the face of likely opposition to any limits, and to strengthen them if possible.

C. Notice Requirements

The proposed regulation at § 1630.14(d)(2)(iv) provides that a 30% penalty will not be deemed voluntary unless the employee is give a written, plain language notice describing the information to be obtained by the employer, how the information will be used, and any restrictions on its disclosure. From the employee’s point-of-view, receiving notice is better than no notice. However, receiving notice does not make the provision of medical information to one’s employer any more “voluntary.” The Commission seeks comment on whether the notice contemplated should be augmented with additional protections, for instance whether employees should submit a “prior, written, and knowing confirmation that their participation is voluntary.”51 This language is borrowed from the GINA requirement that employers may not ask for genetic information unless “the employee provides prior, knowing, voluntary, and written authorization.”52 Under the GINA regulations, though, the voluntariness requirement is genuine, and the employee can receive the offered reward even without answering any requests for genetic information. This is not what the EEOC has proposed under the ADA. In this case, the provision of medical information is not genuinely voluntary. The EEOC should not permit a coercive act to be deemed as voluntary simply because notices include a “confirmation” or “authorization.” Some have argued that the proposed notice requirements are burdensome because in the case of programs in group health plans, the proposal may duplicate HIPAA notices, and in the case of programs outside group health plans, the proposal imposes notice requirements where none now exist. The EEOC is right to require separate notices for plans covered by HIPAA and plans

49

The NPRM (at n. 3) says this rulemaking does not address the extent to which GINA affects an employer’s ability to require family members also to participate in wellness programs to avoid penalties. But, this rulemaking did not address that question under the ADA either. Because the Commission has chosen to go down the road of allowing penalties, it needs to address the ADA problem here. 50

Some employers claim that because the ADA only applies to employees, employers should be able to assess additional 30% penalties on each family member, and that the EEOC should not be able extend any protections to the family members covered by the health plan. 51

NPRM, supra n. 15, Preamble at 21664, Issue (2). 52

42 U.S.C. § 202(b)(2)(A & B) (emphasis added).

16 that are not, and to strengthen the language in the notices provided under the ADA, because the ADA has different goals and protections than the ACA. It should, in addition, also require the notices to disclose any rights to request a waiver, a medical certification option or other reasonable alternative, and the right to request reasonable accommodations. How and when such notices should be provided is also a matter that the EEOC should address. A notice about HRAs and exams should not be divorced in time from the actual HRA or exam.

D. Medical Certification

In the context of the ACA/HIPAA, outcome-based wellness programs trigger the most protections because they carry the greatest potential for abuse in the form of discrimination based on a health factor. Similarly, in the context of the ADA, inquiries and exams trigger extra protection because once the employer has access to this information, it can lead to employment discrimination. Because of this significant risk, the EEOC should err on the side of protecting the employee’s ability to safeguard her or his own medical information. The NPRM asks whether the Commission should consider strengthening the definition of “voluntary” by requiring wellness programs that offer incentives for participation in inquiries and exams to permit employees who choose not to participate to earn those same incentives/avoid the penalties by providing their employer with a certification from a medical professional stating that the employee is under a physician’s care and that any medical conditions are under “active treatment.”53 The EEOC’s impulse to provide under the ADA what might be akin to the “reasonable alternative” concept in the ACA is a good one for a few reasons. First, in some instances, the act of having to answer certain questions or undergo an exam itself may actually be damaging to an employee’s health. Our friends in the eating disorder community have shared the stories54 of several individuals in which having to be weighed or have their BMI measured has triggered serious relapses of anorexia or other disorders. Blood tests can also be hazardous to some people with certain medical conditions. In any case, there should be a mechanism by which employees can be relieved of the inquiry/exam requirement for medical reasons, without being penalized. However, the execution of this alternative, as currently framed, needs to be modified. Many disabilities that would be uncovered by HRAs or exams may not be at all susceptible to change by virtue of “lifestyle” changes. For other conditions, the requirement that a medical condition be “under active treatment” of a doctor may be inapplicable or inappropriate, and requiring a certification from the “treating” doctors could reveal the type of disability being treated, e.g., someone with diabetes might be “under active treatment” with an endocrinologist. Instead, the EEOC should provide that, for inquiries/exams to be considered voluntary, the employer should also be required to offer the reward to/waive the penalty on employees who provide a certification from a medical professional stating that the employee is under the care of a licensed professional (not necessarily a physician). As is the case under the ACA with reasonable alternatives to outcome-based health contingent programs, the employee should be able to involve a physician at any time, and the employer should be prohibited from seeking or requiring verification.

53

NPRM, supra n. 15, Preamble at 22164, Issue 1(a). 54

See testimonials appended to Comments of BingeBehavior.com, submitted regarding the present rulemaking proceeding, available at http://bingebehavior.com/eeoc-proposed-rules-official-comment-letter-from-the-ed-community.

17

E. Confidentiality of Medical Information The ADA’s specific protections regarding the handling of medical information by employers are few, perhaps because the ADA focuses on restricting employers’ access to the information as its main strategy for protecting confidentiality. Currently, the ADA requires that covered employers keep medical information collected on separate forms, in separate medical files, and treat it as a “confidential medical record.”55 HIPAA applies numerous specific privacy protections to “health care clearinghouses, health plans, and most health care providers” and their business associates.56 However, HIPAA does not apply directly to employers. Because permitting employers to obtain medical information from employees under threat of financial penalties greatly expands the amount and type of medical information available to or potentially accessible to employers, it is appropriate for the EEOC to add to the ADA regulations (and guidance) more specific confidentiality protections, regardless of whether a wellness plan is covered by HIPAA or not. The NPRM attempts to supplement existing ADA confidentiality protections with one additional regulatory requirement and some best practices. However, much more is needed. More effective firewalls are essential, and they need to be in the form of regulations, not best practices. The NPRM proposes one additional regulatory requirement under the ADA: prohibiting covered entities from receiving any medical information obtained from a wellness program unless it is in aggregate form that doesn’t disclose, or isn’t reasonably likely to disclose, the identity of the employee.57 But the EEOC also proposes a significant exception to this requirement that would allow employers to have access to individually identifiable medical information if it is “necessary” to administer the health plan.58 The Commission never explains why having individually identifiable medical information from wellness program participants would be “necessary” for employers to administer a health plan. If by “administer” the Commission is referring to the ability to surcharge wellness program nonparticipants, there is no need for actual medical information collected from the wellness program; all the plan administrator needs to know to exact a penalty/give a reward is whether the employee participated in the inquiries/exams or not (or met a health target or not). If “administer” is a reference to self-insured plans, usually entities large enough to be self-insured engage third-party administrators, and in any case what is at issue is medical information obtained from HRAs and biometric screenings, not from insurance claims. Hence, the employer should still only receive any wellness program information in the aggregate. The EEOC should delete the exception, and require that information from wellness program inquiries and exams only be in aggregate form. Moreover, consistent with the spirit of “least discriminatory alternatives” to achieve a business necessity, the EEOC should require that all providers of workplace wellness programs be limited to providing an employer with only the information minimally necessary to, for instance, evaluate performance of the program. The preamble to the new regulation states that both employers that sponsor wellness programs and the wellness programs themselves (if the employer or employer’s agent administers it) would have to comply with this aggregation requirement. But, this presents a problem if the employer is administering the wellness program, since the employer would also be the one doing the aggregation, to provide information to itself. Under these circumstances, the employer would already have access to the individually identifiable information, so aggregation provides

55

See 29 C.F.R. § 1630.14(b)(1). 56

U.S. Dept. of Health & Human Services Office of Civil Rights, HIPAA Privacy and Security and Workplace Wellness Programs (April 16, 2015), at http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/wellness. 57

Proposed §1630.14(d)(6), NPRM, supra n. 15, at 21667. 58

Id.

18 no protection. Employers that administer their own wellness programs should be required to prevent employment decision-makers from ever seeing medical information that discloses or is reasonably likely to disclose the medical information of the individuals. The interpretative guidance suggests some “best practices” that could help remedy this problem, e.g., the employer could designate employees other than those who make employment decisions (hiring, firing, discipline) to handle the wellness information and aggregate it. Better yet, the employer could use a third-party vendor, “particularly for employers whose organizational structure makes it difficult to provide adequate safeguards.”59 Both of these measures would be much more effective safeguards if the EEOC also required measures currently recommended in interpretive guidance: “proper training” of information handlers, “clear privacy policies and procedures” for collection, storage and disclosure, and technological protections to “guard against unauthorized access.”60 All of these should be regulatory requirements, not simply recommended best practices. The EEOC’s proposed confidentiality scheme for small employers also fails to provide meaningful protections: if the employees who handle the medical information obtained from the wellness program are also employment decision-makers (e.g., because the employer is small and directly offers its own wellness program), the EEOC suggests it is sufficient if the employer refrains from discriminating on the basis of disability.61 This is not an appropriate solution to the challenge presented. Nor is aggregation a feasible solution here, because with a small group, there are too few employees to make aggregation effective as a method for concealing individually identifiable information. Instead, the EEOC, by regulation and not interpretive guidance, should prohibit small employers from offering wellness programs that include inquiries and exams, even on a voluntary basis, unless they are conducted by a third-party vendor that withholds the medical data from the employer in any form, or the third-party vendor is able to combine that information (for example, with data from other small employers) in an aggregate form that does not disclose or is not reasonably likely to disclose the identity of individual employees. Even with strengthened confidentiality requirements, it is important to note that in an age of electronic records, confidentiality protections are less and less effective. Almost daily, we read news reports about the theft of personal information from the government (including the IRS and Office of Personnel Management), major corporations such as banks, and more to the point, wellness program providers such as StayWell62 and health insurance providers such as Anthem.63 One press report states:

Health information is a valuable target. Hackers can get $50 for a medical chart on the black market, compared with just a few dollars for other pieces of personal information, said Hancock of Advanced Cybersecurity. He said he’s refused to share his health information with wellness programs at past employers because he isn’t convinced the data are safe. “The technology isn’t that secure, so you’re trusting people not to use it

59

Id., Interpretive Guidance at 21669. 60

Id. 61

Id. 62

B. Sutherly, “Hackers break into Huntington’s wellness program,” Columbus Dispatch (Aug. 27, 2014), at http://www.dispatch.com/content/stories/local/2014/08/27/hackers-break-into-wellness-program.html 63

F. Barbash & A. Phillip, “Massive data hack of health insurer Anthem potentially exposes millions.” Washington Post (Feb. 5, 2015), at http://www.washingtonpost.com/news/morning-mix/wp/2015/02/05/massive-data-hack-of-health-insurer-anthem-exposes-millions/.

19

and be responsible. You just can’t count on any of that,” Hancock said. “Unless you can show who has access and prove it is secure, I’m not signing up.”64

With the advent of big data, wellness program vendors have huge financial incentives to collect, compile, and sell the data they obtain from HRAs and biometric screenings in wellness programs. There are many breaches of confidentiality now taking place in the wellness industry, and these practices should be prohibited outright. For example, Provant pitches to employers its ability to take the data obtained from the employer’s wellness program and “share it with your other third-party vendors to allow the information to influence other areas of decision-making.”65 It is quite common for wellness programs to require employees to fill out online HRAs, and then to deem the employee’s use of the website to constitute the employee’s agreement and authorization for the wellness vendor to use and share the employee’s medical information.66 In effect, this which means employees have no control over their health information. These authorizations are often hidden in lengthy terms and conditions statements, or are disclosed after the employee clicks a link to begin the HRA process.67 These wellness programs are built on enabling the sharing of personal medical information, “voluntarily authorized” by the employee. The most effective way for employees to protect their personal medical information from disclosure to their employers would be to ensure employers cannot financially pressure employees into participating in wellness program-related medical inquiries and exams. If, however, the EEOC permits this collection of personal health data, the agency needs to acknowledge that ADA confidentiality protections need to be strengthened commensurately, and the regulations need to account for the privacy breaches and information sharing that will occur in the wellness field.

F. Reasonably Designed The NPRM proposes to borrow the language of the “reasonably designed” requirement applicable to health-contingent wellness programs under the ACA and to import it as a requirement with which all wellness programs must comply under the ADA, regardless of whether they include inquiries/exams or not.68 This requirement will have the effect of extending “reasonable design” protections to participatory wellness programs, which currently carry no such protections under the ACA. Among these protections are requirements that the program have a chance at promoting health, and that it not be overly burdensome, a subterfuge for violating the ADA or other employment discrimination laws, or choose highly suspect methods.

64

S. Pettypiece, “Wellness Programs at Work May Not Be as Private as You Think,” Bloomberg Business (Dec. 16, 2014), at http://www.bloomberg.com/news/articles/2014-12-16/your-wellness-program-at-work-may-not-be-as-private-as-you-think. 65

Provant, Outcomes Reporting, at http://www.provanthealth.com/our-services/outcomes-reporting.cfm. 66

See e.g,, Take Care Health Systems Terms and Conditions of Use, at https://www.takecareemployersolutions.com/legalInformation.html. 67

See e.g., this cached version of Zensey’s authorization to do whatever it wishes with employee wellness information, at http://webcache.googleusercontent.com/search?q=cache:qYU2z7OqpTEJ:https://www.zensey.com/corporate/hipaa+&cd=1&hl=en&ct=clnk&gl=us, and a new version of Zensey’s terms and conditions, at https://www.zensey.com/corporate/hipaa. 68

“An employee health program, including any disability-related inquiries or medical examinations that are part of such a program, must be reasonably designed….” Proposed § 1630.14(d)(1), NPRM, supra n. 15, at 21667 (emphasis added).

20 This requirement could be strengthened in a number of ways. First, the “chance at health promotion” element under HIPAA is weak, especially given so much research indicating that most programs do very little to promote health or bring down health care costs.69 Rather than echoing an ineffectual standard, AARP would recommend that the EEOC substitute an evidence-based standard for the “chance” standard. A program would be considered well-designed if it was designed by those with appropriate medical credentials and there is credible evidence of its effectiveness at promoting health or preventing disease. In addition, the employer sponsoring the wellness program should be required to evaluate the effectiveness of the program in meeting health promotion goals, and should do so in a manner that does not itself violate the inquiries/exams prohibition or confidentiality provisions in the ADA. Although not required under HIPAA, the use of an evidence-based standard here is wholly justified by the fact that concepts like job-related and business necessity apply to inquiries and exams under the ADA. In civil rights jurisprudence, both of these concepts require a demonstrated, factual, and close relationship between a practice and the objective sought. Here, in order for a wellness program to be considered reasonably designed, there should be a demonstrated, factual, and fairly close relationship between a wellness program and improving health outcomes. In accordance with this point, it should not be considered sufficient under the reasonably designed standard to require an employee to answer an HRA or be screened and then simply provide the employee with the results “alerting them to health risks of which they may have been unaware.”70 Something more substantial in the way of services or programs of benefit to employees should be required; otherwise this appears to be unadorned data collection of employees’ medical information. An evidence-based requirement would also be compatible with the sentiment expressed in the interpretive guidance that “[a] program is not reasonably designed if it exists mainly to shift costs from the [employer] to the targeted employees based on their health.”71 The EEOC doesn’t define “exists mainly to shift costs” and asks what “best practices” would ensure health promotion over cost-shifting.72 We would argue that a wellness program that is not grounded in any evidence of which design features produce actual health improvements should be considered a program that exists mainly to shift costs.

69

See e.g., S. Mattke, K. Kapinos, et al., Workplace Wellness Programs: Services Offered, Participation, and Incentives, at xiv (Rand, for DOL, 2014), available at https://www.dol.gov/ebsa/pdf/WellnessStudyFinal.pdf (as in 2013 study, we still find no significant cost savings or reduction in health care utilization associated with participation in lifestyle management programs); J.Horowitz, B. Kelly, et al., Wellness Incentives in the Workplace: Cost Savings Through Cost Shifting to Unhealthy Workers, 32 HEALTH AFFAIRS 468 (2013) available at http://content.healthaffairs.org/content/32/3/468.long (little evidence such programs can easily save costs through health improvement without being discriminatory, savings to employers may come from cost shifting, with the most vulnerable employees—those from lower socioeconomic strata with the most health risks—probably bearing greater costs); A. Lewis, V. Khanna, et al., Employers Should Disband Employee Weight Control Programs, 21 AM. J. MANAG. CARE, at e91-e94 (2015), available at http://www.ajmc.com/journals/issue/2015/2015-vol21-n2/Employers-Should-Disband-Employee-Weight-Control-Programs (no published evidence that large-scale corporate attempts to control employee body weight through financial incentives and penalties have generated savings from long-term weight loss or long-term weight loss itself). 70

NPRM, supra n. 15, Interpretive Guidance at 21668. 71

Id. 72

NPRM, supra n. 15, Preamble at 22164, Issue 4.

21

G. Reasonable Accommodations The right to request and receive reasonable accommodations in employment is a core concept of Title I of the ADA.73 The NPRM indicates that the Commission will apply this concept across the board, regardless of the type of wellness program being offered or whether inquiries and exams are part of the wellness program. However, the EEOC then alludes to the “reasonable alternative” standard that applies to health-contingent programs under the ACA, and observes that this would “likely fulfill” an employer’s obligation to provide reasonable accommodations under the ADA.74 AARP disagrees. Reasonable alternatives and reasonable accommodations are not the same thing. Reasonable alternatives under the ACA require a medical certification, while reasonable accommodations do not. Reasonable alternatives are within the employer’s discretion to define, and can be one size fits all or individualized. Reasonable accommodations must be individualized. Reasonable accommodations apply to all aspects of wellness programs, whereas reasonable alternatives are confined to health-contingent programs under the ACA. The EEOC should clarify its guidance to state that, while the provision of reasonable alternatives under the ACA may be relevant under the ADA, their provision does not necessarily fulfill an employer’s obligation under the ADA to ensure that persons with disabilities have equal access to wellness programs. Conclusion The ADA requires medical inquiries and exams to be voluntary, but this standard is turned on its head if an employee is required to pay hundreds or thousands of dollars more for health insurance. Fortunately, there is no statutory mandate or operational justification for the EEOC to take this position: there is no conflict between the ADA and the ACA, and no reason why both laws cannot be given full effect. AARP urges the EEOC to reconsider and withdraw its proposal to allow employers to impose substantial penalties on employees for exercising their rights, and instead issue a regulation that tracks the approach taken in GINA. In the absence of corrective action to reinstate a meaningful voluntary standard, the EEOC should take further steps to more effectively protect employees from discriminatory wellness programs. Thank you for the opportunity to comment and your consideration of our recommendations. If you have any questions, please contact Deborah Chalfie in our Government Affairs Department at 202-434-3723. Sincerely,

David Certner Legislative Counsel and Legislative Policy Director Government Affairs

73

42 U.S.C. § 12112(b)(5)(A). 74

NPRM, supra n. 15, Interpretive Guidance at 22168.