Implementing Health Reform (October 29 update). On October 30, 2015, the Equal Employment Opportunity Commission (EEOC) released a proposed rule concerning the application of the Genetic Information Nondiscrimination Act (GINA) to employer wellness programs, together with a fact sheet and a series of questions and answers.
Also on October 30 the Assistant Secretary for Planning and Evaluation (ASPE) released a report on Health Plan Choice and Premiums in the 2016 Health Insurance Marketplace. Accompanying the ASPE report, CMS released the public use files on marketplace plans on which the reports are based.
Finally, the Centers for Medicare and Medicaid Services has released the marketplace eligibility notices they are using for 2016.
Applying GINA To Wellness Programs
GINA is a federal law that protects employees from employment discrimination based on their genetic information. It prohibits covered employers (with 15 or more employees) from using genetic information for making employment decisions. It also forbids employers from requesting, requiring, or purchasing genetic information regarding their employees unless one or more of six narrow exceptions applies. It strictly limits the disclosure by employees of genetic information.
Genetic information includes information about the "manifestations of a disease or disorder in family members of an individual." Family members obviously include spouses.
One of the exceptions to GINA's information request prohibition applies when an employee voluntarily accepts health services from the employer, including wellness program services. Employer wellness programs often include not only employers but also their spouses. Current EEOC GINA regulations provide that employees cannot be required to provide genetic information as a condition of receiving incentives from their employer. The question thus arises as when wellness programs may legally offer incentives to obtain current or past health information regarding the spouses of employees. This proposed rule addresses this question.
Wellness programs are currently very popular among employers. According to the recent Kaiser Family Foundation Survey, 72 percent of employers with 5,000 or more employees offer or require employees to complete a health risk assessment while 65 percent have biometric screening programs. When incentives are offered for participation in wellness programs or penalties imposed for nonparticipation, serious issues arise under a number of federal laws, including the Affordable Care Act and the Health Insurance Portability and Affordability Act (HIPAA), which prohibit health status discrimination in the provision of health plan coverage; the Americans with Disabilities Act; and GINA. Wellness program rules under the ACA and HIPPA were published in 2013, while the EEOC proposed rules under the ADA earlier this year. The proposed GINA rules complete this regulatory effort.
The proposed rule would allow employers to offer limited inducements (financial or in-kind and in the form of rewards or penalties) to obtain information from the spouses of employees covered by the employer's group medical plan regarding the spouses' current or past health status, through a medical questionnaire or examination. Provision of spousal information would be considered "voluntary" even though these inducements were offered. Participation would have to be with written authorization.
As required by the wellness program regulations under other laws, the wellness program would have to be reasonably designed to promote health or prevent disease and not be a subterfuge to violate GINA or be highly suspect. To be reasonably designed, a program would have to offer follow-up information and advice in conjunction with health assessments or examinations; not impose overly burdensome time or cost requirements; and not be unreasonably intrusive.
The total inducements offered for participation of an employee and spouse cannot exceed 30 percent of the total annual cost of plan coverage. The maximum inducement that an employer can offer for an employee's provision of information on himself or herself is 30 percent of the cost of sole-employee coverage. The maximum inducement that an employer can offer for spousal provision of information is 30 percent of the cost of family coverage minus 30 percent of the cost of sole-employee coverage. Wellness programs are not limited by these apportionment rules if the program does not involve health information and otherwise complies with federal requirements. The GINA rules do not limit requests for medical information, on a voluntary basis without inducements, from an employee's spouse or children in conjunction with the provision of medical treatments.
An employer's offer of inducements to obtain health status or genetic information on an employee's children (biological or non-biological) is not permitted. Health information on an employee's children is much more likely to reveal prohibited genetic information about the employee than health information about the employee's spouse and is thus more carefully protected. Also inducements cannot be offered in return for spouses providing genetic information other than health status information, including the results of genetic tests and family genetic information.
Employers can ask questions about genetic information, but must clearly state that those questions need not be answered in order to obtain an inducement. Employers cannot use genetic information as the basis for employment decisions. Employers also cannot offer employees an inducement to waive GINA's confidentiality requirements or permit the sale of their genetic information.
The EEOC requests comments on a number of related issues, including:
- Should inducements be equally available if employee's spouses in lieu of providing medical information provide a doctor's statement that they are under the care of the doctor and all medical risks are being addressed?
- Should the proposed authorization requirements only apply to wellness programs offering more than de minimis inducements?
- What safeguards are necessary to avoid wellness programs simply shifting costs to employees or spouses with health conditions?
- Are additional protections necessary where employers store medical information electronically?
- Should programs be prohibited from accessing genetic information from other sources such as claims data or medical records?
- Are GINA regulations necessary to address employer wellness programs offered outside group health insurance plans?
The proposed GINA rules do not limit the protections offered by other federal laws including HIPAA, the ACA, and the ADA. The proposed GINA rules correspond to the other rules and should give employers assurance that compliance with one set of rules will not cause problems with compliance with the others. The proposed rules do raise a serious question, however, as to whether provision of spousal medical information to a wellness program is "voluntary" when employees can be charged thousands of dollars more for their health coverage if they refuse to provide the information.
2016 Marketplace Coverage
The ASPE report supplements the report that ASPE released on October 28. It offers some of the information, but contains more detail on premiums as well as additional information on plan availability.
The ASPE report covers the 38 states participating in the federally facilitated marketplace (FFM) for 2016, although some of the tables exclude Nevada, Oregon, and Hawaii, which did not participate in the FFM for 2014, and others exclude only Hawaii, which only joined for 2016.
The report states that the national average 2015-2016 increase in the second lowest-cost benchmark silver plan was 7.2 percent. The October 28 report had stated that the average 2015-2016 increase in the second lowest cost silver plan premium was 7.5 percent, but the October 30 report notes that advance premium tax credits (APTC) are actually not necessarily based on the premium of the second lowest-cost silver plan, but rather on the portion of the premium of the second lowest-cost silver plan that is available to a particular consumer that covers the essential health benefits (EHB). Some silver plans apparently cover non EHB services such as adult dental, and in some areas the second lowest-cost premium silver plan may not in fact be the benchmark plan.
Nationally, the average monthly premium for the second lowest-cost silver plan for a 27 year-old before tax credits is $240 for 2016, up from $224 in 2015. Average premiums for 2016 for a 27-year old run from $189 in Arizona to $590 in Alaska. Tax credits average $97 a month for a 27-year old with an income of $25,000 and $464 for a family of four with an income of $464, but range from $486 for the 27 year old and $1,820 for the family in Alaska to $46 for the 27-year old and $278 for the family in Arizona.
As of October 19, 2015, when the report was finalized, there were nearly 240 insurers signed up to participate in the marketplace for 2016, with the totals varying from 1 in Wyoming to 17 in Texas and Ohio. (Insurers have state-specific licenses so multiple insurers owned by the same parent company are counted separately if they are licensed in separate states). On average, there are 6 insurers per state and 3 per county for 2016, the same as in 2015.
As of October 19, 40 insurers had joined the marketplaces for 2016 and 35 had left. Since October 19 a number of insurers (mainly the CO-OPs) have exited the marketplace, but new insurers are scheduled to join the marketplace during the 2016 open enrollment period, so participation remains about what it was for 2015.
During 2016, 88 percent of the population will live in a state with a choice of 3 or more insurers, the level that seems to be necessary for vigorous competition. New entrants also increase competition. Previous ASPE analysis showed that in 42 percent of counties with new entrants, the new insurers offered at least one silver plan with a premium below what would have been the second lowest-cost plan of existing insurers. Experience from 2015, however, shows that lower premiums are not necessarily in the best interests of consumers if they are not sufficient to maintain the solvency of insurers.
Consumers will be able to choose from 50 plans on average in 2016, down from 58 in 2015. The number of available plans per county varies from 13 in Alabama to 88 across the state line in Mississippi. While the national average is down an average of 2 plans per insurer, this may simply indicate that insurers are responding to consumer demand and dropping unpopular plans or plans that are nearly identical to other plans. On average, 19 silver plans per county will be available compared to 22 in 2015.
In 2015, nearly half of consumers selected either the lowest-cost (31 percent) or second lowest-cost (17 percent) plan in their metal level. According to the report, 86 percent of current marketplace enrollees can find a lower premium plan in the same metal level by returning the marketplace to shop. The average consumer who bought a silver plan in 2015 and decides to shop for a better deal in 2016 can save $52 per month, $624 per year.
After applying tax credits, 78 percent of current marketplace enrollees can find a plan for $100 or less per month and 72 percent for $75 or less. After applying credits, 63 percent can find a silver plan for $100 or less and 41 percent for $50 or less. After applying tax credits, 57 percent can find a plan for $75 or less and 66 percent for $100 or less without changing metal level. But only 47 percent of 2015 enrollees will be covered for $100 or less and 36 percent for $75 or less if they do not change plans.
Finally, the report contains a number of tables showing number of insurers and plans and average second lowest-cost plan premiums and average premium tax credit amounts for hypothetical single individuals and families by state and for particular counties.
Along with the ASPE Report, CMS also released the public use files on which it is based. The public use files for 2016 include plan-level data on essential health benefits, coverage limits, and cost sharing; plan level data on maximum out-of-pocket limits, cost sharing, HSA eligibility, formulary ID, and other plan attributes; plan-level data on individual rates; plan-level data on application of rates, such as allowed relationships (spouse, dependents); insurer-level data on service areas; insurer-level data identifying provider network URLs; plan-level data that crosswalks 2016 to 2015 plans; and insurer-level machine-readable plan network and formulary URLs.
2016 Federally Facilitated Marketplace Forms
Finally, 2016 FFM forms and notices are now available, including open enrollment and redetermination notices; eligibility notices; notices requesting additional documentation for citizenship issues and noting the resolution of citizenship issues or the expiration of coverage for failure to resolve these issues; periodic data matching notices sent to individuals enrolled both in marketplace coverage and Medicaid or CHIP; account transfer notices for accounts being transferred between state Medicaid agencies and the marketplace; and the tax form 1095-A cover page.
from Health Affairs Blog http://ift.tt/1M1TI8C
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