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Proposed Regulations for ADA, HIPAA, and ACA
The chart below outlines key aspects of the proposed regulations and how these may differ from
the existing final regulations under HIPAA and the ACA. New requirements in the proposed EEOC
regulations are noted.
ADA Proposed Regulations
(issued 4/20/2015)
Wellness programs and
disability-related inquiries or
medical examinations must be
designed to promote health or
prevent disease.
Programs must not impose
unreasonable procedures, be
cost-prohibitive, or require a
significant time burden for
completion.
HIPAA and ACA
Final Regulations
Similar to the ADA proposed
regulations; requires programs
to be designed to promote
health or prevent disease.
Programs also must not impose
unreasonable cost or time
burdens on participants.
Best Practice(s)
Under All Guidance
Ensure wellness programs
are designed to promote
health and/or prevent disease.
Feedback should be sent to
participants after completion
of a health assessment or
physician screening.
These regulations do not
require follow-up advice or
feedback.
NEW REQUIREMENT: Follow-up
advice or feedback for medical
information collected, such as
that obtained through a health
or risk assessment or physician
screening, must be provided to
participants.
Program must be voluntary;
coverage cannot be denied
due to lack of participation. If
the program is tied to a group
health plan, the wellness
program must include a notice
that clearly explains the use
and disclosure of medical
information that will be
obtained.
Regulations already require a
notice for health contingent
programs but not for
participatory programs.
Implement a health notice for
both health contingent and
participatory wellness programs
that includes the required ADA
notice components.
NEW REQUIREMENT: Written
notice is required for both
health contingent and
participatory programs.
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ADA Proposed Regulations
(issued 4/20/2015)
Incentives cannot exceed 30%
of the total cost of employeeonly coverage for both health
contingent and participatory
programs that include
disability-related inquiries or
medical examinations.
HIPAA and ACA
Final Regulations
Best Practice(s)
Under All Guidance
Regulations limit incentives
to 30% of the total cost of
employee-only coverage only
for health contingent wellness
programs.
Review current incentives
for all wellness programs to
ensure they fall below 30%
for both health contingent
and participatory programs;
make program adjustments as
needed.
Regulations allow incentives of
up to 50% of the total cost of
employee-only coverage and
do not designate the type of
program in use.
Tobacco-related programs
that require a screening or
exam should adjust incentives
to no more than 30% of the
total cost of employee-only
coverage. Programs that only
inquire about use can maintain
incentives of up to 50%.
Wellness programs that do
not require these inquiries or
examinations do not have to
comply with incentive limits. An
example of this would include
attending wellness classes for
nutrition or weight loss.
NEW REQUIREMENT: Incentives
tied solely to a health screening
or medical examination are
subject to the EEOC’s 30%
limit regardless of whether the
incentive is tied to outcomes.
The 30% limit applies to
employee-only cost; the cost of
employee plus spouse coverage
cannot be used to calculate the
30% limit even if the spouse
participates.
Tobacco cessation wellness
programs that only ask
employees to verify tobacco
user status and do not require
exams or screenings can offer
incentives up to 50% of the
total cost of employee-only
coverage, consistent with ACA
rules.
NEW REQUIREMENT: Tobaccorelated programs that require
a medical exam or screening
to determine the presence
of tobacco are limited to
incentives that do not exceed
30% of the total cost of
employee-only coverage.
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ADA Proposed Regulations
(issued 4/20/2015)
HIPAA and ACA
Final Regulations
Best Practice(s)
Under All Guidance
NEW REQUIREMENT:
Reasonable alternative
accommodations must be
provided for all wellness
programs, barring undue
hardship, such as providing
alternative access to materials
for participants or providing
alternative testing methods.
This applies to both health
contingent and participatory
programs.
Reasonable alternative
accommodations must be
provided for health contingent
programs but not for
participatory programs.
Develop alternative
reasonable accommodations
for both health contingent
and participatory wellness
programs.
Employers must ensure
confidentiality of employee
medical information obtained
through wellness programs.
Individually-identifiable
information should not be
provided to the employer—
only aggregate information is
allowed, except as necessary
to administer the group
health plan. These limitations
are intended to track the
requirements of the HIPAA
Privacy Rule.
Information obtained
through wellness programs is
considered protected health
information (PHI) under the
HIPAA Privacy Rule.
Review HIPAA privacy
policies and procedures to
ensure the proper channels
are in place, such as having
policies and procedures in
place, appropriately trained
employees, business associate
agreements, and employer
certification.
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