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The EEOC Rules and Your Wellness Portal

Posted by Barbara J. Zabawa | Dec 16, 2016 | 0 Comments

Many workplace wellness programs use a wellness portal that participants use to provide health information through a health risk assessment, learn healthy living tips, track fitness or nutrition progress, among other things.  These wellness portals are not immune from complying with laws governing the collection, storage, use and disclosure of participant health information.  Owners of wellness portals must be aware of requirements under HIPAA, the FTC Act, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), for example.

In May 2016, the Equal Employment Opportunity Commission (EEOC) issued final rules under the ADA and GINA that impact wellness portals.  The ADA requires wellness programs that collect health information, regardless of whether there are any incentives, to provide participants with a notice.  The notice must be understandable, describe the type of medical information that will be obtained, the specific purposes for which the information will be used, and describe how the employer will protect that health information from improper disclosure. The EEOC issued a sample notice, which can be found here.  Importantly, this notice must be provided before the participant reveals their health information through the portal.  That means that the portal must have a mechanism in place to ensure that the participant sees the notice.  This might be through a pop-up window that the participant must read before moving into the portal services and offerings.

Similarly, the GINA rules require an “authorization” for the collection of “genetic information.”  The final GINA rules now permit wellness programs to incentivize employee spouses to disclose the spouse's manifestation of disease or disorder information.  Such information is considered “genetic information” and may be collected through a spouse completing a health risk assessment on the wellness portal.  Before the spouse can disclose that information, however, the spouse must provide “prior, knowing, voluntary and written authorization.”  The authorization form must also describe the confidentiality protections and restrictions on the disclosure of genetic information. 

For wellness portals, this prior, knowing, voluntary and written authorization may need to take the form of a pop-up window that the wellness participant actively acknowledges seeing and reading, perhaps through an electronic signature, before revealing their manifestation of disease or disorder information through the portal.  The Center for Health and Wellness Law, LLC has helped clients navigate how to address these requirements through wellness portals.

One other item of note for wellness portals under the EEOC rules:  portals should not just be about collecting health information.  The portal must offer meaningful follow-up to the participants in order to meet the ADA and GINA requirements that the wellness program be “reasonably designed to promote health and prevent disease.”  The EEOC rules state that the program must provide results, follow-up information or advice in order to be reasonably designed to promote health or prevent disease.  The Center for Health and Wellness Law, LLC can help ensure your portal is in compliance.  Please contact our firm to assist with your wellness compliance needs. 

About the Author

Barbara J. Zabawa

Attorney Barbara J. Zabawa started the Center for Health & Wellness Law, LLC after she recognized a need for legal services that shared a mission with providers to improve patient outcomes and population health, encourage wellness, protect patient interests in choice of provider and treatment options, provide holistic care, and expand information access. Attorney Zabawa has 20+ years of experience in the health care field, first receiving her Master's in Public Health from the University of Michigan before attending law school at UW Madison, where she graduated with honors in 2001. From 2003-2005, Ms. Zabawa clerked for the Honorable Barbara B. Crabb in the United States District Court for the Western District of Wisconsin and worked on a variety of matters, including employment, patent infringement, civil rights, and contract matters. She also served as a Skadden Fellow representing health care consumers on both the national and local level by helping consumers navigate private insurance coverage issues and advocating for their interests as a Funded Consumer Advocate at the National Association of Insurance Commissioners (NAIC). Attorney Zabawa has worked for a large health insurance company providing advice on the Affordable Care Act as well as HIPAA Privacy and Security compliance. In addition, she was in private practice at a large regional law firm for seven years, where she was a shareholder, led her firm's health care team and served as its HIPAA Privacy Officer. While in private practice, she handled a variety of health law matters, such as compliance with fraud and abuse laws, professional scope of practice matters, state licensing issues, HIPAA privacy and security compliance, Medicare and Medicaid reimbursement and conditions of participation compliance, Accountable Care Organization and other joint venture agreements, employment agreements, as well as business litigation. Attorney Zabawa is the author of the forthcoming book "Rule the Rules of Workplace Wellness Programs." She is a frequent speaker and writer both nationally and regionally on workplace wellness program compliance, the Affordable Care Act, fraud and abuse issues and HIPAA compliance. She has published several law review articles in the practice of health law and has been interviewed by TV, radio and print media regarding wellness, health reform, and HIPAA. She is a Board Member for Rogers Memorial Hospital Foundation, Board President for the Wisconsin Alliance for Women's Health, Board Member for Health Promotion Advocates, and currently serves on the Oversight Advisory Council for the Wisconsin Partnership Program and the State Bar Health Law Section Board. Education JD - University of Wisconsin Law School, cum laudeMPH - University of Michigan School of Public HealthBA - Lawrence University Admitted to Practice: • New York• Wisconsin• Federal District Court of the Western District of Wisconsin• Federal District Court of the Eastern District of Wisconsin• Court of Appeals for the Seventh Circuit• United States Supreme Court

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