HIPAA Non-discrimination Notice for Wellness Programs

Summary

This template nondiscrimination notice for an employer-sponsored wellness program describes the availability of a reasonable alternative standard to the general terms of the program, which must be disclosed to satisfy requirements under the Health Insurance Portability and Accountability Act (HIPAA) and other federal laws. This template includes practical guidance, drafting notes, and an alternate clause. Nondiscrimination rules must be taken into account when designing a wellness program. HIPAA generally prohibits a group health plan from discriminating among similarly situated individuals based on their health status, but creates an exception for certain wellness programs. 29 C.F.R. § 2590.702(f). These rules distinguish between two types of wellness programs: participation-only programs and health-contingent programs. Health-contingent wellness programs, which are categorized a s either activity-only or outcome-based programs, are required to provide alternative means to obtain program benefits. Activity-only programs must offer the alternative standard to individuals whose medical condition would prevent or impair them from achieving the general program standard (or cause it to be medically inadvisable to try). Outcome-based programs must offer the alternative standard to all participants. These programs must disclose—in all materials describing the terms of the program—the availability of the reasonable alternative standard to qualify for the reward (and, if applicable, the possibility of a waiver of the otherwise applicable standard), including contact information for obtaining a reasonable alternative standard and a statement that the recommendations of an individual's personal physician will be accommodated. This template can be used for this purpose. Separate nondiscrimination rules apply for wellness programs under the Americans with Disabilities Act (ADA). An employer will generally need to ensure that employees with disabilities will also have equal access to the program's benefits through a reasonable accommodation (unless making the accommodation would result in undue hardship) to comply with the ADA. Providing a reasonable alternative standard under the HIPAA rules would likely fulfill an employer's obligation to provide a reasonable accommodation under the ADA. Note, however, reasonable accommodation under the ADA is also required for a participation-only program, not just a health-contingent program. For a full listing of key content covering HIPAA considerations, see HIPAA Resource Kit. For more information on these and other wellness program issues, see Wellness Program Design and Compliance. For additional HIPAA resources, see the HIPAA Resource Kit.