Taking Care of HR Business
        A blog from the attorneys of Verrill

        Santa Makes Him Hurry: Run Rudolph Run – as to Wellness, the Government Speaks with Forked Hoof

        December 18, 2015

        If you have had the feeling that the creators and enforcers of the ACA speak with forked hoof, just see how the Federal Government speaks about wellness programs. The ACA increased the ability of employers to reward employees who engage in healthy activities, such as cardio improvement (or, if you do not like wellness programs, punish employees who do not). The Center for Disease Control lists six chronic diseases and conditions, including heart disease, stroke, cancer, diabetes, obesity and arthritis, as responsible for over 80% of all health care spending. But at the same time the EEOC and various support groups are making it more difficult to provide incentives to act healthier or even to obtain the deidentified grouped information for a third party, who can then evaluate which types of activities or medications would stabilize and/or improve the health of a workforce. Diabetes alone, which has an identifiable generic predisposition, now costs $190 million in direct medical costs a year and over $75 million in lost productivity. And, over half of the chronic disease effects are attributable to life style choices.

        So what are the enforcers of the laws (HIPPA, ACA, GINA, ADA, IRC, etc.) effecting wellness programs doing? In the past they have said a strong “whoa boy.” But the EEOC’s newly (Oct. 30, 2015) proposed regulations based on GINA seems to take a more realistic approach. Some might attribute that to Rudolph’s nose shining light to help them see the path, with the EEOC’s recently losing cases where it tried to treat rewards as rendering wellness plans involuntary.

        There are two significant elements to the proposed GINA regs.

        1. The monetary reward or penalty for voluntarily providing genetic information, which may only be done in a qualified wellness program, is limited to 30% if the individual employee self-only coverage costs, while the remainder of the 30% of the total cost of a plan covering the employee and all dependants may be provided in exchange for the spouse providing information to the wellness program about his or her current or past health status. (The math is important and the regs contain calculation examples.) The spousal rule is because GINA defines the spouse’s health history as providing genetic information about the employee, a medical impossibility;
        2. The proposed regs take the same fork hoofed approach to the laws as the EEOC’s ADA Regs on wellness programs, by continuing to assert that a program that merely shifts health costs to those whose voluntary actions cause those added healthcare costs is per se unlawful.

        So while the Government has identified the problem and wants employees to run (if they can) and mandates employers spend money or pay penalties to cover proscribed health care issues, it is still unwilling to allow the types of necessary employer actions that might really control these costs. But maybe in 2016 the employer who can and should use presents or coal to encourage changed behavior, will mush forward anyway. For it is clear, even by the light of Rudolph’s nose, that better health (including mental health) resulting in more productivity, fewer injuries and fewer health care costs, does come with healthier choices. Merry Christmas to all and to all a healthier good night’s sleep.

        Taking Care of HR Business

        Human resource professionals, supervisors, and company executives are constantly confronted with a changing legal landscape. Verrill’s Taking Care of HR Business blog is designed to keep you informed about the latest and most significant legal developments that affect employers.

        Subscribe

        Looking for more great content? Subscribe for regular legal updates and information delivered right to your inbox.

        Firm Highlights

        Blog

        What is a Bonus for Purposes of ERISA?

        An ongoing dispute about a Department of Labor advisory opinion published last September raises a basic but unanswered question under the ERISA: What...
        Media Mentions

        Verrill Recognized by WMTW for Partnership Supporting Hunger Relief in Maine

        Verrill was recently featured in coverage by WMTW News 8 for its role in a collaborative effort to combat food insecurity across southern...
        Press Releases

        33 Verrill Attorneys, Across Four Offices, Recognized in the 2026 Chambers USA Guide

        BOSTON, Massachusetts, PORTLAND, Maine, WESTPORT, Connecticut, and WASHINGTON, D.C. – Verrill has been recognized as a Leading Firm in 14...
        Blog

        Will the Knicks Beat the Spurs? (Are Prediction Market Event Contracts Gambling?)

        For those of you who like to keep score, currently 18 states are engaged in litigation over prediction markets, such as Kalshi and Polymarket,...
        Alerts and Newsletters

        DOJ Announces Faster Review and Enhanced Enforcement for Benefits-Fraud FCA Matters

        On May 27, 2026, the U.S. Department of Justice (DOJ) Civil Division issued a new memorandum, “Accelerating Review and Enhancing Enforcement in...
        Alerts and Newsletters

        DOJ Announces Minnesota Health Care Fraud Takedown; Signals Intensified Medicaid Enforcement Nationwide

        On May 21, the Department of Justice (“DOJ”) announced a first-of-its kind Minnesota Health Care Fraud Takedown charging 15 defendants, including...
        Media Mentions

        Lauren Galvin Quoted in Massachusetts Lawyers Weekly on Arbitration and Anti-SLAPP Protections

        Verrill Partner Lauren Galvin was recently featured in a Massachusetts Lawyers Weekly article highlighting a notable Superior Court decision...
        Blog

        Section 530A Accounts: What Employers Should Consider Before Offering Contributions to “Trump” Accounts

        Section 530A accounts, commonly referred to as Trump accounts, have attracted attention since the enactment of the One Big Beautiful Bill Act in...
        Blog

        Navigating PBM Reform: Regulatory Changes, Market Shifts, and Practical Guidance for ERISA Fiduciaries

        Pharmacy Benefit Manager (“PBM”) arrangements have long relied on rebates with limited transparency into true drug costs. Recent regulatory and...
        Blog

        DOL’s Proposed Regulation on Selecting Alternative Investments: Broad Implications for 401(k) and 403(b) Plan Fiduciaries

        On March 30, 2026, the Department of Labor issued a proposed regulation purporting to implement an executive order to expand access to “alternative...
        Press Releases

        Verrill Welcomes Private Clients & Fiduciary Services Attorney Gracie Castle

        BOSTON, Massachusetts – Verrill is pleased to welcome Gracie Castle to the firm’s Private Clients & Fiduciary Services Group as an Associate,...
        Published Works

        Francesco De Vito Authors Article in the Journal of the American College of Mortgage Attorneys

        Verrill Partner Frank De Vito authored an article featured in the Spring 2026 issue of The Abstract, the journal of the American College of Mortgage...