In our opinion, a wellness portal is a powerful tool for improving population health and encouraging participants to cultivate healthy lifestyle habits. As always, great power means great responsibility and these wellness portals are not immune from complying with laws governing the collection, storage, use and disclosure of participant health information. As such, owners of wellness portals must be always be aware of the legal requirements surrounding wellness portal usage under HIPAA, the FTC Act, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
In May 2016, the Equal Employment Opportunity Commission (EEOC) issued final rules under the ADA and GINA impacting wellness portals. The ADA requires wellness programs that collect health information, regardless of whether there are any incentives offered, to provide participants with an informative 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. Importantly, this notice must be provided before the participant reveals their health information through the portal. The portal must have a mechanism in place to ensure the participant sees the notice such as a pop-up window 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, in certain circumstances, to “offer an employee limited inducements for the employee’s spouse to provide information about the spouse’s manifestation of disease or disorder”. 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 be a pop-up window the wellness participant actively acknowledges seeing and reading, or 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 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.
How does BSDI help its customers meet Equal Employment Opportunity Commission (EEOC) issued final rules under the ADA and GINA?
In accordance with the EEOC’s Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act, BSDI posts a site wide News & Announcement pop-up window to advise portal participants to read a required “Notice Regarding Wellness Program.” A link to the notice is also inserted on the Wellness Profile/HRA introductory page (i.e. the page participants view prior to taking the Wellness Profile/HRA).
For Motivation Alliance, a pdf copy of the notice is also located under “Forms, Documents and Reports” for future reference.
For Motivation Classic, a pdf copy of the notice is also located under “My Profile” on the left hand tool bar for future reference.
Additionally, the BSDI non-editable content appearing at the bottom of the Informed Content has been revised to meet EEOC/ Americans with Disabilities Act (ADA) regulations as of December 2016.
Both BSDI’s products Motivation Alliance and Motivation Classic provide comprehensive Wellness Profile/HRA results sections allowing participants to track change over time, review their modifiable risk factors and read valuable health information designed to promote health and prevent disease. Both portals have a magnitude of resources to encourage and support a healthy lifestyle.
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating against employees and applicants based on their genetic information. Under this Act, collecting family history information in the Wellness Profile/HRA is prohibited if completing the Wellness Profile/HRA is mandatory or if it is used in any way to decide awards in an incentive or health promotion program (except the GINA rules do permit incentives to spouses for revealing their manifestation of disease or disorder information as long as the spouse provides prior, knowing, voluntary consent to disclose the information). Both of BSDI’s products offer a GINA-compliant configuration setting. With this setting on, the Wellness Profile/HRA does not contain any employee family history questions. Additionally, BSDI’s non-editable content that appears at the bottom of the Informed Consent includes family member and spouse authorization verbiage to comply with GINA.
Both Motivation Classic and Alliance products offer a content management system to edit the informed consent. The informed consent requires an electronic signature and can be re-prompted to participants by contacting our technical support team at BSDI.
Barbara J. Zabawa, JD, MPH / Center for Health and Wellness Law, LLC
Erica Wandtke-Hines. MS / BSDI