Opinion Letter Questions Legality of HRAS

Thursday, Jul 02,2009, 12:20:07 PM Click:

Apparently oblivious to the concern increasingly shared by the rest of the country, rising health care costs, the U.S. Equal Employment Opportunity Commission has cast doubt on the use of risk assessments for health, efficiency proven in the fight against rising group health insurance costs.
HRAS have gained popularity in recent years that employers have conditioned eligibility of their group health plans on completing HRAS. Health professionals know that knowledge of a possible state of health is the first step in preventing the well-being.

President Barack Obama, in fact, understands this knowledge is an advantage. In a recent statement, he observes that "[a]s a result of many successful programs at businesses across the country, workers have become more engaged in their own health care, productivity is increasing, absenteeism is dropping and employers are passing some of their health care savings to their workers."

These tools have proven so successful in the fight against rising health care costs that employers of all sizes across the country have conditioned participation in their group health plans on the completion of an HRA. In the usual case, the results are not typically shared with the employer, except in the de-identified aggregate, which helps the employer and their brokers focus on overall design changes to make sure their plans are meeting the employees' needs.

Understanding the value of HRAs to employers, the U.S. Department of Labor, the federal agency with jurisdiction over potential discrimination issues in employer-sponsored group health plans, has unequivocally endorsed the use of HRAs, as long as the results are not used in any way to impair an individual's eligibility or benefits, or to increase the cost of coverage.

Apparently, the EEOC doesn't listen to statements from the White House and is unfamiliar with the strides being made across the country. In a recently released letter, the EEOC found that a county's conditioning of eligibility for its health plan on the completion of an HRA violates the Americans with Disabilities Act. County employees were required to fill out a short health-related questionnaire, take a blood pressure test and give a blood sample for screening. As is typical, the results were given directly to the employee; the county received only aggregate results. Employees who refused or failed to participate in the HRA (and dependents) were ineligible for coverage under the county's group health plan.

Narrowly focusing on its own rules and ignoring the practical fact that employers simply do not see this information, the EEOC noted that the ADA limits "medical examinations" of employees to those that are job-related and consistent with business necessity. In keeping with its past rulings, the EEOC in this letter applies a per se presumption against the collection of information through HRAs, without considering that the information collected is never reviewed or used by employers. The ADA prohibits discrimination in terms, conditions and privileges of employment. It's difficult to see how the intent of the statute is advanced with this opinion, since the eligibility requirement applies to all employees irrespective of any disability, and treats individuals with disabilities no differently than it treats all other employees.

The EEOC letter has no real legal value for other employers and applies only to the employer who requested it. However, it provides employers with a sense of the position of the EEOC. Hopefully, the EEOC will engage in official regulations on this important issue, which will give the agency the opportunity to consider carefully HRAS in their huge compared to their usefulness and probably no significant risk of real harm to employees under the ADA. Regulations will also allow the opportunity to comment on the position of the EEOC. Perhaps then the EEOC will make a more informed decision, which recognizes, on the one hand, the absence of a genuine concern under the ADA and the lack of practice for the promotion of the law with such a rule, and two, the presence of more value to employees in general, which have stabilized or even decreased costs of health care and better health.