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115th Congress    }                                 {    Rept. 115-459
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                 {           Part 1

======================================================================



 
               PRESERVING EMPLOYEE WELLNESS PROGRAMS ACT

                                _______
                                

 December 11, 2017.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Ms. Foxx, from the Committee on Education and the Workforce, submitted 
                             the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1313]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 1313) to clarify rules relating to 
nondiscriminatory workplace wellness programs, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Preserving Employee Wellness Programs 
Act''.

SEC. 2. FINDINGS.

  Congress finds that--
          (1) Congress has a strong tradition of protecting and 
        preserving employee workplace wellness programs, including 
        programs that utilize a health risk assessment, biometric 
        screening, or other resources to inform and empower employees 
        in making healthier lifestyle choices;
          (2) health promotion and prevention programs are a means to 
        reduce the burden of chronic illness, improve health, and limit 
        the growth of health care costs;
          (3) in enacting the Patient Protection and Affordable Care 
        Act (Public Law 111-148), Congress intended that employers 
        would be permitted to implement health promotion and prevention 
        programs that provide incentives, rewards, rebates, surcharges, 
        penalties, or other inducements related to wellness programs, 
        including rewards of up to 50 percent off of insurance premiums 
        for employees participating in programs designed to encourage 
        healthier lifestyle choices; and
          (4) Congress has struck an appropriate balance among 
        employees, health care providers, and wellness plan sponsors to 
        protect individual privacy and confidentiality in a wellness 
        program which is designed to improve health outcomes.

SEC. 3. NONDISCRIMINATORY WORKPLACE WELLNESS PROGRAMS.

  (a) Uniformity Across Federal Agencies.--
          (1) Programs offered in conjunction with an employer-
        sponsored health plan.--
                  (A) In general.--Notwithstanding any other provision 
                of law, a workplace wellness program and any program of 
                health promotion or disease prevention offered by an 
                employer in conjunction with an employer-sponsored 
                health plan that complies with section 2705(j) of the 
                Public Health Service Act (42 U.S.C. 300gg-4(j)) (and 
                any regulations promulgated with respect to such 
                section by the Secretary of Labor, the Secretary of 
                Health and Human Services, or the Secretary of the 
                Treasury) shall be considered to be in compliance with 
                the following provisions (to the extent such programs 
                are subject to the Acts described in such provisions):
                          (i) the acceptable examinations and inquiries 
                        set forth in section 102(d)(4)(B) of the 
                        Americans with Disabilities Act of 1990 (42 
                        U.S.C. 12112(d)(4)(B));
                          (ii) section 2705(d) of the Public Health 
                        Service Act (42 U.S.C. 300gg-4(d)); and
                          (iii) section 202(b)(2) of the Genetic 
                        Information Nondiscrimination Act of 2008 (42 
                        U.S.C. 2000ff-1(b)(2)).
                  (B) Safe harbor.--Notwithstanding any other provision 
                of law, section 501(c)(2) of the Americans with 
                Disabilities Act of 1990 (42 U.S.C. 12201(c)(2)) shall 
                apply to any workplace wellness program or program of 
                health promotion or disease prevention offered by an 
                employer in conjunction with an employer-sponsored 
                health plan.
          (2) Other programs offering more favorable treatment for 
        adverse health factors.--Notwithstanding any other provision of 
        law, a workplace wellness program and a program of health 
        promotion or disease prevention offered by an employer that 
        provides for more favorable treatment of individuals with 
        adverse health factors as described in section 146.121(g) of 
        title 45, Code of Federal Regulations (or any successor 
        regulations) shall be considered to be in compliance with--
                  (A) the acceptable examinations and inquiries set 
                forth in section 102(d)(4)(B) of the Americans with 
                Disabilities Act of 1990 (42 U.S.C. 12112(d)(4)(B));
                  (B) section 2705(d) of the Public Health Service Act 
                (42 U.S.C. 300gg-4(d)); and
                  (C) section 202(b)(2) of the Genetic Information 
                Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-
                1(b)(2)).
          (3) Programs not offered in conjunction with an employer-
        sponsored health plan.--
                  (A) In general.--Notwithstanding any other provision 
                of law, a workplace wellness program and any program of 
                health promotion or disease prevention offered by an 
                employer that are not offered in conjunction with an 
                employer-sponsored health plan that is not described in 
                section 2705(j) of the Public Health Service Act (42 
                U.S.C. 300gg-4(j)) that meet the requirement set forth 
                in subparagraph (B) shall be considered to be in 
                compliance with--
                          (i) the acceptable examinations and inquiries 
                        as set forth in section 102(d)(4)(B) of the 
                        Americans with Disabilities Act of 1990 (42 
                        U.S.C. 12112(d)(4)(B));
                          (ii) section 2705(d) of the Public Health 
                        Service Act (42 U.S.C. 300gg-4(d)); and
                          (iii) section 202(b)(2) of the Genetic 
                        Information Nondiscrimination Act of 2008 (42 
                        U.S.C. 2000ff-1(b)(2)).
                  (B) Limitation on rewards.--The requirement 
                referenced in subparagraph (A) is that any reward 
                provided or offered by a program described in such 
                subparagraph shall be less than or equal to the maximum 
                reward amounts provided for by section 2705(j)(3)(A) of 
                the Public Health Service Act (42 U.S.C. 300gg-
                4(j)(3)(A)), and any regulations promulgated with 
                respect to such section by the Secretary of Labor, the 
                Secretary of Health and Human Services, or the 
                Secretary of the Treasury.
  (b) Collection of Information.--Notwithstanding any other provision 
of law, the collection of information about the manifested disease or 
disorder of a family member shall not be considered an unlawful 
acquisition of genetic information with respect to another family 
member as part of a workplace wellness program described in subsection 
(a) offered by an employer (or in conjunction with an employer-
sponsored health plan described in section 2705(j) of the Public Health 
Service Act (42 U.S.C. 300gg-4(j))) and shall not violate title I or 
title II of the Genetic Information Nondiscrimination Act of 2008 
(Public Law 110-233). For purposes of the preceding sentence, the term 
``family member''has the meaning given such term in section 201 of the 
Genetic Information Nondiscrimination Act (Public Law 110-233).
  (c) Rule of Construction.--Nothing in subsection (a)(1)(A) shall be 
construed to prevent an employer that is offering a wellness program to 
an employee from requiring such employee, within 45 days from the date 
the employee first has an opportunity to earn a reward, to request a 
reasonable alternative standard (or waiver of the otherwise applicable 
standard). Nothing in subsection (a)(1)(A) shall be construed to 
prevent an employer from imposing a reasonable time period, based upon 
all the facts and circumstances, during which the employee must 
complete the reasonable alternative standard. Such a reasonable 
alternative standard (or waiver of the otherwise applicable standard) 
is provided for in section 2705(j)(3)(D) of the Public Health Service 
Act (42 U.S.C. 300 gg-4(j)(3)(D)) (and any regulations promulgated with 
respect to such section by the Secretary of Labor, the Secretary of 
Health and Human Services, or the Secretary of the Treasury).

                                Purpose

    H.R. 1313, the Preserving Employee Wellness Programs Act, 
clarifies that if an employer-sponsored wellness program 
complies with the Patient Protection and Affordable Care Act 
(ACA)\1\ and its regulations, the program will be considered to 
comply with the applicable sections of the Americans with 
Disabilities Act of 1990 (ADA)\2\ or the Genetic Information 
Nondiscrimination Act of 2008 (GINA) relating to wellness 
programs.\3\ The bill also clarifies that offering an incentive 
to provide medical information for an employee's family member 
who is voluntarily participating in the wellness program does 
not violate GINA.
---------------------------------------------------------------------------
    \1\Patient Protection and Affordable Care Act, Pub. L. No. 111-148 
(2010), and Health and Education Reconciliation Act, Pub. L. No. 111-
152 (2010) [hereinafter Affordable Care Act or ACA].
    \2\Americans with Disabilities Act of 1990, Pub. L. 101-336 (1990).
    \3\Genetic Information Nondiscrimination Act of 2008, Pub. L. 110-
233 (2008).
---------------------------------------------------------------------------

                            Committee Action


                             112TH CONGRESS

Full Committee Hearing Examining the Impact of the Health Care Law on 
        the Economy, Employers, and the Workforce

    On February 9, 2011, the Committee on Education and the 
Workforce (Committee) held a hearing entitled ``The Impact of 
the Health Care Law on the Economy, Employers, and the 
Workforce'' to discuss, among other things, wellness and 
prevention plans. The witnesses were Dr. Paul Howard, Senior 
Fellow, Manhattan Institute, New York, New York; Ms. Gail 
Johnson, President and CEO, Rainbow Station, Inc., Glenn Allen, 
Virginia; Dr. Paul Van de Water, Senior Fellow, Center on 
Budget and Policy Priorities, Washington, D.C.; and Mr. Neil 
Trautwein, Vice President and Employee Benefits Policy Counsel, 
National Retail Federation, Washington, D.C.

Subcommittee Hearing Examining the Recent Health Care Law: Consequences 
        for Indiana Families and Workers

    On June 7, 2011, the Health, Employment, Labor, and 
Pensions (HELP) Subcommittee held a field hearing in 
Evansville, Indiana, entitled ``The Recent Health Care Law: 
Consequences for Indiana Families and Workers'' to examine, 
among other things, prevention and wellness programs. The 
witnesses were the Honorable Mark Messmer, Indiana House of 
Representatives, Messmer Mechanical, Jasper, Indiana; Ms. Robyn 
Crosson, Company Compliance Services, State of Indiana 
Department of Insurance, Indianapolis, Indiana; Ms. Sherry 
Lang, Human Resources Director, Womack Restaurants, Terre 
Haute, Indiana; Mr. Denis Johnson, VP of Operations, Boston 
Scientific, Spencer, Indiana; Mr. David J. Carlson, M.D., 
General Surgeon, Deaconess Hospital, Evansville, Indiana; and 
Mr. Glen Graber, President, Graber Post Building, Inc. Odon, 
Indiana.

Subcommittee Hearing Examining Health Care: Challenges Facing 
        Pennsylvania's Workers and Job Creators

    On February 22, 2012, the HELP Subcommittee held a field 
hearing in Butler, Pennsylvania, entitled ``Health Care: 
Challenges Facing Pennsylvania's Workers and Job Creators,'' to 
discuss, among other thing, the benefits of wellness plans in 
the workplace. The witnesses were the Honorable Donald C. 
White, Senator, Pennsylvania State Senate, Harrisburg, 
Pennsylvania; Ms. Kathleen Bishop, President and CEO, 
Meadville-Western Crawford, County Chamber of Commerce, 
Meadville, Pennsylvania; Ms. Georgeanne Koehler, Pittsburg, 
Pennsylvania; Ms. Lori Joint, Director of Government Affairs, 
Manufacturer & Business Association, Erie, Pennsylvania; Ms. 
Patti-Ann Kanterman, Chief Financial Officer, Associated 
Ceramics & Technology, Inc., Sarver, Pennsylvania; Mr. Paul T. 
Nelson, Owner and CEO, Waldameer Park, Inc., Erie, 
Pennsylvania; Mr. Ralph Vitt, Owner, Vitt Insure, Pittsburg, 
Pennsylvania; and Mr. Will Knecht, President, Wendell August 
Forge; Grove City, Pennsylvania.

Subcommittee Hearing Examining Barriers to Lower Health Care Costs for 
        Workers and Employers

    On May 31, 2012, the HELP Subcommittee held a hearing 
entitled ``Barriers to Lower Health Care Costs for Workers and 
Employers'' to examine rising health care costs facing 
employers and employees, including the destructive impact of 
the ACA. During the hearing, members and witnesses discussed 
the benefits of wellness programs to lower the cost of health 
care. The witnesses were Mr. Ed Fensholt, Senior Vice 
President, Lockton Companies, LLC, Kansas City, Missouri; Mr. 
Roy Ramthun, President, HAS Consulting Services, Washington, 
D.C.; Ms. Jody Hall, Founder and Owner, Cupcake Royale, 
Seattle, Washington; and Mr. Bill Streitberger, Vice President 
of Human Resources, Red Robin, Greenwood Village, Colorado.

                             113TH CONGRESS

Subcommittee Hearing Examining Health Care Challenges Facing North 
        Carolina's Workers and Job Creators

    On April 30, 2013, the HELP Subcommittee held a field 
hearing in Concord, North Carolina, entitled ``Health Care 
Challenges Facing North Carolina's Workers and Job Creators,'' 
during which the benefits of workplace wellness programs were 
discussed. The witnesses were Mr. Chuck Horne, President, 
Hornwood Inc., Lilesville, North Carolina; Ms. Tina Haynes, 
Chief Human Resource Officer, Rowan-Cabarrus Community College, 
Salisbury, North Carolina; Mr. Adam Searing, Director, Health 
Access Coalition, Raleigh, North Carolina; Mr. Ken Conrad, 
Chairman, Libby Hill Seafood Restaurants, Greensboro, North 
Carolina; Mr. Dave Bass, Vice President, Compensation and 
Associate Wellness, Delhaize America, Concord, North Carolina; 
Mr. Ed Tubel, Founder and CEO, Tricor Inc., Charlotte, North 
Carolina; Dr. Olson Huff, Pediatrician, Asheville, North 
Carolina; and Mr. Bruce Silver, President and CEO, Racing 
Electronics, Concord, North Carolina.

Subcommittee Hearing Examining the Regulatory and Enforcement Actions 
        of the Equal Employment Opportunity Commission

    On May 22, 2013, the Workforce Protections Subcommittee 
held a hearing entitled ``Examining the Regulatory and 
Enforcement Actions of the Equal Employment Opportunity 
Commission'' to discuss, among other things, the Equal 
Employment Opportunity Commission's (EEOC) proposed and future 
guidance on wellness programs. The sole witness at the hearing 
was the Honorable Jacqueline A. Berrien, Chair, EEOC, 
Washington, D.C.

Subcommittee Hearing Regarding the Employer Mandate: Examining the 
        Delay and Its Effect on Workplaces

    On July 23, 2013, the HELP Subcommittee and the Workforce 
Protections Subcommittee jointly held a hearing entitled ``The 
Employer Mandate: Examining the Delay and Its Effect on 
Workplaces'' to review the costly impact of the 
administration's recent decision to delay the employer mandate 
and to discuss wellness programs. Witnesses before the 
subcommittees were Ms. Grace-Marie Turner, President, Galen 
Institute, Alexandria, Virginia; Mr. Jamie T. Richardson, Vice 
President, White Castle System, Inc., Columbus, Ohio; Mr. Ron 
Pollack, Executive Director, Families USA, Washington, D.C.; 
and Dr. Douglas Holtz-Eakin, President, American Action Forum, 
Washington, D.C.

Subcommittee Hearing Regarding Health Care Challenges Facing Kentucky's 
        Workers and Job Creators

    On August 27, 2013, the HELP Subcommittee held a field 
hearing in Lexington, Kentucky, entitled ``Health Care 
Challenges Facing Kentucky's Workers and Job Creators,'' which 
included an examination of the harmful impact of the ACA on 
Kentucky's employers and their employees and to discuss 
wellness programs. Witnesses before the subcommittee were Mr. 
Tim Kanaly, Owner and President, Gary Force Honda, Bowling 
Green, Kentucky; Mr. Joe Bologna, Owner, Joes Bologna's--
Italian Pizzeria & Restaurant, Lexington, Kentucky; Ms. Carrie 
Banahan, Executive Director, Office of the Kentucky Health 
Benefit Exchange, Frankfort, Kentucky; Mr. John Humkey, 
President, Employee Benefit Associates, Inc., Lexington, 
Kentucky; Ms. Janey Moores, President and CEO, BJM & 
Associates, Inc., Lexington, Kentucky; Mr. Donnie Meadows, Vice 
President of Human Resources, K-VA-T Food Stores, Inc., 
Abingdon, VA; Ms. Debbie Basham, Southwest Breast Cancer 
Awareness Group, Louisville, Kentucky; and Mr. John McPhearson, 
CEO, Lectrodryer, Richmond, Kentucky.

Subcommittee Hearing on Providing Access to Affordable, Flexible Health 
        Plans through Self-Insurance

    On February 26, 2014, the HELP Subcommittee held a hearing 
entitled ``Providing Access to Affordable, Flexible Health 
Plans through Self-Insurance,'' during which witnesses 
discussed workplace wellness programs. The witnesses were Mr. 
Michael Ferguson, President and CEO, Self-Insurance Institute 
of America, Simpsonville, South Carolina; Mr. Wes Kelley, 
Executive Director, Columbia Power and Water Systems, Columbia, 
Tennessee; Ms. Maura Calsyn, Director of Health Policy, Center 
for American Progress, Washington, D.C.; and Mr. Robert 
Melillo, National Vice President of Risk Financing Solutions, 
USI Insurance, Glastonbury, Connecticut.

Subcommittee Hearing Examining the Effects of the President's Health 
        Care Law on Indiana's Classrooms and Workplaces

    On September 4, 2014, the HELP Subcommittee held a field 
hearing in Greenfield, Indiana, entitled ``The Effects of the 
President's Health Care Law on Indiana's Classrooms and 
Workplaces,'' during which witnesses testified about employee 
wellness programs. The witnesses were Mr. Mike Shafer, Chief 
Financial Officer, Zionsville Community Schools, Zionsville, 
Indiana; Mr. Tom Snyder, President, Ivy Tech Community College, 
Indianapolis, Indiana; Mr. Danny Tanoos, Superintendent, Vigo 
County School Corporation, Terre Haute, Indiana; Mr. Tom 
Forkner, President, Anderson Federation of Teachers, AFT Local 
519, Anderson, Indiana; Mr. Mark DeFabis, President and Chief 
Executive Officer, Integrated Distribution Services, 
Plainfield, Indiana; Mr. Nate LaMar, International Regional 
Manager, Draper, Inc., Spiceland, Indiana; Mr. Dan Wolfe, 
Owner, Wolfe's Auto Auction, Terre Haute, Indiana; and Mr. 
Robert Stone, Director of Palliative Care, IU Health 
Bloomington Hospital, Bloomington, Indiana.

                             114TH CONGRESS

Subcommittee Hearing on H.R. 548, Certainty in Enforcement Act of 2015; 
        H.R. 549, Litigation Oversight Act of 2015; H.R. 550, EEOC 
        Transparency and Accountability Act; H.R. 1189, Preserving 
        Employee Wellness Programs Act

    On March 24, 2015, the Workforce Protections Subcommittee 
held a hearing entitled ``H.R. 548, Certainty in Enforcement 
Act of 2015; H.R. 549, Litigation Oversight Act of 2015; H.R. 
550, EEOC Transparency and Accountability Act; H.R. 1189, 
Preserving Employee Wellness Programs Act,'' during which 
witnesses testified regarding their concerns about the EEOC's 
litigation challenging wellness programs, as well as the 
history of bipartisan support for employee wellness programs. 
Witnesses at the hearing were Ms. Gail Heriot, Professor of 
Law, University of San Diego School of Law, San Diego, 
California; Ms. Tanya Clay House, Director of Public Policy, 
Lawyers' Committee for Civil Rights Under Law, Washington, 
D.C.; Mr. Paul Kehoe, Senior Counsel, Seyfarth Shaw LLP, 
Washington, D.C.; and Ms. Tamara Simon, Managing Director, 
Knowledge Resource Center, Buck Consultants, Washington, D.C.

Subcommittee Hearing on Five Years of Broken Promises: How the 
        President's Health Care Law is Affecting America's Workplaces

    On April 14, 2015, the HELP Subcommittee held a hearing 
entitled ``Five Years of Broken Promises: How the President's 
Health Care Law is Affecting America's Workplaces,'' which 
examined the continued negative impact of the ACA on employer-
sponsored health coverage. Witnesses at the hearing were the 
former Deputy Secretary of the Department of Health and Human 
Services the Honorable Tevi Troy, Ph.D., President, American 
Health Policy Institute, Washington, D.C.; Mr. Rutland Paal, 
Jr., President, Rutland Beard Floral Group, Scotch Plains, New 
Jersey; Michael Brev, President, Brev Corp. t/a Hobby Works , 
WingTOTE Manufacturing, LLC, Laurel, Maryland; and Ms. Sally 
Roberts, Human Resources Director, Morris Communications 
Company, LLC, Augusta, Georgia. During the hearing, Ms. Roberts 
testified that ``some employers are implementing incentive-
based wellness programs as cost-containment strategies'' and 
noted concern that EEOC may threaten these programs.\4\
---------------------------------------------------------------------------
    \4\Five Years of Broken Promises: How the President's Health Care 
Law is Affecting America's Workplaces: Hearing Before the Subcomm. on 
Health, Employment, Labor, and Pensions of the H. Comm. on Educ. and 
the Workforce, 114th Cong. 30 (2015) (statement of Sally Roberts, Human 
Resources Director, Morris Communications Co., LLC).
---------------------------------------------------------------------------

Comment Letter to EEOC Regarding the Proposed Rule on Amendments to 
        Regulations Under the ADA

    On June 19, 2015, Rep. John Kline (R-MN), then-Chairman of 
the Committee, along with other House and Senate members, 
submitted a comment letter to EEOC in response to the Notice of 
Proposed Rulemaking (NPRM) regarding amendments to regulations 
under the ADA. In particular, the letter noted EEOC's proposed 
interpretation of the ADA and workplace wellness programs was 
inconsistent with the bipartisan intent of Congress in the 
wellness provisions of the ACA and requested EEOC not create 
further confusion for employees and employers.

Comment Letter to EEOC Regarding the Proposed Rule Amending Regulations 
        Implementing GINA

    On January 28, 2016, then-Chairman John Kline, along with 
Rep. Tim Walberg (R-MI), then-Chairman of the Workforce 
Protections Subcommittee, and Rep. David ``Phil'' Roe (R-TN), 
then-Chairman of the HELP Subcommittee, submitted a comment 
letter to EEOC in response to the NPRM regarding amendments to 
the regulations implementing Title II of GINA, as they relate 
to employee wellness programs. In particular, the letter noted 
the Committee's concerns with aspects of the proposed rule 
being contrary to law and undermining the effectiveness of 
employer programs designed to encourage employees to adopt 
health behaviors.

                             115TH CONGRESS

Full Committee Hearing on Rescuing Americans from the Failed Health 
        Care Law and Advancing Patient-Centered Solutions

    On February 1, 2017, the Committee held a hearing entitled 
``Rescuing Americans from the Failed Health Care Law and 
Advancing Patient-Centered Solutions,'' which examined failures 
of the ACA and the need ``to preserve employee wellness plans 
that have been under attack in recent years.''\5\ Witnesses 
before the Committee were Mr. Scott Bollenbacher, CPA, Managing 
Partner, Bollenbacher & Associates, LLC, Portland, Indiana; Mr. 
Joe Eddy, President and Chief Executive Officer, Eagle 
Manufacturing Company, Wellsburg, West Virginia; Ms. Angela 
Schlaack, St. Joseph, Michigan; and Dr. Tevi Troy, Chief 
Executive Officer, American Health Policy Institute, 
Washington, D.C.
---------------------------------------------------------------------------
    \5\Rescuing Americans from the Failed Health Care Law and Advancing 
Patient-Centered Solutions: Hearing Before the H. Comm. on Educ. and 
the Workforce, 115th Cong. (2017) (opening statement of Rep. Foxx, 
Chairwoman, H. Comm. on Educ. and the Workforce).
---------------------------------------------------------------------------

Full Committee Hearing on Legislative Proposals to Improve Health Care 
        Coverage and Provide Lower Costs for Families

    On March 1, 2017, the Committee held a hearing entitled 
``Legislative Proposals to Improve Health Care Coverage and 
Provide Lower Costs for Families,'' which examined H.R. 1101, 
the Small Business Health Fairness Act; a discussion draft of 
the Self-Insurance Protection Act; and a discussion draft of 
the Preserving Employee Wellness Programs Act. Witnesses before 
the Committee included Mr. Jon B. Hurst, President, Retailers 
Association of Massachusetts, Boston, Massachusetts; Ms. 
Allison R. Klausner, JD, Principal, Government Relations 
Leader, Conduent, Secaucus, New Jersey; Ms. Lydia Mitts, 
Associate Director of Affordability Initiatives, Families USA, 
Washington, D.C.; and Mr. Jay Ritchie, Executive Vice 
President, Tokio Marine HHC, Kennesaw, Georgia.

Introduction of H.R. 1313, Preserving Employee Wellness Programs Act

    On March 2, 2017, Committee Chairwoman Virginia Foxx (R-NC) 
introduced the Preserving Employee Wellness Programs Act (H.R. 
1313), along with HELP Subcommittee Chairman Tim Walberg.\6\ 
Chairwoman Foxx introduced the bill to bring uniformity to the 
regulation of employee wellness programs by clarifying that if 
a program complies with the wellness provisions of the ACA and 
the regulations related to those provisions, such program will 
be considered to be in compliance with the ADA and GINA.
---------------------------------------------------------------------------
    \6\H.R. 1313, 115th Cong. (2017).
---------------------------------------------------------------------------

Committee Passes H.R. 1313, Preserving Employee Wellness Programs Act

    On March 8, 2017, the Committee considered H.R. 1313, the 
Preserving Employee Wellness Programs Act.\7\ Rep. Bradley 
Byrne (R-AL) offered an amendment in the nature of a substitute 
making technical changes to the introduced bill. The Committee 
voted to adopt the amendment in the nature of a substitute by 
voice vote. Five additional amendments were offered but not 
adopted. Rep. Adriano Espaillat (D-NY) offered an amendment, 
which failed by a vote of 17 to 22, relating to information 
obtained in a wellness program. Rep. Joe Courtney (D-CT) 
offered an amendment, which failed by a vote of 17 to 22, 
relating to the sale of information obtained in a wellness 
program. Rep. Jared Polis (D-CO) offered an amendment, which 
failed by a vote of 17 to 22, relating to permission for the 
sale of information obtained from a wellness program. Rep. 
Polis offered a second amendment relating to the bill's 
treatment of family members under a wellness program, which 
failed by a vote of 17 to 22. Additionally, Ranking Member 
Robert C. ``Bobby'' Scott (D-VA) offered an amendment, which 
failed by a vote of 17 to 22, relating to the ADA safe harbor. 
The Committee favorably reported H.R. 1313, as amended, to the 
U.S. House of Representatives by a vote of 22 to 17.
---------------------------------------------------------------------------
    \7\H.R. 1313, Preserving Employee Wellness Programs Act: Markup 
Before the H. Comm. on Educ. and the Workforce, 115th Cong. (Mar. 8, 
2017).
---------------------------------------------------------------------------

                          Summary of H.R. 1313

    Currently, wellness programs are subject to three different 
sets of statutory and regulatory provisions: the Health 
Insurance Portability and Accountability Act of 1996 (HIPAA), 
the ADA, and GINA. Chairwoman Foxx introduced H.R. 1313 to 
create consistency among the laws that govern wellness programs 
by providing a uniform set of rules under which wellness 
programs can be considered compliant. Regulatory clarity is 
needed due to a number of enforcement actions and regulatory 
steps taken in recent years by EEOC. EEOC's actions 
contradicted HIPAA, as amended by the ACA, and the rules 
promulgated by the Obama administration implementing the ACA. 
As a result, employers and employees who want to participate in 
these programs are caught in a regulatory trap. By reaffirming 
the policies outlined in the ACA with respect to wellness 
programs, H.R. 1313 will provide private-sector employers the 
legal certainty they need to continue offering these voluntary 
programs.
    Specifically, the bill provides that if a workplace 
wellness program offered in conjunction with an employer-
sponsored group health plan complies with the provisions 
relating to wellness programs in HIPAA, then it shall be 
considered to comply with the applicable provisions relating to 
wellness programs in the ADA and GINA. For programs not offered 
in conjunction with a group health plan, the bill provides that 
any incentives offered must not be more than the maximum 
allowed under the ACA and the ACA's regulations. The bill also 
permits a wellness program to provide more favorable treatment 
of individuals with adverse health factors.
    At its core, H.R. 1313 is about allowing workers to 
participate voluntarily in programs that lower their health 
care costs and contribute to improving their health and the 
health of their families.

                            Committee Views


Legal Background

    For decades, employers have developed and implemented 
wellness programs to improve the health of employees and their 
families, increase productivity, and reduce overall health care 
costs. Wellness programs typically focus on health promotion 
and disease prevention and can be offered directly by the 
employer or their insurance company. To encourage participation 
in a wellness program, an employer or insurance company may 
offer incentives, such as insurance premium discounts, cash 
rewards, or free health club memberships.
    HIPAA generally prohibits group health plans and insurers 
from discriminating against individuals' eligibility, benefits, 
or premiums based on a health factor.\8\ However, the law 
exempts from this prohibition premium discounts or rebates in 
return for adherence to a wellness program.\9\ The ACA included 
provisions that expanded incentives for health-contingent 
wellness program participation. These wellness provisions were 
among the few in the law that received bipartisan support. New 
rules implementing these provisions then increased the maximum 
reward from 20 percent to 30 percent of premiums for employee 
participants in health-contingent wellness programs, and up to 
50 percent for smoking cessation programs.\10\ Under the ACA 
regulations, participatory programs are compliant with the 
nondiscrimination provisions as long as participation is 
available to all similarly situated individuals, regardless of 
health status.
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    \8\42 U.S.C. Sec. 300gg-4 (2010).
    \9\42 U.S.C. Sec. 300gg-4(j)(3)(A) (2010). Wellness programs that 
are operated separately from a group health plan are not subject to 
HIPAA nondiscrimination regulations, but may be subject to other 
federal or state nondiscrimination laws.
    \10\Incentives for Nondiscriminatory Wellness Programs in Group 
Health Plans, 78 Fed. Reg. 106 (June 3, 2013).
---------------------------------------------------------------------------
    Generally, the ADA prohibits mandatory medical examinations 
and inquiries, and GINA prohibits the collection of certain 
medical information from an employee or the employee's family 
member.\11\ However, the ADA and GINA provide exceptions for 
wellness programs offered to employees.\12\
---------------------------------------------------------------------------
    \11\ADA Sec. 102(d)(4)(A), 42 U.S.C. Sec. 12112(d)(4)(A); GINA 
Sec. 202(b)(2), 42 U.S.C. Sec. 2000ff-1(b)(2).
    \12\42 U.S.C. Sec. 12112(d)(4)(B); 42 U.S.C. Sec. 2000ff-
1(b)(2)(A).
---------------------------------------------------------------------------
    ACA-compliant wellness programs have come under legal 
attack from EEOC. On October 27, 2014, EEOC filed a petition in 
federal district court seeking a preliminary injunction to stop 
Honeywell International, Inc. from implementing its employee 
wellness program, claiming the wellness program's incentives to 
participate made it involuntary and therefore in violation of 
the ADA and GINA.\13\ On November 3, 2014, the district court 
denied the petition, citing uncertainty as to how the ADA, 
GINA, and the ACA are intended to interact. The case was later 
voluntarily dismissed. Since then, EEOC has unsuccessfully 
challenged wellness programs in other cases.\14\
---------------------------------------------------------------------------
    \13\EEOC v. Honeywell Int'l, Inc., No.14-4517, 2014 WL 5795481 (D. 
Minn. Nov. 6, 2014).
    \14\See EEOC v. Flambeau, Inc., 131 F.Supp.3d 849 (W.D. Wis. 2015) 
(employer's wellness program did not violate the ADA because the 
program fell within the ADA's safe harbor for bona fide benefit plans), 
aff'd on other grounds, EEOC v. Flambeau, Inc., 846 F.3d 941 (7th Cir. 
2017) (not reaching the merits of the ADA claim); EEOC v. Orion Energy 
Systems, Inc., No. 14-CV-1019, 2016 WL 5107019 (E.D. Wis. Sept. 19, 
2016) (wellness program was voluntary under the ADA where employee who 
refused to complete health risk assessment (HRA) had to pay full health 
insurance premium while employees who completed the HRA did not have to 
pay any premium).
---------------------------------------------------------------------------
    After its unsuccessful efforts in EEOC v. Honeywell 
International, Inc., EEOC issued proposed regulations in April 
and October 2015 on the interaction between the ADA, GINA, and 
the ACA with regard to wellness programs. The Committee urged 
EEOC to make significant changes to the proposed rules.\15\ The 
Committee explained that aspects of the proposed rules were 
contrary to law and would undermine the effectiveness of 
programs designed to encourage healthy behaviors through 
wellness programs.
---------------------------------------------------------------------------
    \15\See Letter from John Kline, Chairman, House Comm. on Educ. and 
the Workforce, et al. to Bernadette Wilson, Acting Exec. Officer, U.S. 
Equal Emp't Opportunity Comm'n (Jun. 19, 2015) (on file with author); 
Letter from John Kline, Chairman, House Comm. on Educ. and the 
Workforce, et al. to Bernadette Wilson, Acting Exec. Officer, U.S. 
Equal Emp't Opportunity Comm'n (Jan. 28, 2016) (on file with author).
---------------------------------------------------------------------------
    In May 2016, EEOC published final rules on wellness 
programs under the ADA and GINA.\16\ While the regulations 
permit employers to offer financial rewards to employees 
adhering to a wellness program, the EEOC rules are inconsistent 
with the ACA and its regulations.
---------------------------------------------------------------------------
    \16\Regulations Under the Americans With Disabilities Act; Final 
Rule, 81 Fed. Reg. 31126 (May 17, 2016); Genetic Information 
Nondiscrimination Act; Final Rule, 81 Fed. Reg. 31143 (May 17, 2016).
---------------------------------------------------------------------------

Wellness Programs Benefit Workers and Their Employers

    Across the country, workers and families are enjoying 
increasing access to voluntary employee wellness plans. 
According to a Kaiser Family Foundation survey, 81 percent of 
large businesses and 49 percent of smaller businesses offer a 
wellness program.\17\ Another survey indicated 61 percent of 
employers offered wellness programs, while 92 percent offered 
at least one kind of wellness benefit.\18\ Ms. Allison 
Klausner, Principal with Conduent Human Resources, stated the 
following in her testimony at a Committee hearing on March 1, 
2017:
---------------------------------------------------------------------------
    \17\Karen Pollitz & Matthew Rae, Workplace Wellness Programs 
Characteristics and Requirements, The Henry J. Kaiser Family Found. 
(2016), http://kff.org/private-insurance/issue-brief/workplace-
wellness-programs-characteristics-and-requirements/.
    \18\Tanya Mulvey, 2016 Employee Benefits: Looking Back at 20 Years 
of Employee Benefits Offerings in the U.S., Soc'y for Human Res. Mgmt., 
51 (2016), https://www.shrm.org/hr-today/trends-and-forecasting/
research-and-surveys/pages/2016-employee-benefits.aspx.

          The prospect of a healthier workforce has compelled a 
        growing number of companies to develop and implement 
        wellness strategies. . . . The remarkable take-up of 
        these programs by employers and employees, combined 
        with the capacity and incentives for growth, make 
        wellness an area of tremendous promise for the future 
        of health care and employer-sponsored benefits.\19\
---------------------------------------------------------------------------
    \19\Legislative Proposals to Improve Health Care Coverage and 
Provide Lower Costs for Families: Hearing Before the H. Comm. on Educ. 
and the Workforce, 115th Cong. (2017) (written statement of Allison 
Klausner, Principal, Government Relations Leader, Conduent Human 
Resource Services).

    These programs have the potential to contribute to several 
positive outcomes, such as improving the health of employees, 
lowering overall health care costs, increasing productivity, 
improving workforce morale, and reducing absenteeism. Ms. 
Tamara M. Simon, Managing Director with Buck Consultants, 
elaborated on wellness program objectives in her testimony 
before the Workforce Protections Subcommittee on March 24, 
---------------------------------------------------------------------------
2015, stating:

          While improving worker productivity and reducing 
        presenteeism (the practice of attending work while 
        sick) is cited as the most important wellness program 
        objective on a global basis (with 82 percent of 
        respondents calling it very important or extremely 
        important), these programs hold the promise of more 
        direct economic benefits under the principle that 
        successful preventive actions, better-managed chronic 
        conditions and fewer episodes of care will result in 
        reduced health service utilization and fewer 
        claims.\20\
---------------------------------------------------------------------------
    \20\H.R. 548, ``Certainty in Enforcement Act of 2015'', H.R. 549, 
``Litigation Oversight Act of 2015'', H.R. 550, ``EEOC Transparency and 
Accountability Act'', and H.R. 1189, ``Preserving Wellness Programs 
Act': Hearing Before the Subcomm. on Workforce Prot's. of the H. Comm. 
on Educ. and the Workforce, 114th Cong. 36 (2015) (written testimony of 
Tamara Simon, Managing Director, Knowledge Resource Center, Buck 
Consultants) (quotation marks omitted).

Additionally, Ms. Klausner pointed in her testimony to evidence 
---------------------------------------------------------------------------
of the positive results of wellness programs, saying:

          A RAND Employer Survey examining wellness program 
        outcomes, sponsored by the U.S. Department of Labor, 
        found that while it is not clear at this point whether 
        improved health-related behavior will translate into 
        lower health care cost, there is reason to be 
        optimistic. Fully 60 percent of respondents indicated 
        that their wellness program reduced health care cost, 
        with reductions in inpatient costs accounting for 62 
        percent of the total cost reduction, compared to 
        outpatient costs (28 percent) and prescription drug 
        costs.
          The available evidence also supports the aspirational 
        goals of wellness programs--like improving 
        productivity, morale and safety. Data from the RAND 
        survey shows 78 percent of responding employers stated 
        that their wellness program has decreased absenteeism 
        and 80 percent stated that it has increased 
        productivity. Likewise, 32 percent of respondents to a 
        2014 Mercer Survey said specifically that health risks 
        of the population served by their wellness programs 
        were improving.
          These results support published research findings 
        that workplace wellness programs can improve health 
        status, as measured with physiological markers (such as 
        body mass index, cholesterol levels and blood 
        pressure).\21\
---------------------------------------------------------------------------
    \21\Klausner, supra note 19.

    Offering a reward can be an important part of encouraging 
participation in wellness programs. According to Ms. Klausner, 
90 percent of employers with wellness programs responding to a 
Conduent survey reported using incentives.\22\ Common 
activities tied to incentives include the ``participation in 
tobacco cessation programs or workplace health challenges' 
(such as walking).'' Studies have shown an increased 
participation rate from ``40 percent without an incentive to 
more than 70 percent with a $200 incentive and to 90 percent 
when incentives are built into health-plan premiums or 
deductibles.''\23\
---------------------------------------------------------------------------
    \22\Id.
    \23\Id.
---------------------------------------------------------------------------

EEOC Regulations are Inconsistent with Regulations Under the ACA

    Congress has long approved policies that help promote the 
use of voluntary employee wellness programs, most recently 
through the ACA.\24\ However, recent actions by EEOC have 
undermined Congress's preferred policy. EEOC's litigation 
challenging employee wellness programs thought to be compliant 
with the ACA has caused uncertainty for employers.\25\ The many 
differences between the wellness regulations under HIPAA and 
EEOC's regulations have also created complexity. These 
conditions inhibit the development and expansion of wellness 
programs, which is contrary to Congress's intent to promote 
these programs.
---------------------------------------------------------------------------
    \24\See 42 U.S.C. 300gg-4(j) (``Programs of health promotion or 
disease prevention'').
    \25\See EEOC v. Honeywell Int'l, Inc., No.14-4517, 2014 WL 5795481 
(D. Minn. Nov. 6, 2014).
---------------------------------------------------------------------------
    Ms. Klausner expressed the following concerns regarding the 
uncertain regulatory environment:

          [T]he future of workplace wellness programs remains 
        at risk. Despite explicit Congressional support of 
        wellness programs in recent years . . ., employers 
        continue to face complex and inconsistent regulations 
        for the design and administration of these programs, . 
        . . Unfortunately, the EEOC's recently finalized rules 
        . . . are not consistent with the well-established and 
        employee-protective regulatory framework under HIPAA. 
        The result is that many wellness programs already 
        subject to regulation under HIPAA may now also be 
        subject to incongruent and competing regulations under 
        Title II of GINA and the ADA.\26\
---------------------------------------------------------------------------
    \26\Klausner, supra note 19.

    Ms. Klausner gave in her testimony specific examples of 
inconsistencies between the HIPAA regulation and EEOC's 
regulations. To clarify what constitutes voluntary 
participation in a wellness program, EEOC's ADA regulation 
permits a maximum reward of 30 percent of the cost of self-only 
coverage. This is contrary to HIPAA, which permits a maximum 
reward of 30 percent of the total cost of the employee's and 
dependent's coverage where a dependent participates in the 
wellness program. Additionally, EEOC's GINA regulation has an 
entirely different method for calculating the maximum reward. 
The permissible reward under the GINA regulation is twice the 
cost of 30 percent of self-only coverage if the inducement 
applies to both the employee and his or her spouse.\27\ Ms. 
Klausner also noted that although HIPAA already requires notice 
be provided to employees, the ``final EEOC regulations require 
the use of a much more prescriptive and lengthy notice.''\28\
---------------------------------------------------------------------------
    \27\Genetic Information Nondiscrimination Act, 81 Fed. Reg. at 
31146.
    \28\Klausner, supra note 19.
---------------------------------------------------------------------------
    Another area of concern relates to disease management as 
part of a voluntary wellness program. HIPAA permits disease 
management programs; however, it is unclear how they will be 
treated under EEOC's ADA regulation. Ms. Klausner described how 
disease management works and the need to clarify its status 
under the ADA regulation, stating:

          Under these programs, individuals with a health 
        factor may be provided financial incentives to engage 
        with the wellness program--but at all times they must 
        be treated better than similarly situated employees who 
        lack the health factor. Many employers sponsor disease 
        management programs under this rubric, such as healthy 
        mother/health baby programs, or diabetes management 
        programs. One example is that a plan may charge a copay 
        for the purchase of insulin, but may waive the copay 
        for their enrollees with diabetes given the clinical 
        evidence supporting the importance of properly managing 
        blood sugar levels.
          While these programs are excepted from HIPAA's 
        prescriptive regime--which is appropriate given the 
        favorable treatment under these programs of persons 
        with an adverse health status--the 2016 ADA regulations 
        could subject these types of disease management 
        programs to the regulations' requirements, which would 
        likely cause many employers to reconsider offering 
        these very valuable and helpful programs.\29\
---------------------------------------------------------------------------
    \29\Id.

    With respect to smoking cessation programs, the HIPAA 
regulations and the ADA regulation are inconsistent. The HIPAA 
regulations permit a maximum incentive of 50 percent of the 
employee's cost of health care coverage for enrolling in these 
programs. However, the ADA regulation only allows a maximum 
incentive of 50 percent if the program merely asks the employee 
whether he or she uses tobacco. If an additional health 
screening tests for tobacco use, then the maximum incentive is 
30 percent.\30\
---------------------------------------------------------------------------
    \30\Regulations Under the Americans with Disabilities Act, 81 Fed. 
Reg. at 31136.
---------------------------------------------------------------------------
    The result of the inconsistencies between the HIPAA, ADA, 
and GINA regulations is that employers are discouraged from 
offering employee wellness programs, which is contrary to 
bipartisan congressional intent to promote these programs. Ms. 
Klausner explained the effects of the regulatory inconsistency, 
saying:

          Notwithstanding the important role of wellness 
        programs in promoting the health and productivity of 
        employees and their families, the inconsistent federal 
        regulatory framework under HIPAA, GINA, and the ADA has 
        caused many employers to take a step back or pause in 
        their implementation of innovative wellness programs. 
        This is because the new rules under GINA and the ADA 
        added complexity and inconsistency and have made it 
        significantly more difficult for employers to structure 
        programs that comply with all applicable federal 
        regulatory regimes.\31\
---------------------------------------------------------------------------
    \31\Klausner, supra note 19.
---------------------------------------------------------------------------

Worker Protections

    The Committee is concerned with protecting the privacy and 
confidentiality of employee information, including health and 
genetic information, and protecting employees from 
discrimination. Specifically, workers are protected in the 
following ways:
           The HIPAA Privacy Rule\32\ protects against 
        the unauthorized disclosure or transfer of private 
        health information by health plans. Under H.R. 1313, 
        health plans, including wellness programs, will still 
        be subject to the HIPAA Privacy Rule. In addition, 
        wellness programs will still be subject to ADA and GINA 
        confidentiality provisions.\33\
---------------------------------------------------------------------------
    \32\45 C.F.R. Parts 160, 164(A), (E).
    \33\See 42 U.S.C. Sec. 12112(4)(C); 42 U.S.C. Sec. 2000ff-5.
---------------------------------------------------------------------------
           HIPAA's provisions prohibiting 
        discrimination against individuals on the basis of 
        health status will continue to apply to health plans, 
        including wellness plans. Moreover, under the ADA and 
        GINA, employers cannot discriminate against employees 
        or job applicants on the basis of disability or genetic 
        information.
           Under the bill, employers cannot force 
        employees to submit to genetic testing. Wellness 
        programs have always been completely voluntary. They 
        were voluntary under the ACA, as well as under 
        regulations issued by the Obama administration. They 
        remain voluntary under H.R. 1313.
           GINA prohibits employment discrimination on 
        the basis of genetic information, including information 
        acquired through a wellness program. This prohibition 
        will remain under H.R. 1313.
           Under the bill, employers cannot charge 
        smokers more for health insurance than non-smokers. As 
        is already the case under current law, employees have a 
        choice of whether to enroll in a smoking cessation 
        program to receive a reduction in their health 
        insurance premiums. If they choose not to enroll, they 
        are not paying any more for health care premiums than 
        non-smokers who choose not to enroll.

                               Conclusion

    For many years, voluntary employee wellness programs have 
helped to lower health care costs and improve the quality of 
life of employees and their families. Today tens of millions of 
Americans have access to an employee wellness plan, a testament 
to the broad support and popularity of these voluntary 
programs. H.R. 1313 will bring uniformity to the regulation of 
wellness programs under HIPAA, the ADA, and GINA. The bill will 
provide the regulatory clarity and certainty employers need as 
they develop and implement these programs. Under the bill, 
worker protections will remain in place to ensure these 
programs are voluntary and do not discriminate, and health 
information remains confidential.

                           Section-by-Section

    The following is a section-by-section analysis of the 
Amendment in the Nature of a Substitute offered by Rep. Byrne 
and reported favorably by the Committee.

Section 1. Short title

    Section 1 provides the short title is the ``Preserving 
Employee Wellness Programs Act.''

Section 2. Findings

    Section 2 describes the findings of H.R. 1313 regarding 
Congress's tradition of protecting and preserving employee 
wellness programs; wellness programs as a means to improve 
health and lower health care costs; the ACA's provisions 
allowing financial incentives; and the balance Congress has 
struck to protect individual privacy and confidentiality.

Section 3. Nondiscriminatory workplace wellness programs

    Section 3(a)(1) provides that a wellness program offered in 
conjunction with an employer-sponsored health plan, if the 
program complies with the non-discrimination provisions in 
HIPPA relating to wellness programs, shall be considered to be 
in compliance with certain provisions relating to the voluntary 
collection of health information in the ADA and GINA; provides 
that the ADA provision relating to bona fide benefit plans 
applies to workplace wellness programs.
    Section 3(a)(2) provides that programs offering more 
favorable treatment for adverse health factors, as described in 
the Code of Federal Regulations, shall be considered to be in 
compliance with certain provisions relating to the voluntary 
collection of health information in the ADA and GINA.
    Section 3(a)(3) provides that programs not offered in 
conjunction with an employer-sponsored health plan, if the 
program complies with the maximum reward amounts for wellness 
programs as set forth in HIPAA, shall be considered to be in 
compliance with certain provisions relating to the voluntary 
collection of health information in the ADA and GINA.
    Section 3(b) provides that the collection of information in 
a voluntary wellness program about the manifested disease or 
disorder of a family member shall not be considered an unlawful 
acquisition of genetic information in violation of GINA. This 
provision is not intended to indicate GINA's other rules are 
otherwise inapplicable to wellness programs with respect to an 
employee's spouse or child.
    Section 3(c) provides that an employer offering a wellness 
program may require an employee, within 45 days from the date 
the employee first has the opportunity to earn a reward, to 
request a reasonable alternative standard or waiver of the 
standard. An employer may also impose a reasonable time period, 
based on all the facts and circumstances, during which the 
employee must complete the reasonable alternative standard.

                       Explanation of Amendments

    The amendments, including the amendment in the nature of a 
substitute, are explained in the body of this report.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. H.R. 1313 will create consistency among the laws that 
govern wellness programs by providing a uniform set of rules 
under which wellness programs can be considered compliant.

                       Unfunded Mandate Statement

    With respect to the requirements of Section 423 of the 
Congressional Budget and Impoundment Control Act (as amended by 
Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 
104-4), the Committee has requested but not received from the 
Director of the Congressional Budget Office a statement as to 
whether the provisions of the reported bill include unfunded 
mandates.

                           Earmark Statement

    H.R. 1313 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of House Rule XXI.

                            Roll Call Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee Report to include for 
each record vote on a motion to report the measure or matter 
and on any amendments offered to the measure or matter the 
total number of votes for and against and the names of the 
Members voting for and against.


         Statement of General Performance Goals and Objectives

    In accordance with clause (3)(c) of House Rule XIII, the 
goal of H.R. 1313 is to create consistency among the laws that 
govern wellness programs by providing a uniform set of rules 
under which wellness programs can be considered compliant.

                    Duplication of Federal Programs

    No provision of H.R. 1313 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The committee estimates that enacting H.R. 1313 does not 
specifically direct the completion of any specific rule makings 
within the meaning of 5 U.S.C. 551.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

   New Budget Authority and CBO Cost Estimate Committee Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following estimate for H.R. 1313 from the Director of the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 26, 2017.
Hon. Virginia Foxx,
Chairwoman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
    Dear Madam Chairwoman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1313, the 
Preserving Employee Wellness Programs Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Emily King.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 1313--Preserving Employee Wellness Programs Act

    H.R. 1313 would exempt workplace wellness programs from 
some provisions of the Americans with Disabilities Act (ADA) 
and the Genetic Information Nondiscrimination Act (GINA). If 
enacted, wellness programs that meet certain requirements in 
the Public Health Service Act (PHSA) would be exempt from some 
non-discrimination and privacy requirements under the ADA and 
GINA. The bill also would allow employers to collect health 
information from an employee's spouse or children as a part of 
a wellness program, which is currently only permissible if 
certain privacy conditions are met.
    If H.R. 1313 were enacted, the Equal Employment Opportunity 
Commission (EEOC) would likely need to revise existing 
regulations on wellness programs. Based on information from the 
EEOC, CBO estimates that promulgating those regulations would 
cost less than $1 million over the 2018-2022 period; any 
spending would be subject to the availability of appropriated 
funds.
    The bill would not directly affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 1313 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 1313 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Emily King. The 
estimate was approved by Holly Harvey, Deputy Assistant 
Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

    The requirements of clause 3(e) of rule XIII of the Rules 
of the House of Representatives do not apply to H.R. 1313.

                             MINORITY VIEWS

                              Introduction

    Committee Democrats strongly oppose H.R. 1313, the 
Preserving Employee Wellness Programs Act. The legislation 
would allow for unnecessary circumvention of important civil 
rights laws and threaten the privacy of workers. The 
legislation would, in many instances, give employers access to 
sensitive information that they may not even need or want. 
Committee Democrats were also troubled by the Majority's 
insistence on moving three health-related bills while two other 
Committees (Energy and Commerce and Ways and Means) 
simultaneously considered legislation to gut the Affordable 
Care Act (ACA).

         Before the Affordable Care Act Workers Had Few Options

    Before the ACA, employer-provided coverage was shrinking 
and costs were increasing dramatically. From 1999 to 2010, the 
cost of premiums for employer-provided health insurance 
increased by 138%.\1\ Additionally, workers often had limited 
options for affordable health insurance. Those who were 
employed were often locked in to their employment for fear of 
losing their health insurance, even if they wanted to retire, 
work part-time, or start a new business, due to inadequate 
coverage options outside the employer-sponsored system. Workers 
with pre-existing conditions were particularly disadvantaged, 
since they could be charged higher rates or denied coverage 
altogether in the individual market.
---------------------------------------------------------------------------
    \1\Kaiser Family Foundation, Snapshots: Employer Health Insurance 
Costs and Worker Compensation, (February 27, 2011) available at: http:/
/kff.org/health-costs/issue-brief/snapshots-employer-health-insurance-
costs-and-worker-compensation/.
---------------------------------------------------------------------------
    Further, before the ACA, many families struggled to manage 
chronic health conditions that required regular or expensive 
treatment. All too often, families would ``cap out''--hitting 
an annual or lifetime limitation on benefits. After the cap, 
working people commonly ran out of health care benefits and 
were left to pay for the services they desperately needed. This 
led to financial instability for many families, who were forced 
to make tough choices, such as whether to pay for health care 
or pay rent.

    Progress of the ACA Improves the Health and Wellness of Families

    The Affordable Care Act both improved access to health 
coverage and also improved benefits for millions of working 
families. One of the most important elements of the ACA is its 
robust focus on prevention. The ACA expanded access to free 
preventive services with no cost-sharing for 137 million 
Americans, including 55 million women and 28 million 
children.\2\ Simply, this means that if families go to the 
doctor for a preventive service, such as annual physicals or 
blood pressure screenings, that preventive care is free. This 
benefit extends to all private plans, including those with job-
based coverage. Since the cost of care can dissuade many 
Americans from getting care, free preventive care encourages 
families to seek out the care they need. Now, the share of 
adults who report forgoing a needed visit to the doctor because 
of the cost has dropped significantly across the country and 
more people are taking advantage of routine checkups.\3\ 
Further, increasing access to preventive care decreases the 
likelihood of disability, and individuals who are healthier 
enjoy increased productivity on the job, generating higher 
incomes for themselves and their families.\4\
---------------------------------------------------------------------------
    \2\Department of Health and Human Services, About 137 Million 
Individuals with Private Insurance are Guaranteed Access to Free 
Preventive Services, (May 14, 2015) available at: http://www.hhs.gov/
about/news/2015/05/14/about-137-million-individuals-with-private-
insurance-are-guaranteed-access-to-free-preventive-services.html.
    \3\The Commonwealth Fund, A Long Way in a Short Time: States' 
Progress on Health Care Coverage and Access, 2013-2015, (December 2015) 
available at: http://www. commonwealthfund.org//media/files/
publications/issue-brief/2016/dec/
1922_hayes_long_way_state_coverage_access_ib.pdf.
    \4\The National Center for Chronic Disease Prevention, The Power of 
Prevention, (2009) available at: https://www.cdc.gov/chronicdisease/
pdf/2009-Power-of-Prevention.pdf.
---------------------------------------------------------------------------
    The ACA also establishes several safeguards for workers and 
families so that an illness in the past or present does not 
threaten health coverage in the future. We know that uninsured 
people generally receive much less care, both preventive or 
care for acute and chronic conditions, than insured people.\5\ 
Early estimates after the ACA's passage showed that there were 
around 129 million Americans with a pre-existing condition, 82 
million of whom were enrolled in employer-based coverage.\6\ 
For these millions of American workers, the ACA now means that 
losing a job does not mean losing health insurance coverage. By 
prohibiting discrimination based on pre-existing conditions and 
creating affordable health coverage options through the 
Marketplace, families know they have options to obtain the 
coverage they need.
---------------------------------------------------------------------------
    \5\Mathematica Policy Research, Inc., How Does Insurance Coverage 
Improve Health Outcomes? (April 2010), available at: https://
www.mathematica-mpr.com/-/media/publications/.../
reformhealthcare_ibl.pdf.
    \6\Department of Health and Human Services, At Risk: Pre-Existing 
Conditions Could Affect 1 in 2 Americans: 129 Million People Could be 
Denied Affordable Coverage Without Health Reform, (November 1, 2011) 
available at: https://aspe.hhs.gov/sites/default/files/pdf/76376/
index.pdf.
---------------------------------------------------------------------------
    Under the ACA's elimination of lifetime and annual benefit 
caps, working people--including those with job-based 
insurance--are protected from these coverage limits. Workers 
are now safeguarded from incurring unreasonable out-of-pocket 
expenses, which can be financially crippling for many families, 
especially those struggling to make ends meet while recovering 
from a major health issue. These benefits are working together 
to improve the health and wellness of American families.

   The Republican Replacement Plan Threatens the Health of American 
                                Families

    Two days prior to the Committee's consideration of the 
three bills, Republicans released their ACA replacement plan, 
the American Health Care Act. The Ways and Means and Energy and 
Commerce Committees moved the bill forward through the 
Committee process, despite the fact that the Congressional 
Budget Office had not yet released estimates on the 
legislation's impact on coverage or cost. Committee Democrats 
expressed their concern about the lack of transparency in 
moving the bill forward and also further expressed concern that 
the markup in the Education and the Workforce Committee 
occurred simultaneous to this process--essentially forcing the 
Committee to consider legislation that represents a moving 
target.
    The American Health Care Act is an inadequate and 
unacceptable replacement plan that runs contrary to the goal of 
promoting wellness. The legislation eliminates the ACA premium 
tax credits that millions of Americans depend on to pay for 
health coverage, in favor of a completely inadequate flat tax 
credit that leaves working families totally exposed to premium 
increases. The tax credits provided by the Affordable Care Act 
are based on income and are also tied to the cost of insurance 
premiums. In general, the lower an individual's income, the 
larger the tax credit and the more expensive the premium, the 
larger the credit. Therefore, the tax credit adapts to address 
the situation of the individual. However, under the 
Republican's plan, the credits range from $2,000 to $4,000 
depending on age, but do not take into account income or the 
cost of a typical plan in the area.
    In addition, the bill dismantles Medicaid as we know it, 
endangering the health of 70 million Americans who rely on 
Medicaid, including seniors with long-term care needs, 
Americans with disabilities, pregnant women, and vulnerable 
children. Further, under the Republican bill, American workers 
could see their premiums and deductibles skyrocket. The 
American public will have fewer protections--including losing 
the full protection of the ACA's prohibition against insurers 
discriminating against people with pre-existing conditions 
under all circumstances. While Republicans increase health 
costs for many working families, they give tax breaks to the 
wealthy.
    Older Americans will be forced to pay premiums five times 
higher than what others pay for health coverage, undoing the 
current limitation that stipulates that older individuals can 
only be charged three times more than younger enrollees are 
charged. The Republican bill also shortens the life of the 
Medicare Trust Fund.\7\ Additionally, the bill includes a 
provision to defund Planned Parenthood for a year, threatening 
the health care of millions of women and men throughout the 
country.
---------------------------------------------------------------------------
    \7\Center on Budget and Policy Priorities, House Republican Health 
Plan Would Weaken Medicare, (March 14, 2017) available at: http://
www.cbpp.org/blog/house-republican-health-plan-would-weaken-medicare.
---------------------------------------------------------------------------
    The Congressional Budget Office's analysis of the 
proposal--released after Committee consideration--verified that 
24 million more would be uninsured by 2026 under the Republican 
health care plan.\8\ The report also showed that seven million 
fewer individuals would be enrolled in employer-sponsored 
insurance.\9\ Further, the report demonstrated that millions 
would be worse off under the Republican plan and that millions 
more will end up paying more for less coverage.
---------------------------------------------------------------------------
    \8\Congressional Budget Office, Cost Estimate of the American 
Health Care Act, (March 13, 2017) available at: https://www.cbo.gov/
sites/default/files/115th-congress-2017-2018/costestimate/
americanhealthcareact_O.pdf.
    \9\Id.
---------------------------------------------------------------------------
    For these abovementioned reasons, hospitals, providers, 
consumer groups and advocacy groups are opposing Republicans' 
attempts to cause irreparable harm to the health and financial 
security of Americans. AARP stated that, ``. . . [the] bill 
would weaken Medicare's fiscal sustainability, dramatically 
increase health care costs for Americans aged 50-64, and put at 
risk the health care of millions of children and adults with 
disabilities, and poor seniors who depend on the Medicaid 
program for long-term services and supports and other 
benefits.''\10\ The AFL-CIO maintained that, ``The reality is, 
this isn't a healthcare plan at all. It's a massive transfer of 
wealth from working people to Wall Street.''\11\ The Consortium 
for Citizens with Disabilities stated that, ``[it is] simply 
unconscionable to pay for the repeal of the Affordable Care Act 
(ACA) by cutting services for low income individuals with 
disabilities, adults, older adults, and children.''\12\ Due to 
its glaring shortcomings, the American Hospital Association has 
stated that it, ``. . . cannot support The American Health Care 
Act in its current form.''\13\
---------------------------------------------------------------------------
    \10\AARP, Letter to Chairmen and Ranking Members of the Energy and 
Commerce and Ways and Means Committees, (March 7, 2017) available at: 
http://www.aarp.org/content/dam/aarp/politics/advocacy/2017/03/aarp-
letter-to-congress-on-american-healthcare-act-march-07-2017.pdf.
    \11\AFL-CIO, Press release: GOP Healthcare Plan Taxes Workers and 
Destroys Care, (March 7, 2017) available at: http://www.aflcio.org/
Press-Room/Press-Releases/GOP-Healthcare-Plan-Taxes-Workers-and-
Destroys-Care.
    \12\Consortium for Citizens with Disabilities, Statement: CCD 
Responds To American Health Care Act, (March 8, 2017) available at: 
http://www.c-c-d.org/fichiers/House-statement-3-8-final.pdf.
    \13\American Hospital Association, Letter to Congress, (March 7, 
2017) available at: http://www.aha.org/advocacy-issues/letter/2017/
170307-let-aha-house-ahca.pdf.
---------------------------------------------------------------------------

H.R. 1313 Allows Wellness Programs to Circumvent Civil Rights in Order 
                 To Shift Health Care Costs to Workers

    The term ``wellness program'' is used to describe a broad 
spectrum of health programs that are ostensibly designed to 
incentivize employees to improve their health and lower the 
employer's cost of their sponsored health care plan. At the 
same time, the Americans with Disabilities (ADA) and Genetic 
Information Nondiscrimination Act (GINA) protect workers from 
discrimination and being forced to divulge sensitive 
information regarding their disabilities or their families' 
genetic information. The ADA prohibits discrimination on the 
basis of disability in employment, including requesting or 
requiring medical information from employees without 
justification. The law only allows employers to request or 
require medical information from employees if the request is 
job-related and consistent with business necessity or is made 
as part of a voluntary medical examination that is part of an 
employee health program available to employees at a work site. 
In enforcement guidance issued in July of 2000, the Equal 
Employment Opportunity Commission (EEOC) stated that an 
employee health program is voluntary if it neither requires 
participation nor penalizes employees who do not 
participate.\14\
---------------------------------------------------------------------------
    \14\EEOC Enforcement Guidance, Disability-Related Inquiries and 
medical Examination of Employees Under the Americans With Disabilities 
Act (ADA), (July 27, 2000) available at: https://www.eeoc.gov/policy/
docs/guidance-inquiries.html.
---------------------------------------------------------------------------
    GINA similarly prohibits employers from requesting, 
requiring, or purchasing the genetic information of employees 
except in certain narrow circumstances. It also broadly 
prohibits group health plans from varying premiums or 
underwriting on the basis of genetic information. One of the 
narrow circumstances in which an employer is allowed to ask for 
genetic information is when the information is requested as 
part of a voluntary wellness program that offers health or 
genetic services. In regulations implementing GINA in 2010, the 
EEOC reiterated its 2000 interpretation that an employee health 
(or wellness) program is voluntary if it neither requires 
participation nor penalizes persons who choose not to 
participate.\15\ The regulations further provide that employers 
can never condition an incentive on the provision of genetic 
information as that would violate the law's prohibition on 
underwriting or varying premiums on the basis of genetic 
information.
---------------------------------------------------------------------------
    \15\EEOC Final Rule, Regulations Under the Genetic Information 
Nondiscrimination Act of 2008, (November 9, 2010) available at: https:/
/www.federalregister.gov/documents/2010/11/09/2010-28011/regulations-
under-the-genetic-information-nondiscrimination-act-of-2008.
---------------------------------------------------------------------------
    Many wellness programs require the disclosure of some 
medical information by the participant, but it is difficult to 
argue that the participants are providing this information 
voluntarily, as required by the ADA and GINA, when refusing to 
disclose it could result in thousands of dollars of penalties.
    After receiving numerous comments, the EEOC issued final 
rules in May 2016 regarding the ADA and GINA. The final 
wellness rules permit employers to use incentives that do not 
exceed 30% of the cost of employee-only coverage. The rule does 
not otherwise require employees to participate in the program 
(e.g., through intimidation, harassment, or retaliation). 
Regarding the GINA wellness rule, the EEOC stated that an 
employer can offer incentives to spouses in exchange for 
current health information without violating GINA's general 
prohibition on offering incentives for genetic information.\16\
---------------------------------------------------------------------------
    \16\EEOC Final Rule, Genetic Information Nondiscrimination Act, 
(May 17, 2016) available at: https://www.federalregister.gov/documents/
2016/05/17/2016-11557/genetic-information-nondiscrimination-act.
---------------------------------------------------------------------------
    There has been bipartisan criticism of the EEOC's rules. 
Democrats, as well as disability and consumer protection 
groups, including AARP, which filed a lawsuit against the 
rules, objected to the erosion of important civil rights and 
privacy protections and the allowance for programs to condition 
massive rewards on the provision of sensitive medical and 
genetic information.\17\
---------------------------------------------------------------------------
    \17\On October 24, 2016, AARP filed a claim against the EEOC 
arguing that health-contingent wellness programs violate anti-
discrimination laws aimed at protecting workers' medical information. 
The suit also alleges that the EEOC's most recent rules allow employers 
to prevent the wellness programs from being truly voluntary because the 
high price of non-participation AARP unsuccessfully sought an 
injunction to prevent the rules from going into effect as of January 1, 
2017. (AARP v. United States Equal Employment Opportunity Commission, 
Case No 16-cv-2113) http://www.aarp.org/content/dam/aarp/
aarp_foundation/litigation/pdf-beg-02-01-2016/AARP-v-EEOC-
complaint.pdf.
---------------------------------------------------------------------------
    Under the Preserving Employee Wellness Programs Act, 
introduced by Chairwoman Foxx, wellness programs would enjoy 
nearly unfettered ability to circumvent civil rights in order 
to shift costs to workers. Wellness programs would violate 
neither the ADA nor GINA if they impose up to 30% of the family 
premium as a penalty for keeping medical information private. 
Further, the EEOC's interpretation of GINA to forbid penalties 
for choosing not to disclose one's children's health 
information would be reversed. In short, this bill would 
undermine key privacy and civil rights laws that protect 
workers.
    Committee Democrats strongly oppose H.R. 1313 because it 
allows circumvention of critical privacy and civil rights 
protection. Democrats noted the widespread opposition to the 
Preserving Employee Wellness Programs Act from groups like the 
Consortium of People with Disabilities (and its member 
organizations), AARP, American Diabetes Association, the 
American Society of Human Genetics (ASHG), Bazelon Center for 
Mental Health, the Leadership Conference on Civil and Human 
Rights, the Epilepsy Foundation, American Academy of 
Pediatrics, March of Dimes, Paralyzed Veterans of America, 
National Partnership for Women & Families, the National Women's 
Law Center, Families USA, and Huntington's Disease Society of 
America, among many others. A coalition signed by 69 
organizations, such as AARP and others, noted that, ``Workplace 
wellness programs are fully able to encourage healthy behaviors 
within the current legal framework: they need not collect and 
retain private genetic and medical information to be effective. 
. . . individuals ought not be subject to steep financial 
pressures by their health plans or employers to disclose their 
or their families'' genetic and medical information.''\18\
---------------------------------------------------------------------------
    \18\Coalition Sign On Letter, Letter to Chairwoman Foxx and Ranking 
Members Scott, (March 7, 2017) available at: https://www.aarp.org/en-
us/advocacy-and-policy/federal-advocacy/Documents/
HR1313groupoppositionletter030717.pdf.
---------------------------------------------------------------------------
    Further, the National Council on Disability (NCD), an 
independent federal agency with a mission to provide advice to 
the President and Congress regarding disability policy, ``urges 
the committee to consider rethinking [provisions of the 
legislation] . . . in order to uphold the integrity of the 
protections against prohibited inquiries and discrimination 
offered to employees with disabilities under the ADA. . . . 
[the legislation] carries with it far too much risk of rolling 
back the protections of a law that Congress passed on a bi-
partisan basis almost thirty years ago and which has served 
people with disabilities well ever since.''\19\
---------------------------------------------------------------------------
    \19\National Council on Disability, Letter to Chairwoman Foxx and 
Ranking Members Scott, (March 7, 2017).
---------------------------------------------------------------------------

                  Committee Consideration of H.R. 1313

    Democrats offered a number of amendments that, if accepted, 
would have preserved some of the privacy and civil rights 
boundaries enacted through the ADA and GINA. Representative 
Adams offered an amendment that expressed a sense of Congress 
that any health care reform legislation should build on the 
current progress of the ACA with CBO analysis that demonstrates 
improvements in cost and coverage. That amendment was 
withdrawn. Representative Espaillat offered an amendment to 
ensure the information obtained through a wellness program 
cannot be used in employment decisions, such as hiring or 
firing. Representative Espaillat asserted that, ``Employees 
should not have to choose between disclosing personal health 
information in order to avoid financial penalties and not 
disclosing such information for fear they will be discriminated 
against based on that very information.'' The amendment, 
intended to protect employees who would be exposed to potential 
discrimination under the legislation, was rejected on a party 
line vote (17-22).
    Representative Courtney offered an amendment to protect the 
information obtained through wellness programs from being sold. 
In explaining the amendment, he stated, ``. . . [those] who are 
collecting this information should not be able to turn around 
and sell it without the knowledge of the employees who are 
again being somewhat coerced in terms of disclosure, whether it 
is genetic information, preexisting conditions, disabilities, 
which again, I think, are the core of what every American 
believes should be private information, and not sold out there 
to the higher bidder.'' Representative Polis also offered an 
amendment requiring employers to notify workers if information 
obtained through a wellness program was sold. He said, ``I 
think it is very important that we uphold the principal that 
your boss or an insurance company should not be able to sell 
data about you without your permission. Not just any data. It 
is actually some of the most personal data, like how you want 
to start a family, whether you plan to get pregnant--any 
medical condition that has no impact on the job.'' Both 
amendments to protect the private health and genetic 
information of workers and their families were defeated on a 
party line vote (17-22).
    Ranking Member Scott offered an amendment to remove the 
erroneous application of ADA's safe harbor provision to 
wellness programs, describing its application as ``overbroad 
and dangerous''. The safe harbor provision in the ADA law was 
designed to protect actuarial risk assessment as a basis for 
developing insurance plans. Title IV of the ADA law expressly 
states that the safe harbor ``shall not be construed to 
prohibit or restrict
          (1) an insurer, hospital or medical service company, 
        health maintenance organization, or any agent, or 
        entity that administers benefit plans, or similar 
        organizations from underwriting risks, classifying 
        risks, or administering such risks that are based on or 
        not inconsistent with State law; or
          (2) a person or organization covered by this chapter 
        from establishing, sponsoring, observing or 
        administering the terms of a bona fide benefit plan 
        that are based on underwriting risks, classifying 
        risks, or administering such risks that are based on or 
        not inconsistent with State law; or
          (3) a person or organization covered by this chapter 
        from establishing, sponsoring, observing or 
        administering the terms of a bona fide benefit plan 
        that is not subject to State laws that regulate 
        insurance.''\20\
---------------------------------------------------------------------------
    \20\42 U.S.C. Sec. 12201.
---------------------------------------------------------------------------
    Stated plainly, the safe harbor provision in the ADA law 
permits the development of risk models which rely on data and 
actuarial models. Congress adopted the safe harbor provision 
with the understanding that the information is protected under 
the Health Insurance Portability and Accountability Act 
(HIPAA). Further, the ADA allows an employee to choose to 
reveal their disability to an employer as a condition for 
consideration of that employee's need for an accommodation and 
the employer's ability to provide a reasonable accommodation.
    H.R. 1313, if adopted, would have the effect of extending 
the protection that allows health insurance to assess risk 
under the ADA, to wellness plans. Some employers have argued 
that the safe harbor applies to wellness programs, but many 
wellness programs are not part of an actual health plan and 
have no role in assisting in underwriting, classifying or 
administering risk. It is therefore contradictory to the spirit 
of the law to allow wellness programs to avail themselves of a 
safe harbor intended only for health insurance, as the 
legislation seeks to do. Moreover, while information divulged 
in insurance plans have the protection of HIPAA, the 
information collected under wellness plans often offers no such 
protection. Even worse, in this instance the employer now has 
sensitive information, obtained through a wellness program, 
which may then undermine the protection of an employee's 
reasonable accommodation or retaliation claim. Ranking Member 
Scott's amendment would have maintained the ADA's safe harbor 
for its original and intended purpose. The amendment was 
defeated on a party line vote (17-22).
    H.R. 1313 was favorably reported, as amended, on a party 
line vote, with all Democratic Members opposing (22-17).

                               Conclusion

    After seven years of disparaging the ACA, Republicans 
released a repeal and replacement plan that will leave millions 
of Americans worse off. Meanwhile, H.R. 1313 is misguided and 
would only serve to shift costs onto vulnerable workers. The 
legislation would neither protect the progress of the ACA nor 
improve and expand coverage. While wellness programs, if 
executed properly, can engage both employers and employees in 
their health, they do not and should not require a wholesale 
exemption from civil rights laws. There is no compelling 
evidence to suggest that civil rights present a barrier to 
effective programs that promote healthy behavior and habits and 
workers should not be required to divulge sensitive medical 
information or face an extreme financial penalty.

                                   Robert C. ``Bobby'' Scott,
                                     Ranking Member.
                                   Raul M. Grijalva.
                                   Marcia L. Fudge.
                                   Gregorio Kilili Camacho Sablan.
                                   Suzanne Bonamici.
                                   Alma S. Adams.
                                   Donald Norcross.
                                   Raja Krishnamoorthi.
                                   Adriano Espaillat.
                                   Susan A. Davis.
                                   Joe Courtney.
                                   Jared Polis.
                                   Frederica S. Wilson.
                                   Mark Takano.
                                   Mark DeSaulnier.
                                   Lisa Blunt Rochester.
                                   Carol Shea-Porter.

                                  [all]