On December 13, 2006, the Departments of Labor, Treasury, and Health and Human Services (the “Departments”) issued final HIPAA nondiscrimination and wellness program regulations. 71 Fed. Reg. 75014. The Departments had issued interim final nondiscrimination rules and proposed bona fide wellness program rules in 2001. 66 Fed. Reg. 1378 (Jan. 8, 2001) (nondiscrimination); 66 Fed. Reg. 1421 (Jan. 8, 2001) (wellness). The new rules apply to “group health plans” under HIPAA and are applicable to plan years beginning on or after July 1, 2007 (January 1, 2008 for calendar year plans).

The final wellness program rules retain the same overall structure of the proposed rules, but add an additional factor that wellness programs must meet to be permissible, add more examples to demonstrate programs that meet the requirements, and clarify when a program is subject to these rules. The new rules also drop the term “bona fide” and simply refer to these arrangements as “wellness programs.” In addition, the Departments say that, while they had taken a nonenforcement approach until additional guidance could be issued, this nonenforcement policy “ends upon the applicability date of these final regulations.”


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