Americans with Disabilities Act Expanded in 2009

June 22, 2010

Effective Jan. 1, 2009, these changes will impact the ways courts and administrative agencies evaluate whether an individual is disabled for ADA purposes.

  • Hearing Aids: Due to a revision to the ADA, effective Oct. 3, 2009 all new and renewing UnitedHealthcare insured  customers with more than 15 eligible employees will now have hearing aids covered as part of their benefit plan design, if not already mandated by state law.  This coverage is also recommended for UnitedHealthcare ASO groups, however, ultimately benefit coverage and structure is their decision. 
  • Health Risk Assessment Participation: The EEOC has indicated that an employer requiring an employee to complete a Health Risk Assessment in order to enroll in a group health plan or access health reimbursement accounts is likely a violation of the ADA.

Details on Hearing Aid Coverage
The ADA of 2008 applies to employers’ fringe benefit plans, including fully insured and self-funded (ASO) groups, as well as ASO non-ERISA plans. With limited exceptions, the ADA prohibits such plans from discriminating based upon disability.   

Additionally, hearing aids will be included for Small Business groups with 2-14 eligible employees.

This change impacts all UnitedHealthcare platforms. An Operations team has updated UnitedHealthcare's systems to ensure full compliance with the new provision. All UnitedHealthcare benefit summaries are being updated to support this change. Employers should always consult with their legal counsel to ensure their fringe benefit offerings are in compliance with the ADA.

Policies Affected

  • Insurance Policies
  • HMO Contracts
  • ASO Plans (potentially)
  • ASO Non-ERISA (potentially)

Changes in interpretation of the ADA result in the following additional benefits:

  • Benefits are provided for hearing aids required for the correction of a hearing impairment and for charges for associated fitting and testing.
  • Benefits for hearing aids are subject to payment requirements (co-payment, co-insurance, deductible and out-of-pocket maximums) and annual limits that mirror those applicable to Durable Medical Equipment and Prosthetic Devices as shown in the Schedule of Benefits. Benefits for hearing aids will never exceed $5,000 per year. Note: ASO accounts may cover this benefit beyond this minimum level as they see fit. ASO accounts are encouraged to consult with their legal counsel to ensure compliance.

Note: Hearing aids are a separate benefit category and not part of Durable Medical Equipment. However, the recommendation is that hearing aid benefit should be paid the same as Durable Medical Equipment, including cost shares and maximums up to a hearing aid annual maximum of $5,000.

  • Benefits for bone anchored hearing aids are a covered health service for which benefits are provided under the applicable medical/surgical benefit categories in the certificateonly for covered persons who have either of the following:
    • Craniofacial anomalies whose abnormal or absent ear canals preclude the use of a wearable hearing aid.
    • Hearing loss of sufficient severity that it would not be adequately remedied by a wearable hearing aid.

Benefits for bone anchored hearing aids are limited to one per covered person during the entire period of time the covered person is enrolled under the policy and include repairs and/or replacement only if the bone anchored hearing aid malfunctions.

Limits and Standards

  • Beginning Jan. 1, 2010, UnitedHealthcare's new standard will be to cover hearing aids, limited to the Durable Medical Equipment dollar limit, or $5,000 per calendar year or policy year, whichever is less.  
  • Benefits are limited to a single purchase (including repair/replacement) every three years.

Details on Health Risk Assessment Participation
Under Title I of the Americans with Disabilities Act (ADA), once employment begins, an employer may only make disability-related job inquiries and/or require medical examinations in the following circumstances: (1) if they are job-related and consistent with business necessity; (2) in order to follow up on a request for reasonable accommodation; or (3) as part of a voluntary wellness program. 

According to the EEOC, a wellness program is voluntary if an employee is neither required to participate nor penalized for non-participation. If a failure or refusal to participate means that the employee is ineligible to enroll in a group health plan or access funds in a health reimbursement arrangement (HRA), the program would not appear to be a voluntary wellness program.  

Informal Discussion Letters
The EEOC has issued two informal discussion letters in response to questions regarding whether an employer can require employees to complete a Health Risk Assessment as a condition to be eligible for or to enroll in the employer's group health care plan or to access funds in an employer-provided HRA. These letters do not constitute an official opinion of the Commission; they are for informational purposes only. 

GINA Regulations
Regulations published under GINA on Oct. 7 by the Internal Revenue Service (IRS) and the U.S. Departments of Labor (DOL) and Health and Human Services (HHS) are consistent with the EEOC's position with respect to Health Risk Assessments. These regulations also restrict the use of a Health Risk Assessment as a condition of enrollment or access to benefits. GINA regulations make clear that genetic information may only be collected as part of a Health Risk Assessment only after enrollment in the group health plan and on a fully voluntary basis (i.e., with no incentives or rewards).

Background on the ADA
The ADA of 1990 is a civil rights law that protects individuals with disabilities from discrimination in the terms, conditions and privileges of employment. This includes fringe benefits provided by employers to employees. The ADA requires that these benefits be provided in a manner that does not discriminate against individuals protected by the ADA (qualified disabled individuals). Qualified disabled individuals include those who have a physical or mental impairment that substantially limits a major life activity.  

The Supreme Court originally stated that individuals who could compensate for their disabilities with medications, hearing aids, mobility and other medical devices or prosthetics did not qualify for protection under the ADA. In a complete reversal of this precedent, the new amendments prohibit employers from considering mitigating measures when assessing if an individual is covered under the ADA. With limited exceptions (eyeglasses and contact lenses), employers will now need to evaluate impairments in an unmitigated state when determining whether an individual is substantially limited in a major life activity. Other than minor or temporary impairments, the amendments also prohibit discrimination based on an employer's alleged perception of an employee's mental or physical impairment, whether or not that impairment is an actual disability protected by the ADA.

Expansion of Core Major Life Activities
Initially, the law listed such activities as walking, hearing and seeing as core major life activities protected by the ADA. The ADA amendments now add several new activities to this list, which include sleeping, concentrating, thinking and communicating. Additional major life activities also protected by the ADA include the operation of major bodily functions, such as the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Immediate Changes Under the New Law
The amendments reject several original court decisions that narrowly construed the term "disability" and the scope of certain general ADA protections. The amendments to the ADA also provide the Equal Employment Opportunity Commission with a chance to issue new regulations that redefine the term substantially limits. The amendments further expand the types of major life activities covered by the law and state that an individual's status as disabled under the ADA may not be mitigated by the use of medications, aids or devices (other than eyeglasses and contact lenses). The law also takes into consideration an employer's perception of an employee's mental or physical impairments, regardless of the extent of the actual impairments.