On November 20, 2012, the IRS, DOL and HHS jointly issued proposed regulations under the Affordable Care Act building on existing HIPAA regulations of wellness programs. The new proposed regulations provide clearer guidance and greater flexibility in some areas, but leave many questions unanswered. Earlier, the Eleventh Circuit Court of Appeals affirmed a decision that a wellness program surcharge is exempt under the ADA "bona fide benefit plan" safe harbor.

Increasing numbers of private employers are implementing wellness programs aimed at promoting good health and reducing costs of employer-sponsored health coverage. According to a recent survey by the U.S. Bureau of Labor Statistics, the percentage of private industry employers providing wellness programs increased from 23% to 31% between 2005 and 2010.

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