Transcript GINA and Workplace Wellness Programs

Workplace Wellness Programs:
Managing Risk –
Health, Financial and Legal
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Eleanor D. Thompson
Special Counsel
McCarter & English, LLP
Eleanor Thompson has in-depth knowledge of health care
reform, particularly The Patient Protection and Affordable Care
Act, with its accompanying regulations and agency guidance,
and with special emphasis on its impact on large employers.
She has over 16 years of in-house experience in the business of
health insurance, including managing litigation, risk
management and crisis management.
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What to Expect
Learning Objectives
1.
2.
3.
4.
Analyze the core components of a well-designed Workplace Wellness
Program
Analyze the costs, benefits and ROI of implementing a Workplace
Wellness Program
Recognize the legal risks associated with the design and
implementation of Workplace Wellness Programs, including ways to
eliminate, reduce or insure against these risks
Recommend 10 best practices to ensure an effective and compliant
Workplace Wellness Program
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Carol Staubach, MPH
Health Risk Management Consultant
CA Staubach & Associates
Carol Staubach works with employers to develop effective health
management programs and services to promote employee
health, productivity, and reduce the use of benefits for avoidable
and preventable accidents, illnesses, and disability.
Carol has a deep understanding of employment and healthcare
laws, with program design and implementation that ensures
compliance with all legal requirements to protect the worker.
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Cost of Care – U.S. Highest of all Nations
OECD:
The Organisation for Economic Co-operation and Development
• Health expenditure per person: $8,508
• 17.7% of GDP: highest of all nations
• U.S. covers less than 50% of all medical expenses through
public funding (same as Mexico and Chile), yet public
expenditures on health are second in world: more than
$4,000 per person
• We lead all nations in obesity
• Life expectancy: 78.7 years – lower than 25 of OECD nations
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Why Wellness & Prevention
$1.2 Trillion avoidable health care costs
• $210 billion in defensive medicine
• $200 billion in preventable conditions
Drivers - Behavior
• 60% of costs related to poor adherence to chronic condition treatment
o 25% of all hospital and nursing home admissions
o Poor medication adherence
• Demand for treatment that has no impact on health – e.g. antibiotics
• Poor lifestyles
PriceWaterhouseCoopers Health Research Institute: Identifying Waste in Health Care Spending - 2007
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ACA Impact for 2014
• Insurance
Employers focused on compliance and plan choices and
evaluating private exchanges
• Brokers focused on creating private exchanges
• Insurers participating in private exchanges
•
• Providers concerned reduced reimbursements with
more patients
• All are looking at providing Prevention &
Wellness services
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Costliest Controllable Health Issues
Courtesy of American Diabetes Assoc., American Heart Assoc., CDC
Heart Disease................$403 Billion
Smoking………………………$157 Billion
Diabetes………………………$132 Billion
Obesity………………………..$100 Billion
High Blood Pressure…….$100 Billion
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And Even with All We Know…..
70%
67%
65%
60%
2/3 of adults are
overweight or
obese
55%
50%
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45%
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Some Good News
•CDC Morbidity & Mortality Weekly
• 2008–2011 data showed modest
reductions in the obesity rate of
low-income preschoolers in 18
states and the Virgin Islands
• “…first time in a generation we're
seeing [obesity trends] go in the
right direction in 2- to 4-year-olds,“
Thomas Frieden, MD, MPH,
director, CDC
• Environmental Changes – School
Nutrition; Physical Activity;
Awareness
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So We Have a Big Challenge
• Improve our population’s health
• Improve our population’s ability to take care of
themselves
• Reduce the incidents of illness and disease
• Reduce the costs of illness and disease when
they occur
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The Connection between Work & Health
• Correlation between health, engagement &
productivity
• Risk of disease: increased by both exposure to
occupational hazards and risk-related behaviors
• Workers at highest risk for exposure are also most likely
to engage in risk-related health behaviors
• Integrate wellness and injury management to increase
participation, be more effective and achieve ROI
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Health & Productivity Model
PROGRAMS
PERFORMANCE
METRICS
Health Risk Assessments
Medical/RX Claims
Analysis
Health Screenings
Disability & Workers
Comp.
Risk Reduction
Interventions
Lost Time & Absence
Education & Awareness
Improved Output
Health Improvement Outcomes and ROI
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Worksite Wellness Programs
Screening activities to identify health risks
• Health Risk Appraisals (questionnaires)
• Health Screenings (blood draws and biometric measurements: BMI , blood pressure, cholesterol,
fasting glucose)
• Combining the results of the HRA with biometrics leads to a more precise risk
profile. Computerized health risk assessment/appraisals often incorporate biometric data in their
risk analysis
Interventions:
• Primary Prevention: address health risks – also referred to as lifestyle management
• Secondary Prevention: improve control of chronic conditions, also referred to as disease
management
Environmental Controls
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Smoking Policies
Healthy Food Choices at work
Incentives to participate
Rewards for maintaining healthy biometric
Rewards for improvement and outcomes
Source: Rand Study
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Interventions
• On-Site Clinics
• General education and class interventions
• One on One – Coaching:
o
o
o
Internet (wellness portal with interactive functions)
Telephonic (most popular with least effort)
Face to Face (on-site presence – meet during work day
– Most often tied with on-site clinic (becoming more popular)
• Trend – Virtual Wellness
Efficient delivery during off hours
Access for most employees
o Can easily include dependents & spouses
o
o
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Coaching
• Workers with identified risks or desire to improve their
health habits may be periodically coached via telephone
by trained health coaches.
• Coaching assists employees set and achieve realistic
lifestyle-related goals including those addressing stress,
work life balance, tobacco use, weight, exercise, and
various behavior modifications.
• Three or more sessions are typically offered
• In some intensive programs, the coaching extends to
actual disease management intervention for employees
with identified high-risk diseases.
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Trends – Virtual Wellness
• Digitized Coaching
o
o
Wellness Portal
Assigned coach: phone, email, text
• Wellness Apps
o
o
o
Map my Walk
My Fitness Pal
Fooducate:
http://www.fooducate.com/
• Connections to Health Provider
• Monitoring Chronic Conditions
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Incentives – Rewards for Participation &
Outcomes
• ACA – encourages employers to incent for both participation & outcomes (i.e.
can create surcharge for tobacco users)
• Types of Incentives
Cash
o Health Insurance Premium discounts or surcharges
o Gift cards
o Novelty Items (t-shirts, hats, etc.)
o
• Does it Work? Yes, but….most effective when value is $50.00 or higher:
o
o
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HRA: 63 vs. 29%
Screenings: 57 vs. 38%
Some increased participation in behavioral change programs
– Smoking: only health risk behavior for which achieving the goal is rewarded with a higher
incentive than participation in a program
o
But does it achieve the ROI of improved health AND expected ROI – reduced
healthcare costs?
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2013 Trends for Using Incentives
• 50% of current employers with wellness programs incent
for participation
• 10% use incentives tied to health-related standards or
outcomes (tobacco use, healthy BMI range)
• 49% offer incentives directly to all employees (others
offer to only benefit covered)
• 31% administer through group health plans (premium
differential). Becoming more popular
• 20% administer both directly and through their plans
(combination of premium differential and other rewards)
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Expected ROI If Done Right
• Reduce risk factors (Blood Pressure, Cholesterol, Glucose,
Weight)
o
Risk Reduction must be sustainable and clinically meaningful
• Key – Effective program design and implementation impact:
Health care costs – impact on premium trend year over year
Decrease use of emergency room, in-patient & other high-cost
care
o Decrease work days lost to occupational injuries, short term
disability
o Improved productivity
o
o
• Trends in health care costs and use of high-cost care for
program participants and non-participants diverge over
time
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Journal of Health Affairs - Managing Manifest Diseases,
But Not Health Risks, Saved PepsiCo Money
Over Seven Years
• RAND Study: What is cost impact of PepsiCo’s wellness program
• Findings: Seven years of continuous participation in one or both
components was associated with an average reduction of $30 in health
care cost per member per month
• Disease management component was associated with lower costs
o
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Reduced health care costs by $136 per member per month
29% reduction in hospital admissions
• Lesson learned: Programs may reduce health risks, delay or avoid the
onset of chronic diseases, and lower health care costs for employees
with manifest chronic disease over long term commitment
• Employers and policy makers should not take for granted claims cost
reduction from lifestyle change programs
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Impact on Biometrics/Health Behaviors
 Hypertension reduced by 63%
 HDL Cholesterol risk reduced by 79%
 Diabetes reduced by 42%
 Smoking reduced by 13%
 Exercise levels increased by 34%
 Increase in hypertensive and lipid lowering medication 16%
and 13.8% respectively
o Addressing risks with medication avoids catastrophic claims
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RAND Study – Critical Success Factors
• Effective communication strategies
• Opportunity for employees to engage
• Leadership engaged at all levels
• Use of existing resources and relationships
• Continuous evaluation
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Ideal Strategy – Health & Productivity
• Identify & Reduce: Smoking, Lack of exercise, Excess weight,
Unhealthy diet that lead to diagnosis of high cholesterol, high
blood pressure, stress, depression & high costs
• Target high-risk workers and already diagnosed chronic disease
for aggressive intervention (short term gains)
• Direct some efforts towards healthy workers to maintain their
low-risk status (long term gains to flatten curve)
• Emphasize outcomes as opposed to simply offering wellness
activities for their own sake
• Look at cost saving impact across the spectrum: healthcare,
disability, worker’s compensation, absenteeism
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Unsuccessful Workplace Wellness
Program
•
•
•
•
Penn State University – 40,000 employees, spouses and
dependents
Highmark is the 3rd party claim administrator and Highmark
recommended WebMD Services to administer the Workplace
Wellness Program
Biometric Screening, visit personal physician for check-up
and complete online HRA
HRA elicited intimate details about job relationships, marital
relationships, including whether female employees planned
to become pregnant over the next year, and their finances
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Unsuccessful Workplace Wellness
Program
•
•
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Failure to complete the HRA resulted in a $100 a month
deduction from the employee’s paycheck
Stick + invasive nature of questions = vocal revolt by faculty
and staff
PSU decided to suspend the fee for noncompliance and set
up a task force to seek faculty input into possible alternatives
Are there lessons to be learned from PSU’s approach?
Was the Workplace Wellness Program legal?
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Workplace Wellness Programs
Legal Risks
• Multiple laws and regulations that impose certain
prohibitions or limitations for the purpose of
protecting employees from employer
discrimination, based on a poor health status
• The universe of laws impact:
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Nondiscrimination
Reasonable accommodation
Confidentiality
Protected off-work conduct
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Workplace Wellness Programs
Legal Risks
• The legal risks include:
Risk of litigation
 Risk of breach of privacy
 Risk of regulatory non-compliance
 Risk of claims of discrimination, etc.

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The ACA and Workplace Wellness
Programs
•
The Patient Protection and Affordable Care Act (2010) promotes
Workplace Wellness Programs
•
Final regulations were issued on May 29, 2013, entitled, “Incentives
for Nondiscriminatory Wellness Programs in Group Health Plans”
•
Final regulations designed to ensure nondiscrimination in their
application and provide comprehensive guidance; programs must be
designed to promote health and prevent disease
•
Effective for plan year beginning on or after January 1, 2014
•
Other federal and state laws remain applicable
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Participatory Wellness Programs
1. Definition:
o
o
Does not require an individual to meet a standard related to a
health factor in order to obtain a reward or avoid a penalty
Offers no reward
2. Examples:
o
o
o
o
Gym membership
Filling out a health risk assessment (HRA)
Attending a health education seminar
Participating in diagnostic testing without the requirement of a
specific result
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Participatory Wellness Programs
3. Rule:
o
o
Must be made available to all similarly situated
individuals regardless of health status
Availability regardless of health status ensures that the
general prohibition against discrimination based on a
health factor is not implicated
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Health-Contingent Wellness Programs
1. Definition:
o
o
Requires an individual to satisfy a standard related to a
health factor to obtain a reward or avoid a penalty
Two Categories:
1)
2)
Activity-only: requires an individual to perform or complete an
activity related to a health factor in order to obtain a reward or
avoid a penalty, BUT does not require the individual to attain or
maintain a specific health outcome.
Outcome-based: requires an individual to attain or maintain a
specific outcome in order to obtain a reward or avoid a penalty.
Generally, have progressive levels: first, a measurement test or
screening, then a program targeted at identified health risk.
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Health-Contingent Wellness Programs
2. Examples:
Activity-only
• Walking
• Dieting
• Attending an exercise
program
• Attending a nutrition class
Outcome-based
• Achieving a normal body
mass index (BMI)
• Attending anti-smoking
program and discontinuing
smoking
• Attaining certain levels for
cholesterol or glucose
screenings
• Meeting targets for
exercise
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Health-Contingent Wellness Programs
3. Rules for Activity-Only Wellness Programs:
o
o
o
A reasonable alternative standard (RAS) must be
provided to individuals for whom it is unreasonably
difficult because of a medical condition or medically
inadvisable to meet the standard.
Examples: Unable to participate in walking program due
to recent surgery, pregnancy or asthma.
Individual’s doctor may provide verification on the
employee’s medical condition and may suggest a
reasonable alternative standard
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Health-Contingent Wellness Programs
3. Rules for Activity-Only Wellness Programs
(cont’d):
o
o
A plan or issuer may seek verification from individual’s
doctor that a health factor makes compliance
unreasonably difficult or medically inadvisable, if
reasonable under the circumstances.
Employer may choose to waive the standard and just
provide the reward.
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Health-Contingent Wellness Programs
4. Rules for Outcome-based Wellness Programs:
o
o
o
A reasonable alternative standard (RAS) must be
provided to any employee who does not meet the initial
standard.
For example, an educational program or activity must be
substituted.
An employer cannot require an employee to provide
physical verification of a need for a reasonable
alternative standard under an outcome-based wellness
program.
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Health-Contingent Wellness Programs
4. Rules for Outcome-based Wellness Programs
(cont’d):
o
If, however, an individual’s physician states that a
standard is not medically appropriate for the individual,
the plan or issuer must provide a reasonable alternative
standard that accommodates the recommendations of
the physician with regard to medical appropriateness.
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Health-Contingent Wellness Programs
Reasonable Alternative Standards
Generally, the RAS includes modifications and adjustments
that allow participant to enjoy the reward. All facts and
circumstances are taken into account in determining
whether a plan has furnished a reasonable alternative.
•
•
if RAS is completion of educational program, plan must
make the program available or assist employee in finding
a program; can’t require employee to find or pay for
program
time commitment required must be reasonable
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Health-Contingent Wellness Programs
Reasonable Alternative Standards
•
•
•
if RAS is diet program, plan must pay any membership or
participation fee, but not food
if individual’s personal physician concludes that a plan
standard is not medically appropriate (even if plan’s
medical professional recommended it), the plan must
provide a RAS that is consistent with personal physician’s
recommendations
the RAS must comply with the requirement of the
health-contingency category it falls under
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Health-Contingent Wellness Programs
5. Rules for BOTH Categories of HealthContingent Wellness Programs:
o
o
Give all eligible employees an opportunity to qualify for the
reward or avoidance of the penalty at least once a year;
Provide a reward or absence of a penalty surcharge not in
excess of 30%, or 50% if the program is designed to prevent or
reduce tobacco use calculated on the total cost of coverage (the
combined total of the employer’s and employee’s contribution
for employee-only coverage) under the employer’s health plan;
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Health-Contingent Wellness Programs
5. Rules for BOTH Categories of HealthContingent Wellness Programs (cont’d):
o
o
o
Be reasonably designed to promote health and prevent disease;
Make the full reward available to all similarly situated individuals,
which requires provision of a reasonable alternative standard, or
waiver of the original standard; and
Reasonably disclose the availability, or possible waiver, of an
alternative standard in program materials.
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What Constitutes a Reward for Participatory and
Health-Contingent Wellness Programs
• Incentive or disincentive
• For example:
premium discount
 rebate on premium or contribution
 additional health benefits
 modification or waiver of otherwise applicable cost
sharing
 other financial incentives or avoidance of a penalty
 premium surcharge or other financial disincentives

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Recording of this session via any media type is strictly prohibited.
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Recording of this session via any media type is strictly prohibited.
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Workplace Wellness Programs
Other Applicable Laws: The Legal Risk Universe
HIPAA
ACA
ERISA
ADA
Workplace
Wellness
Programs
Legal Risks
ADEA
Title
VII
GINA
State
Lifestyle
Discrimination
Laws
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Americans with Disabilities Act (ADA)
and Workplace Wellness Programs
• ADA prohibits discrimination based on disability; however, “[D]isabilityrelated inquiries and medical examinations are permitted as part of a
voluntary wellness program.” [EEOC Office of Legal Counsel, 1/18/13]
• Participation in Workplace Wellness Programs must be voluntary, not
forced. Voluntary if employees are neither required to participate nor
penalized for non-participation.
• “EEOC [who enforces the ADA] has not taken a position on whether, and
to what extent, a reward amounts to a requirement to participate, or
whether withholding of the reward from non-participants constitutes a
penalty, thus rendering the program involuntary.” [EEOC Office of Legal
Counsel, 1/18/13]
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Americans with Disabilities Act (ADA)
and Workplace Wellness Programs
•
The possibility exists that financial inducements associated with
Workplace Wellness Programs could violate ADA if they have the effect of
discriminating against employees on the basis of disability.
•
Hearings before the EEOC were held May 8, 2013 where written and oral
testimony was submitted; no guidance has resulted.
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Americans with Disabilities Act (ADA)
and Workplace Wellness Programs
• Litigation: Seff vs. Broward Co., Florida
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Class action based on violation of ADA because of penalty for
not participating in wellness program
Workplace Wellness Program – Biometric screening and
online HRA
Administered by health insurer, Coventry Healthcare
5 diseases identified as health risks with access to coaching
program
Reward – Waiver from co-pay of disease management
medications
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Americans with Disabilities Act (ADA)
and Workplace Wellness Programs
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Penalty – $20 surcharge on each bi-weekly paycheck on
those enrolled in health plan but not participating in wellness
program
Workplace Wellness Program was HIPAA compliant
Court didn’t decide whether wellness plan was voluntary
Court granted Summary Judgment for County based on ADA
Safe Harbor provision, that is, the wellness program was a
“term of a bona fide benefit plan”
11th Circuit affirmed, concluding that wellness program did
not have to appear in plan’s written documents to qualifty as
a “term”
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GINA and Workplace Wellness Programs
• Prohibits employers from requesting or requiring
genetic information of an employee or an employee’s
family
• Genetic information means information about:

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
the individual’s genetic tests
genetic tests of individual family members
manifestation of a disease or disorder in an individual’s
family member (Family Medical History)
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GINA and Workplace Wellness Programs
•
Generally, any reward given for the completion of a Health Risk
Assessment that solicits information about an individual’s family medical
history violates GINA requirements.
•
GINA limits the ability of employers to implement Workplace Wellness
Programs that require employees to provide Family Medical History, as
any such disclosure must be voluntary and employers cannot condition
receipt of an award on providing genetic information.
•
There are limited exceptions. One is that the employer advises the
employee that the incentive will be given for completing the HRA
regardless of whether the employee answers the question regarding
Family Medical History.
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Other Federal Laws and
Workplace Wellness Programs
Title VII of the Civil Rights Act
•
•
Prohibits discrimination in employment based on race,
color, religion, sex or national origin
Workplace Wellness Programs cannot discriminate
against the protected classes
ADEA
•
•
Prohibits age discrimination in employment
Workplace Wellness Programs cannot impact those over
40 more than those under 40
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State Lifestyle Discrimination Law and
Workplace Wellness Programs
•
Many states have lifestyle discrimination laws protecting
those who engage in legal off-duty conduct.
•
Some states prohibit discrimination based on any lawful
activity by an employee off the premises during non-working
hours. (See, California, Colorado, New York and North
Dakota)
•
Some states prohibit discrimination based on the employees’
use of “lawful products.” (See, Illinois, Minnesota, Montana,
Nevada, North Carolina and Wisconsin)
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State Lifestyle Discrimination Law and
Workplace Wellness Programs
•
Approximately 30 states have laws prohibiting discrimination
based on off-duty tobacco use.
•
The State of Michigan has a law prohibiting discrimination
against obese individuals.
•
ERISA may preempt state laws under certain circumstances.
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Workplace Wellness Programs
Privacy
• Employers should treat employee wellness program
records as confidential material
• Use an independent third-party to administer,
evaluate and implement Workplace Wellness
Programs
• Treat third party as HIPAA Business Associate and
make sure they sign a Business Associate Agreement
and that they de-identify all data shared with you
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BEST PRACTICES
10 WAYS TO AVOID OR MINIMIZE RISK IN THE DESIGN AND
IMPLEMENTATION OF WORKPLACE WELLNESS PROGRAMS
1. Implement voluntary Workplace Wellness Programs
designed to promote health and prevent disease.
2. Design and implement your Workplace Wellness
Plan in developmental stages.
3. Ensure reasonable alternative standards are
provided for health-contingent programs for
employees for whom it is unreasonably difficult due
to a medical condition or medically inadvisable to
satisfy a condition.
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BEST PRACTICES
10 WAYS TO AVOID OR MINIMIZE RISK IN THE DESIGN AND
IMPLEMENTATION OF WORKPLACE WELLNESS PROGRAMS
4. Ensure that eligible employees are given the
opportunity to qualify for any reward once per year.
5. Ensure incentives are in compliance with ACA
percentage requirements and consider using carrots
rather than sticks.
6. Clearly communicate your Workplace Wellness Plan
criteria to employees and incorporate terms of your
plan in all plan materials.
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BEST PRACTICES
10 WAYS TO AVOID OR MINIMIZE RISK IN THE DESIGN AND
IMPLEMENTATION OF WORKPLACE WELLNESS PROGRAMS
7. Engage a third-party administrator to ensure privacy
and confidentiality.
8. Engage legal counsel to review your Workplace
Wellness Plan to ensure statutory and regulatory
compliance and to identify any risks of employeedriven litigation or regulatory enforcement action
that may be associated with the terms of your plan.
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BEST PRACTICES
10 WAYS TO AVOID OR MINIMIZE RISK IN THE DESIGN AND
IMPLEMENTATION OF WORKPLACE WELLNESS PROGRAMS
9. Establish reasonable financial and health goals,
measure your outcomes and adjust where
necessary.
10. Explore the availability of insurance coverage for
risks associated with compliance with the ACA.
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Questions, Final Comments and
Contact Information
Carol Staubach
CA Staubach & Associates
305 E. St. Andrews Drive
Media, PA 19063
[email protected]
Office: 610.891.6034
Cell: 484.431.9357
Eleanor D. Thompson
Special Counsel
McCarter & English, LLP
1735 Market Street
BNY Mellon Center, Suite 700
Philadelphia, PA 19103
[email protected]
www.mccarter.com
Office: 215.979.3860
Fax:
215.979.3899
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Disclaimer
These slides and the accompanying commentary are provided as general information
about Workplace Wellness Programs. The Patient Protection and Affordable Care Act
and related laws are complex and comprehensive in their application to Workplace
Wellness Programs. This material should not be relied upon as legal advice or as a
legal opinion on any specific matter. Please consult legal counsel concerning your
particular circumstances or any questions you may have.
IRS CIRCULAR 230 DISCLOSURE: To comply with requirements imposed by the
Department of the Treasury, we inform you that any U.S. tax advice contained in this
communication (including any attachments) is not intended or written by the
practitioner to be used, and that it cannot be used by any taxpayer, for the purpose
of (i) avoiding penalties that may be imposed on the taxpayer, and (ii) supporting the
promotion or marketing of any transactions or matters addressed herein.
Recording of this session via any media type is strictly prohibited.
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