The New EEOC Proposed Rules Regarding GINA and Workplace Wellness Programs Explained

On October 30, 2015, the EEOC released long-awaited proposed rules providing additional insight into how the Genetic Information Nondiscrimination Act (GINA) interfaces with workplace wellness programs.  I have mentioned numerous times over the past year that the EEOC promised to issue such regulations, along with regulations shedding more light on how the Americans with Disabilities Act (ADA) interfaces with workplace wellness programs.  The EEOC issued proposed ADA regulations in April of this year, and now we have the companion GINA proposed regulations.

So what do the GINA regulations say?

The big question circling about the workplace wellness industry is whether wellness programs can offer a reward to employees to incentivize the employee’s spouse to provide health information either through a health assessment or biometric screen.  Recall that spousal health information qualifies as “genetic information” for an employee because GINA includes in the definition of “family member” a spouse (as well as adopted children).  GINA allows employers to request an employee’s genetic information, on a voluntary basis, for the purpose of providing wellness programs.  However, current regulations prohibit a wellness program from requiring employees to provide their genetic information as a condition of receiving incentives.

The proposed regulations would make a limited exception to this prohibition by allowing wellness programs that are part of a group health plan to offer employees incentives (which may take the form of a reward or penalty and may be financial or in-kind) for an employee’s spouse to provide information about the spouse’s own current or past health status as part of a health assessment or medical examination (e.g., to detect high blood pressure or high cholesterol) or both.  For the incentive regarding spousal information to be allowed, the spouse must be covered under the health plan. 

The incentive is for obtaining the spouse’s current or past health status only; no reward is allowed to obtain other genetic information about the spouse, such as results of genetic tests.  Also, no incentives are allowed for obtaining the current or past health status information of an employee’s children or for other genetic information of an employee’s child. 

How much can the incentive be?

The amount of the incentive for obtaining information about current or past health status of the  employee and employee’s spouse is 30% of the total cost of coverage for the plan in which the employee and any dependents are enrolled.  For example, if an employer offers health insurance coverage at a total cost of $14,000 for employees and their dependents, and $6,000 for employee-only coverage, the maximum inducement the employer can offer for the employee and spouse to provide information about their current or past health status is 30% of $14,000, or $4,200. 

The proposed rules break down the incentive requirements even further, stating that the maximum incentive the employer can offer employee alone for providing information about his or her current or past health status is 30% of the cost of self-only coverage.  So, in our example, the maximum incentive an employer could offer the employee for his or her current or past health information is 30% of $6,000, or $1,800.  Then, to figure out the maximum incentive an employer could offer the employee for his or her spouse’s current or past health information, one would subtract the $1,800 from the $4,200 maximum, which in this example would be $2,400.  This $2,400 incentive may be received for the spouse’s participation in the health assessment or biometric screen.  Alternatively, an employer could use part of that $2,400 incentive for the spouse’s participation in the health assessment or biometric screen, and a portion for rewarding participation by the employee and the employee’s other dependents (including the spouse) in other activities that promote health or prevent disease.

Incentivizing the provision of health information in exchange for sale of that information a “no-no.”

The proposed rules prohibit employers from conditioning participation in a wellness program or providing any reward to an employee, spouse or other covered dependent in exchange for their agreement permitting the sale of genetic information, including information about the current health status of an employee’s family member.  This is likely a reaction to the concerns raised by employee groups, such as those in Houston, of not knowing where their health information, goes after agreeing to participate in a wellness program.  It is very important for wellness program providers and purchasers ensure that their agreements do not permit the downstream sale of genetic information, which includes current health status information of an employee’s family member.   

Authorizations are required for both employee and spouse

Before an employee or spouse provides health information as part of a health assessment or biometric screen, the proposed rules state that the spouse must provide prior, knowing, voluntary and written authorization.  GINA already requires such authorization for employees when providing genetic information.  See 42 USC § 2000ff-1(b)(2)(B).  The proposed rules ensure that spouses who agree to provide information about their current or past health status when participating in a health assessment or biometric screen also provide such authorization.  The authorization form that the spouses sign must describe the confidentiality protections and restrictions on the disclosure of genetic information.  The employee does not have to sign an authorization for the spouse to provide information about his or her current or past health status.  

Information disclosure must be part of a larger effort to promote health or prevent disease

Similar to the proposed change made to the ADA rules, the EEOC added language that would allow employers to obtain genetic information (whether through incentives or otherwise) only if acquiring that information is part of offering a wellness program that is “reasonably designed to promote health or prevent disease.” 80 Fed. Reg. at 66857 (Oct. 30, 2015).  In other words, the program must have a reasonable chance of improving the health of, or preventing disease in, participating individuals, and must not be overly burdensome, a subterfuge for violating GINA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease.  For example, according to the EEOC, collecting information on a health questionnaire without providing follow-up information or advice would not be reasonably designed to promote health or prevent disease. 

This is great news for health educators, health coaches and other health promotion professionals and organizations.  Companies that ask their plan participants to provide health information via health assessments or biometric screens should be using the services of health coaches or health educators to help those employees benefit from the health information collection activity.

The proposed rules also state that the program must not be overly burdensome in terms of amount of time for participation, or requiring unreasonably intrusive procedures or significant costs on employees.  Finally, a program is not reasonably designed if it exists merely to shift costs form the employer to targeted employees based on their health.

Must we comply with these proposed rules?

No.  Like the proposed ADA rules, compliance at this time is not necessary, but it is encouraged.  In a Q&A sheet released concurrently with the proposed rule, the EEOC states that “[w]hile employers do not have to comply with the proposed rule before it formally takes effect, they certainly may do so.” 

EEOC accepting comments about the proposed rule until December 29, 2015.

The EEOC is asking employers to use the next couple of months to determine whether the proposed rule would require changes to their current wellness program.  Based on the employer’s assessment, the employer and other wellness industry stakeholders may want to submit comments to the EEOC for the EEOC to consider as it develops the final rule.  The EEOC would especially like comments relating to:

1.       Whether the rules should allow rewards to people who choose not to disclose information about current or past health status and instead provide certification from a medical professional stating that the person is under the care of a physician and that any medical risks identified by that physician are under active treatment.

2.       Whether the proposed authorization requirement should apply to rewards that offer more than de minimis rewards and if so, how the EEOC should define “de minimis.”

3.       Which best practices or procedural safeguards ensure that wellness programs are designed to promote health or prevent disease and do not operate to shift costs to employees with spouses who have health impairments or stigmatized conditions.

4.       Whether the rule should include more specific guidance to employers regarding how to protect electronically stored records.

5.       What other best practices or procedural safeguards exist that can be included in the rules to ensure that information about spouses’ current health status is protected from disclosure.

6.       Whether the collection of any genetic information should be restricted to only the minimum necessary to directly support the specific wellness activities.  Also, whether programs should be prohibited from accessing genetic information from other sources, such as patient claims data and medical records data.

7.       Whether employers offer (or are likely to offer in the future) wellness programs outside of a group health plan that use inducements to encourage employees’ spouses to provide information about current or past health status as part of a health assessment, and the extent to which GINA should allow inducements provided as part of such programs.

If you would like to submit comments relating to any of the above issues or any other issues about the GINA proposed rules, you may do so by December 29, 2015 by following the instructions provided in the proposed rule.  Or, you may send comments to the Center for Health Law Equity, LLC and we would be happy to submit them for you.  This is your chance to help shape the law!

Please direct any questions about the proposed GINA rules to Barbara J. Zabawa, JD, MPH at bzabawa@cfhle.com.

Workplace Wellness, Data Collection and Privacy

Speaking about the Affordable Care Act (ACA) at an event earlier this week, I emphasized the popularity of the ACA’s pre-existing exclusion ban on insurers.  That is, under the ACA, as of January 1, 2014, health insurers may no longer exclude coverage for an individual’s pre-existing health conditions.  Overall, consumers like that provision of the ACA. 

Yet, voluntary workplace wellness programs permit insurers to discriminate on a person’s health status.  Many times, this discrimination is in the form of health insurance cost differentials.  For example, employees who agree to participate in a wellness program and/or achieve a certain health goal may pay less for their health insurance.  In essence, these programs may have the same effect as pre-existing exclusion provisions.  The data collected by workplace wellness programs not only could be used to differentiate between premiums paid by “healthy” employees and “unhealthy employees,” but could also be sold to third parties who might use the wellness information to discriminate based on a person’s health status for purposes of life insurance, loans or other credit applications.

At least that is the fear expressed by privacy advocates interviewed by the Kaiser Health News writers.  On September 30, 2015, Kaiser Health News featured a collection of articles regarding the collection of employee health data through workplace wellness programs and the privacy of that information.  One article featured a story about a wellness program implemented by a wellness vendor hired by the City of Houston.  In exchange for a $300 reduction in the cost of their medical coverage, City employees were asked to take a health risk assessment that asked about their disease history, drug and seat-belt use, blood pressure and other “delicate” information.   The authorization form signed by city employees stated that their health information might be posted in areas that “are reviewable to the public” and that the information might be subject to re-disclosure and no longer protected by privacy law. 

Houston Police Officers’ Union objected so strongly to the health risk assessment that the city switched to a different program. 

Privacy advocates view the world of workplace wellness data collection as the “wild west” because it lacks regulation and guidance regarding how employee health information is collected, stored and disclosed.  Wellness vendors who collect and store employee health information may or may not be covered by the Health Insurance Portability and Accountability Act (HIPAA), depending on whether they are a Business Associate of a health plan or whether the vendor itself is a HIPAA covered entity.  Even if a vendor is governed by HIPAA, disclosing de-identified health information to third parties that can “re-identify” the information could cause privacy concerns by wellness program participants.  The articles point out that these third parties could use the re-identified health information for lending, credit or mortgage decisions.  For example, the article states that credit card companies could raise rates for employees that wellness programs reveal to be couch potatoes, inferring that they are more likely to default.  And life insurers could deny coverage or raise prices based on unhealthy wellness results. 

The message from these articles to wellness vendors is to pay attention to the privacy protections your programs offer.  Failing to adequately protect participant data privacy could undermine the wellness program’s ultimate goal of improving employee population health, as well as the ACA goal of eliminating use of health status for discriminatory purposes.  Here are some steps wellness vendors can take to strengthen their privacy protections:

1.   Read the fine print of your participant consent forms.   Determine what your fine print says about collecting and sharing participant health information.  One wellness vendor interviewed for the Kaiser Health News article remarked that he had no idea the company’s disclosures permitted direct marketing from third parties based on the participant’s “attributes.”  Know what you have agreed to do.

2.  Revise your fine print if the language does not fit with your company’s privacy policy.  For example, if the language would permit third parties to re-identify de-identified information, you may want to revise that language to prohibit such practice.

3.  Determine if your company is subject to HIPAA privacy and security rules, either as a Business Associate of a health plan or as a “covered entity” provider.  If your company delivers health services (and most do) as well as conducts “covered transactions” under HIPAA (i.e., electronically submits health information for purposes of tracking encounters or submitting claims), you are likely a covered entity subject to HIPAA.  As noted in the Kaiser Health News articles, wellness vendors are often on the “border” of being subject to HIPAA.  So, it is important to find out and if you are, to comply with the regulations.

4.  Start thinking and implementing best practices when it comes to privacy.  As stated earlier, privacy protection in the wellness arena is currently the “wild west.”  Such a state of uncertainty provides opportunity for wellness companies to emerge as leaders and establish privacy standards themselves, rather than waiting for an enforcement agency to eventually dictate those standards.

As always, consider the Center for Health Law Equity, LLC as a resource to help your company achieve and maintain compliance.

To read the full Kaiser Health News articles on wellness programs and privacy, click here. 

The ACA and Opportunities for Growth

The emphasis on patient outcomes and preventive health under the Affordable Care Act (ACA) presents a number of opportunities for professionals and organizations that excel at patient communication, care coordination and disease management to partner and collaborate with physicians, hospitals and insurers.  For example, a common theme in ACA initiatives such as Accountable Care Organizations (ACOs), Primary Care Medical Homes (PCMH) and the Quality Improvement Strategy (QIS) is to coordinate patient care among a team of health professionals to ultimately improve patient outcomes.

Poor care coordination is associated with duplicate procedures, conflicting treatment recommendations, unnecessary hospitalizations and nursing home placements, and adverse drug reactions.  Care coordination transfers information between one participant in a patient’s care to another and establishes accountability for each aspect of a patient’s overall care.

Medicare’s ACO program, the Medicare Shared Savings Program (MSSP) requires as part of its patient-centeredness criteria the coordination of care throughout an episode of care and the submission of individualized care programs that promote improved outcomes for patients.  The ACA defines a function of a PCMH is to coordinate and integrate care. The ACA’s QIS, which is set to start in Fall 2016, requires health insurance exchange plans to have a strategy that provides incentives for improving health outcomes through case management, care coordination, chronic disease management and use of medical homes.  These ACA initiatives work in concert with one another; PCMH’s are often part of an ACO, and soon Exchange plans will need to incentivize providers to adopt ACO and PCMH care coordination initiatives.

Hospitals and physicians will not be able to meet these care coordination/disease management requirements on their own.  The initiatives demand collaboration among a diverse set of professionals and organizations.  Organizations and professionals such as community health workers, health educators and health promotion specialists, home health professionals, complementary and alternative medicine providers, psychologists and social workers all offer unique and valuable skill sets that fill in the care continuum, which must be seamless in order to improve patient and population health outcomes.

The ACA care coordination initiatives are gaining popularity in the provider community.  As noted in an earlier newsletter, the federal Department of Health and Human Services (DHHS) seeks to have 90% of Medicare fee for service payments in value-based payment programs, such as ACOs, medical homes and bundled payments by 2018.  Organizations and professionals that offer care coordination and disease management services must begin positioning themselves as experts in an aspect of the care coordination models.  To do that, they must collect data showing the value of the services they provide and then they must use that data to build relationships with physician groups and acute care facilities.  The goal for these professionals and organizations is to enter into contractual arrangements with ACOs, PCMHs and insurers to serve as member of a health team accountable for improving the health of a population.  Professionals and organizations that jump on the care coordination train early will have an advantage.

EEOC Issues Proposed Rules to Clarify Applicability of the Americans with Disabilities Act (ADA) to Workplace Wellness Programs

EEOC Issues Proposed Rules to Clarify Applicability of the Americans with Disabilities Act (ADA) to Workplace Wellness Programs

By Barbara J. Zabawa, JD, MPH

President of the Center for Health Law Equity, LLC

April 17, 2015

On April 16, 2015, the EEOC issued much-anticipated proposed rules regarding how the ADA applies to workplace wellness programs.  Though the rules are not in final form and therefore employers are not required to comply just yet, in a Questions and Answers document the EEOC states that employers are free to comply with the proposed rules to reduce risk until the final rules are issued (which may be later this year).   Here are the highlights of the proposed rules and some important insights:

1.       Alignment with the Affordable Care Act (ACA) incentive rules.  The ADA would permit financial incentives for wellness programs that are part of a group health plan as long as the value of that incentive does not exceed 30% of the total cost of employee-only coverage. 

a.       A few things to note about this proposed provision. 

                                                               i.      First, the 30% guidance only applies to wellness programs that are part of group health plans.  The EEOC did not provide any guidance for those programs that fall outside group health plans (and invites comments about that). 

                                                             ii.      Second, unlike the ACA incentive rules which do not apply to “participatory” wellness programs, this 30% maximum applies to both participatory programs that involve health risk assessments or biometric screens, as well as health-contingent wellness programs that require participants to satisfy a health factor standard.  The ADA incentive rules would not apply to wellness programs that do not involve disability-related inquiries or medical examinations in order to earn the incentive (such as health assessments or biometric screens) or activity-only wellness programs (as defined by the ACA nondiscrimination rules at 45 CFR § 146.121(f)) without the health assessment or biometric screen. Examples include attending nutrition, weight loss or smoking cessation classes.  However, to the extent the wellness program qualifies as a “health contingent” program as defined by the ACA, such program would need to comply with the ACA incentive requirements.

                                                            iii.      Third, the EEOC specifies that the 30% financial incentive maximum applies to both financial and in-kind incentives, such as time-off awards, prizes or other items of value.   

                                                           iv.      Fourth, tobacco cessation programs have some special treatment.  The EEOC does not consider tobacco cessation programs that merely ask employees whether they use tobacco and whether they ceased using tobacco upon completion of the program as “disability-related inquiries or medical examinations.”  Therefore, the ACA incentive maximum of 50% of the total cost of employee coverage could apply to those programs.  However, if the tobacco cessation program includes a biometric screen or other medical exam that tests for the presence of nicotine or tobacco, such program would qualify as a medical examination subject to the ADA 30% maximum financial incentive.

2.       Employers may not deny or limit coverage for nonparticipants in an employee wellness program.  This appears to be a reaction to the programs that triggered the recent EEOC lawsuits, which I described in an article published by the American Bar Association Health Lawyer magazine.   Two of the three pending EEOC cases required nonparticipant employees to pay 100% of their health insurance premium.  The third case imposed what the EEOC called “substantial” penalties worth around $2,000 for nonparticipation.

3.       Group health plan wellness programs that collect medical information must provide employees with a notice.  This notice must: 

a.       Be written in a manner that is understandable to the employee;

b.      Describe the type of medical information that will be obtained and the specific purposes for which the medical information will be used; and

c.       Describe the restrictions on the disclosure of the medical information and the methods the employer will use to prevent improper disclosure of the medical information.

4.       Employers and vendors must protect the confidentiality of the health information collected through the wellness program.  The EEOC expects both employers and wellness program vendors to ensure compliance with confidentiality rules, such as set forth in the HIPAA privacy, security and breach notification rules (HIPAA) for group health plans, as well as the rules proposed by the EEOC.  Thus, employee wellness programs that are part of a group health plan must abide by HIPAA rules.  These rules include the requirement for employers who administer wellness programs and who wish to receive from the plan individually-identifiable health information to certify to the group health plan, as provided by 45 CFR § 164.504(f)(2)(ii), that it will not use or disclose the information for purposes not permitted by its group health plan documents and the HIPAA privacy rule.  Those employers that do not administer any part of the employee wellness program could only receive from the group health plan aggregate information that has been de-identified.  To the extent that an employer administers the wellness program, the EEOC strongly suggests as a best practice that the individuals who handle medical information as part of the program should not be responsible for making employment-related decisions.  The EEOC states that use of a third-party vendor may reduce the risk of disclosure of medical information for improper purposes.  Small employers who administer their own wellness programs should not use the information to discriminate on the basis of disability.

5.       The EEOC expects employers and vendors to have clear privacy policies and procedures related to the collection, storage and disclosure of medical information.  Such policies and procedures should include proper training of the individuals who handle medical information.  Policies and procedures should address how to handle breaches of confidentiality.  To ensure compliance with these confidentiality provisions, I strongly suggest employers and vendors conduct an internal assessment of its wellness program and applicable privacy and security requirements.

6.       Like the ACA rules, the ADA would require wellness programs to be reasonably designed to promote health or prevent disease.  A key point the EEOC makes about this provision is that collecting medical information on a health questionnaire without providing employees follow-up information or advice, such as providing feedback about risk factors or using aggregate information to design programs or treat any specific conditions, would not be reasonably designed to promote health.  This supports the pairing of health assessments or biometric screens with wellness coaching efforts.  Further support comes from an FAQ released the same day as the proposed rules the Departments of Labor, Health and Treasury.  The Departments note that a “program that collects a substantial level of sensitive personal health information without assisting individuals to make behavioral changes such as stopping smoking, managing diabetes, or losing weight, may fail to meet the requirement that the wellness program must have a reasonable chance of improving the health of, or preventing disease in, participating individuals.”     

7.       Employers must provide reasonable accommodations.  Regardless of whether a wellness program includes disability-related inquiries or medical examinations, the employer must provide reasonable accommodations, absent undue hardship, to enable employees with disabilities to earn whatever financial incentive an employer offers.  These reasonable accommodations would apply to both participatory and health-contingent wellness programs, as those terms are defined by the ACA.  See 45 CFR § 146.121(f).  The EEOC provides some helpful examples in the interpretive guidance to the proposed rules:

a.       Employers who offer a financial incentive to attend a nutrition class would have to provide a sign language interpreter so an employee who is deaf and who needs an interpreter to understand the information communicated in the class could earn the incentive;

b.      Programs that require reading written materials should provide those materials in large print or on a computer disk for someone with a vision impairment;

c.       Employers that offer rewards for completing a biometric screen that includes a blood draw should provide an alternative test (or certification requirement) so that an employee with a disability that makes drawing blood dangerous can participate and earn the incentive.

8.       Compliance with the proposed ADA rules does not mean compliance with other laws.  The proposed rule mentions specifically that ADA compliance does not translate to compliance with Title VVII, the Equal Pay Act, the Age Discrimination in Employment Act (ADEA), Title II of the Genetic Information and Nondiscrimination Act (GINA) or other sections of Title I of the ADA.  It should be noted that the EEOC had also promised as part of its 2015 rulemaking initiatives to propose rules to align GINA with the ACA.  Those proposed rules have not yet been released.

Because the ADA rules discussed above are in proposed form, the EEOC welcomes comments by Friday, June 19, 2015, particularly with regard to the following issues:

1.        With regard to the financial incentive maximum of 30% of the total cost of employee-only coverage, should the EEOC look at offering additional protections for low-income employees?

2.       Whether to be a “voluntary” wellness program under the ADA, employers should offer similar incentives to persons who choose not to disclose medical information but instead provide certification from a medical professional stating that the employee is under the care of a physician and that any medical risks identified by that physician are under active treatment.

3.       Should the EEOC have the ADA prohibit incentives that render the cost of health insurance unaffordable to employees (using the ACA’s “unaffordability” test of 9.56% or more of an employee’s household income as an example)?

4.       Should the proposed notice requirements also include a requirement that employees participating in wellness programs that include disability-related inquiries and/or medical examinations, and that are part of a group health plan, provide prior, written and knowing confirmation that their participation is voluntary?  If so, what form should such an authorization take?

5.       Should the proposed notice requirement apply only to wellness programs that offer more than de minimis rewards or penalties to employees who participate (or decline to participate) in disability-related inquiries or medical exams?  If so, how should the EEOC define “de minimis?”

6.       Which best practices ensure that wellness programs are designed to promote health and do not operate to shift costs to employees with health impairments or stigmatized conditions?

7.       Whether employers offer (or are likely to offer in the future) wellness programs outside of a group health plan that use incentives to promote participation or achieve certain health outcomes and the extent to which the ADA regulations should limit incentives provided as part of such programs.

8.       What will be the practical effect of adopting specific incentive limits (i.e., the 30% maximum) rather than cross referencing and incorporating the ACA wellness incentive limits?

If you have comments to these or other issues raised by the proposed rule, please submit them directly to the Federal eRulemaking Portal at http://www.regulations.gov.  Follow the instructions for submitting comments.  Recall that comments are due by June 19, 2015.  Alternatively, please feel free to email comments to bzabawa@cfhle.com and we will incorporate them into the Center for Health Law Equity, LLC’s comments. 

As always, the Center for Health Law Equity, LLC aims to be the premier legal resource for the wellness industry.  If you have any questions or concerns about the proposed rules or any other wellness law matter, please do not hesitate to contact us.

2015 WELCOA Summit Highlights

I attended the WELCOA Summit this past week in San Diego.  This was my first WELCOA summit, and I found it inspirational and of value to attend.  There were a few hundred attendees from all over the country.  Most of the attendees worked as wellness professionals inside organizations.  The theme of this year's summit was "Start a Movement:  Transforming Employee Wellness."

My four most important lessons from this year's summit are as follows:

1.  Health promotion professionals must help turn workplace wellness into a movement.  To do that, we must get away from talking about statistics and embrace more stories and more emotional buy-in. Stories and emotional buy-in often captures attention more than statistics.  Laura Putnam and Josh Levine, two speakers at the Summit, talked a lot about this.  Statistics are important, but they rarely persuade people to change.  To start a movement, health promotion professionals must redefine themselves as "agents of change."  They must take the expert studies on workplace health promotion and translate them into something meaningful for program participants. This usually entails listening to participants and understanding what gets in the way of them making healthy choices.  

2.  Health promotion professionals must redefine and expand wellness.  Redefinition is necessary because not all organizations embrace workplace wellness programs.  But, those organizations may be more willing to invest time and resources into employee training and development.  Recasting wellness as "energy" - energy to do your job or fulfill your purpose in life may be a more effective way of incorporating wellness into a company's culture.  Organizations can help boost employee energy by providing internal support, resources and tools, such as wellness programs.  In addition to redefining wellness, we need to expand our scope to look at nontraditional determinants of health.  According to Alexandra Drane, another speaker at the summit, "unmentionables" such as stress from finances, relationships, work, or care giving, are the factors that actually drive health or lack thereof.  Health promotion professionals must acknowledge these unmentionables and then start asking people about them and finding resources for them.

3.  Wellness programs must examine an organization's culture.  As said by Dr. Rosie Ward, another presenter at the summit, "A toxic culture eats wellness for breakfast."  In other words, an organization that has an unhealthy culture for its employees will not experience great success in any wellness program initiative.  To turn culture around, Josh Levine recommends that health promotion professionals start small.  Start with a business unit or a group of close-knit co-workers and encourage one another, getting coffee as a team, conduct "walking meetings."  Others may then want to join in, and slowly, over time, this may change the organization's culture to one that is more supportive of employee well-being.

4.  The law needs to be part of the wellness program equation. To my surprise, there was no discussion about wellness law at the summit.  When the attendees sitting at my table discovered that I am a lawyer, they had numerous questions for me about GINA, HIPAA, the ADA and the FLSA.  In fact, one of my table mates stood up during the summit and declared to all that her table had a lawyer who needed to be up on stage telling everyone about legal issues in workplace wellness program design.  I was flattered she stood up for educating attendees about the law. The Center for Health Law Equity, LLC aims to fill that gap.  The legal profession has neglected the wellness industry for far too long.
    

Congressional Action to Benefit Wellness

Last week, U.S. Sen. Lamar Alexander (R-Tenn.) and Rep. John Kline (R-Minn.) with Sens. Mike Enzi (R-Wyo.), Johnny Isakson (R-Ga.), Tim Scott (R-S.C.), Orrin Hatch (R-Utah), Pat Roberts (R-Kan.), and Rep. Tim Walberg (R-Mich.) introduced legislation to “provide legal certainty—and eliminate confusion caused by the Equal Employment Opportunity Commission (EEOC)—for employers offering employee wellness programs that lower health insurance premiums to reward healthy lifestyle choices.”  There is no doubt that Congress introduced this legislation in response to the recent lawsuits brought by the EEOC against Honeywell, Flambeau and Orion Energy Systems. 

A draft of the bill can be seen here.

This bill attempts to align the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) with the Affordable Care Act (ACA) rules on worksite wellness programs.  In particular, the bill states that an employer-sponsored wellness program that offers rewards that comply with the ACA provisions will not violate the ADA or Titles I or II of GINA.  The bill allows the ADA to still apply to workplace wellness programs, just not with regard to ACA-compliant rewards.  The bill would also allow workplace wellness programs to collect information about the manifestation of disease or disorder from family members without violating Titles I or II of GINA.  “Family members” has the same meaning as defined by GINA.  Finally, the bill permits workplace wellness programs to establish a deadline of up to 180 days for employees to request and complete a reasonable alternative standard or waiver of the otherwise applicable standard.  The bill, if passed, would have a retroactive effective date of March 23, 2010 – the date on which the ACA was enacted.

It is unclear at this point whether the bill will pass.  But, it does send a message to the EEOC that Congress is willing to act if the EEOC is not.  We are still waiting for rules from the EEOC that are expected to provide clarity with regard to how the ADA, GINA and the ACA are to work together in terms of workplace wellness program design.  The EEOC indicated such proposed rules would be issued in February this year.  But, it also said that was only a “target date.”  To view the agenda discussing the proposed rule changes, click here and here. 

At this point, any guidance, whether it is from Congress or the EEOC, would be welcome.  

In other news, U.S. Representative Ron Kind from Wisconsin re-introduced bipartisan legislation, the PHIT Act, that would allow U.S. taxpayers to use pre-tax dollars to fund physical activity.  In a country plagued with high rates of obesity and lack of physical fitness, this bill makes sense.  Please click on the link to the PHIT Act and follow the guide to support this bill. 

The Case for the Attorney-Client Privilege

I am writing a book regarding legal issues affecting wellness initiatives in the United States (more blog posts on that later).  In researching for my book, I stumbled across some discussions about the difference between legal compliance consulting and legal advice.  The former does not require a law degree.  The latter does. One proponent of legal compliance consulting argued that the need for legal advice was becoming less necessary because the one true benefit of obtaining legal advice - the attorney-client privilege - has diminishing importance in American society.  Specifically, clients are inclined to give up their attorney-client privileged communications in return for softer punishment by government enforcers. With no real need for the attorney-client privilege, the need for something less than legal advice, such as compliance consulting, is sufficient (and, some argue, less costly).

Based on my experience, I disagree that the attorney-client privilege is an antiquated concept.  In my experience, the attorney-client privilege is more than just a discovery tool for litigation.  It is symbolic of the legal profession in its purest form.  The attorney-client privilege reaches beyond client confidences and instills a sense of trust even among those who are not our clients.  As an example, I recently had lunch with a colleague who said he shared information that he would not share with a nonlawyer.  Even though that information is not subject to any kind of privilege, the fact that it exists for me in other contexts provided a veil of trust in our relationship.

So, regardless of whether individuals or organizations are more willing to bargain away their privileged communications, the attorney-client privilege still serves a valuable purpose.  It provides clients and others within our communication circles with an air of confidence and trust in what we as lawyers say and do.  Earning and keeping that trust and confidence with others is priceless.    

Expanding Exchange Coverage can Expand Wellness

Last week when I took my kids to the dentist I felt for the first time in the  health insurance minority. Since starting my own law firm, the Center for Health Law Equity, LLC I no longer have employer-based health insurance; rather, I bought my coverage through the "Exchange" or healthcare.gov.
(For an interesting debate on whether the Affordable Care Act creates more opportunities for people like me to venture off on their own, read this article.)

When providing my new insurance information, the dental receptionist immediately asked for the name of the employer sponsoring the insurance, to which I replied, "I purchased this coverage through the Exchange."  The receptionist looked dumbfounded, asking me to explain the Exchange.  "Really?", I thought.  How could a person working in health care, over a year into the health insurance marketplace with all the media coverage need explaining about the Exchange?

Regardless of the failings of my kids' new dentist in educating their front line staff of different insurance options, it is possible that I will not be in the health insurance minority for much longer.  According to a a recent article by Bloomberg View, the number of people with job-based coverage has been steadily declining, from 59.2% in 2009 to 57.1% in 2013.  Moreover, Obamacare is accelerating the trend:  according to the Congressional Budget Office, by 2018 8 million fewer people will have job-based coverage.

As with anything new, people are apprehensive.  But so far, other than my encounter with the dental receptionist, my personal experience with the Exchange has been satisfactory.  It will be a shame if the US Supreme Court rules that subsidies are not available in federally-operated exchanges, which are the majority of exchanges in the U.S.  As pointed out by Professor Tim Jost Congress could fix an adverse Supreme Court ruling through technical amendments, politics permitting.

In my opinion, widespread coverage through the Exchange would not be a bad thing.  More people in the Exchange means a more robust individual insurance market, and more opportunities for creating a culture of health and wellness.  Section 1201 of the Affordable Care Act (PHSA Section 2705(l) creates demonstration projects to expand health promotion programs in the individual insurance market.  The demonstration project starts with 10 states, but expands to other states in 2017.

Creating more access to wellness programs in the individual market may open doors of opportunity for wellness providers to broaden the meaning of wellness in the United States. In a recent article in the Journal of Health Politics, Policy and Law, authors Heather Elliott, Jennifer Bernstein and Diana Bowman observe that in the United States, wellness is uniquely tied to the workplace; in other countries, such as Germany and Australia, wellness is embedded in their public health insurance systems and seen as a right for all.  By expanding wellness to the individual insurance Exchange, the Affordable Care Act provides the United States with an opportunity to move wellness beyond worksite benefits that address diet, exercise or biometric goals.  Through Exchange coverage, wellness efforts could encompass prevention programs such as transportation safety, preventive screenings, dental care, mental health as well as the social determinants of health.  This is because wellness would no longer be tied to employer return on investment.  Longer term investments could occur through Exchange wellness programs.

Expanding the breadth of wellness beyond current workplace programs could also widen the types of persons and providers involved in wellness.  These providers might include community health workers, public health officers, holistic and alternative care providers in addition to health promotion professionals, personal trainers and dietitians.  It is time to start the conversation on how collaborations of diverse providers can improve population health and wellness through the unique opportunities the Affordable Care Act presents.        

Wellness and the "Legal Gray Area"

The most recent issue of Money Magazine contains an article entitled "5 Things to Know When HR Asks If You're Healthy."  The fifth item on that list is that some wellness programs fall into a "legal gray area."  This gray area has been caused by the Equal Employment Opportunity Commission (EEOC), which has been active as of late in bringing three lawsuits against Midwest companies alleging that those companies' wellness programs violated the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) or both.  I recently wrote an article about one of those cases, the Honeywell case, which can be accessed at:  http://centerforhealthlawequity.com/TheHoneywellCaseExplained.pdf.

Needless to say, the EEOC's tough enforcement action has caused much angst in the wellness community.  Health promotion professionals and wellness industry leaders have mapped out criteria on what makes a successful worksite wellness program.  One measure of success is participation rates of employees.  Yet, striving for higher participation rates comes with the possibility that some employees may feel compelled to participate.  Employees who feel compelled to participate is where lawsuit danger looms.  I believe there are ways to minimize those feelings by employees, such as adhering to WELCOA's 7 Benchmarks.  See https://www.welcoa.org/events/well-workplace-university-seven-benchmarks-beginner-session-1-4/.  But health promotion professionals should also be familiar, at least at a high level, with the legal parameters of worksite wellness program design to help steer clear of the legal minefields.

This is no easy task.  There are competing laws such as ADA, GINA, the Health Information Portability and Accountability Act (HIPAA), the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment (ADEA), the tax code and state laws, just to name a few.  Being intimately familiar with all these laws is difficult, but not impossible if you work with the right legal counsel.  The Center for Health Law Equity, LLC has made Wellness Law a core mission of its existence, especially as that law applies to the organizations and professionals who deliver wellness services in the workplace and beyond.  A cursory review of wellness program training sessions shows a gap in legal compliance topics, particularly from the wellness program designer perspective.  The Center for Health Law Equity, LLC aims to fill that void because for wellness programs to be truly viable, they must minimize legal risk.  Including competent legal counsel in wellness program design can help do just that.