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.