Group to Regulators: Don't Impede Wellness Programs

By Stephen Miller Mar 1, 2011

updated 3/11/2011

An employers' group urged federal regulators to support policies that encourage the creation of workplace wellness programs—and to remove regulatory barriers that discourage employers from offering these programs—during a meeting held by the U.S. Department of Health and Human Services on Feb. 25, 2011.

“While we are encouraged by [the Patient Protection and Affordable Care Act’s] public recognition of the value of wellness programs, including supportive remarks by the president as well as members of his administration, we continue to be concerned by the treatment of wellness programs in the regulatory arena over the last couple of years and worry about the focus of regulators now as they create new rules,” said Gretchen Young, senior vice president for health policy at The ERISA Industry Committee (ERIC), a not-for-profit representing large U.S. employers, in prepared remarks delivered at the meeting.

Young explained that large employers view wellness programs as an effective way to partner with their employees to encourage healthier lifestyles. In contrast, some labor advocates have accused employers of sponsoring wellness programs to penalize or cull employees from their health plans, a view that has gained some credence among regulators.

Young pointed to the Hippocratic Oath, saying “abstain from doing harm” in urging regulators to give employers the latitude they need to establish wellness and prevention programs tailored to the needs of their workforce.

Regulators urged, “abstain from doing harm”

Family Medical History Barriers

As an example of a regulatory obstacle, Young pointed to the inability of wellness programs to offer an incentive to employees to provide family medical history as part of a health risk assessment, a barrier put in place by regulations interpreting the Genetic Information Nondiscrimination Act, known as GINA. (To learn more, see the SHRM Online article "Encouraging Health Risk Assessments? A Few Cautions.")

“Family medical history is a critical piece of information; the absence of this information seriously undermines the effectiveness of health risk assessments, depriving workers and their families of a potentially valuable tool for improving their health,” said Young. Many companies have eliminated the family medical history section from their health risk assessments rather than sacrifice the financial incentive to encourage employees to participate, she noted.

Even if plans do not give their participants a financial incentive to complete a risk assessment, they are still unable to use any family medical history obtained from the risk assessment to guide these individuals into disease management programs, Young explained, noting that “experience has shown that without the encouragement of a health professional, many participants who would benefit from participation in a disease management program will never enroll.”

In addition, Young expressed concern that the U.S. Equal Employment Opportunity Commission (EEOC) might find that a wellness program violates the Americans with Disabilities Act (ADA) if the program provides a financial incentive to participate, even if the program complies fully with the limit on incentives and other Health Insurance Portability and Accountability Act (HIPAA) requirements. (To learn more, see the SHRM Online article "EEOC Letter: Health Risk Assessment Cannot Be Prerequisite to Reimbursement.")

“We urge you to clear away any regulatory obstacles that would prevent a program from incentivizing participants to provide family medical histories on a health risk assessment, and from using family medical histories as one basis for identifying participants eligible for a disease management or similar voluntary program,” Young said.

“Wellness programs are one of the few remaining avenues to help rein in spiraling health care costs, and it would be a shame if this avenue were narrowed to the point where it no longer would constitute an efficient use of employer resources,” she concluded.

Regulations Undermine Wellness Efforts, Group Contends

In a letter sent March 8, 2011 to the key regulatory agencies, the ERISA Industry Committee (ERIC) contends that the Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA) negatively impact workplace wellness programs and that further regulatory efforts by the agencies could threaten the viability of these programs.

"Although the agencies have issued regulations explaining how HIPAA and GINA apply to wellness programs, important issues remain unresolved under all three statutes. Employers are reluctant to invest additional time and money in developing their wellness programs until the applicable law is clarified," wrote ERIC President Mark Ugoretz and ERIC Senior Vice President for Health Policy Gretchen Young.

In particular, ERIC argues that employers need further guidance concerning the incentives they can offer their workers to participate in wellness programs, clear rules explaining how the ADA applies to workplace wellness programs, and clarification of regulations interpreting GINA that provide conflicting guidance about the use of family medical history to identify employees who would benefit from wellness programs.

"Wellness programs are one of the few remaining tools that can help rein in spiraling healthcare costs. It would be counterproductive from a cost-containment perspective, as well as from the standpoint of improving Americans' health, if future guidance were to limit the effectiveness of workplace wellness programs. Instead, the agencies should assist employers in their efforts to address the serious health problems of workers and their families," the letter stated.

Stephen Miller
, CEBS, is an online editor/manager for SHRM.

Related Articles:

Big Jump in Wellness Incentive Dollars, SHRM Online Benefits Discipline, February 2011

Participants in Wellness Programs Had Lower Health Care Costs, SHRM Online Benefits Discipline, January 2010

Quick Links:

SHRM Online Benefits Discipline

SHRM Online Health Care Reform Resource Page

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