Commentary: Opportunities for employers to implement programs to improve the health and productivity of their workforces are substantial. Bolstered by the Affordable Care Act, 79% of employer groups now have some type of wellness program, according to a survey by the National Business Group on Health. Along with the opportunities, however, come some regulatory pitfalls. Here are five areas to watch, along with strategies to help ensure your wellness program stays compliant.
1. Be aware.Awareness is the most important first step in avoiding pitfalls. Here are four key considerations:
a. Understand the parameters for wellness program incentives. For example, the Affordable Care Act provides that an employer can incentivize employee participation by as much as 30% of health insurance benefit costs and an additional 20% (for a total of 50% of such costs) for programs also designed to prevent or stop tobacco use. However, the Equal Employment Opportunity Commission is currently promulgating rules on incentive levels and how incentives influence whether participation in a program that includes a medical exam (e.g., a biometric screening or health risk assessment) is voluntary. A program that is considered involuntary can raise concerns about violations of the American with Disabilities Act.
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b. Comply with federal and state regulations, such as those outlined by the IRS, the EEOC, the Department of Labor and the Department of Health and Human Services, among others.
- Make sure your plan is non-discriminating.
- Ensure that your plan maintains strict confidentiality.
- Programs must not compel the use of a particular medical intervention in order to address a risk factor. In other words, programs should not mandate that employees take a medical test, such as a biometric screening, in order to receive benefits. You must be careful to effectively motivate and not undermine member autonomy. Employees must feel assured that they have the right to make their own decisions about their health care and health information.
- Ensure your program does not result in individuals opting out of their employer-sponsored health insurance program, giving them less access to needed health care benefits.
c. Develop a program that is safe and equitable for participants.
- Incentives should motivate behaviors that are both safe and effective in promoting health.
- Alternatives must be available so that all individuals across various populations can participate in a safe and equitable manner.
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d. Get help interpreting the information.
Even with the abundance of information in the media regarding how to develop a legally defensible employee worksite wellness program, managers can become overwhelmed with information without clear interpretation and direction. If you don’t have a depth of experience with worksite wellness, make sure you have an attorney, broker or vendor with the necessary expertise to guide you.
2. Ask first; build later. Avoid first designing or “coming up with” a program design that you or others in your organization like, and then seeking the evidence and legal advice to support it.
a. Start with careful review of the current regulatory and clinical evidence about what makes a program legally compliant and clinically evidence-based.
b. Once you have identified those legal and evidence-based characteristics that form the foundation and principles of the program, then add cultural characteristics and personal creativity for implementation.
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3. Reasonable accommodations. Wellness programs must provide for reasonable accommodations for individuals who have a health status that would not enable participation. It is critical to obtain appropriate legal and consultative advice about what constitutes special needs, how those needs are documented and managed, and what accommodations are available and reasonable in the context of the wellness program expectations. An example of an accommodation is enabling a person to take a series of online health improvement classes or have a visit with their medical doctor to earn an incentive in lieu of completing a designated physical activity.
4. Vet your vendors. Many vendors provide wellness programs. The types and varieties of programs range from simple Web-based health content to comprehensive programs that include options such as incentives, challenges, fitness tracking, health coaching and more. Be sure your vendors are knowledgeable about state and federal rules that impact wellness programs (i.e., GINA, HIPAA, and the ADA). Vendors should demonstrate compliance and a track record of monitoring such applicable state and federal laws. This will help ensure they are not recommending programs that run the risk of falling outside the letter or spirit of the law.
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Also, choosing an accredited wellness program may be appropriate for your company. Accreditation doesn’t ensure legal compliance, but the accreditation process itself does demonstrate that the company is making efforts to be compliant and also demonstrates a culture of accountability and oversight within the organization.
5. Don’t do this alone. Get knowledgeable legal advice. Not all attorneys or employee benefits advisers understand all the nuances, so be sure the individuals who support you have the appropriate expertise to address the requirements and to help manage compliance risks applicable to program and benefits designs.
Kenneth R. Pelletier, PhD, MD(hc) is a clinical professor of medicine in the Department of Medicine at the University of Arizona College of Medicine and a clinical professor of medicine in the Department of Family and Community Medicine and in the Department of Psychiatry at the University of California School of Medicine, San Francisco (UCSF). He also is vice president, health affairs at Healthyroads, a population health pro
