Thursday, August 21, 2014
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ACA's Employer Wellness Program Rules: New Challenges for Employers

We're currently at the height of "open enrollment" season - the annual period during which most employers offering health benefits to their employees roll out information on changes to the benefits plan and assist employees in making their benefit selections for the coming year. Employees can expect to see new programs, incentives, and opportunities offered by their employers with regard to wellness program participation and achievement of wellness goals, as a result of the ACA. Unfortunately, when it comes to the employer wellness program rules issued this summer by the US Departments of Health and Human Services, Labor, and Treasury, ACA might well stand for the Ambiguity and Confusion Act.

ACA’s Employer Wellness Program Rules: New Challenges for Employers

We’re currently at the height of “open enrollment” season – the annual period during which most employers offering health benefits to their employees roll out information on changes to the benefits plan and assist employees in making their benefit selections for the coming year.  Employees can expect to see new programs, incentives, and opportunities offered by their employers with regard to wellness program participation and achievement of wellness goals, as a result of the ACA.  Unfortunately, when it comes to the employer wellness program rules issued this summer by the US Departments of Health and Human Services, Labor, and Treasury, ACA might well stand for the Ambiguity and Confusion Act. 

According to the official Fact Sheet on the Affordable Care Act and Wellness Programs (http://www.dol.gov/ebsa/newsroom/fswellnessprogram.html), the “Act creates new incentives and builds on existing wellness program policies to promote employer wellness programs and encourage opportunities to support healthier workplaces.”  What’s not said is that the Act places employers at increased risk of litigation and expense, stifles innovation, and vitiates employers’ ability to address the population health crisis of unhealthy lifestyles.

Among key features of the rules is the distinction between “participatory” and “health-contingent” programs and incentives.  Participatory programs either do not offer a financial incentive, or link the incentive solely to participation in general aspects of the program, such as completing a health risk appraisal or attending a wellness seminar.  Health-contingent programs and incentives involve participation in a program addressing a specific health factor (e.g. weight management program) or achieving a particular outcome (e.g. losing weight or achieving normal body mass index).  There remains some ambiguity as to when a participatory program crosses the line and becomes health-contingent, even though it remains focused on participation rather than an outcome.

Ambiguity abounds in the wellness rules, as a result of the effort to ensure that health-contingent programs be nondiscriminatory: programs must be “reasonably designed,” offer a “reasonable chance of improving health or preventing disease,” be “reasonably designed to be available to all similarly situated individuals,” and offer “reasonable alternatives” to individuals who might not qualify for a reward due to a medical condition.  Employers must provide a “reasonable alternative standard” if an individual’s personal physician states that a plan’s standard is not medically appropriate for that individual.  It all sounds perfectly reasonable, doesn’t it?  The problem is that, with little precedent, and minimal regulatory guidance, employers are further exposed to risk of litigation, and significant statutory penalties for non-compliance, and are needing to further invest in seeking counsel from attorneys, benefits consultants, and other members of the ACA cottage industry.       

For me, what’s most troubling is the ambiguous requirement that programs not be “overly burdensome” for employees.  Employers face the significant burden of paying for the direct care costs and the indirect (lost productivity) costs associated with poor health, much of which is associated with lifestyle choices.  Perhaps it’s time that the employer’s significant burden was more equitably shared with employees.  As someone who has lost 30 pounds (15% of body weight) over the past year I can attest to the inherently “burdensome” nature of weight loss.  Of course, we need to ensure that national policies don’t discriminate against people with genetic predisposition to obesity and other health risks; the question is how to ensure that the wellness rules make accommodations and not excuses for poor lifestyle choices.

 


 

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The Field Clinic reports and analyzes health care laws, government policies, and political trends that are transforming the care we receive and the way we pay for it. Read more about our panel of bloggers here.

This blog is produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health-policy research and communication organization not affiliated with Kaiser Permanente. Portions of this blog may also be found on Inquirer.com and in the Inquirer's Sunday Health Section.

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Robert I. Field, Ph.D., J.D., M.P.H. Professor, School of Law & Drexel School of Public Health
Jeffrey Brenner, MD Founder of the Camden Coalition of Healthcare Providers, Medical Director of the Urban Health Institute at Cooper University Healthcare
Andy Carter President & CEO, The Hospital & Healthsystem Assoc. of Pa.
Robert B. Doherty Senior Vice President of Governmental Affairs & Public Policy American College of Physicians
David Grande, MD, MPA Assistant Professor of Medicine at the University of Pennsylvania
Tine Hansen-Turton Chief Strategy Officer of Public Health Management Corporation
Drew A. Harris, DPM, MPH Director of Health Policy Program at the Jefferson School of Population Health
Antoinette Kraus Director of the Pennsylvania Health Access Network
Laval Miller-Wilson Executive Director of the Pennsylvania Health Law Project
David B. Nash, MD, MBA Founding Dean of the Jefferson School of Population Health
Mark V. Pauly, Ph.D. Professor of Health Care Management, Business Economics and Public Policy at The Wharton School
Howard J. Peterson, MHA Managing Partner of TRG Healthcare, a national healthcare consulting firm
Donald Schwarz, MD, MPH Deputy Mayor for Health & Opportunity and Health Commissioner for the City of Philadelphia
Paula L. Stillman, MD, MBA Healthcare consultant with special expertise in population health and disease management
Elizabeth A. W. Williams Senior Vice President & Chief Communications Officer for Independence Blue Cross
Krystyna Dereszowska A third-year law student concentrating in health at Drexel
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