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.