On August 22, 2017, the United States District Court for the District of Columbia held that the U.S. Equal Employment Opportunity Commission (EEOC) failed to provide a reasoned explanation for its decision to adopt 30 percent incentive levels for employer-sponsored wellness programs under both the Americans with Disabilities Act (ADA) rules and Genetic Information Nondiscrimination Act (GINA) rules.

The court declined to vacate the EEOC’s rules because of the significant disruptive effect it would have. However, the court remanded the rules to the EEOC for reconsideration.

Based on the recent court decision to require the EEOC to reconsider its wellness program rules, does this mean that the EEOC rules no longer apply to employer wellness programs? No. For now, the current EEOC rules apply to employer wellness programs. However, employers should stay informed on the status of the EEOC’s reconsideration of the wellness program rules so that employers can change their wellness programs’ design, if necessary, to comply with new EEOC rules.

According to UBA’s free special report, “How Employers Use Wellness Programs,” 67.7 percent of employers who offer wellness programs have incentives built into the program, an increase of 8.5 percent from four years ago. Incentives are the most prevalent in the Central U.S. (76.1 percent), among employers with 500 to 999 employees (83.2 percent), and in the finance, insurance, and real estate industries (74.7 percent). The West offers the fewest incentives, with only 48.3 percent of their plans having rewards.

Across all employers, slightly more (45.4 percent) prefer wellness incentives in the form of cash toward premiums, 401(k)s, flexible spending accounts (FSAs), etc., versus health club dues and gift cards (40 percent). But among larger employers (500 to 1,000+ employees) cash incentives are more heavily preferred (63.2 percent) over gift certificates and health club dues (33.7 percent). Conversely, smaller employers (1 to 99 employees) prefer health club-related incentives (nearly 40 percent) versus cash (25 percent).

Download our free (no form!) special report, “How Employers Use Wellness Programs,” for more information on regional, industry and group size based trends surrounding prevalence of wellness programs, carrier vs. independent providers, and wellness program components.

For comprehensive information on designing wellness programs that create lasting change, download UBA’s whitepaper: “Wellness Programs — Good for You & Good for Your Organization”.

To understand legal requirements for wellness programs, request UBA’s ACA Advisor, “Understanding Wellness Programs and Their Legal Requirements,” which reviews the five most critical questions that wellness program sponsors should ask and work through to determine the obligations of their wellness program under the ACA, HIPAA, ADA, GINA, and ERISA, as well as considerations for wellness programs that involve tobacco use in any way.

By Danielle Capilla
Originally Published By United Benefit Advisers

On August 22, 2017, in AARP v EEOC, a federal court found that regulations allowing employers to offer large incentives under workplace wellness programs were arbitrary. The court did not vacate (nullify) the rules due to concerns about disrupting employers’ existing programs. Instead the court has ordered the responsible agency, the Equal Employment Opportunity Commission (EEOC), to review and reconsider its regulations.

Background

The EEOC regulates and enforces provisions of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) that affect workplace wellness programs. Employers with 15 or more workers generally are prohibited from requiring employees to undergo medical exams or answer disability-related questions (unless needed for certain job-related health/safety exams). An exception is allowed for wellness programs that are “voluntary,” but the meaning of voluntary has long been debated.

For many years, the EEOC failed to issue regulations defining voluntary while at the same time unofficially asserting that programs were not voluntary if the employee was required to provide private health information to earn a reward or avoid a penalty. In 2015, the EEOC finally proposed rules on the matter, which were finalized in 2016 and took effect January 1, 2017. In an about-face from its prior assertions, the EEOC rules allow employers to offer wellness program incentives of up to 30% of the health plan’s cost. The AARP, on behalf of its membership, sued in federal court alleging that the 30% threshold was too high to be considered a voluntary program.

(The Health Insurance Portability and Accountability Act (HIPAA), a separate federal law primarily regulated by the Department of Labor (DOL), not the EEOC, permits group health plans, including wellness programs, to offer incentives of up to 30% of plan cost. AARP did not challenge the HIPAA rules. HIPAA’s incentive cap applies only to health-contingent programs, however, while the EEOC’s ADA and GINA rules are broader and include both participatory-only and health-contingent wellness programs.)

In AARP v EEOC, the U.S. District Court for the District of Columbia found that the EEOC failed to justify how it had determined its new definition of a voluntary program. The court ordered the EEOC to reconsider its regulations and to file a status report by September 21, 2017 that includes a proposed schedule for the review.

Employer Considerations

Last week’s court ruling did not vacate the EEOC’s wellness program rules. They remain in force and employers may use them as guidance in designing and administering their workplace programs. At the same time, however, employers will want to be mindful that the current rules are under review and may be revised in the future. Also, employers whose wellness programs offer large incentives for providing individual health information need to consider whether their program may be challenged through private litigation. Employers are encouraged to work with their benefit advisors and legal counsel to ensure their wellness programs are consistent with rules under HIPAA, and, if applicable, under the ADA and GINA.

Originally Published By ThinkHR.com

Workplace wellness programs have increased popularity through the years. According to the most recent UBA Health Plan Survey, 49 percent of firms with 200+ employees offering health benefits in 2016 offered wellness programs. Workplace wellness programs’ popularity also brought controversy and hefty discussions about what works to improve population health and which programs comply with the complex legal standards of multiple institutions that have not really “talked” to each other in the past. To “add wood to the fire,” the Equal Employment Opportunity Commission (EEOC) made public some legal actions that shook the core of the wellness industry, such as EEOC vs. Honeywell International, and EEOC vs. Orion Energy Systems.

To ensure a wellness program is compliant with the ACA, GINA and the EEOC, let’s first understand what each one of these institutions are.

The Affordable Care Act (ACA) is a comprehensive healthcare reform law enacted in March 2010 during the Obama presidency. It has three primary goals: to make health insurance available to more people, to expand the Medicaid program, and to support innovative medical care delivery methods to lower the cost of healthcare overall.1 The ACA carries provisions that support the development of wellness programs and determines all rules around them.

The Genetic Information Nondiscrimination Act of 2008 (GINA) is a federal law that protects individuals from genetic discrimination in health insurance and employment. GINA relates to wellness programs in different ways, but it particularly relates to the gathering of genetic information via a health risk assessment.

The U.S. Equal Employment Opportunity Commission (EEOC) is a federal agency that administers and enforces civil rights laws against workplace discrimination. In 2017, the EEOC issued a final rule to amend the regulations implementing Title II of GINA as they relate to employer-sponsored wellness program. This rule addresses the extent to which an employer may offer incentives to employees and spouses.

Here is some advice to ensure your wellness program is compliant with multiple guidelines.

  1. Make sure your wellness program is “reasonably designed” and voluntary – This means that your program’s main goal should be to promote health and prevent disease for all equally. Additionally, it should not be burdensome for individuals to participate or receive the incentive. This means you must offer reasonable alternatives for qualifying for the incentive, especially for individuals whose medical conditions make it unreasonably difficult to meet specific health-related standards. I always recommend wellness programs be as simple as possible, and before making a change or decision in the wellness program, identify all difficult or unfair situations that might arise from this change, and then run them by your company’s legal counsel and modify the program accordingly before implementing it. An example of a wellness program that is NOT reasonably designed is a program offering a health risk assessment and biometric screening without providing results or follow-up information and advice. A wellness program is also NOT reasonably designed if exists merely to shift costs from an employer to employees based on their health.
  2. Do the math! – Recent rules implemented changes in the ACA that increased the maximum permissible wellness program reward from 20 percent to 30 percent of the cost of self-only health coverage (50 percent if the program includes tobacco cessation). Although the final rules are not clear on incentives for spouses, it is expected that, for wellness programs that apply to employees and their spouses, the maximum incentive for either the employee or spouse will be 30 percent of the total cost of self-only coverage. In case an employer offers more than one group health plan but participation in a wellness program is open to all employees regardless of whether they are enrolled in a plan, the employer may offer a maximum incentive of 30 percent of the lowest cost major medical self-only plan it offers. As an example, if a single plan costs $4,000, the maximum incentive would be $1,200.
  3. Provide a notice to all eligible to participate in your wellness program – The EEOC made it easy for everyone and posted a sample notice online at https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm. Your notice should include information on the incentive amount you are offering for different programs, how you maintain privacy and security of all protected health information (PHI) as well as who to contact if participants have question or concerns.
  4. If using a HRA (health risk assessment), do not include family medical history questions – The EEOC final rule, which expands on GINA’s rules, makes it clear that “an employer is permitted to request information about the current or past health status of an employee’s spouse who is completing a HRA on a voluntary basis, as long as the employer follows GINA rules about requesting genetic information when offering health or genetic services. These rules include requirements that the spouse provide prior, knowing, written, and voluntary authorization for the employer to collect genetic information, just as the employee must do, and that inducements in exchange for this information are limited.”2 Due to the complexity and “gray areas” this item can reach, my recommendation is to keep it simple and to leave genetic services and genetic counseling out of a comprehensive wellness program.

WellSteps, a nationwide wellness provider, has a useful tool that everyone can use. Their “wellness compliance checker” should not substituted for qualified legal advice, but can be useful for a high level check on how compliant your wellness program is. You can access it at https://www.wellsteps.com/resources/tools.

I often stress the need for all wellness programs to build a strong foundation, which starts with the company’s and leaders’ messages. Your company should launch a wellness program because you value and care about your employees’ (and their families’) health and well-being. Everything you do and say should reflect this philosophy. While I always recommend companies to carefully review all regulations around wellness, I do believe that if your wellness program has a strong foundation based on your corporate social responsibility and your passion for building a healthy workplace, you most likely will be within the walls of all these rules. At the end, a workplace that does wellness the right way has employees who are not motivated by financial incentives, but by their intrinsic motivation to be the best they can be as well as their acceptance that we all must be responsible for our own health, and that all corporations should be responsible for providing the best environment and opportunities for employees to do so.

By Valeria S. Tivnan
Originally Published By United Benefit Advisors

I am proud to say that I have been involved in corporate wellness since the mid-1980s. Helping employees live healthier and happier lives, as well as supporting employers with best-in-class tools to improve their cultures, have been my passion and purpose. I have witnessed and worked on corporate wellness since the time when physical health was the most important aspect of workers’ health. I cannot say I have worked with wellness since its inception, though. Corporate wellness has been around longer than many people think. To predict the future of wellness, we must understand its past.

Writings about the effects of work exposure on workers and how to improve workers’ health and well-being can be found as early as the 1700s1. Later, the industrial revolution brought many health issues to workers such as working 14 to 16 hours a day, low wages, and very poor working conditions2. The World Health Organization’s (WHO) definition of health in the 1940s as “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity” opened our eyes to the concept of health and wellness as a more complex one3. In addition, the work of Halbert Dunn in 1959 helped the word “wellness” circulate more widely in the public health field, but it was the CBS 60 Minutes program with Dan Rather in 1979 titled, “Wellness, there’s a word you don’t hear every day,” that created curiosity about what corporate wellness was at that time – emphasis on physical health4. Corporate wellness has evolved since then and many studies have been published leading to a wealth of knowledge on best practices, return on investment (ROI), value of investment, risk reduction, health improvement, and more. The March 2017 edition of Health Affairs was dedicated exclusively on the relationship of work and health, and health and work highlighting important recent studies on wellness. Wellness has moved from physical health to thriving in other dimensions such as emotional, financial, spiritual, social, and intellectual health. In addition, many theories on behavior change and behavior economics have been adopted in wellness programs and its incentive designs. Wellness has changed from a “nice to have” to a “must have” benefit, but it must be done right and implemented consistently in order to provide positive results that align with your company’s goals.

I don’t have a crystal ball or special powers, but I believe the future of wellness lies in the following:

  • Millennials in the workforce will demand more sophisticated technology.
  • The traditional health risk assessment will be replaced by a more holistic kind – check out the True Vitality Test from The Blue Zones. (The UBA Health Plan Survey finds that although 72.5 percent of wellness programs include health risk assessments, their use has been declining, dropping 10.5 percent in three years.)
  • Wellness will be part of all successful companies’ business objectives – the Chief Wellness & Well-being Officer’s ultimate goal will be to build a culture of health, self-responsibility, and emotional balance. Wellness will be an important piece of this. For great examples of companies ahead of our time, check out Dr. Ron Goetzel’s work at the Institute of Health and Productivity Studies at John Hopkins School of Public Health.
  • Non-traditional workplace environments will replace the health-damaging sitting and sedentary work environment of today.
  • Wellness will be more integrated with benefits in general, but more specifically with high-deductible health plans (HDHPs) as a way to help employees fund them.
  • ROI will no longer be the focus, and instead it will be part of a long-term business strategy.
  • Wellness will have a wider impact overall where employees will thrive in the workplace and bring their health improvement skills to their families and communities.

We now know how to deliver wellness that positively affects cultures and population health. We don’t need any additional studies. All we need are brave and open-minded companies to embark on the journey of optimal wellness and well-being. This journey is full of trials and errors, but also full of self-discovery and growth that can build very profitable companies filled with employees who truly engage at work and thrive every day. Who is with me in this journey?

By Valeria S. Tivnan, Originally Published By United Benefit Advisors

Historically, employers have utilized health risk assessments (HRAs) as one measurement tool in wellness program design. The main goals of an HRA are to assess individual health status and risk and provide feedback to participants on how to manage risk. Employers have traditionally relied on this type of assessment to evaluate the overall health risk of their population in order to develop appropriate wellness strategies.

Recently, there has been a shift away from the use of HRAs. According to the 2016 UBA Health Plan Survey, there has been a 4 percent decline in the percentage of employer wellness programs using HRAs. In contrast, the percentage of wellness programs offering biometric screens or physical exams remains unchanged – 68 percent of plans where employers provide wellness offer a physical exam or biometric screening.

One explanation for this shift away from HRAs is an increased focus on helping employees improve or maintain their health status through outcome-based wellness programs, which often require quantifiable and objective data. The main issue with an HRA is that it relies on self-reported data, which may not give an accurate picture of individual or population health due to the fact that people tend to be more optimistic or biased when thinking about their own health risk. A biometric screening or physical exam, on the other hand, allows for the collection of real-time, objective data at both the individual and population level.

Including a biometric screening or physical exam as part of a comprehensive wellness program can be beneficial for both the employer and employees. Through a biometric screening or physical exam, key health indicators related to chronic disease can be measured and tracked over time, including blood pressure, cholesterol levels, blood sugar, hemoglobin, or body mass index (BMI). For employees, this type of data can provide real insight into current or potential health risks and provide motivation to engage in programs or resources available through the wellness program. Beyond that, aggregate data collected from these types of screenings can help employers make informed decisions about the type of wellness programs that will provide the greatest value to their company, both from a population health and financial perspective.

One success story of including a physical exam as part of a wellness program comes from one of our small manufacturing clients. From the initial population health report, the company learned that there was a large percentage of its population with little to no health data, resulting in the inability to assign a risk score to those individuals. It is important to note that when a population is not utilizing health care, it can result in late-stage diagnoses, resulting in greater costs and a burden for both the employee and employer. In addition, there was low physical compliance and a high percentage of adults with no primary care provider. In order to capture more information on its population and better understand the current health risks, the company shifted its wellness plan to include annual physicals as a method for collecting biometric data for the 2016 benefit year. Employees and spouses covered on the plan were required to complete an annual physical and submit biometric data in order to earn additional incentive dollars.

By including annual physicals in its wellness program, positive results were seen for employees and spouses and the company was able to make an informed decision about next steps for its wellness program. After the first physical collection period, the percentage of individuals with little to no information was reduced from 31 percent to 16 percent (Figure A). Annual physical compliance increased from 36 percent in 2015 to over 80 percent in 2016 (Figure B), which means more individuals were seeing a primary care provider. As a result of increased biometric data collection and one year of Vital Incite reporting, the company was able to determine next steps, which included addressing chronic condition management, specifically hypertension and diabetes, with health coaching or a disease management nurse.

Figure A – RUB Distribution 2014 – 2016

RUB Distribution 2014-2016

Figure B – Preventive Screening Compliance

Preventive Screening Compliance

Employers that are still interested in collecting additional information from employees may consider including alternatives to the HRA, such as culture or satisfaction surveys. These tools can allow employers the opportunity to evaluate program engagement and further understand the needs and wants of their employee population.

Originally published by www.ubabenefits.com

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