By Jennifer Kupper

The Patient Pro­tec­tion and Afford­able Care Act (PPACA) specif­i­cal­ly encour­ages and pro­motes the expan­sion of well­ness pro­grams in both the indi­vid­ual and group mar­kets. In the indi­vid­ual mar­ket, the sec­re­taries of the Capitol Building, Washington DCdepart­ments of Health and Human Ser­vices (HHS), Trea­sury, and Labor are direct­ed to estab­lish a pilot pro­gram to test the impact of pro­vid­ing at-risk pop­u­la­tions who uti­lize com­mu­ni­ty health cen­ters an indi­vid­u­al­ized well­ness plan that is designed to reduce risk fac­tors for pre­ventable con­di­tions as iden­ti­fied by a com­pre­hen­sive risk-fac­tor assess­ment. Results will be com­pared against a con­trolled group.

In the group mar­ket, the sec­re­taries are direct­ed to estab­lish a mul­ti-state, employ­er-spon­sored, health-con­tin­gent well­ness pro­gram demon­stra­tion project. The objec­tives are to deter­mine the effec­tive­ness of employ­er-spon­sored, health-con­tin­gent well­ness pro­grams, the impact of well­ness pro­grams on the afford­abil­i­ty and access to care for par­tic­i­pants ver­sus non-par­tic­i­pants, the impact of cost-shar­ing and incen­tives on par­tic­i­pant behav­ior, and the effec­tive­ness of oth­er types of rewards.

There is, how­ev­er, a huge dis­con­nect with­in the admin­is­tra­tion. This is exem­pli­fied by the Equal Employ­ment Oppor­tu­ni­ty Commission’s (EEOC) revived attacks and recent lit­i­ga­tion against employ­ers who spon­sor pre­sum­ably PPACA-com­pli­ant well­ness pro­grams. Employ­ers are wak­ing up to the sad facts that the risk in spon­sor­ing health-con­tin­gent well­ness pro­grams is mount­ing, the EEOC remains silent in pro­vid­ing guid­ance*, and the cor­po­rate well­ness indus­try is in quandary.

In response to the recent lit­i­ga­tion, two par­al­lel bills were intro­duced the first week of March (S. 620/H.R. 1189). With less than a 2% chance of being enact­ed, Mr. Lamar Alexan­der (R‑Tenn.) of the Sen­ate and Mr. Jon Kline (R‑Minn.) of the House intro­duced the Pre­serv­ing Employ­ee Well­ness Pro­grams Act (the leg­is­la­tion). The pur­pose of the leg­is­la­tion is “[t]o clar­i­fy rules relat­ing to nondis­crim­i­na­to­ry employ­er well­ness pro­grams as such pro­grams relate to pre­mi­um dis­counts, rebates, or mod­i­fi­ca­tions to oth­er­wise applic­a­ble cost shar­ing under group health plans.”

The leg­is­la­tion would allow employ­ers to imple­ment work­place well­ness pro­grams or employ­er-spon­sored, health-con­tin­gent pro­grams with­out the fear of run­ning afoul of the Amer­i­cans with Dis­abil­i­ties Act (ADA) and its amend­ments (ADAAA) or Genet­ic Infor­ma­tion Nondis­crim­i­na­tion Act (GINA), so long as the well­ness pro­grams oper­at­ed pur­suant to the Health Insur­ance Porta­bil­i­ty and Account­abil­i­ty Act (HIPAA) nondis­crim­i­na­tion and well­ness regulations.

The leg­is­la­tion also pro­vides that a spon­sor­ing employ­er can estab­lish a dead­line of up to 180 days for employ­ees to request and com­plete a rea­son­able alter­na­tive stan­dard (or waiv­er of the oth­er­wise applic­a­ble stan­dard). Fur­ther, the leg­is­la­tion affirms that the employ­ees’ spouse and fam­i­ly mem­bers can par­tic­i­pate and would have the same pro­tec­tions afford­ed as an employ­ee-par­tic­i­pant. In oth­er words, med­ical his­to­ry and bio­met­ric infor­ma­tion of par­tic­i­pat­ing fam­i­ly mem­bers would not be an unlaw­ful acqui­si­tion under GINA.

* On March 20, 2015, the EEOC vot­ed to send a Notice of Pro­posed Rule­mak­ing (NPRM) on the inter­play of the ADA and PPACA with respect to well­ness pro­grams to the White House Office of Man­age­ment and Bud­get (OMB) for clearance.

For more data on well­ness pro­gram fea­tures employ­ers are using, down­load the 2014 Health Plan Exec­u­tive Sum­ma­ry. This sur­vey – which has been con­duct­ed every year since 2005 – is the nation’s largest health plan sur­vey and pro­vides more accu­rate bench­mark­ing data than any oth­er source in the indus­try. You can also con­tact a UBA Part­ner Firm for a cus­tomized bench­mark report based on indus­try, region and busi­ness size.

Top­ics: well­ness, employ­ee ben­e­fits, well­ness pro­grams, PPACA Afford­able Care Act, 2014 Health Plan Survey

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