WORKSITE WELLNESS: THE FUTURE IS NOW

STAYING HEALTHY LEGALLY SPEAKING

Presented by:

  Timothy G. Kenneally, Esquire

FOLEY & FOLEY, PC

Friday, May 6, 2011

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GOALS

LEGAL DO’S, DON’T’S and WHY’S

OF WELLNESS PLANS

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KEY LAWS

• HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”)

• AMERICANS WITH DISABILITY ACT OF 1990 (“ADA”)

• EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 (“ERISA”)

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POP QUIZ 1

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QUESTION 1

• VALID WELLNESS PROGRAM UNDER THE LAW?

– A group health plan gives an annual premium discount of

20 percent of the cost of employee-only coverage to

participants who adhere to a wellness program. The

wellness program consists solely of giving an annual

cholesterol test to participants. Only those participants who

achieve a count under 200 receive the premium discount

for the year.

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ANSWER 1

• NOT VALID

– Program is not available to all similarly situated

individuals because some participants may be unable

to achieve a cholesterol count of under 200. The

premium discount violates the law because it may

require an individual to pay a higher premium based

on a health factor.

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GENERAL RULE

• PROGRAM MUST BE AVAILABLE TO

SIMILARLY SITUATED INDIVIDUALS

• NO CONDITION FOR REWARD CAN BE

BASED ON A HEALTH FACTOR

• VOLUNTARY… MAYBE

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HEALTH FACTORS?

• NON-DISCRIMINATION REGULATIONS

– Prior Medical Care;

– Current Medical Conditions;

– Medical Claim History;

– Health Status;

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HEALTH FACTORS cont.

– Prior Use of Healthcare;

– Genetics;

– Insurability (Risky Behavior/Abuse); and

– Disability

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POP QUIZ 2

• VALID?

A group health plan gives an annual premium discount of 20

percent of the cost of employee-only coverage to participants

who adhere to a wellness program. Those participants who

attend one fitness class a month at a local fitness center

receive the premium discount for the year. Employees

medically unable to participate in fitness classes may receive

the discount by attending monthly healthy-living classes at the

fitness center. The program renews annually.10

ANSWER 2

• VALID

– THIS PLAN MEETS THE REQUIREMENTS

OF THE EXCEPTION TO THE GENERAL

RULE FOUND IN 29 CFR 2590.702(f)(2).

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EXCEPTION

• REWARD BASED ON HEALTH FACTOR PERMITTED IF:

– ALL SIMILARLY SITUATED INDIVDUALS– TOTAL REWARDS NOT > 20% OF ANNUAL COST– PROMOTES HEALTH OR PREVENTS DISEASE– REASONABLE/NOT OVERLY BURDENSOME– ANNUAL OPPORTUNITY TO QUALIFY– REASONABLE ALTERNATIVE– PROPER DISCLOSURE

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POP QUIZ 3

• VALID?

Plan waives annual deductible for all participants with

diabetes if they enroll in a disease management program

and follow their doctor’s recommendations regarding

exercise and medication.

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ANSWER 3

• VALID

– THIS WELLNESS PLAN PROVISION IS AN

EXAMPLE OF “BENIGN DISCRIMINATION”.

– ALLOWED BECAUSE PLAN REWARDS

AND DOES NOT PENALIZE DIABETICS.

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ADA

MANDATORY PLANS

WITH PENALTIES

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SEFF V. BROWARD COUNTY

• HEALTH QUESTIONNAIRE/BIOMETRIC SCREENING – OR $20 PENALTY

• VIOLATED ADA?

• E-IDENTIFIED AGGREGATE DATA

• USED DATA TO DEVELOP FUTURE PLANS

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SEFF V. BROWARD COUNTY

• DID NOT VIOLATE ADA

• SAFE HARBOR PROVISIONS APPLY

• GOAL ADA – ELIMINATE DISCRIMINATION

• RISK ASSESSMENT WAS GOAL OF PLAN

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BEST PRACTICES

• AVOID PLANS THAT PENALIZE

• TRUSTED ADVISOR/ADMINISTRATOR

• WELL WRITTEN OPERATING PLAN

• PRACTICAL SUGGESTIONS

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