Use keen judgment when launching health and wellness programs

October 1, 2010

Navigating legal issues to create the best possible program sometimes requires a delicate balancing act by plan sponsors

WORKPLACE WELLNESS initiatives are meant to promote healthy behaviors among employees and lower costs for employers, but navigating legal issues to create the best possible program sometimes requires a delicate balancing act by plan sponsors. Many have shied away from certain initiatives just to avoid the pitfalls, but compliant, effective programs are possible.

GINA prevents health plans and employers from using financial incentives to entice their employees to participate in a health risk assessment (HRA) if it includes questions about family medical history. HRAs typically include questions about employee habits and health to allow plan sponsors to craft personalized wellness and disease management programs for their member populations. Most include family history questions, and many employers offer cash bonuses, insurance premium discounts or other rewards to employees who fill them out.

Alisa Chestler, of Counsel with the Washington, D.C., office of Baker, Donelson, Bearman, Caldwell & Berkowitz PC, says the final GINA rules that came out in October 2009 were somewhat surprising, going further than the industry expected.

Chestler, who chairs the DMAA: The Care Continuum Alliance (DMAA) compliance committee, says the organization drafted a letter to the secretaries of the U.S. Departments of Health and Human Services, Labor and the Treasury citing concerns about the definition of "underwriting" in GINA going beyond the original intent of the legislation.

DMAA indicated the final rules would restrict the ability of employers and plans to create incentives for participation in programs and would weaken a commonly used HRA tool for identifying people who could benefit from such programs.

Wagner says there are two options: eliminate the incentives for filling out HRAs or create a two-tier HRA by removing genetic questions from the first survey.

"Companies are struggling with how to deal with this," Wagner says. "The best way is to pull out the genetic information questions from the initial HRA, get the information and then, as you are developing a wellness program for that the individual, get more information."

The DMAA's stance is that the two options will drive down participation in wellness and disease management programs, as studies have shown incentives significantly improve participation.

One of the biggest stumbling blocks of wellness programs is the concept of employee engagement.

"If you build it, will they come, is the question," says Barry Hall, principal with the Boston office of Buck Consultants, an employee benefits consulting firm that is part of Xerox Corp. "How do you get employees engaged?"

The answer, of course, is different for every organization.

"There are so many things vying for our attention. We pay attention to things that are relevant to us," Hall says.

The federal government is looking at incentives to boost wellness program participation. The Patient Protection and Affordable Care Act (PPACA) includes a provision that increases premium discounts or other rewards to 30% of total employee healthcare costs-up from a maximum 20%-for employees who participate in outcome-based wellness programs.