Santa Makes Him Hurry: Run Rudolph Run – as to Wellness, the Government Speaks with Forked Hoof

If you have had the feeling that the creators and enforcers of the ACA speak with forked hoof, just see how the Federal Government speaks about wellness programs. The ACA increased the ability of employers to reward employees who engage in healthy activities, such as cardio improvement (or, if you do not like wellness programs, punish employees who do not). The Center for Disease Control lists six chronic diseases and conditions, including heart disease, stroke, cancer, diabetes, obesity and arthritis, as responsible for over 80% of all health care spending. But at the same time the EEOC and various support groups are making it more difficult to provide incentives to act healthier or even to obtain the deidentified grouped information for a third party, who can then evaluate which types of activities or medications would stabilize and/or improve the health of a workforce. Diabetes alone, which has an identifiable generic predisposition, now costs $190 million in direct medical costs a year and over $75 million in lost productivity. And, over half of the chronic disease effects are attributable to life style choices.

So what are the enforcers of the laws (HIPPA, ACA, GINA, ADA, IRC, etc.) effecting wellness programs doing? In the past they have said a strong “whoa boy.” But the EEOC’s newly (Oct. 30, 2015) proposed regulations based on GINA seems to take a more realistic approach. Some might attribute that to Rudolph’s nose shining light to help them see the path, with the EEOC’s recently losing cases where it tried to treat rewards as rendering wellness plans involuntary.

There are two significant elements to the proposed GINA regs.

1. The monetary reward or penalty for voluntarily providing genetic information, which may only be done in a qualified wellness program, is limited to 30% if the individual employee self-only coverage costs, while the remainder of the 30% of the total cost of a plan covering the employee and all dependants may be provided in exchange for the spouse providing information to the wellness program about his or her current or past health status. (The math is important and the regs contain calculation examples.) The spousal rule is because GINA defines the spouse’s health history as providing genetic information about the employee, a medical impossibility;
2. The proposed regs take the same fork hoofed approach to the laws as the EEOC’s ADA Regs on wellness programs, by continuing to assert that a program that merely shifts health costs to those whose voluntary actions cause those added healthcare costs is per se unlawful.

So while the Government has identified the problem and wants employees to run (if they can) and mandates employers spend money or pay penalties to cover proscribed health care issues, it is still unwilling to allow the types of necessary employer actions that might really control these costs. But maybe in 2016 the employer who can and should use presents or coal to encourage changed behavior, will mush forward anyway. For it is clear, even by the light of Rudolph’s nose, that better health (including mental health) resulting in more productivity, fewer injuries and fewer health care costs, does come with healthier choices. Merry Christmas to all and to all a healthier good night’s sleep.