The CFA Perspective

Health, Wellness, Compliance and Evolving Legality

Posted by Charles Franc

5/22/15 7:01 AM

Health and wellness is a growing concern for every cardiovascular professional.  Research has shown  that a significant proportion of CVD is preventable, particularly given the positive impact of regular exercise, good eating habits, stress reduction, early detection, compliance with prescribed medications and the like.  The move to population health – to identify and impact significant health care trends in covered populations – supports the need for continuous development of effective health and wellness programming. In fact, this move to population based healthcare is built into the ACA and increasingly becoming the norm for major health insurers who are transitioning from fee for service to fee for value reimbursement.


Many organizations looking to gain experience with population health logically begin with their own employees. The theory is that if one can improve the health of their own employees then these techniques should be able to be successfully applied to a broader population base.  What sounds like a simple concept has historically been controversial, contentious, and fraught with legal, moral, ethical and practical issues.  However, given recent court and regulatory decisions, some light has been shed on the subject.


The idea of organizations offering wellness programming to their employees is not new, but the trend towards attaching incentives and disincentives has become contentious.  What makes sense, is good for the company, good for the employees and good for the system as a whole continues to evolve.  Recently, Honeywell International’s employee wellness program was taken to court by the Equal Employment Opportunity Commission (EEOC).  Honeywell had imposed penalties on its employees that refused to undergo biometric testing (checking cholesterol, glucose, blood pressure, height, weight and waist circumference).  Employees who refuse testing can face up to $4,000 in surcharges and lose company health savings account contributions.  Employees who take part can have their monthly premiums reduced $125.  The EEOC’s contention was the testing violated the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act by financially penalizing employees who refused testing.  At that time, the EEOC had no national policy or regulations/guidelines on wellness programming.  A district court judge in Minnesotafound in favor of Honeywell.  Honeywell said that it wants “its employees to be well informed about their health status not only because it promotes their well-being, but also because we don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.” 


Previously, legal challenges have upheld the right of employers to deny employment to tobacco users, or to charge them more for their health insurance, although the law varies by state, and rulings have varied by both state and jurisdiction.  A few hospitals have adopted this policy, although challenged by employee unions and others.


In an about-face in early April this year, the EEOC announced proposed regulations that would allow employers to continue to use substantial financial penalties and rewards to nudge employees to participate in workplace wellness programs.  But they also proposed some safeguards for employees, including limits on the size of the financial incentives, confidentiality of their medical information and prohibitions against firing workers who decline to participate in wellness programs or denying them access to the company health plan.  The proposed regulations are open to public comment for the next sixty days.       


Health systems developing wellness programming for their employees and entering into population health pilots are going to be increasingly faced with these types of decisions relating to health, wellness, compliance and related incentives/disincentives. Court cases will have an impact:   employment laws (including the final EEOC regulations), privacy laws, compliance and discrimination laws all apply.  We are, after all, in the business of promoting healthy lifestyles.  Our obligations in this regard are serious and far-reaching.  As these trends continue to evolve, and laws and regulations continue to be clarified and refined, it will be incumbent on all healthcare institutions to seriously address these issues as part of their overall mission and role in their respective communities.


As always, CFA invites your comment and input.