Blood, Sweat and Work­place Well­ness: Where to draw the line on in­cen­tives

The Mercury (Pottstown, PA) - - FIT FRIDAY - By Julie Ap­pleby Kaiser Health News

Work­place well­ness pro­grams that of­fer em­ploy­ees a fi­nan­cial car­rot for un­der­go­ing health screen­ings, stick­ing to ex­er­cise reg­i­mens or im­prov­ing their choles­terol lev­els have long been con­tro­ver­sial.

Next year, they may be­come even more con­tentious. Two re­cent court rul­ings have cast un­cer­tainty over what is the ap­pro­pri­ate limit for fi­nan­cial in­cen­tives that em­ploy­ers can of­fer work­ers to par­tic­i­pate in pro­grams that re­quire clin­i­cal test­ing or dis­clo­sure of per­sonal health data. The dol­lar amount is sub­ject to de­bate be­cause it raises ques­tions about when the in­cen­tives be­come so high that em­ploy­ees feel they don’t have a choice about par­tic­i­pat­ing.

As a re­sult, work­ers may find pro­grams of­fer smaller in­cen­tives, con­sul­tants say. Also, pro­grams might give em­ploy­ees op­tions for qual­i­fy­ing for those in­cen­tives — a choice, for in­stance, be­tween un­der­go­ing a med­i­cal exam or com­plet­ing on­line health ed­u­ca­tion mod­ules.

About 4 in 10 em­ploy­ers par­tic­i­pat­ing in an in­for­mal sur­vey by ben­e­fits firm Mercer said “they re­ally were not sure what they would do,” said Steven Noeld­ner, its se­nior con­sul­tant in to­tal health man­age­ment spe­cialty prac­tice. “Some are mod­i­fy­ing … oth­ers are tak­ing a wait-and-see-at­ti­tude.”

Eighty-five per­cent of large em­ploy­ers of­fer­ing health in­sur­ance in­cluded a well­ness pro­gram de­signed to help peo­ple stop smok­ing, lose weight or take other health­ful ac­tions, ac­cord­ing to a 2017 sur­vey by the Kaiser Fam­ily Foun­da­tion. (Kaiser Health News is an ed­i­to­ri­ally in­de­pen­dent pro­gram of the foun­da­tion.) Just over half of those in­cluded some type of med­i­cal screen­ing. Re­wards or in­cen­tives to par­tic­i­pate vary. The most com­mon are gift cards, fit­ness track­ers or other mer­chan­dise, or dis­counts on what work­ers pay to­ward their health in­sur­ance cov­er­age.

The Cleve­land Clinic’s ver­sion is more ex­ten­sive than most, said Dr. Bruce Ro­gen, chief med­i­cal of­fi­cer for the ef­fort. He de­scribed it as a “pop­u­la­tion health pro­gram,” with dif­fer­ing goals for work­ers who have chronic dis­eases like di­a­betes ver­sus those who don’t.

Full par­tic­i­pa­tion, which may mean los­ing weight, keep­ing blood sugar lev­els in check or hit­ting a gym at least 10 times a month, can save work­ers 30 per­cent in in­sur­ance pre­mi­ums. That could be as much as $1,443 a year.

“Part of what makes the plan work is the fact we can of­fer that ben­e­fit dis­count,” Ro­gen said.

That 30 per­cent amount is the ceil­ing set in a 2016 Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion (EEOC) rule for what an em­ployer can of­fer.

But it’s also the point that leads crit­ics to ques­tion when in­cen­tives be­come sig­nif­i­cant enough that em­ploy­ees no longer feel that par­tic­i­pa­tion is vol­un­tary.

“You and I can look at the same in­cen­tive and you will find it’s truly vol­un­tary and I would say, given my fi­nan­cial cir­cum­stances, I feel I’m be­ing com­pelled,” said Tom Luetke­meyer, an at­tor­ney spe­cial­iz­ing in em­ploy­ment law at Hin­shaw & Cul­bert­son in Chicago.

Shortly af­ter the EEOC’s guid­ance was is­sued, the AARP chal­lenged it in court, ar­gu­ing that work­ers who did not want to pro­vide med­i­cal in­for­ma­tion could feel co­erced to do so be­cause not par­tic­i­pat­ing would cost them sub­stan­tial sums, rang­ing from hun­dreds to thou­sands of dol­lars.

In his first rul­ing, D.C. Cir­cuit Court Judge John Bates noted that the EEOC had failed to pro­vide jus­ti­fi­ca­tion for how it set­tled on that per­cent­age. He also pointed out that 30 per­cent of a worker’s health in­sur­ance costs could be “the equiv­a­lent of sev­eral months’ worth of food for the aver­age fam­ily, two months of child care in most states, and roughly two months’ rent.”

Bates ul­ti­mately or­dered the 30 per­cent limit va­cated as of Jan. 1, 2019, af­ter the EEOC said it would not pro­duce that jus­ti­fi­ca­tion or a new num­ber un­til 2021.

Em­ploy­ers now putting to­gether next year’s health ben­e­fit pro­grams don’t have spe­cific rules to fol­low.

The ad­vice they are re­ceiv­ing from ben­e­fit con­sul­tants ranges widely, from “drop all in­cen­tives and penal­ties” to “stay the course.”

Few ex­pect em­ploy­ers will out­right stop of­fer­ing well­ness pro­grams be­cause they hope the pro­grams will hold down health costs by get­ting work­ers to take steps to im­prove their well-be­ing. Crit­ics, how­ever, point out that stud­ies show lit­tle ev­i­dence that work­place well­ness pro­grams achieve these goals.

The rul­ing does not af­fect some well­ness pro­gram ef­forts, such as of­fer­ing fi­nan­cial in­cen­tives for go­ing to the gym or walk­ing a cer­tain num­ber of steps per day. Sub­stan­tial fi­nan­cial in­cen­tives to get peo­ple to quit to­bacco are also not cov­ered by the rul­ing, so long as there is no med­i­cal test re­quired to check for nico­tine use.

But “you can’t fine them for not get­ting their weight down, be­cause then you have to mea­sure their weight and that be­comes clin­i­cal,” said Al Lewis, a fre­quent critic of work­place well­ness pro­grams who runs a com­pany that of­fers an al­ter­na­tive.

Some em­ploy­ers say they will stick with their ex­ist­ing pro­grams — even if they hit the 30 per­cent level — be­cause the EEOC is un­likely to chal­lenge those that stick with the re­scinded per­cent­age un­til new rules come out.

The Cleve­land Clinic’s Ro­gen, who cred­its the well­ness pro­gram for hold­ing med­i­cal costs al­most flat for the past five years, said clinic of­fi­cials plan to leave it at that level next year, de­spite the un­cer­tainty.

Not all ben­e­fit con­sul­tants would agree with that choice.

“The way we in­ter­pret the rul­ing is that fi­nan­cial in­cen­tives that re­late to phys­i­cal ex­ams, in­clud­ing ques­tions about health his­tory, would not be al­lowed start­ing Jan. 1,” said Noeld­ner, of Mercer.

Oth­ers sug­gest that is tak­ing the judge’s rul­ing too far. Af­ter all, the Af­ford­able Care Act pro­vides a prece­dent for the 30 per­cent thresh­old — and the EEOC may well come back with a rule that reaf­firms that amount. The ACA in­cluded a pro­vi­sion that raised the limit on health-con­tin­gent well­ness in­cen­tives to that amount.

“Peo­ple may be over­re­act­ing to this by say­ing with these rules null and void, we are out in the Wild West,” said Todd Hlas­ney, se­nior vice pres­i­dent and di­rec­tor of health risk so­lu­tions at Lock­ton Com­pa­nies, a ben­e­fits con­sul­tancy. “We are ad­vis­ing clients to be more con­ser­va­tive … but don’t panic and say (you) can’t do any­thing be­cause of EEOC.”

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