WORKSITE WELLNESS: THE FUTURE IS NOW STAYING HEALTHY LEGALLY SPEAKING Presented by: Timothy G....
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Transcript of WORKSITE WELLNESS: THE FUTURE IS NOW STAYING HEALTHY LEGALLY SPEAKING Presented by: Timothy G....
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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
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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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