May 24, 2013 Leave a comment
May 23, 2013
The Honorable Jacqueline Berrien, Chair
The Honorable Constance Barker, Commissioner
The Honorable Chai Feldblum, Commissioner
The Honorable Victoria Lipnic, Commissioner
The Honorable Jenny Yang, Commissioner
The Honorable P. David Lopez, General Counsel
U.S. Equal Employment Opportunity Commission
Re: Wellness Programs and Incentives
Dear Sir or Madam,
The Care Continuum Alliance (CCA) welcomes this opportunity to comment on the discussion at the May 8th EEOC public meeting on “Wellness Programs Under Federal EEOC Laws” in Washington, D.C. We are a non-profit association of almost 200 companies. CCA convenes all stakeholders in the population health management industry. Our members design and provide services, programs and tools to better coordinate care for all patients along the continuum, from the healthy to those with chronic conditions. Through advocacy, research and education, we advance strategies that increase quality in the health care system while reducing costs.
CCA appreciates your thoughtful consideration and careful attention to the value of worksite wellness programs and incentives. We observed in your meeting that a significant portion of the discussion revolved around the “voluntary” aspect of workplace wellness programs. Jointly-issued 2006 final regulations on Nondiscrimination and Wellness Programs by the Department of Labor, Department of the Treasury and Department of Health and Human Services expressly identify the five-prong Health Information Portability and Accountability Act (HIPAA) standard as the appropriate metric for evaluating the “voluntary” aspect of worksite wellness programs. The EEOC also referenced this standard in its 2008 final rule, acknowledging that Title II of the Genetic Information Nondiscrimination Act allows covered entities to offer incentives for participating in wellness programs.
The HIPAA five-prong test states that wellness programs offering rewards based on achieving a particular health status are voluntary if: (1) the reward does not exceed 30 percent of the cost of the individual’s health coverage or 50 percent in relation to tobacco; (2) the program is reasonably designed to promote health or prevent disease; (3) individuals have the opportunity to qualify for the reward at least once annually; (4) the reward is available to all similarly situated individuals; and (5) disclosure of a reasonable alternative standard if the terms of the program are described., Please also note the useful Wellness Program Analysis and Checklist provided by the Department of Labor to clarify application of the existing HIPAA standard.
CCA supports this HIPAA standard as the appropriate metric. We encourage the EEOC to adopt this standard and issue such guidance to employers. This will alleviate confusion and concern regarding the possibility of additional regulatory hurdles for worksite wellness programs. Confusion often leads employers to simply withdraw or abstain from offering even well-designed evidence-based wellness and incentive programs. The HIPAA standard aligns with CCA’s and the EEOC’s shared goal of promoting and improving health, while prohibiting discrimination in an employee’s eligibility or ability to participate in wellness programs. Furthermore, applying the standard to worksite wellness programs offers compelling advantages over forging new compliance requirements. Using this standard in the context of worksite wellness programs would be a natural extension from its current application with group health plans, ensuring consistent and streamlined regulatory requirements around wellness programs in the health industry. Also, many employers with well-received and successfully implemented wellness programs currently use the five-prong HIPAA standard. This indicates that the standard operates as a strong functional basis for future EEOC guidance.
We are providing you with a current literature review and case studies that demonstrate advancements in worksite wellness programs. The literature shows that incentives can facilitate behavior change to increase patient engagement in wellness programs. It also positively indicates that appropriate incentive and wellness program design can produce cost savings for employers. Finally, the literature reinforces that the value of incentives in wellness programs extends beyond direct healthcare cost savings. As one component of an organizational culture of health, incentives in wellness programs can produce additional positive outcomes such as workforce productivity.
We are also including a joint consensus paper by the Health Enhancement Research Organization, the American College of Occupational and Environmental Medicine, the American Cancer Society and American Cancer Society Cancer Action Network, the American Diabetes Association, and the American Heart Association entitled, “Guidance for a Reasonably Designed, Employer-Sponsored Wellness Program Using Outcomes-Based incentives”. This paper offers valuable insights on wellness program and incentives design for your consideration. It outlines elements of a reasonably designed wellness program and provides guidance on devising reasonable alternative standards. The paper notes that incentives in wellness programs should be designed with flexibility to incent meaningful progress toward health goals and not just ideal targets. It also advises employers to incorporate options that allow employees to earn any given incentive in multiple ways, promoting behavior change through individual choice.
CCA looks forward to continuing this dialogue and would be glad to serve as a resource. Please feel free to contact us with thoughts or questions.
Frederic S. Goldstein
Interim Executive Director
Care continuum Alliance
Director of Government Affairs
Care Continuum Alliance
 45 CFR Part 146 §146.121(f)(2)(i)-(v), Department of the Treasury, Department of Labor, Department of Health and Human Services, Nondiscrimination and Wellness Programs in Health Coverage in the Group Market, Federal Register vol. 71 No. 239 (Dec. 2006): 75052.
 29 CFR Part 1635, Equal Employment Opportunity Commission, Regulations Under the Genetic Information Nondiscrimination Act of 2008, Federal Register vol. 75 No. 216 (Nov. 2010):68923 n.13.
 45 CFR Part 146 §146.121(f)(2)(i)-(v) at 75052.
 §1201, Patient Protection and Affordable Care Act, H.R. 3590 (2010).
 Employee Benefits Security Administration, U.S. Department of Labor, Wellness Program Analysis, Field Assistance Bulletin No. 2008-02 (Feb. 2008) 1-5.
 45 CFR Part 146 §146.121(f)(2)(i)-(v) at 75052.
 Health Enhancement Research Organization, the American College of Occupational and Environmental Medicine, the American Cancer Society and American Cancer Society Cancer Action Network, the American Diabetes Association, and the American Heart Association, Guidance for a Reasonably Designed, Employer-Sponsored Wellness Program Using Outcomes-Based Incentives, Journal of Occupational and Environmental Medicine, Vol. 54 (July 2012).
 Id. at 894