Senate HELP Committee Hearing Highlights Employer Uncertainty in Face of EEOC Lawsuits Against Wellness Programs

On Thursday, Jan. 29, the Senate Health, Education, Labor and Pension (HELP) Committee held a full committee hearing entitled “Employer Wellness Programs: Better Health Outcomes and Lower Costs.” The hearing was triggered by the recent EEOC lawsuits against three companies related to their wellness programs and the use of incentives.

Population Health Alliance (PHA) members know that worksite wellness programs are one segment of a broad continuum of population health approaches that includes disease management, case management and other population health services being implemented by employers seeking to improve the health of their employees. This, in turn, can increase productivity and lower costs.

The PHA has been tracking and working on this issue for over a year and a half. In May 2013, the PHA organized a meeting of its Washington, D.C.-based Government Affairs Committee members, with Chris Kucszynski of the EEOC, to discuss disability issues and wellness programs. This effort ramped up even more in May 2014 with the public announcement that the EEOC would soon release guidance on this issue (which never happened). Since then, and in light of the EEOC’s lawsuits, the PHA established an internal subgroup of our Government Affairs Committee to begin working on this issue, and formed a larger coalition of organizations and individuals to collaborate.

In the past few months, the PHA has developed a white paper for our members, held a webinar in collaboration with the National Business Coalition on Health (NBCH), reached out and provided support to the Senate HELP Committee, met with key staff on The Hill and organized a meeting with HELP Committee staff for our members and collaborators.

Jan. 29 hearing takeaways

Overall, the Senate HELP Committee was positive about the use of wellness programs in the workplace. This section of the Affordable Care Act (ACA) passed with bipartisan support and there was little disagreement from committee members regarding the merits of programs like this.

In his opening statement, Committee Chair Sen. Lamar Alexander, commented on the EEOC lawsuits relative to wellness programs, saying, “We want to make sure we don’t have a countervailing move going on in the government to discourage that. Even the White House has expressed concerns regarding the EEOC actions.”

The EEOC has had the opportunity to weigh in on this issue for quite some time and in May, announced that it would provide rules. The EEOC has not issued rules and instead, has chosen to litigate the issue. This approach has created considerable uncertainty for employers whose wellness programs adhere to the requirements of the Patient Protection and Affordable Care Act (PPACA), HIPAA and the Genetic Information Discrimination Act (GINA), yet find themselves in the cross hairs of the EEOC. As Dr. Catherine Baase, medical director of The Dow Chemical Company stated, “Employers should not have to face this uncertainty.”

Ranking Committee Democrat, Sen. Patty Murray highlighted the positives of wellness programs, “The ACA has put the power back into the hands of patients and encourages new, innovative delivery systems.”

Dr. Gary Loveman, president and CEO of Caesars Entertainment Corporation, also testified that “Wellness programs are ideally suited to address the epidemic of chronic diseases in this country.”

Additional testimony focused on these themes

1) Engagement is critical.

“In the absence of incentives for biometrics, we would not have such significant results.” – Dr. Loveman

“Successfully engaging employers is critical to achieving health for our society. We cannot achieve the results we want without it.” – Dr. Baase

“Engagement is key in wellness programs. Financial incentives are just one part; we need an integrated aligned system.” – Dr. David Grossman, medical director for Population and Purchaser Strategy, Group Health Research Institute

James Abernathy, a Blue Cross and Blue Shield of Tennessee employee, testified that the financial incentives of his company’s wellness program motivated him to lose weight and make significant improvements to his health.  He said that the program incentives are tied to participation and that he receives discounts and rebates.

2) Wellness programs are generating results

The King County program saw smoking levels drop by six percentage points as a result of their program, according to Dr. Grossman.

The Dow Chemical Company spent $4.8 million less in 2014 than it would have without the program, based on the industry average trend, noted Dr. Baase.

3) There is additional work to do

Jennifer Mathis of the Bazelon Center for Mental Health Law, expressed concerns from the disability community that these programs force individuals to self identify as being disabled. She questioned the voluntary nature of the wellness programs named in the EEOC lawsuits because of the high amounts of the incentives.

Dr. Grossman suggested that we use what we already know and then fill in the gaps, noting that the programs that have succeeded are those that implemented incentives based on best practices.

Eric Dreiband, partner with Jones Day law firm, felt there were two possible solutions, “Either the EEOC articulates a public solution that ACA meets requirements [of the ADA] or Congress enacts legislation.”

Sen. Murray echoed that urgency, “I think it’s really important that the EEOC get the rules out and makes sure all people are protected. I am assured they will be out very shortly.”

The PHA and our members will continue to follow and work on this issue in an effort to provide more certainty to employers, employees and vendors.

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