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“Non-Discriminatory” Wellness Programs?

by Fall Ferguson, JD, MA

Recent posts to this blog (e.g., this and this) have tried to shed light on the evolving status of employer wellness programs in the US, especially with respect to weight and BMI. This post further explores these issues and poses a few pertinent questions.

In June, several federal agencies jointly released a set of regulations designed to guide employers in implementing wellness programs. Largely based on previous rules for employer wellness plans, these rules have been updated with content from the Affordable Care Act (ACA) and are entitled “Incentives for Nondiscriminatory Wellness Programs in Group Health Plans.”

You will recall that, above, I promised to ask some questions. My first question is: Are these wellness programs really non-discriminatory?

Background: Wellness Plans Defined

The rules clarify and give examples of the two types of plans. Participatory wellness programs incent employees to participate, such as by paying for health club membership or health courses, or by providing discounts on the employee’s health insurance premiums for taking part in workshops or other programs. Health-contingent wellness programs incent employees to achieve defined outcomes, such as cessation of tobacco use or achieving a “healthy range” with respect to various common health metrics such as cholesterol levels, blood pressure, BMI, or waist circumference.

The name of this latter category is particularly revealing, is it not? Health-contingent. Employees are being judged by their health, and for anyone found wanting, the penalty is paying up to 30% more for health insurance than their so-called “healthy” co-workers (note: it can be up to 50% more for programs related to tobacco cessation).

However, lest you think that participatory wellness programs are uniformly benign, it’s important to recognize that “participation,” or lack of participation, can be stigmatizing or can impinge upon employees’ privacy in significant ways. For example, someone who feels body shame may elect not to go to the company-sponsored yoga class with her co-workers. It’s not difficult to imagine a scenario in which she becomes the only one in her unit who doesn’t go. This could cause her embarrassment or even cause her to be omitted from job advancement opportunities by virtue of not being seen as “one of the gang.” Another example is a participation wellness program in which, in order to receive the “discount,” an employee must submit to a medical examination in which various health metrics are measured and recorded. This scenario raises significant privacy concerns, despite the fact that such examinations are usually conducted by third party vendors.

Original Non-Discrimination Protection in Group Health Plans

The primary US laws governing employee benefit plans, the Employee Retirement Income Security Act (ERISA) and the Health Insurance Portability and Accountability Act (HIPAA), work together to prohibit discrimination on the basis of eight health factors, namely “health status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability, and disability.”

If you are confused now, gentle reader, it is perfectly understandable. How, you may be asking yourself, can these prohibitions against discrimination based on health factors be reconciled with charging non-adherent employees more for their health insurance, as described above? How, indeed…

Putting the Discrimination Back Into Health Care

The government has carved out an exception to this general prohibition of discrimination to allow employers to treat some employees differently from others on the basis of either (1) participation in “participatory wellness programs,” or (2) the outcomes of “health-contingent wellness programs.” How differently? The form of the permissible discrimination is simple and has already been described above: certain employees can be made to pay more (up to 30% in most cases, starting on January 1, 2014), if they either (1) don’t participate, or (2) have unsatisfactory outcomes, depending on the type of plan.

The regulations – as well as most employers – choose to refer to this as a “reward” for adherent employees rather than as a penalty for non-adherent employees, but please don’t be fooled. This is a penalty, either way you slice it. And, there is no argument about this: this penalty constitutes a clear exception to the ERISA/HIPAA non-discrimination provisions. The rules themselves make it clear when they label this the “wellness program exception to the prohibition on discrimination.” Quote/unquote.

So-Called Non-Discrimination Provisions

Having made it permissible for employers to discriminate on the basis of health, the ACA and the regulations then purport to prevent discrimination via something called the “reasonable alternative” provision. According to a Fact Sheet issued last month by the US Department of Labor, there are several “protections” built into the law, including:

(1)   The requirement that wellness programs are “reasonably designed to promote health or prevent disease”

(2)   The program must offer a “reasonable alternative means of qualifying for the reward.”

Here comes my second question: Is this a case of trying to put the horse back in the barn? Another (less colloquial) way of putting this might be: Are these so-called nondiscrimination provisions enough to prevent discrimination based on health factors?

Penalizing the Less than “Healthy”

A “reasonable alternative” in a health-contingent wellness program means that for “individuals who do not attain or maintain the specific health outcome, compliance with an educational program or an activity may be offered as an alternative to achieve the same reward.” Let’s say a program tests for certain health metrics and “rewards” those who fall within the acceptable range. Employees who then fall outside the range must be given an alternative route to the “reward,” such as (according to the new rules) “meeting with a health coach, taking a health or fitness course, adhering to a health improvement action plan, complying with a walking or exercise program, or complying with a health care provider’s plan of care.”

I see three problems here, right off the bat.

First of all, these incentive structures create a group of second-class citizens within each workplace. That sure sounds like discrimination to me. Offering me a reasonable alternative means that if I have a health condition that makes it impossible or even difficult to meet a program’s standards, I have to work much harder at avoiding a financial penalty (i.e., earning the “reward”). There are two classes of employees: those who are deemed “healthy” and those who are not. And at best, those who find themselves in the second category wind up jumping through more employer-selected hoops than those in the first. At worst, they pay more. Moreover, we know that being required to do extra activities by one’s employer is likely to become common knowledge – thus adding stigma to the indignity of having to either do more or pay more.

Second, what if the employee doesn’t agree with the employer’s ideas of what to do to get healthy? Let’s say – just for the heck of it – that the designated health metric is having a BMI in a certain range. And, let’s say that my BMI falls outside that range and that I am not “able” (or in my case, not willing) to try to manipulate my BMI into the range. My employer is required to offer a “reasonable alternative” of the employer’s choosing, such as sending me to Weight Watchers. Really?! Guess who would be “choosing” to pay up to 30% more for her health benefits in that scenario, rather than participate in a weight cycling program? And, note the privilege inherent in this choice: I can get by financially with paying an extra 30%. Many people cannot afford an extra 30% for health benefits and thus might be in the position of “going along” with an abhorrent health practice in order to receive health benefits.

Third, this is healthism, plain and simple, enshrined in a workplace wellness scheme designed to benefit employers, not employees. Employers get to define health along very narrow lines and then enforce that definition. If we were really interested in promoting health, I think we’d be doing something very, very different than this.

So, here’s another question: if we really wanted to promote health, what kind of system would we design for workplace wellness?

My next post will explore some ideas for what we can do about the hidden discrimination in these so-called non-discriminatory wellness programs. Meanwhile, if you have experienced hardship related to size, weight, or BMI in your employer’s workplace wellness program, please visit ASDAH’s Tumblr page called Sizing Up Workplace Wellness and share your story.

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