by Barbara J. Zabawa, JD, MPH
Most of the conversation around workplace wellness compliance has focused on federal law compliance, such as with HIPAA, ACA, ADA, and GINA. But some states have also enacted laws that are important to workplace wellness program compliance. This blog post will highlight two state laws and examine whether more such laws are needed.
New York Insurance Law § 3239 allows insurers, companies, and municipal cooperative health benefits plans in New York to establish “wellness programs” in conjunction with group health insurance. The law defines “wellness programs” as those designed to “promote health and prevent disease that may contain rewards and incentives for participation.” The law requires participation to be available to “similarly situated members of the group and to be voluntary on the part of the member. Id. The similarly situated requirement mirrors the health-contingent provisions under the federal Affordable Care Act wellness incentive law (45 CFR Part 146). The “voluntary” requirement mirrors the “voluntary” requirement under the federal Americans with Disabilities Act (ADA) under 42 USC § 12112(d)(4)(B).
Although the New York law allows the use of rewards and incentives for wellness program participation, it prohibits group health insurance policies or subscriber contracts that must be community-rated to use discounted premiums or rebates or refunds of a premium as the reward. NY ISC § 3239(c)(1).
For those health plans that are not community-rated and that use a discounted premium rate or rebate/refund of premium as the wellness reward, that discount/rebate/refund must be “based on actuarial demonstration that the wellness program can reasonably be expected to result in the overall good health and wellbeing of the group.” NY ISC § 3239(c)(4). This means that the wellness program must be able to prove that the wellness program will actually achieve better health and well-being of the health plan group members. This legal requirement that the wellness program actually achieves better health outcomes is profound and unique among state and even federal wellness laws. Of course, this only applies to New York-based, non-community-rated group health plan wellness programs that use premium discounts/refunds/rebates as the wellness incentive. But, as more employees push back against workplace wellness programs, more states may adopt similar wellness laws.
Massachusetts has a law that applies to Certified Group Purchasing Cooperative Wellness Programs (or entities that contract with such cooperatives). See 211 CMR 115.15. Massachusetts law defines “Group Purchasing Cooperative” as either: 1) a nonprofit; or 2) an association of entities organized for the purpose of advancing the occupational, professional, trade, or industry interests of Association members, and who also negotiate health plans for their respective members. 211 CMR 115.
The Massachusetts law has the following legal requirements for Group Purchasing Cooperative wellness programs:
- The wellness program must be conducted pursuant to a written plan under the supervision of a properly trained health practitioner;
- The wellness program must be staffed by appropriately trained and qualified personnel;
- The wellness program must include a documented process to:
- Conduct health risk assessments (HRAs) at least annually of all insureds participating in the wellness program according to a tool that has been accredited by the National Committee on Quality Assurance (NCQA);
- Develop reasonable health maintenance or improvement goals with each wellness program participant based on factors derived from the HRA;
- Record each participant’s activities designed to address wellness goals and, as appropriate, provide workplace or other geographically convenient wellness monitoring locations;
- Monitor participants’ progress toward meeting wellness goals and assign trained and qualified lifestyle coaches to assist participants to keep on track with goals and develop ways to encourage continued activities to achieve desired goals including through financial or other incentives, periodic reminders and/or motivational interviewing;
- Measure, at least annually, the wellness program’s effectiveness at developing goals that improve participants’ health status, promoting adherence to planned goals and changing overall trends in health status, and redesigning the program to address new or persistent health issues;
- Maintain the confidentiality of each participant’s HRA and progress toward reaching the participant’s individualized health goals; and
- Maintain wellness programs consistent with state and federal statutes, regulations and guidelines, including required accommodations made for those with physical or other disabilities that could prevent participation in standard programs.
- The wellness program must be designed to address the prevention and management of heart disease, stroke, diabetes, asthma, cancer and the following risk factors:
- High blood pressure
- Substance abuse and prescription non-compliance
- Adult and child obesity
- Stress and work-life balance
- Unhealthy diets (high sugar, high sodium, high saturated fat and low fiber)
- Elevated cholesterol
- Elevated blood glucose
- Workplace policies/environments that may impact individual health.
- The criteria for the wellness program shall be, to the maximum extent feasible, scientifically derived and evidence-based, and developed with the input of appropriate medical professionals.
- The group purchasing cooperative must coordinate with an insurance carrier’s wellness program data processing systems to enable the group purchasing cooperative to effectively provide guidance to eligible association members, eligible small businesses, eligible employees and eligible dependents regarding targeted wellness programs.
See 211 CMR 115.
The statute defines “eligible small business” to include a sole proprietorship, firm, corporation, partnership, or association actively engaged in a business which, on at least 50% of its working days during the preceding year, employed from among one to not more than 50 Eligible Employees, the majority of whom worked in Massachusetts. See 211 CMR 115.03.
The Massachusetts law, though limited to whom it applies, is quite prescriptive when it comes to what a workplace wellness program should look like. The Massachusetts law goes way beyond federal Affordable Care Act wellness incentive rules, which offer more flexibility to employers as to what constitutes a “reasonably designed” wellness program. Even more unique is the requirement that the program be evidence-based and that the HRA must be accredited by the NCQA.
Should More States Adopt Workplace Wellness Laws like New York and Massachusetts?
It is interesting that both New York and Massachusetts require evidence that the wellness program is achieving results. Massachusetts’ law goes even further, requiring qualified personnel in the design and delivery of the wellness program, and NCQA accreditation for the HRA tool. Because current federal laws do not dictate these standards for wellness programs, it may be up to each state to determine whether they should follow Massachusetts’ lead in requiring wellness programming to meet certain standards.
The debate around implementing standards in wellness is an emerging one. On the one hand, standards mean more barriers to entry; it will be more difficult for everyone to meet certain standards in order to practice wellness. Right now, wellness is the wild west with very little, if any, oversight. On the other hand, standards can help ensure that wellness services are provided competently and safely. Massachusetts even requires that HRA data is kept confidential, which is a typical concern expressed by employees who have sued workplace wellness programs. In other words, adopting objective, evidence-based standards in wellness can reduce legal risk; employers who adopt wellness programs that meet certain standards set by a credible, objective source have a more compelling defense if something should go wrong with the wellness program. Moreover, standards could incorporate results-oriented measures and activities, giving wellness program participants and sponsors assurance that their money and time is well spent.
Although Massachusetts is unique in requiring NCQA accreditation for HRAs, forty-two wellness vendors have achieved NCQA accreditation or certification for a wellness program component, or the whole program. What NCQA does not do, however, is accredit or certify the wellness practitioner. That is also a good idea and would assist states that want to adopt objective standards for wellness services. There are some good candidates, with National Wellness Institute’s Certified Wellness Professional being one standard bearer for more comprehensive wellness service offerings.
As the debate on whether wellness needs standards continues, it is important to understand that standards like those set by New York and Massachusetts can give everyone involved in wellness more confidence that it can achieve positive results.
If you would like workplace wellness program compliance assistance, please contact Wellness Law, LLC, which specializes in wellness compliance services.