By Jane Norman, CQ HealthBeat Associate Editor
March 2, 2012 -- States and the federal government should pass laws giving consumers more legal protections when it comes to popular "workplace wellness" programs that make health insurance more costly for employees who are deemed unhealthy, says a new report by the Georgetown University Health Policy Institute.
Federal workplace wellness regulations first put in place in 2006 were expanded in the health care law (PL 111-148, PL 11-152). The authors of the report were uneasy with the potential of the regulations to punish people who are in poor health or coerce them into inappropriate fitness and weight-loss programs. Poorly designed programs might discriminate and shift higher health costs on to those who can least afford them, they say.
Added consumer protections are especially important because there is not enough evidence to show that workers will take action to improve their health if faced with financial penalties, say authors JoAnn Volk and Sabrina Corlette, whose work was funded by the Robert Wood Johnson Foundation.
Employers scored a win in the health care law when legislators agreed to allow them to vary health insurance premiums depending on how well workers did in meeting health standards.
Current regulations allow companies to apply penalties or rewards of up to 20 percent of the total cost of an employee's health coverage, based on whether the employee can achieve a specific goal—for example, a certain BMI, or body mass index, a formula based on height and weight.
Under the new health care law, beginning in 2014 the penalty or reward can rise to as much as 30 percent. The secretaries of Health and Human Services, Labor and Treasury are authorized to increase it to 50 percent. Those with "medical conditions" can be exempt, but they have to provide verification of their condition.
Volk and Corlette note that the rewards can take the form of premium discounts, lower deductibles or waivers of cost-sharing. The penalties could be higher premiums, higher deductibles and higher cost-sharing.
Sometimes it can go awry and in places where you wouldn't expect. One example in the report is of a workplace wellness program at an unnamed physician-owned health care system in Wisconsin where workers have to pay higher premiums if they can't meet goals or refuse to take part.
One woman was unable to meet the BMI standard and her family's premiums increased from $175 a month to $320 a month, even though she had Type 1 diabetes and was breast feeding. Her employer reduced her weight-loss goal but her doctor advised she shouldn't try to lose weight. The employer refused to exempt her and required that she work out with a trainer at the company gym for 130 minutes a week at her own cost, the report said.
Yet the researchers say that studies on whether this kind of approach works are inconclusive. Some limited studies show that some financial incentives help people meet their goals, they say. But none involved the use of such incentives in connection with health insurance.
In addition, penalties may not be effective with people with the worst health—including women, low-income people and minorities—because they often have high job stress, long working hours and multiple jobs, all of which combine to make it difficult for them to go to a gym or eat healthy foods, say Volk and Corlette.
They're also worried about workplace programs that demand sensitive personal information from people, or may violate anti-discrimination laws. For example, they say that the Equal Employment and Opportunity Commission is looking at how far employers with workplace wellness programs can go without violating the Americans with Disabilities Act, which bars discrimination against people with disabilities.
Volk and Corlette say that the departments of Labor, Health and Human Services and Treasury have indicated they are considering additional consumer protections. And states could move as well. The federal government could, for example, take a look at whether it's a good idea to increase the percentage of how much workers can be penalized for not meeting targets, as allowed under the health care law. Federal health privacy rules could be amended to require that when workplace wellness programs are implemented, health insurance covers the services that workers need to meet their goals, like nutrition counseling or disease management for diabetics, the researchers say.
States might want to promote the use of evidence in workplace wellness programs by requiring that programs report on the amount, timing and duration of any incentives, they also say. Some states already have taken action to further protect consumers. Colorado, for example, requires wellness programs to be accredited by a nationally recognized nonprofit.