Barbara Zabawa, MPH, JD started the Center for Health and Wellness Law after she recognized a need for legal services that shared a mission with providers to improve patient outcomes and population health to encourage wellness, protect patient interests, in choice of provider and treatment options, provide holistic care, and information access. Attorney Zabawa has twenty plus years of expertise in the healthcare field, first receiving her Master’s in Public Health from the University of Michigan before attending law school at the University of Wisconsin at Madison, where she graduated with honors in 2001. Barbara has clerked in the United States District Court in the western district of Wisconsin, served as a Skadden Fellow representing health care consumers on both the national and local level, and worked for a large health insurance company providing advice on the Affordable Care Act, as well as HIPPA, privacy, and security compliance.
Barbara is the author of the book Rule the Rules on Workplace Wellbeing Programs. She is a frequent speaker and writer, both nationally and regionally on workplace wellness program compliance, the Affordable Care Act, fraud and abuse issues, and HIPPA compliance.
Mari Ryan: Hi, I'm Mari Ryan, I'm the CEO and founder of Advancing Wellness. It's my pleasure to welcome you today to this expert interview, where we explore topics related to workplace wellbeing. My guest today is attorney Barbara Zabawa.Barbara Zabawa: Thank you, Mari, I’m delighted to be here.
Mari Ryan: Great, let’s jump right in and explore a little bit about these topics related to “employers’ obligations” is probably the best way to describe it, with regard to developing wellness programs and the legal aspects of those. What are the top three areas that an employer should consider from a legal perspective when designing a wellness program?
Barbara Zabawa: From a legal perspective, I think the top three areas are, one, is it a wellness program tied to a group health plan because that will determine what laws you need to comply with; two, are you asking employees or their family members to divulge health information, such as through a health risk assessment or biometric screening? If you are, then that implicates some laws, too, regardless of whether your group health plan model’s program. I think the third areas that employers need to pay attention to from a legal perspective is are the health care programs that they are designing and implementing taking into consideration the different abilities and different characteristics of their employee population? From a legal perspective you want to make sure that all employees, regardless of their different traits, their different abilities, can participate, because especially if you are offering incentives to participate, everyone should have a chance to participate. That is being driven by the Americans with Disabilities Act and their reasonable accommodation, equal opportunity to participate, regardless of ability. Those are the three areas I think employers need to pay attention to the most.
Mari Ryan: There’s only a couple of pieces of major legislation that drive the concern – there’s only three or four, is that right?
Barbara Zabawa: The first two areas that I mentioned, whether your group health plan, or whether you are asking health information questions – the major laws that are being implicated there are HIPPA, Health Insurance Portability and Accountability Act, non-discrimination rules, and there are some wellness rules within HIPPA that allow employers to – actually, it’s health plans – to offer incentives and basically to discriminate based on health status, as long as certain conditions are met. The second area of asking employees or family members health information questions; the primary laws behind that issue are the Americans with Disabilities Act, and the Genetic Information Non-Discrimination Act (GINA). Now, there are other laws that are implicated when you are asking employees health information questions, for example. If it’s a group health plan, you may be subject to HIPPA privacy. There are other plans, federal and local-level laws that protect privacy, but the major ones are those three federal laws: HIPPA, ADA, GINA.
Mari Ryan: Excellent, that is a nice, clear description of what those concerns are. We hear a lot these days about wellness incentives. With regard to incentives, there are some recent cases that are impacting this area. What would you describe as the key aspects of those cases that impact how employers are designing and implementing incentive programs?
Barbara Zabawa: I think the primary case that you are alluding to is the AARP versus EEOC case. That case, which was decided about a year ago, impacts an employer’s ability to tie a financial incentive to ask employees or family members to answer health information questions, or provide health information and such through biometric screening. So, many employers in their wellness programing design ask employees to complete an HRA or biometric screening, and in return, regardless of the results, you’ll get a dollar amount, maybe off of your premium, maybe it will be in the form of a gift card, or some other type of incentive, financial or non-financial, but it can be calculated in financial terms.
Barbara Zabawa I think the primary case that you are alluding to is the AARP versus EEOC case, which was decided about a year ago last August. In that case, that case implicates employers who have wellness programs that tie incentives, whether they are financial or non-financial incentives, to employees or family members providing health information, such as through a health risk assessment or biometric screening. If you are an employer who ties an incentive to having employees divulge their health information, and many employers do this, then that case will have implications for your wellness program. If you are reducing a premium, or you are giving out gift cards in exchange for an employee filling out a health risk assessment or participating in a biometric screen, then the AARP case will have an impact on your wellness program regardless of your group health plan status.
How it will impact you is as of January 1, 2019 – just a few months away, hard to believe – there will be no guidance as to what incentive amount you can tie to an employee providing their health information as part of the wellness program. Right now, we have some guidance; it’s effective through the end of the year. We know that it’s okay to incentivize employees up to thirty percent of the total cost of the self-only coverage, and there are different ways of calculating that, but that thirty percent maximum is going away as of January 1, so we won’t know what incentive amount will meet the ADA and GINA requirements of having to be voluntary; the wellness program has to be voluntary, including any divulging of health information as part of your wellness program. It has to be a voluntary act by the employee. When you start dangling money in front of employees, or other valuable incentives, you have to ask whatever is dangling in front of them, is that making them feel like they have to give you their health information, or is your employee population such that they would still consider it a voluntary act even if they get an incentive for providing it.
That is going to be the core question for employers starting in January going forward with regard to their wellness program.
Mari Ryan: How are you seeing, and what is in your experience, what employers are doing and how are they responding to this. Are they going to take a wait-and-see attitude, and see if new regulations come, or just abandoning incentives all together and hoping that employees are intrinsically motivated to now just take part in programs? What are you seeing?
Barbara Zabawa: What I’m seeing from the employers I talk to is they are kind of in a panic, they are not quite sure what to do – they want to know what everyone else is doing. They are hoping that someone will take the lead and say this is how we are going to respond. Some of the ideas that I heard -- whether they are being adopted is another question -- with regard to incentives and structuring your wellness program through this new legal world that we will enter in January, is if you have a wellness program that includes a health risk assessment, or a biometric screening, and you are tying in an incentive to completion of those, to offer alternatives to completion of those, and let people know, for example, and they are noticed that you don’t want to complete your health risk assessment, or a biometric screen because you are concerned about privacy or whatever reason, talk to us and we can offer an alternative to earn that same incentive. Then you are making it more of a choice for employees, and ultimately that is what voluntary means, they have a choice. If you can offer an alternative to earn the same incentive as they would if they completed the HRA, that is one of the ideas that is being talked about in the industry as a way around the uncertainty that will start in January.
Mari Ryan: We’ve always worked with our clients very hard on communicating the elements around privacy, and knowing that it is, I think, for everybody, it’s a concern, especially today where there are so many data breaches and different kinds of things that we don’t know who has access to our information at some point. It’s an important point for employers to be concerned about from the perspective of making sure what information they are collecting, how they are collecting that information, and how that data is managed once they got it, is looked after.
Barbara Zabawa: Yes, it’s critical, and there are a lot of employees – in fact, I’ve read studies that one of the reasons why many employees refuse to take HRA or biometric screen is because of a privacy concern. It’s a real concern, it has to be acknowledged and if you are going to be collecting that sensitive data, you have to make sure you are doing it in a legal way, and there are a number of laws that impact that collection.
Mari Ryan: Great, fabulous job of summarizing the concerns and the issues that employers need to be paying attention to. I know, I’m having these conversations with all of my clients, especially for some who have unions in their organizations where many of these incentive programs as part of the health plan are negotiated with the unions. So, certainly an important topic for everyone to be thinking about.
Barbara, if our audience wants to learn a little bit more about your work and your organization, where can they find that information?
Barbara Zabawa: They can go to my firm’s website, wellnesslaw.com, and they can contact me via email, firstname.lastname@example.org. There is a forms submission form on my website that they can fill out if they would rather do that instead of emailing me directly, but either way would be a great way to reach me.
Mari Ryan: Excellent, thank you so much for taking the time. I appreciate your clarity with which you’ve described the current situation, and then the issues that employers need to be concerned about. Barbara, thanks so much and have fun chasing Luna around.
Barbara Zabawa: Will do – thank you, Mari.
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