Workplace wellness programs: How regulatory flexibility may undermine success

As part of the Affordable Care Act, Congress revised the law related to workplace wellness programs. There is a growing interest in these programs’ ability to prevent and control chronic disease and health care costs. Health-contingent wellness programs require an individual to satisfy a health-related standard in order to obtain a reward. One of the five legal requirements for them is that they must be “reasonably designed to promote health or prevent disease.” The government instituted this standard to provide issuers with flexibility and encourage innovation; however, these goals might undermine the potential the law has at increasing use of effective programs, in terms of both realizing health gains and financial saving. Further, ERISA provides a private right of action which could result in employee-initiated lawsuits related to wellness provisions. Employer reliance on a best practice model would be protective if their plan is subject to litigation.

            The government encourages employers to consider best practices recommended by the Community Preventive Service Task Force. The presentation will recommend that the government should reassess its role in this area as follows. The government should strengthen the Task Force to foster strong national recommendations for workplace programs. The government should establish an innovation time period to build the evidence base for both health efficacy and cost savings and then ultimately require, rather than encourage, the use of evidence-based practices recommended by the Task Force. The government can grandfather in existing programs to minimize disruption and opposition. Finally, employer evaluation will be key.