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  • ACOEM Comments on Proposed Nondiscriminatory Wellness Programs Rule

    The Honorable Kathleen Sebelius
    Secretary, U.S. Department of Health and Human Services
    200 Independence Ave., SW
    Washington, DC 20201

    RE: CMS–9979–P/RIN 0938–AR48

    Dear Madam Secretary:

    On behalf of the American College of Occupational and Environmental Medicine (ACOEM), we appreciate this opportunity to provide comments on the proposed rule, “Incentives for Nondiscriminatory Wellness Programs in Group Health Plans” promulgated by the Departments of Labor, the Department of Health and Human Services, and the Department of Treasury.

    Occupational and environmental medicine (OEM) is positioned at the crossroads of the employer-employee-health system, making it a logical advocate for health system reform through workplace initiatives. Among all medical specialties, OEM physicians have unique training, expertise and perspective to understand the link between health and productivity as well as how to help injured, ill and aging workers remain productive and at work. In addition, the OEM community has a high concentration of physicians trained in preventive medicine, epidemiology and public health. Their focus on population-based health issues as well as individual health is critically important to health system reform. Thus, OEM physicians have a distinct and logical role to play in advocating for prevention-oriented programs that protect and assure the health of employed and productive citizens.

    As the medical society devoted to promoting the health of workers, we believe strongly in the efficacy of evidence-based wellness and prevention programs in the workplace. The evidence clearly demonstrates that these programs can be effective for improving health and productivity if well designed and implemented.

    Why an Emphasis on Workplace Health is Critical to Health System Reform
    There is increasing recognition in the United States that the physical and mental health of the workforce is inextricably linked to the economic health of the workplace. Improved employee health equals improved employee performance, engagement and productivity. Unfortunately, the American workforce is not as healthy, nor as productive, as it could or should be. The overall health of Americans is on the decline, with studies showing a dramatic rise in recent years of health risks like obesity and chronic diseases like diabetes, across all age groups.

    At the same time, the aging of the baby boomers — the so called “silver tsunami” — is changing the profile of the workplace and putting new pressure on America’s health care system. In the face of these trends, the United States must find a way to bolster and improve the health and productivity of our national workforce.

    Workplace wellness programs are emerging as a key building block in this new paradigm, helping promote a true culture of health in the workplace. These programs are based on prevention and integrated health management and are aimed at decreasing the burden of illness overall by focusing health management strategies “upstream” from the onset of chronic disease. Rather than simply treating disease, wellness programs seek to keep healthy people healthy and bring people at high risk back from the brink of illness by managing health risk factors and promoting proactive health maintenance strategies.

    Workplace wellness programs do not have to be based solely on outcomes to succeed. In fact, they are more likely to be successful if they encourage greater employee participation and buy-in, providing appropriate incentives that lead to active engagement in the programs which have been proven to yield better outcomes.

    It is not enough to simply incentivize employees, however. If employers create programs to help employees improve their health through behavior and lifestyle changes, the company must also provide a culture of health, strong communication and other resources — ranging from programming to facilities — in order to help employees achieve their goals. Demonstrable support from employers helps to create the supportive environment that is needed for workplace wellness programs to take hold and thrive. It is very important that programs be structured in a way that recognizes individuals have different preferences, learning styles and access to technology.

    ACOEM has collaborated with the Health Enhancement Research Organization (HERO), the American Cancer Society and American Cancer Action Network, the American Diabetes Association and the American Heart Association to bring together both the views and concerns of employees and employees as represented by our member organizations. Through a collegial process, we published a joint consensus statement, Guidance for a Reasonably Designed, Employer-Sponsored Wellness Program Using Outcomes-Based Incentive, for the purpose of informing employers either considering or embarked on providing “health-centric” wellness programs what should be considered in their plan.

    We are pleased that many of the concepts embodied in the consensus statement are reflected in the proposed rule. Following are comments in response to several of the questions posed in the preamble to the proposed rule.

    The Departments invite comments on apportionment of rewards in health-contingent wellness programs (which may involve tobacco use and/or other health factors) — for example, should the reward be prorated if only one family member fails to qualify for it.
    ACOEM recommends that if dependents are eligible to participate in a health-contingent employer sponsored wellness program and a financial incentive is tied to achieving a health standard, the total reward be apportioned to the employee and each eligible dependent consistent with the additional premium to cover that dependent relative to the premium for employee-only coverage.

    Further, if dependents are permitted to participate in the wellness program, we recommend it be noted that they should have full access to the program similar to the employee and be offered an alternative standard based on the same criteria used to provide the alternative standard to employees.

    The Departments invite comments on the proposed approach in general and other ideas for coordinating the implementation of the tobacco rating factor under PHS Act section 2701 with the nondiscrimination and wellness program provisions.
    ACOEM, along with Health Enhancement Research Organization (HERO), American Cancer, Heart and Diabetes, in our joint consensus statement on outcomes based incentives, recommended that employers avoid incentive designs that put too much financial emphasis on one factor vs. a more balanced approach of spreading the incentive over several health factors. Our concern related to up to 50% of total premium cost allowable for tobacco cessation vs. 30% available for all other risk factors, is that this allocation may give the signal to employees that tobacco cessation is of greater importance than other factors such as body mass index (BMI, glucose, blood pressure and cholesterol).

    The Departments seek comment on whether any additional rules or clarifications are needed with respect to the process for determining a reasonable alternative standard.
    For individuals who have a medical condition that makes it unreasonably difficult to meet the health standard or medically inadvisable to attempt to do so, we recommend that employers defer to the view of the individual’s healthcare provider for setting an alternative standard (or providing a waiver).

    For individuals who do not meet the health standard but do not have a medical condition, we recommend the individual be required to meet the health standard to earn the health-contingent incentive if it is reasonable to do so in the time allotted. For individuals who do not have a medical condition but for whom it would be unreasonably difficult or inadvisable to attempt to meet the health standard within the time allotted, we recommend that a reasonable alternative standard be established by a qualified wellness professional, such as an occupational physician or health coach.

    For individuals for whom it would be unreasonably difficult or inadvisable to attempt to meet the health standard within the time allotted, regardless of whether they have a medical condition, we recommend that achieving a reasonable progress-based target (e.g., losing five percent of baseline weight) be an acceptable alternative standard unless medically inadvisable. This would allow and encourage the individual to achieve the health standard over a longer period of time, consistent with their individual circumstances. A reasonable progress-based target would be set by a wellness professional (e.g., an occupational medicine or preventive medicine physician or other qualified health coach) or the individual’s health care provider, depending on whether the individual has a medical condition as defined above.

    Unless an individual has a medical condition that precludes them from meeting the health standard or attempting to achieve a progress-based target, we do not agree that the individual must be able to achieve the total reward based solely on meeting a participation-based alternative standard. This is an important distinction from a participation-based wellness program, since it requires engagement beyond participation to achieve the reward.

    The Departments solicit comments on whether additional clarifications would be helpful regarding the reasonableness of physician verification.
    We believe physician verification should be allowed in all cases when an individual is asking for an alternative standard, not just when it is “obvious.” Such documentation must be administered consistent with all legal requirements (HIPAA, state requirements) to assure personal health information is adequately protected.

    It is important that the individuals with medical conditions consult with their physician to obtain not only verification but guidelines from their physician concerning the level of progress that would be reasonable considering the individual’s current medical condition.

    Comments are welcome on whether certain standards, including evidence- or practice-based standards, are needed to ensure that wellness programs are reasonably designed to promote health or prevent disease. The Departments also welcome comments on best practices guidance regarding evidence- and practice-based strategies in order to increase the likelihood of wellness program success.
    As outlined in the joint consensus statement, workplace wellness programs will be effective if well designed and implemented. These programs can reduce the burden of illness and the burden of health risks by closing quality gaps in the management of medical conditions as well as investing in prevention and improving health. They have been proven to work in numerous settings — from large corporations to smaller not-for-profits — when integrated into the organizational structure of the workplace. Creating a true “culture of health” is the optimal outcome for employers who implement worksite wellness programs.

    To get there, prioritized investment in evidence-based primary, secondary and tertiary prevention strategies is needed. Preventive strategies that focus either on the individual or the individual’s environment can cost-effectively reduce adverse health conditions, preserve function, or enable employment. Health promotion, health education, health protection/safety engineering, hazard recognition, ergonomics and organizational design, nutritional support, prenatal care, immunizations are all examples of primary prevention strategies because they help people stay healthy and productive. Screening and early detection programs, health coaching, biometric testing and pro-active work disability prevention programs are secondary prevention strategies because they can identify and address problems at an early stage when prompt action can be curative or prevent progression. Disease management, evidence-based quality care management, return to work programs and vocational rehabilitation are tertiary prevention strategies because they can limit the destructive and disruptive impact of serious medical conditions on function in daily life and work, can protect or restore productive lifestyles, and can reduce future costs. All these strategies have important roles in comprehensive workplace wellness programs to preserve the function and employability of individuals.

    A comprehensive wellness program should aim at improving employees’ general health and include a wide range of prevention strategies, ranging from health risk assessments, immunizations and health coaching/mentoring to biometric testing, laboratory tests, and disease/disability management.

    Wellness programs should be integrated into the organizational structure of the workplace in order to succeed. Creating a true “culture of health” is the optimal outcome for employers who implement wellness programs.

    Management and employees must work in partnership for wellness programs to succeed. This means an atmosphere must be created that helps encourage employees’ readiness to make behavior changes aimed at improving health.

    Wellness programs must address the needs of all employees at a given workplace, regardless of gender, age, ethnicity, socioeconomic status, culture, job type or physical or intellectual capacity. Targeted, complimentary programs should be aimed at helping vulnerable employees — those who might be economically challenged, undereducated or underserved.

    Following are additional specific recommendations for integrating worksite wellness into the organizational structure of the workplace:

    • Employers should strive to support, promote and communicate a culture of health and an environment of trust related to employee health.
    • Employers should incorporate evidence based preventive medicine services and health education that relies on existing valid sources focusing on skill development that is consistent with employees’ readiness to make behavior changes.
    • Employers should integrate wellness initiatives with other existing health related programs such as employee assistance programs.
    • Worksite screening should be voluntary and linked with medical care for follow-up on modifiable health risk factors.
    • Employers should continue to evaluate the effectiveness of their programming to tailor both programming and policies for maximum engagement and ongoing health behavior change impact.
    • Wellness programs must address the needs of all employees at a given workplace, regardless of gender, age, ethnicity, socioeconomic status, culture, job type or physical or intellectual capacity.
    • These programs should be integrated and address the whole person — across the physical, emotional, mental, social and other domains of one’s well-being.
    • Programs should be designed to be culturally sensitive and all-inclusive and employers should also consider targeted, complimentary interventions for their more vulnerable employees specifically designed to engage those who are economically challenged, less educated, or underserved.
    • Worksite wellness programs should help working families balance work and family commitments and incorporate policies around child care, elder/dependent care, telecommuting, and flexible work schedules.
    • Wellness programs should encompass multi-modal communication and intervention strategies recognizing individuals have different preferences, learning styles and access to technology.

    The Departments invite comments on this approach, including on ways to ensure that employees will not be subjected to an unreasonable “one-size-fits-all” approach to designing the different means of qualifying for the reward that would fail to take an employee’s circumstances into account to the extent that, as a practical matter, they would make it unreasonably difficult for the employee to access those different means of qualifying.
    ACOEM believes that a worksite wellness program should be tailored to achieve improved health outcomes for individuals. Our guidance to employers is to take into account the needs of their workforce in designing the elements of a program so they are not overly burdensome. The language in the regulations should specifically state this requirement.
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    ACOEM stands ready to work with you as you and your colleagues move forward to implement the wellness provisions in the Affordable Care Act. If you should have any questions or need additional information, please contact Patrick O’Connor, ACOEM’s Director of Government Affairs, at 202/223-6222.

    Sincerely,
    Karl Auerbach, MD, MS, MBA, FACOEM
    President