Vitality And The Legal Environment Of Wellness
Vitality and the LegalEnvironment of WellnessA TECHNICAL BRIEFThis document is made for both internal and external use.
TABLE OF CONTENTSINTRODUCTION .1THE LAWS AT PLAY.2THE AFFORDABLE CARE ACT AND WELLNESS PROGRAMS.3Requirements for Incentives in Health-contingent Wellness Programs.4What Type of Program Is Vitality?.4Vitality Rewards.5Vitality and Reasonable Alternative Standards (RAS).6How the Vitality Contribution Manager Works .8Vitality Status.9HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA).10How Vitality Complies.10FREQUENTLY ASKED QUESTIONS ABOUT THE NEW LEGAL ENVIRONMENT AND VITALITY.11OTHER RELEVANT LEGISLATION.14Age Discrimination in Employment Act (ADEA).14Americans with Disabilities Act (ADA).14Consolidated Omnibus Budget Reconciliation Act (COBRA).14Employee Retirement Income Security Act (ERISA).15Genetic Information Nondiscrimination Act (GINA).15GLOSSARY OF TERMS.16APPENDICES .18
INTRODUCTIONIn 2013, important federal legislation was passed that affects all group healthplans offering wellness programs. Final rulings on the use of incentives in wellnessprograms and the protection of an individual’s health information are now codifiedand statutory. How will your wellness benefits be affected?On May 29, 2013, the Departments of Labor (DOL),Treasury (DOT) and Health and Human Services (DHHS)issued final regulations that reflect changes made by thePatient Protection and Affordable Care Act (or AffordableCare Act or ACA) to wellness programs subject to theHealth Insurance Portability and Accountability Act of 1996(HIPAA) nondiscrimination rules.1While the regulations retain the same general principlesand framework as prior guidance, the departmentsamended some of the concepts first introduced in theproposed regulations. Specifically, they subtly reworkedthe definition and analysis for the various types ofnondiscriminatory wellness programs. They also increasedthe maximum reward available to wellness programparticipants from 20 to 30 percent of the total cost ofcoverage, and up to 50 percent of the cost of coverage forprograms with a tobacco-cessation component.Though certain provisions of the ACA have received amoratorium on enforcement, the regulations for wellnessprograms are effective for all group health plans with planyears beginning on or after January 1, 2014.Obviously, both rulings impact the design of existing orconsidered wellness programs, incentive structure(s) andthe manner in which wellness programs protect individualhealth information privacy and security.As important, in January 2013 DHHS issued the finalruling on privacy and security protections for individualhealth information that were originally establishedunder HIPAA.2 Previously, the HIPAA Privacy and SecurityRules focused on healthcare providers, health plans andother entities that process health insurance claims. Thechanges expanded many of the requirements to theseentities’ business associates, such as contractors andsubcontractors, that receive Protected Health Information(PHI). The ruling strengthens these protections and alsoimplements changes to the HIPAA rules under a number ofauthorities, including the Health Information Technologyfor Economic and Clinical Health Act (HITECH) and theGenetic Information Nondiscrimination Act of 2008 (GINA).To examine these issues further, Vitality has created thisbrief to give employers a clearer understanding of federalwellness regulations and what it means to stay compliant.Legal Disclaimer: The Vitality Group does not provide legal advice, both in general and in this document explicitly.This document provides context and references to assist administrators and legal teams in reviewing the legal implications of the Vitality program.We strongly urge that you consult your own legal advisor with any concerns you may have.1
THE LAWS AT PLAYTHE LAWS AT PLAYThis table outlines the basics of the federal regulations that affect wellness programs as wellas serves as a resource that details how The Vitality Group interprets these regulations and,in our opinion, provides a program that can make employers seamlessly stay in compliance.CONCERNS THE LAW PRESENTSWellness programs must comply with the ACA’sfive basic requirements:ACAProgram Structure1) Opportunity to qualify2) Size of reward3) Reasonable design4) Reasonable alternativeHOW VITALITY MAKES IT EASY TO COMPLYThe Vitality program has been enhanced to satisfy these requirements in a streamlined manner. As the standardprogram is meant to be a 12-month period, all awards that are part of, or result from, the program can beearned once per year. These rewards, which will be explained in more detail, can be easily accounted for by theemployer to ensure appropriate size. Claims analyses year over year have proven that the program not onlyreasonably promotes health and wellness, but also favorably impacts healthcare costs. Vitality’s ability to makethe Reasonable Alternative Standard (RAS) and notification requirements compliant and easy on our clients isexplained in further detail below.5) NotificationAny health-contingent reward must not exceed30% (or 50% if tobacco is included) of totalhealthcare coverage costs.Vitality has analyzed all Vitality Rewards to ensure our clients are fully informed about the rewards offeredthrough the program and, therefore, the limit on the rewards that the client may offer separately from theprogram.Reasonable AlternativeStandardsTo be compliant with the new regulations for everyhealth-contingent outcome that has a rewardattached, a Reasonable Alternative Standard mustbe provided as well as (if necessary) a full medicalwaiver.For every health-contingent outcome, Vitality’s member journey builds in reasonable alternatives that satisfy theregulation as well as continue to promote improvement in the member’s health and wellness. In addition, for allhealth-contingent standards available on Vitality, Vitality can fully administer medical waivers and provide VitalityPointsTM as needed without the member ever having to report or notify their employer.ACA CommunicationFor all rewards attached to a health-contingentstandard that are communicated to a member,the member must also be made aware of theReasonable Alternative Standard or medical waiveroption in the same communication.Throughout the Vitality program interface and on all applicable communications templates, standard languagetaken from the regulations is provided to make compliance easy.As our clients’ wellness company, The VitalityGroup will hold, store and maintain extensiveamounts of PHI. Clients and members must besure it is safe.Vitality stores and maintains all the data in a completely secure and HITECH-compliant environment. Our COOfunctions as our Security Officer and ensures data safety. As laws, rules and industry best practices change, Vitalityimproves in line with — or in advance of — these marketplace changes.To participate in a wellness program, membersmust provide extensive information about theirhealth, habits and even results. HIPPAA requiresstrict privacy protections for this type of individualhealth information.Vitality’s HIPAA Compliance Committee works to ensure we are completely compliant with the law and continuesto take a conservative approach to ensure compliance and comfort with both our clients and members. Moreimportantly, Vitality works to be completely transparent to our members regarding what information is beingcollected, who it is being shared with and why. This can all be found in our Terms and Conditions and PrivacyStatement, which must be viewed and agreed upon prior to use of the program.A number of additional regulations must be takeninto account when designing a wellness program.Vitality has worked hard to ensure its program is not only legally compliant in and of itself, but also makescompliance with all laws easy for clients to achieve. Our reports are designed to never share more informationthan necessary with an employer and avoid all implications of both the ADA and ADEA. In addition, our medicalwaivers adhere to all requirements of the ADA. Moreover, as we are a stand-alone wellness company, neitherERISA nor GINA applies, yet we still utilize these laws as guidelines throughout our program.ACASize of the RewardACAHIPAAData SecurityHIPAAMember PrivacyThe Other Laws:ADA, ADEA, GINA and ERISA2
THE AFFORDABLE CARE ACT (ACA) AND WELLNESS PROGRAMSThe ACA clearly endorses the value of appropriatelydesigned workplace wellness programs as having theWellness Programs in Group Health Plans was to clarifythe sustained confusion regarding the scope of HIPAAand originally published ACA rules governing wellnessto a health factor in order to obtain a reward or avoida penalty. However, these do not require an individualdue to a health factor are given a reasonable opportunityto qualify for the reward or avoid the penalty.the Vitality Mall, subsidies or Vitality SquaresTM,Program. To help make it easy for our clients to becompliant, we have designed Vitality to meet themost stringent requirements of the new law.A subcategory ofHIPAA.3Outcome-based Wellness Programs: The secondhealth outcome in order to obtain a reward or avoid abased vs. outcome-based programs.4individuals who may be unable to achieve or maintain aThese are programs thatfor obtaining a reward that are based on an individualreasonable opportunity to qualify for the reward or avoidthe penalty.biometric screening but does not base any of the rewardWellness Program is provided to all similarly situatedstandards.3
REQUIREMENTS FOR INCENTIVES INNONDISCRIMINATORY HEALTH-CONTINGENTWELLNESS PROGRAMS5.Standard (RAS): The plan must disclose in all materialsdescribing the terms of the program the availability ofor a full outcome-based program, or wish to target singleprograms originally mandated by HIPAA but increase thein a designated program:1. Frequency of opportunity to qualify: The programopportunity to qualify for the reward at least once peryear.2. Size of reward:individual cannot exceed 30 percent of the totalcost of employee coverage under the plan (includingWHAT TYPE OF PROGRAM IS VITALITY?Vitality incorporates elements of all threetypes in one comprehensive program. Theprogram was designed to be inclusive oflevels. As members use the program, theycan earn Vitality Points and increase theirVITALITY OFFERS A RANGE OFWELLNESS STRATEGIESthose customers who choose the VitalityMall, each point earned also earns a VitalityBuck to redeem on the Mall. These rewards50 percent of that cost if the program includes a2. Single risk factor approach Target individual areas of risk Generally, smoking or obesity10,000 steps per day) and/or outcomes(being in healthy range for a given healththe total cost of coverage for the individual plus eligibledependents (such as family coverage or employee-plusone coverage).1. Know your numbers biometric screens3. Reasonable design: The program must be reasonablydesigned to promote health and prevent disease.4.Standard (RAS): The reward must be available toall similarly situated individuals. The program must including the Vitality Mall, subsidies orVitality Squares, makes Vitality a Healthclients to be compliant, we have designed Vitality to meetthe most stringent requirements of the new law.4 Deal with a full range of health risks that can generate high costThe following page provides a snapshot of Vitality Rewards
VITALITY REWARDDESCRIPTION/EXPLANATIONVitality HealthyFoodTMThe Vitality HealthyFood program provides all registered Vitality members a 5% crediton Great for YouTM foods purchased at Walmart. Those who complete a VitalityCheck receive a 10% credit.Vitality PartnerHealth Club SubsidyA Partner Health Club subsidy is a varied amount based on Vitality Status and requiresthat Vitality membersn Be an active member of a partner health clubn Work out 12 times per quarterA member can only receive a subsidy or a rebate, not both.Vitality members can receive an annual reimbursement up to 200 for a non-partnerhealth club membership.Health Club RebateTo be eligible for this reward, Vitality members mustn Complete their Vitality Health Review (VHR)n Be an active member of the non-partner health club for four monthsWHAT TYPE OF REWARD IS IT?WHO FUNDS THE REWARD?ParticipatoryMerely requires a member to participate in theprogram, and does not require any health-contingentresult.VitalityHealth-contingent (Outcome-based)Because the size of the subsidy is based on VitalityStatus, Vitality considers this reward healthcontingent.ClientParticipatoryAny member can receive this benefit withouthaving to perform any actual activity or achieve anoutcome.ClientMembers may only receive a subsidy or a rebate, not both.Smoking-Cessation RebateVitality members can receive reimbursement up to 200 once per lifetime for asmoking-cessation program.To receive this reward, Vitality members mustBe an active member of Vitalityn Complete their VHRnWeight Loss RebateVitality members who have a BMI higher than 30 can receive reimbursement up to 200 once per lifetime for an in-person weight loss program.To receive this reward, Vitality members mustBe an active member of Vitalityn Complete their VHRnThe Vitality Mall is an online mall in which our members can redeem their VitalityBucks for various items, such as gift cards, movie tickets, merchandise, etc.Vitality MallMembers can purchase up to six (6) hotel night vouchers at a discounted rate.The discounted rate is based on Vitality Status, decreasing in cost as membersengage in the programn The base discount is provided for Bronze members (those who complete the VHR)n The remainder of Vitality Status levels can be attained via points achieved forhaving outcomes within rangen The cost and discount of the voucher varies based on hotel brand and type ofvouchernVitality Hotel DiscountVitality SquaresVitality Squares is an engagement tool for all Vitality members to utilize once permonth to win prizes based on their Vitality Status.ParticipatoryThis reward is not dependent on the memberquitting smoking. Any member can receive thisbenefit without having to perform any actualactivity or achieve any outcome.ClientParticipatoryBecause any member with a BMI over 30 canreceive this benefit without having to perform anyactual activity or achieve an outcome (i.e., losingweight), the reward is not health-contingent.ClientHealth-contingent (Outcome-based)Because a member’s Bucks are a combinedincentive based on points earned via participatoryand health-contingent requirements, Vitalityconsiders all Bucks redeemed (and therefore theVitality Mall) as a health-contingent incentive.ClientHealth-contingent (Outcome-based)ClientBecause the size of the discount varies with VitalityStatus, Vitality considers this reward healthcontingent.(pays the difference between theamount member pays and the costof the voucher)Health-contingent (Outcome-based)Because members have an opportunity to win largerprizes as they improve in status, Vitality Squares fallswithin the health-contingent category.Vitality5
VITALITY AND REASONABLE ALTERNATIVESTANDARDS (RAS)Both types of Health-contingent Wellness Programsrequire the option of Reasonable Alternative Standards(RAS) to allow disabled or medically exempt individuals toearn a reward.The RAS requirements are similar for activity-only andoutcome-based programs; however, there are also a fewkey differences:nnFor Activity-based Wellness Programs, the RAS forobtaining the reward must be provided for anyindividual for whom (for that period) it is eitherunreasonably difficult due to a medical condition tomeet the otherwise applicable standard, or for whomit is medically inadvisable to attempt to satisfy theotherwise applicable standard.For Outcome-based Wellness Programs, an RASmust be provided to all individuals who do not meetthe initial standard to ensure that the program isreasonably designed to improve health and is not asubterfuge for underwriting or reducing benefits basedon health status.Vitality makes the new RAS requirement simple for allclients, with built-in alternatives for each health factor andoutcome.REASONABLE ALTERNATIVE STANDARD REQUIREMENTSFOR BOTH ACTIVITY-ONLY AND OUTCOME-BASED WELLNESS PROGRAMSnThe reward for meeting the alternative standard must be equal to the reward for meeting the original standard.— For example, if it takes a few extra months for a member to complete the alternative standard and the incentive isoffered monthly, the reward must be prorated back to the date the member failed to meet the original standard.— The equal reward value must be provided during the same benefit year.nnIn lieu of providing the alternative standard, the employer has the option to waive the original standard and providethe reward.The alternative standard:— Is not required to be available prior to an individual requesting it— May be provided to the entire class of similar individuals, or may be determined on a case-by-case basis— Must not require the individual to incur additional cost, and must be made readily available— Must include a reasonable time commitment (requiring attendance at a nightly, one-hour class would beunreasonable, for example)— Must meet standards provided by the individual’s personal physician, if applicable— Must fulfill the requirements set forth by the ACA as if the standard were the original standard, subject to specialrules for outcome-based alternatives to outcome-based standardsREASONABLE ALTERNATIVE STANDARD —ADDITIONAL REQUIREMENTS BY PROGRAM CATEGORYActivity-onlyHealth-contingentVerification (i.e., physician’s note) may berequested by employer prior to providingan alternative standard.Outcome-basedHealth-contingentAny indivi
FREQUENTLY ASKED QUESTIONS ABOUT THE NEW LEGAL ENVIRONMENT AND VITALITY A. A. ADEA) (COBRA) (ERISA ) (GINA) Legal Disclaimer: The Vitality Group does not provide legal advice, both in general and in this document explicitly. .
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Earn Savings with Vitality HealthyFood* Request your Vitality HealthyFood Shopping Card and earn 5% savings on Great For You healthier food purchases at Walmart. Increase your savings to 10% when you complete a Vitality Check and your results are received and verified. *Vitality HealthyFood is not available to all HumanaVitality members.
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