Posts Tagged ‘EEOC’

EEOC Issues Proposed Rule on Employer Wellness Programs Under Genetic Nondiscrimination La2

November 2nd, 2015

The EEOC has (at last) issued proposed regulations on employer wellness regulations under the Genetic Information Nondiscrimination Act (GINA). The EEOC issued proposed regulations in April for employer wellness programs under the Americans with Disabilities Act.

In this proposal, the EEOC requests comments on seven specific issues. They are:

  1. “Whether employers that offer inducements to encourage the spouses of employees to disclose information about current or past health information must also offer similar inducements to persons who choose not to disclose such information, but who instead provide certification from a medical professional stating that the spouse is under the care of a physician and that any medical risks identified by that physician are under active treatment.

  2. Should the proposed authorization requirement apply only to wellness programs that offer more than de minimis rewards or penalties to employees whose spouses provide information about current or past health status as part of a (sic) HRA (ED: health risk assessment)? If so, how should the Commission define “de minimis”?

  3. Which best practices or procedural safeguards ensure that employer-sponsored wellness programs are designed to promote health or prevent disease and do not operate to shift costs to employees with spouses who have health impairments or stigmatized conditions?

  4. Given that, in contrast to the status quo when the ADA (Americans with Disabilities Act) was enacted, most employers today store personnel information electronically, and in light of increasingly frequent breaches to electronically stored employment records, should the rule include more specific guidance to employers regarding how to implement the requirements of 29 CFR 1635.9(a) for electronically stored records? If so, what procedures are needed to achieve GINA’s goal of ensuring the confidentiality of genetic information with respect to electronic records stored by employers?

  5. In addition to any suggestions offered in response to the previous question, are there best practices or procedural safeguards to ensure that information about spouses’ current health status is protected from disclosure?

  6. Given concerns about

    privacy

    of genetic information, should the regulation restrict the collection of any genetic information by a workplace wellness program to only the minimum necessary to directly support the specific wellness activities, interventions and advice provided through the

    program-namely

    information collected through the program’s HRA (health risk assessment) and biometric screening? Should programs be prohibited from accessing genetic information from other sources, such as patient claims data and medical records data?

  7. Whether  employers offer (or are likely to offer in the future) wellness programs outside of a group health plan or group health insurance coverage that use inducements to encourage employee’s spouses to provide information about current or past health or past health status as part of a (sic) HRA (health risk assessment), and the extent to which the GINA regulations should  allow inducements provided as part of such programs.

The deadline for comments is December 29, 2015.

 

EEOC Under Pressure for Employer Wellness Guidance

January 30th, 2015

The Senate Health, Education, Labor and Pensions Committee (HELP) held a hearing on Jan. 29, 2016 on employer wellness programs. (See video here.) The purpose of the hearing appeared to be to put pressure on the Equal Employment Opportunity Commission (EEOC) which has recently sued several companies alleging that their wellness programs violated the Americans with Disability Act.

Ranking Democrat Patty Murray indicated that the EEOC would be issuing a proposed guidance in the near future, as reported earlier.

While billed as a debate over employer wellness programs, most of the witnesses were representatives of business groups, with the exception of one representative of the Consortium for Citizens with Disabilities, Jennifer Mathis, who gave the most detailed statement. The business representatives gave the usual pep rally cries of “these programs work” line, citing a couple of positive anecdotes and avoiding the volume of studies showing incentives and penalties do not work.

 

Fall-out from Penn State Wellness Debacle

September 25th, 2013

New York Times’ Natasha Singer reports today that Rep. Louise M. Slaughter (D-NY) has asked the Equal Employment Opportunity Commission to investigate employer wellness programs that seek intimate health information, like Penn State’s program, and to issue guidelines preventing employers from using such programs to discriminate against workers.  The EEOC held a hearing on employer wellness programs in May, 2013.

 

Employer Wellness, EEOC, Data Warehousing, Predictive Analytics

May 23rd, 2013

Download my comments to the EEOC filed today looking at employer wellness programs and the development of data warehousing and predictive analytics. How new technology can be used to discriminated against persons with obesity. Morgan Downey_EEOC_Employer Wellness Comments

Employer Wellness Issue Heats Up

May 20th, 2013

The Equal Employment Opportunity Commission (EEOC) held a long hearing on May 8, 2013 on employer wellness programs. Opponents made a strong case that there was virtually no way that a mandatory health-contingent wellness plan could not discriminate against protected classes of workers. (See statement of Judith Lichtman) On the other hand, the more pro-business representatives argued that Congress and the Administration supported the changes in the Affordable Care Act and the programs where here to stay. It seems that all parties are urging the EEOC to provide guidances to employers.

The testimony came amid a backdrop of waiting for the final regulations from the Obama Administration. The comment period closed in January and many were expecting we would have final regulations by now. Politico reported that a group of corporate CEOs with the Business Roundtable were in Washington recently to lobby the Administration to avoid further weakening of the regulations.

Forbes magazine was reporting the CVS-Caremark was penalizing workers $600 annually if they failed to complete a health risk assessment. The article noted that most companies did not provide such stiff penalties but many were moving in that direction.

Meanwhile, several research articles provide only lukewarm support for weigh loss employer wellness programs.

A Health Affairs article by Ron Goetzel and colleagues, found only 22 % of employer health care costs could be attributed to 10 modifiable health factors (including obesity). This is actually a drop from 24.9% in 1998, even though rates of obesity have increased and costs related to obesity have gone up. Obesity contributed the most excess costs at $347 per capita. Goetzel, Pei, et al,

Another recent paper was a longitudinal study at the worker productivity in terms of absenteeism, presenteeism and job performance associated with changes in 19 modifiable well-being risks. These included physical health risks, health behavior risks, social and emotional health risks work-related risks and financial health risks.  The researchers found that, “Obesity, high cholesterol, tobacco use and excessive alcohol generally contributed to productivity changes insignificantly or unfavorable, possibly because of its multicolinearity with other risks that are closely correlated.” However, they noted that, “Health-related risk explained only a portion of the total productivity variances. For example, Riedel et al found that health risks accounted for 7.8% of the total variance in productivity impairment and acknowledged that the majority of the variation was left unexplained. Lenneman et al also found only 8.5% of the variance in productivity was contributed by health risks…We found that reductions in work-related well-being risks and financial health risks significantly contributed to improvement in productivity measures especially for measures of presenteeism and job performance that were not attributable solely to the more narrow definition of physical health.” They found modest numbers of workers were able to make improvements: 25% reduced their physical health risks 26% improved their health behaviors 16% improved their social and emotional health, 31% improved their work-related risks and 13% their financial health risks. Improvements in absenteeism, decrease in presenteeism and a modest improvement in job performance accompanied such changes. They calculated these improvements were equivalent to a savings of $468 per person per year. Shi, et al.

Ted Kyle reports in his blog that one program, Healthy Blue Living, requires obese participants to wear a pedometer which uploads their physical activity to the employer wellness program. The employees must meet daily step goals if they want to keep full health benefits. Not doing so could cost them each $2000 a year. Kyle notes (and I strongly agree) that this constitutes human experimentation without the protection of the federal regulation protecting human subjects, 45 Code of Federal Regulations Part 46. In fact, the program is not that successful. Promotional material notes that only 16% who agreed got their weight under a BMI of 30.

Yet another study published in Health Affairs looked at one hospital system’s wellness program. The program provide a substantial incentive/penalty for participation in a health risk assessment (which included automated feedback) signing a health pledge, health fairs and physician referrals. The study found a significant reduction in hospitalizations for conditions related to the conditions covered by the wellness program. However, there was an increase in medication costs. Combined with the costs of the wellness program and incentives, the authors concluded, “It is unlikely that the program saved money.” Gowrisankaran G, et al. A Hospital System’s Wellness Program Linked to Health Plan Enrollment Cut Hospitalizations But Not Overall Costs, Health Affairs 32 (3) 2013; 477-485. Gowrisankaran

A second paper also published in Health Affairs reviewed randomized controlled trials of workplace wellness programs. Their review raises doubts the employees with health risk factors such as obesity and tobacco use spend more money on medical care than others. They concluded that workplace wellness programs show little evidence of saving costs through health improvements without being discriminatory.  To test the assumptions of workplace wellness programs the authors, “reviewed research on the relationships among financial incentives, behavior, health status, and medical spending. We focused on randomized controlled trials involving four conditions- smoking, hypertension, high cholesterol and obesity- that are typically included in health-contingent programs. In our review, we found mixed evidence that employees with these conditions have higher health costs than other employees, which undermines the argument that employees with the conditions are particularly effective targets for incentives. We also found little evidence that working-age people change their behavior as a result of financial incentives, particularly over the long term. These findings suggest that program savings many not, in fact, derive from health improvements. Instead, they may come from making workers with health risks pay more for their health care than workers without health risks do. If true, this conclusion would jeopardize long-standing regulatory efforts, maintained in recently proposed Affordable Care Act regulations to prevent workplace wellness from being “a subterfuge for underwriting or reducing benefits based on health status. (citations omitted) Since low-income workers disproportionately suffer from conditions typically targeted by health-contingent programs, savings arising outside of health improvement may entail hidden, regressive redistributions increasing the burden imposed on low-income workers. “

In effect, they point out, wellness plans shift costs with the most vulnerable employees, those from low income groups with the most health risks probably subsidizing the healthier workers. Horwitz, JR, Kelly, BD, DiNardo, JE, Wellness Incentives in the Workplace: Cost Savings Through Cost Shifting to Unhealthy Workers, Health Affairs, 32 (3), 2013:468-476. Horwitz

The Agency for Healthcare Research and Quality (AHRQ) has issued another independent review. This time they reviewed studies of strategies to prevent weight gain in adults. The reviewers looked at 51 trials involving 555,783 subjects with at least one year of follow-up and a weight outcome. A meaningful difference between groups was considered to be 0.5 kg of weight (1.1 pound) or 1 cm of waist circumference. They found moderate evidence that workplace programs for the prevention of weight gain in adults. One study combining diet, physical activity and environmental components resulted in meaningful and statistically significant prevention of BMI change at 12 months and another that combined internet based diet and physical activity counseling resulted in significant prevention at 24 months. However, a third study found no difference. AHRQ Strategies to Prevent Weight Gain Among Adults, Comparative Effectiveness Review No. 97, AHRQ

Also cited as, Gudzune K et al Strategies to prevent weight gain in workplace and college settings: A systematic review, Prev Med. 2013 Mar 22. Gudzune

 

Federal Government

September 27th, 2009

Federal Programs on Obesity

For an excellent overview, see http://www.stopobesityalliance.org/research-and-policy/research-center/gw-research/ and F as in Fat: How Obesity Policies Are Failing in America 2008 – RWJF

National Institutes of Health

NIH is the preeminent research organization in the United States and the world and have a number of research programs related to obesity.

Weight Information Network has many fact sheets, also available in Spanish Welcome to WIN – The Weight-control Information Network

What is NIH spending on obesity? A projected $664 million. NIH Research Portfolio Online Reporting Tool (RePORT) – Estimates of Funding for Various Research, Condition, and Disease Categories (RCDC)

What are the specific grants now in process? NIH Research Portfolio Online Reporting Tool (RePORT) – RCDC Project Listing by Category

What is their plan to address obesity? Obesity Research at the National Institutes of Health (NIH)

Information on applying for grants. http://grants.nih.gov/favicon.ico

Clinical trials Home – ClinicalTrials.gov

Some particular projects:

Longitudinal Assessment of Bariatric Surgery Longitudinal Assessment of Bariatric Surgery

Clinical Nutrition Research Units WIN – Research – ONRCs and CNRUs

Research Opportunities Obesity Research at NIDDK : NIDDK

Advisory Groups Clinical Obesity Research Panel (CORP) : NIDDK

NIDDK Office on Obesity Research Office of Obesity Research : NIDDK

Look Ahead Trial Action For Health in Diabetes (Look AHEAD) : NIDDK

Food and Drug Administration (FDA)

The FDA has several responsibilities when it comes to obesity, including nutrition labeling and approval of drugs and devices

Calories Count: The 2004 plan of FDA to address obesity FDA/CFSAN – Calories Count: Report of the Working Group on Obesity Q&A Questions and Answers – The FDA’s Obesity Working Group Report

The Keystone Report on Away from Home Foods Calories Count and Keystone Report

Consumer information on reading the nutrition label. Make Your Calories Count

Department of Agriculture

Women Infants Children program of the USDA is a program of providing grants to states for nutrition education and support for low income pregnant, breastfeeding or post partum women WIC

Food and Nutrition Information Center Food and Nutrition Information Center

General Information on obesity General Information and Resources : Weight and Obesity : Food and Nutrition Information Center

Consumer Nutrition Information Weight Management : Nutrition.gov

Internal Revenue Service (IRS)

While the IRS is not considered a health agency, it does provide that taxpayers may use the medical deduction for expenses related to weight loss when a physician makes a recommendation of weight loss. Publication 502 (2008), Medical and Dental Expenses

Surgeon General

Surgeon General Richard Carmona on Obesity The Obesity Crisis in America

Surgeon General’s Report to Prevent and Decrease ObesityThe Surgeon General’s Call to Action to Prevent and Decrease Overweight and Obesity

Transcript of meeting where Surgeon General David Satcher decided to issue Surgeon General’s Report on Preventing and Overcoming Obesity: http://www.health.gov/hpcomments/council4-23-99/focus.htm

Earlier Surgeon General Reports on Nutrition and Health The Surgeon General’s Report on Nutrition and Health (1988) and Physical Activity Physical Activity and Health Executive Summary

Center for Medicare and Medicaid Services (CMS)

In 2004, CMS dropped language from its policies that obesity was not considered a disease. 2004.07.15: HHS Announces Revised Medicare Obesity Coverage Policy. A Deletion Opens Medicare To Coverage for Obesity – The New York Times

Subsequently, it convened an advisory panel to consider expanding or restricting medicare coverage of bariatric surgery which considered a summary of the evidence on the surgery’s safety and effectiveness. http://www.cms.hhs.gov/FACA/downloads/id26c.pdf

The outcome of the advisory panel was very favorable and, in 2006, official coverage policy was changed and expanded. Centers for Medicare & Medicaid Services

Disability

EEOC Policy on obesity EEOC Informal Discussion Letter

EEOC definition of “disability” Section 902 Definition of the Term Disability

6th Circuit Court of Appeals denies ADA claim based on morbid obesity. Read the full decision in EEOC v. Watkins Motors. http://www.ca6.uscourts.gov/opinions.pdf/06a0351p-06.pdf

Through the Social Security Administration, individuals who are morbidly obese and have cardiovascular, respiratory or musculoskeletal problems may quality for disability.

See: Disability Doc – Examining Social Security Disability – Obesity and Disability

Centers for Disease Control and Prevention (CDC)

The CDC has numerous fact sheets and guides. Where appropriate, they are incorporated into more specific sections of the site.

To see all the CDC resources available, go to Obesity and Overweight: Topics | DNPAO | CDC

Agency for Healthcare Research and Quality (AHRQ)

AHRQ funds research, especially on the translation of basic research into clinical practice, improvements to clinical care and a number of evidence-based guidelines. Relevant guidelines are included in the treatment or health effects sections. AHRQ is a leader in Comparative Effectiveness Research and obesity is one of their major conditions of interest.

See Agency for Healthcare Research and Quality (AHRQ) Home Page

Medicaid

Morbidly obese patients often return to work after gastric bypass surgery Return to work after gastric bypass in Medicaid-fu…[Arch Surg. 2007] – PubMed Result

Veterans Administration

Learn about the VA programs in weight management at MOVE! Home

Department of Defense

Information on the military’s Tricare program and weight management can be found at The TRICARE Blog