Last week Penn State, no stranger to bad publicity, reversed course and canceled a widely-trashed employee ‘wellness’ program, according to a report in the New York Times. The report focused on concerns about the intrusive nature of the health risk assessment which asked questions about financial stress, supervisors and, of women, whether they planned on becoming pregnant in the next year.
The same article quotes a vice president of Highmark as saying the Health Risk Assessment information was protected from disclosure by the Health Information Portability and Accountability Act (HIPAA). However, this is not correct. Perhaps Highmark treats the information as if it were protected by HIPAA but the law does not do so. Check the Department of Health and Human Services HIPAA webpage. It clearly states, “The Privacy Rule does not prevent your supervisor, human resources worker or others from asking you for a doctor’s note or other information about your health if your employer needs the information to administer sick leave, workers’ compensation, wellness programs or health insurance.”(Emphasis added.)
Therefore, your employer can do anything with your personal information you provide in a Health Risk Assessment, including selling it to a data farm to be combined with your other personal information.
What else the media missed: Wellness programs cannot be used for cost-shifting.
The NYT article states, “Penn State instituted the wellness plan in an effort to slow double-digit annual growth in its health expenditures. The university is self-insured, which means that it directly covers the health costs of some 40,000 employees, spouses and dependents — at an estimated cost this fiscal year of $217 million.” If this is true it violates federal regulations. They state that wellness programs must be “reasonably designed to promote health or prevent disease; has a reasonable chance of improving the health of, or preventing disease in, participating individuals, is not overtly burdensome; is not a subterfuge for discriminating based on a health factor, and is not overtly suspect in the method chosen to promote health or prevent disease.” At this point it seems that the Penn State program was not designed to promote health or prevent disease or had a reasonable chance of improve the health of participating individuals.” It is or certainly seems to be just an attempt to shift cost to employees…an illegal strategy. Hopefully, this will come out in future explorations of the Penn State program and put the lie to these “wellness” programs.