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Center for Health Law Equity, LLC October 2015 Newsletter
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Wisconsin Workplace Wellness Grant Applications Now Available!

As of October 1, 2015, Wisconsin small businesses with 50 or fewer employees can apply for a grant that will reimburse up to 30% of the employer’s wellness program costs for one year (up to a $15,000 cap).  To be eligible, the employer’s wellness program must be a new program that started after March 2014.  However, even if the employer used to have a wellness program years ago, the employer could still qualify for the grant if it started a new program after March 2014.  In addition, if the employer had wellness program that did not meet the definition of “wellness program” under the new grant program (see below), according to the Wisconsin Department of Health Services (DHS), the employer would be eligible to apply for the grant.

The Wisconsin grant program defines “wellness program” as one that includes a health risk assessment and one or more of the following components:

  • Chronic disease prevention
  • Weight management
  • Stress management
  • Worker injury prevention programs
  • Health screenings
  • Nutrition education
  • Health or fitness incentive programs
  • Vaccinations
  • Employee physical examinations
What does the grant cover?

Expenses relating to staff time, conducting the health risk assessment, education programs, campaigns, equipment, incentives and contracted services.  Excluded expenses include any amount paid to acquire, construct, rehabilitate, remodel or repair real property.

How to apply:

Applications and instructions can be found at https://www.dhs.wisconsin.gov/physical-activity/worksite/grant.htm.  Employers can apply online or by mail, but online in the preferred method.  After you apply, if approved, DHS will issue a reimbursement check several weeks later.

Don’t miss this wonderful opportunity to boost your wellness program!
 
The grant program expires on December 31, 2018.  Applicants can apply for only one year of expense reimbursement.  So, if you are an eligible employer (or know one), consider applying for a grant in the next year or two.

 

Workplace Wellness, Data Collection and Privacy

Speaking about the Affordable Care Act (ACA) at an event earlier this week, I emphasized the popularity of the ACA’s pre-existing exclusion ban on insurers.  That is, under the ACA, as of January 1, 2014, health insurers may no longer exclude coverage for an individual’s pre-existing health conditions.  Overall, consumers like that provision of the ACA. 

Yet, voluntary workplace wellness programs permit insurers to discriminate on a person’s health status.  Many times, this discrimination is in the form of health insurance cost differentials.  For example, employees who agree to participate in a wellness program and/or achieve a certain health goal may pay less for their health insurance.  In essence, these programs may have the same effect as pre-existing exclusion provisions.  The data collected by workplace wellness programs not only could be used to differentiate between premiums paid by “healthy” employees and “unhealthy employees,” but could also be sold to third parties who might use the wellness information to discriminate based on a person’s health status for purposes of life insurance, loans or other credit applications.

At least that is the fear expressed by privacy advocates interviewed by the Kaiser Health News writers.  On September 30, 2015, Kaiser Health News featured a collection of articles regarding the collection of employee health data through workplace wellness programs and the privacy of that information.  One article featured a story about a wellness program implemented by a wellness vendor hired by the City of Houston.  In exchange for a $300 reduction in the cost of their medical coverage, City employees were asked to take a health risk assessment that asked about their disease history, drug and seat-belt use, blood pressure and other “delicate” information.   The authorization form signed by city employees stated that their health information might be posted in areas that “are reviewable to the public” and that the information might be subject to re-disclosure and no longer protected by privacy law. 

Houston Police Officers’ Union objected so strongly to the health risk assessment that the city switched to a different program. 

Privacy advocates view the world of workplace wellness data collection as the “wild west” because it lacks regulation and guidance regarding how employee health information is collected, stored and disclosed.  Wellness vendors who collect and store employee health information may or may not be covered by the Health Insurance Portability and Accountability Act (HIPAA), depending on whether they are a Business Associate of a health plan or whether the vendor itself is a HIPAA covered entity.  Even if a vendor is governed by HIPAA, disclosing de-identified health information to third parties that can “re-identify” the information could cause privacy concerns by wellness program participants.  The articles point out that these third parties could use the re-identified health information for lending, credit or mortgage decisions.  For example, the article states that credit card companies could raise rates for employees that wellness programs reveal to be couch potatoes, inferring that they are more likely to default.  And life insurers could deny coverage or raise prices based on unhealthy wellness results. 

The message from these articles to wellness vendors is to pay attention to the privacy protections your programs offer.  Failing to adequately protect participant data privacy could undermine the wellness program’s ultimate goal of improving employee population health, as well as the ACA goal of eliminating use of health status for discriminatory purposes.  Here are some steps wellness vendors can take to strengthen their privacy protections:

  1. Read the fine print of your participant consent forms.   Determine what your fine print says about collecting and sharing participant health information.  One wellness vendor interviewed for the Kaiser Health News article remarked that he had no idea the company’s disclosures permitted direct marketing from third parties based on the participant’s “attributes.”  Know what you have agreed to do.
  2. Revise your fine print if the language does not fit with your company’s privacy policy.  For example, if the language would permit third parties to re-identify de-identified information, you may want to revise that language to prohibit such practice.
  3. Determine if your company is subject to HIPAA privacy and security rules, either as a Business Associate of a health plan or as a “covered entity” provider.  If your company delivers health services (and most do) as well as conducts “covered transactions” under HIPAA (i.e., electronically submits health information for purposes of tracking encounters or submitting claims), you are likely a covered entity subject to HIPAA.  As noted in the Kaiser Health News articles, wellness vendors are often on the “border” of being subject to HIPAA.  So, it is important to find out and if you are, to comply with the regulations.
  4. Start thinking and implementing best practices when it comes to privacy.  As stated earlier, privacy protection in the wellness arena is currently the “wild west.”  Such a state of uncertainty provides opportunity for wellness companies to emerge as leaders and establish privacy standards themselves, rather than waiting for an enforcement agency to eventually dictate those standards.
As always, consider the Center for Health Law Equity, LLC as a resource to help your company achieve and maintain compliance.
 
To read the full Kaiser Health News articles on wellness programs and privacy, click here.

CMS Request for Information Regarding Merit-Based Incentive Payment System and Alternative Payment Models

As many of you may know, the federal government is moving away from fee for service payment models (where payment is based on volume of services) to value-based payment models.  In that spirit, the Centers for Medicare and Medicaid Services (CMS) is asking health industry stakeholders to submit comments about its proposed methods to provide incentive payments to physicians, nurse practitioners and physician assistants, initially, based on that provider’s quality, resource use, clinical practice improvement activities and meaningful use of electronic health record technology.  These payments would begin in 2019.  CMS would like input on policy considerations for these payments, such as how to apply certain measures to certain providers. 

Comments are due by November 2, 2015 and can be submitted electronically or by regular mail.  To learn more about the proposed value-based payment mechanisms and what stakeholder input CMS is seeking, please visit http://www.gpo.gov/fdsys/pkg/FR-2015-10-01/pdf/2015-24906.pdf

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Barbara Zabawa to speak at NASW Wisconsin Annual Conference
On October 20, Barbara Zabawa will present “Hot Topics in Social Work and the Law” to attendees at the National Association of Social Workers Wisconsin Annual Conference.  The session is full, but please contact Barbara if interested in learning more.
Check out the new CFHLE Website!
Our firm’s website is new and improved.  Please visit the new website at www.cfhle.com for resources, videos and information about how our firm can help with your health and wellness law needs.  
Any Other Questions?
If you have any questions or ideas that might be useful to share in this monthly newsletter, please forward those questions or ideas to us at bzabawa@cfhle.com.  We want to make this newsletter a helpful resource.
Copyright © 2015 The Center for Health Law Equity, LLC, All rights reserved.


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