Congress Introduces Legislation to Support Wellness!

Last week, U.S. Sen. Lamar Alexander (R-Tenn.) and Rep. John Kline (R-Minn.) with Sens. Mike Enzi (R-Wyo.), Johnny Isakson (R-Ga.), Tim Scott (R-S.C.), Orrin Hatch (R-Utah), Pat Roberts (R-Kan.), and Rep. Tim Walberg (R-Mich.) introduced legislation to “provide legal certainty—and eliminate confusion caused by the Equal Employment Opportunity Commission (EEOC)—for employers offering employee wellness programs that lower health insurance premiums to reward healthy lifestyle choices.”  There is no doubt that Congress introduced this legislation in response to the recent lawsuits brought by the EEOC against Honeywell, Flambeau and Orion Energy Systems. 

A draft of the bill can be seen here.

This bill attempts to align the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) with the Affordable Care Act (ACA) rules on worksite wellness programs.  In particular, the bill states that an employer-sponsored wellness program that offers rewards that comply with the ACA provisions will not violate the ADA or Titles I or II of GINA.  The bill allows the ADA to still apply to workplace wellness programs, just not with regard to ACA-compliant rewards.  The bill would also allow workplace wellness programs to collect information about the manifestation of disease or disorder from family members without violating Titles I or II of GINA.  “Family members” has the same meaning as defined by GINA.  Finally, the bill permits workplace wellness programs to establish a deadline of up to 180 days for employees to request and complete a reasonable alternative standard or waiver of the otherwise applicable standard.  The bill, if passed, would have a retroactive effective date of March 23, 2010 – the date on which the ACA was enacted.

It is unclear at this point whether the bill will pass.  But, it does send a message to the EEOC that Congress is willing to act if the EEOC is not.  We are still waiting for rules from the EEOC that are expected to provide clarity with regard to how the ADA, GINA and the ACA are to work together in terms of workplace wellness program design.  The EEOC indicated such proposed rules would be issued in February this year.  But, it also said that was only a “target date.”  To view the agenda discussing the proposed rule changes, click here and here. 

At this point, any guidance, whether it is from Congress or the EEOC, would be welcome.  

In other news, U.S. Representative Ron Kind from Wisconsin re-introduced bipartisan legislation, the PHIT Act, that would allow U.S. taxpayers to use pre-tax dollars to fund physical activity.  In a country plagued with high rates of obesity and lack of physical fitness, this bill makes sense.  Please click on the link to the PHIT Act and follow the guide to support this bill. 

Last week when I took my kids to the dentist I felt for the first time in the  health insurance minority. Since starting my own law firm, the Center for Health Law Equity, LLC I no longer have employer-based health insurance; rather, I bought my coverage through the "Exchange" or healthcare.gov.
(For an interesting debate on whether the Affordable Care Act creates more opportunities for people like me to venture off on their own, read this article.)

When providing my new insurance information, the dental receptionist immediately asked for the name of the employer sponsoring the insurance, to which I replied, "I purchased this coverage through the Exchange."  The receptionist looked dumbfounded, asking me to explain the Exchange.  "Really?", I thought.  How could a person working in health care, over a year into the health insurance marketplace with all the media coverage need explaining about the Exchange?

Regardless of the failings of my kids' new dentist in educating their front line staff of different insurance options, it is possible that I will not be in the health insurance minority for much longer.  According to a a recent article by Bloomberg View, the number of people with job-based coverage has been steadily declining, from 59.2% in 2009 to 57.1% in 2013.  Moreover, Obamacare is accelerating the trend:  according to the Congressional Budget Office, by 2018 8 million fewer people will have job-based coverage.

As with anything new, people are apprehensive.  But so far, other than my encounter with the dental receptionist, my personal experience with the Exchange has been satisfactory.  It will be a shame if the US Supreme Court rules that subsidies are not available in federally-operated exchanges, which are the majority of exchanges in the U.S.  As pointed out by Professor Tim Jost Congress could fix an adverse Supreme Court ruling through technical amendments, politics permitting.

In my opinion, widespread coverage through the Exchange would not be a bad thing.  More people in the Exchange means a more robust individual insurance market, and more opportunities for creating a culture of health and wellness.  Section 1201 of the Affordable Care Act (PHSA Section 2705(l) creates demonstration projects to expand health promotion programs in the individual insurance market.  The demonstration project starts with 10 states, but expands to other states in 2017.

Creating more access to wellness programs in the individual market may open doors of opportunity for wellness providers to broaden the meaning of wellness in the United States. In a recent article in the Journal of Health Politics, Policy and Law, authors Heather Elliott, Jennifer Bernstein and Diana Bowman observe that in the United States, wellness is uniquely tied to the workplace; in other countries, such as Germany and Australia, wellness is embedded in their public health insurance systems and seen as a right for all.  By expanding wellness to the individual insurance Exchange, the Affordable Care Act provides the United States with an opportunity to move wellness beyond worksite benefits that address diet, exercise or biometric goals.  Through Exchange coverage, wellness efforts could encompass prevention programs such as transportation safety, preventive screenings, dental care, mental health as well as the social determinants of health.  This is because wellness would no longer be tied to employer return on investment.  Longer term investments could occur through Exchange wellness programs.

Expanding the breadth of wellness beyond current workplace programs could also widen the types of persons and providers involved in wellness.  These providers might include community health workers, public health officers, holistic and alternative care providers in addition to health promotion professionals, personal trainers and dietitians.  It is time to start the conversation on how collaborations of diverse providers can improve population health and wellness through the unique opportunities the Affordable Care Act presents.

The Principle of Imperceptible Success

A recent article from Modern Healthcare about the Affordable Care Act's population health efforts, available at http://www.modernhealthcare.com/article/20150108/blog/301089997&utm_source=AltURL&utm_medium=email&utm_campaign=am?mh,  pointed out that the investment in these efforts may take time to see results.

So it goes with mostly all efforts to succeed.  Whether it is investing in the health of populations or one person, or investing in yourself through education or a new venture, very rarely do the results happen overnight.  Achieving success in health or business is like turning around a large ship:  it takes a vision of where you want to go, and sustained effort and dogged commitment to getting there. Eventually, you achieve your goal even though the landscape in front of you seems to never change. But it is changing, little by little in imperceptible ways.

Take exercise as an example.  On January 1, you set a goal to slim down and get in better shape.  Each day you go to the gym and work out for your allotted time.  After a few weeks, you step on a scale and see disappointment.  Perhaps the scale moved, but not by what you had hoped.  Or, perhaps it didn't move at all.  You scratch your head, thinking about how much effort you have put into each work out, the perspiration and shortness of breath.  

The truth is, by exercising, you are improving your fitness, such as your heart rate, blood pressure and glucose processing.  See http://www.health.harvard.edu/newsletters/Harvard_Health_Letter/2012/July/exercise-helps-the-heart-even-if-it-doesnt-cause-weight-loss.  Unless you are putting these measures to the test, you would not likely know you are succeeding.

Another example is found in building a business.  When first starting out, there are many days where you may feel like all those meetings, pitches, speeches, articles, or other business development activities are not paying off.  The phone isn't ringing, and no one is reaching out.  But, you are making progress.  All those efforts are whetting the appetite of your future customers.  Persistence and a clear vision will pay off, eventually. And when it does, it probably won't hit you like a ton of bricks, but just feel completely natural.  That's because you had been succeeding all along.

The Appeal of Morbidity Compression

In the dark, cold wintry months of December I had the privilege and pleasure of listening to the WELCOA 7 Benchmarks presentation - a four-week long course that teaches successful wellness program design.  You can learn more about that webinar series as well as others by going to:  https://www.welcoa.org/events/?showcategory=41.

David Hunnicutt, the presenter, offered fascinating information and tips.  One of the most interesting pieces of information were graphs that showed how one could compress his or her "morbidity" or sickness level until the very end of one's life.  In other words, by choosing healthy behaviors, you have a better chance of living a healthy life, free from major illness, for most of your life, even while others who did not make such wise choices suffer from debilitating pain.  According to Mr. Hunnicutt, 50% of an individual's health status is attributed to health behavior and that after age 40, most people are unable to "ride the crest of youth" to feel healthy despite their behavior.

Providers and organizations that invest in and deliver wellness services to others have so much potential in making a significant difference in quality of life.  As a society, we must pay more attention to these providers and organizations by integrating them into health care delivery solutions and supporting them with laws and policies that increase access.  The Affordable Care Act (ACA) is a start.  The ACA creates a number of incentives to collaborate with wellness providers, such as the Medicare Shared Savings Program and Community Health Teams.  It also provides grants to expand workplace wellness programs.  These are good things that should be touted and leveraged.  Health Care That Matters, Inc. aims to find providers and organizations who are taking advantage of these initiatives and spreading wellness to the masses.  If you know of someone who fits that description, please contact us.

I recently heard a criticism that all health care matters, and therefore naming the nonprofit Health Care That Matters, Inc. implies that some health care does not matter.  The criticism misses the point of the mission of Health Care That Matters, which is to recognize the work being done by numerous people and organizations to move the dial on health outcomes and population health.  Unfortunately, there are instances in our health system, which generally pays for volume, where providers deliver health care services that do not matter to a person's overall health.

Take for example the alleged overdiagnosis of ADHD in children.  A New York Times article from 2013 explored this issue:  http://www.nytimes.com/2013/12/15/health/the-selling-of-attention-deficit-disorder.html?pagewanted=all&_r=0.  One aspect of the article suggests that pharmaceutical companies and some groups with ties to those companies financially benefit as more people are diagnosed with ADHD.  This makes perfect economic sense because as the number of consumers increase, the higher the demand in the products that will satisfy the consumers' needs.  In this case, the products are drugs to regulate ADHD symptoms.  This issue of creating demand in health care so that revenues can increase occurs in many other facets of the health system, including long-term care, surgical care, and laboratory tests to name a few.  Overutilization in health care is one of the areas that the government seeks to combat through its auditing and enforcement mechanisms.

Health Care That Matters, Inc. seeks to remind people that really good, meaningful health care programs exist.  These programs exist for the primary purpose of improving the health of a population.  The programs may often be underfunded, but they try to address underlying issues that may be causing or exacerbating the health problem, such as the social and physical environment.  The programs may be looking at disparities in care between racial or ethnic groups, or just trying to create a bridge of understanding between provider and patient.  Health Care That Matters, Inc. aims to highlight these programs and encourage others to learn from them and perhaps implement similar programs in their own community.  If you know of any programs that deserve such recognition, please let us know at www.healthcarethatmatters.org.  

 

Exemplars in Integrative Medicine

As I was creating content for my new nonprofit organization, Health Care That Matters, Inc. (check it out at www.healthcarethatmatters.com), I stumbled across the Bravewell Collaborative, a community of leading philanthropists who work together to transform our health care system and improve the health of the American public through the advancement of integrative medicine.

What is integrative medicine?  According to the Bravewell Collaborative website, www.bravewell.org:

"Integrative medicine is an approach to care that seeks to integrate the best of Western scientific medicine with a broader understanding of the nature of illness, healing and wellness."

As noted by Bravewell, integrated medicine can be incorporated by all health care professions and systems, and it not only improves care for patients, but also enhances the cost-effectiveness of health care delivery for providers and payors.

That last point about enhancing the cost-effectiveness of health care delivery for "payors" is important.  Right now, insurance reimbursement for wellness is sparse to nonexistent.  Insurance pays for curing an ailment, but it does not pay for maintaining health.  Thus, for many, access to wellness services such as fitness and nutrition classes or consultations, massage or relaxation techniques, meditation or yoga therapy, or numerous other activities that help create a sense of well-being, is out of reach.

Interestingly, the Arizona Center for Integrative Medicine at the University of Arizona is experimenting with a payment scheme for wellness services:  the Center seeks insurance reimbursement for services covered by insurance, but charges patients a separate membership fee that covers access to preventive and wellness services.  See http://www.everydayhealth.com/healthy-living/integrative-care-promises-to-be-more-effective-cost-efficient-4004.aspx.

The concept is admirable, but I hope to one day see insurers covering preventive and wellness services in parity with curative care.

Valuing Prevention

The Ebola outbreak draws to mind the importance of prevention, an often overlooked, under-funded part of health care.  When I attended the University of Michigan School of Public Health, we learned that over 90% of our health care resources are spent on acute care and the rest on prevention.  Yet, the greatest strides in human longevity and quality of life have been made in the realm of public health and prevention.  Things like basic sanitation, vaccinations and healthy lifestyles add more quality life years than most expensive equipment or invasive procedures.  Right now, there is no cure for Ebola, so prevention is absolutely key.  Yet, for prevention to work, the public must "buy-in" to the measures that must occur.  These measures, such as quarantine or mandatory vaccinations, often limit our individual freedoms, but as a society we weigh the loss in freedom to do whatever we want against a greater cause, such as a prosperous future.  Sometimes, when research and evidence support the loss in freedom for individuals, an entire society can benefit.