Comments for the health reform law's proposed rule on this provision were due Jan. 25.
A group of House Democrats led by Rep. Henry Waxman (D-Calif.), ranking member on the House Energy and Commerce Committee, said although the rule requires these programs to be reasonably designed, it doesn't require a scientific basis for that.
“If a person with a high body-mass index is going to be offered a reward for health insurance, there should be some evidence behind the classification and testing protocol,” Waxman said in his letter (PDF), which was also signed by Reps. Sander Levin (D-Mich.), ranking member on the House Ways and Means Committee, George Miller (D-Calif.), ranking member on the Education and Workforce Committee, and some subcommittee chairmen.
The lawmakers also raised concerns that the rule requires a reasonable alternative to meet the outcome requirements of an employer wellness program, but doesn't list any alternatives. “A reasonable alternative should be based on participation—something everyone can achieve and should be available without request by a specific employee,” the lawmakers continued. “Given that employer wellness programs are most common in large-employer settings, it is likely that alternatives would be needed and should be developed and designed with the wellness program itself.”
To provide a better definition of reasonable program design, the National Committee on Quality Assurance recommended that the three cabinet departments review the NCQA's Wellness and Health Promotion Accreditation program. “This is especially important on key areas of concern such as reasonable alternative or waiver if it is 'unreasonably difficult due to a medical condition' or 'medically inadvisable,'” Margaret O'Kane, the group's president (PDF), wrote in a Jan. 25 comment letter. The NCQA's program requires program vendors to meet standards in a variety of areas, such as heath appraisals and coaching, targeted preventive health services, alternatives for people with medical conditions or other difficulties in achieving health and wellness goals, and evaluating the effects of incentives every two years.
Meanwhile, the U.S. Chamber of Commerce said the proposed rule could undermine the success of wellness programs by requiring individual accommodation.
“Wellness programs should not be required to coddle apathetic participants,” Randel Johnson, the Chamber's senior vice president of labor, immigration and employee benefits (PDF), wrote in the organization's letter to the departments, “and the proposed rules' pursuit of an 'everybody wins' approach will thwart the very motivation that a rewards based program is designed to create.”
Amy Gordon, a partner with McDermott Will and Emery in Chicago, acknowledged there has been pushback on this issue because the definition has been vague. But the HHS, Treasury and Labor might keep it that way in the final rule, she suggested.
“I'm not sure the regulators want to limit what could be controversial today but mainstream tomorrow,” she said, referring to wellness programs. “I think they threw out the broad net and didn't make it more specific,” she continued. “They want to encourage all types of programs as long as they're designed to promote health and prevent disease.”