1. 1 Health & Wellness and employee motivation: Making the connection Health and Productivity Solutions Kristin Tugman| August 27 th 2013 www.UBAbenefits.com www.unum.com This WisdomWorkplace webinar program is brought to you by United Benefit Advisors in conjunction with Unum

2. 2 Complying with Final ACA Wellness Non-Discrimination Regulations Hosted by: Unum and UBA Unum Presenters: Sarah Marble and Leaba Cash, DATE: August 29, 2013 2:00 EST FOR EDUCATIONAL PURPOSES ONLY © 2013 Unum Group. All rights reserved. Unum is a registered trademark and marketing brand of Unum Group and its insuring subsidiaries. #7793411

3. 3  The Wellness Legal Landscape: Big Ideas and Important Terms  Participatory Wellness Programs  Health Contingent Wellness Programs ●Activity-only Wellness Programs ●Outcome-based Wellness Programs  What Has Changed? Five Conditions of a Health Contingent Wellness Plan: ●Frequency of Opportunity to Qualify ●Size of Reward ●Reasonable Design ●Uniform Availability and Reasonable Alternative Standard ●Notice of Availability of Reasonable Alternative Standard  Application to Grandfathered Plans and Effective Date of Changes  No Effect on Other Laws Complying with final ACA Wellness Non-Discrimination Regs. AGENDA

4. 4 Wellness Legal Landscape Big Ideas and Important Terms

5. 5  63% of all employers offering health benefits, offer a wellness program  63% of large firms that offered an health risk assessment provided employees with a financial incentive to complete it  30% of employers (70% of large employers) offer smoking cessation resources  Typically less than 20% of eligible employees participate in wellness interventions like smoking cessation programs  Smoking rates decreased by 30% in the first year of smoking cessation programs  There is a statistically significant and clinically meaningful improvement in exercise frequency, smoking behavior, and weight control for wellness program participants Big Ideas, Important Terms WELLNESS LEGAL LANDSCAPE Treas. Reg. §54.9802-1, Preamble Part III (D)(2013) “Overall, evidence on the effectiveness of wellness programs is promising, but it is not yet conclusive.”

6. 6  ERISA – Employee Retirement Income Security Act of 1974  ADA /ADAAA – Americans with Disability Act of 2008/ the Americans with Disabilities Act Amendments Act  GINA - Genetic Information Nondiscrimination Act of 2008  HIPAA Privacy Rule  FMLA - Family Medical Leave Act of 1993  Tax – Internal Revenue Code  Title VII of the Civil Rights Act of 1964  ADEA – Age Discrimination in Employment Act of 1967 Big Ideas, Important Terms WELLNESS LEGAL LANDSCAPE Treas. Reg. §54.9802-1, Preamble Part II (H)(2013)

7. 7  Wellness Program: a program of health promotion or disease prevention  Reward: includes (1) a discount or rebate of premium or contributions, an additional benefit or any financial or other incentive, and (2) avoiding a penalty  Health Factors: the eight health factors are health status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability (including conditions arising out of acts of domestic violence), and disability  Similarly Situated Individuals: a bona fide employment-based classifications consistent with the employer’s usual business practice, or a classification of beneficiaries based on relationship to the plan participant (i.e., spouses)  Discrimination: When participation in the wellness program is not made available to all similarly situated individuals due to health status  Benign Discrimination: When participation in the wellness program is more available to individuals with an adverse health status than to similarly situated individuals Big Ideas, Important Terms WELLNESS LEGAL LANDSCAPE Treas. Reg. §54.9802-1, Preamble Part I (B)(A)(fn. 1,2) (2013) Treas. Reg. §54.9802-1(f)(1)(i) (2013) 29 CFR §2590.702(f)(1)(i) (2013)

8. 8 ParticipatoryWellness Programs No Reward, No Health Based Conditions

9. 9 Participatory Wellness Programs  May or may not offer a reward  Rewards are not conditioned on meeting a health factor based standard  Participation in the program is available to all similarly situated individuals  Examples, if employees are: ●Reimbursed for all or part of the cost of fitness center membership ●Rewarded for undergoing diagnostic test, without regard to outcome ●Reimbursed for cost of for participating in smoking cessation program, without regard for smoking status ●Rewarded for attending a monthly, no-cost health education seminar (without regard for learning?) ●Rewarded for completing a health risk assessment, without further action ●Not charged a co-pay or deductible for preventative care (i.e., well baby visits, flu shots) No Reward, No Health Based Conditions PARTICIPATORY WELLNESS PROGRAMS Treas. Reg. §54.9802-1(f)(1)(ii) (2013) 29 CFR §2590.702(f)(1)(ii) (2013)

10. 10 Health ContingentWellness Programs Activity-Only and Outcome-Based

11. 11  Health contingent wellness programs discriminate based on a health factor  Rewards are conditioned on meeting a standard related to a health factor ●Also if similarly situated individuals have to do more for a reward because of a health factor ●Benign discrimination is okay  Two types of health contingent wellness programs ●Activity-only wellness programs o Requires the performance or completion of an activity related to a health factor o Does not require attaining or maintaining a specific health outcome o Examples, diet or exercise programs, which may be difficult for some to complete due to a health factor ●Outcome-based wellness programs o Programs that use a measurement, test or screening is used as part of initial standard for granting an award are outcome-based, even if alternative is participatory only. o Requires the attainment or maintenance of a specific health outcome, or the completion of an alternative o Examples, tests Body Mass Index, or biometric screenings for high cholesterol, blood pressure or glucose Activity-Only and Outcome-Based HEALTH CONTINGENT WELLNESS PROGRAMS

12. 12 Some Things Change, Some Stay the Same Five Conditions for a Non-Discriminatory Health Contingent Program

13. 13 A health contingent program must meet all five standards to comply with the non-discrimination rules:  Frequency of Opportunity to Qualify for Reward  Size of Reward  Reasonable Design  Uniform Availability and Reasonable Alternative Standards  Notice of Availability of Reasonable Alternative Standards Some Things Change, Some Stay the Same FIVE CONDITIONS FOR A NON-DISCRIMINATORY HEALTH CONTINGENT PROGRAM “These rules set forth the criteria for an affirmative defense that can be used by plans and issuers in response to a claim that the plan or issuer discriminated under the HIPAA nondiscrimination provision” Treas. Reg. §54.9802-1, Preamble Part II (A)(2013)

14. 14 Outcome-based Programs and Activity-only Programs  Eligible individuals must have an opportunity to qualify for the reward at least once per year 1. Frequency of Opportunity to Qualify for Reward FIVE CONDITIONS FOR A NON-DISCRIMINATORY HEALTH CONTINGENT PROGRAM Unchanged from prior and proposed regulations

15. 15 Outcome-based Programs and Activity-only Programs  Size of reward is limited to a percentage of the cost of the group health plan  Cost of group health plan includes employer and employee contributions  Cost of employee plan only, unless family members can also participate in program  Flexibility to apportion the reward among family members, if method is reasonable  Final regulations adopt the proposed regulations limits: ●Up to 30% of the cost for general health contingent wellness programs ●Up to an additional 20% for health contingent wellness programs designed to reduce or prevent tobacco use  The limits apply to the aggregate rewards from all health contingent programs but exclude participatory programs’ rewards  Example: ●25% of cost is rewarded if employee lowers BMI to normal levels = okay ●Additional 10% for completing health risk assessment = okay ●Additional 25% for quitting smoking = ? 2. Size of Reward FIVE CONDITIONS FOR A NON-DISCRIMINATORY HEALTH CONTINGENT PROGRAM

16. 16 Outcome-based Programs and Activity-only Programs  Design must promote health or prevent disease  Cannot be “overly burdensome” or a “subterfuge for underwriting or reducing benefits” based on a health factor  Must not be “highly suspect in the method chosen to promote health or prevent disease”  Outcome-based programs: a reasonable alternative must be provided for any individual who does not meet the initial standards based on a measurement, test or health screening  A “facts and circumstances” determination, which leaves the program design open to legal attack 3. Reasonable Design FIVE CONDITIONS FOR A NON-DISCRIMINATORY HEALTH CONTINGENT PROGRAM

17. 17 Activity-only Programs  Full reward must be available to all similarly situated individuals  Must allow a reasonable alternative of a waiver for any individual for whom, during that period, the activity is medically inadvisable  If “reasonable under the circumstance,” the program may verify medical inadvisability  Whether an alternative is reasonable is a “facts and circumstances” determination but the program must ●Provide and assist with locating the alternative ●Pay fees and membership fees for alternative o Not food costs ●Have a reasonable time commitment ●Accommodate the recommendation of the individual’s physician (always reasonable) o Can apply standard co-pay or cost sharing for recommended medical services and equipment ●Activity-only or an outcome-based alternatives must also provide a reasonable alternative 4. Uniform Availability and Reasonable Alternative Standards FIVE CONDITIONS FOR A NON-DISCRIMINATORY HEALTH CONTINGENT PROGRAM

18. 18 Activity-only Program Example: A group health plan rewards individuals who participate in a reasonable walking program (not overly burdensome” a “subterfuge” or “highly suspect”), that is unreasonably difficult or medically inadvisable for Jo. Jo’s doctor recommends a monthly healthy eating education program and a weekly weight-loss diet program, which are reasonable time commitments. Who finds the finds the two programs? The plan Who pays the education and diet program fees? The plan – but not the food costs 4. Uniform Availability and Reasonable Alternative Standards FIVE CONDITIONS FOR A NON-DISCRIMINATORY HEALTH CONTINGENT PROGRAM

19. 19 Outcome-based Programs:  Full reward must be available to all similarly situated individuals  If health standard is not met at initial measurement, test or screening program must allow: ● a reasonable alternative (not the same standard at a different level without additional time) ●the individual’s physician’s recommendation (which can change), or ●a waiver  May not seek verification of medical difficulty in meeting standard  Whether an alternative is reasonable is a “facts and circumstances” determination but the program must ●Provide and assist with locating the alternative ●Pay fees and membership fees for alternative ●Have a reasonable time commitment ●Accommodate the recommendation of the individual’s physician (always reasonable)  Activity-only or an outcome-based alternatives must also provide a reasonable alternative 4. Uniform Availability and Reasonable Alternative Standards FIVE CONDITIONS FOR A NON-DISCRIMINATORY HEALTH CONTINGENT PROGRAM

20. 20 Outcome-based Program Example: A group health plan rewards individuals who achieve a cholesterol test of less than 200. 4. Uniform Availability and Reasonable Alternative Standards FIVE CONDITIONS FOR A NON-DISCRIMINATORY HEALTH CONTINGENT PROGRAM Can the plan request medical verification that meeting the standard is medically inadvisable? No – verification is not reasonable for outcome based programs Can the alternative be an activity-only program, like a reasonable walking program? Yes - but the activity-only program must also offer a reasonable alternative Can the alternative be achieving a test of under 205 in the same time period? No - the alternative must also offer more time - a small percentage improvement in the test results over a realistic time period would be appropriate Can the participant obtain and propose the recommendation of her physician as an alternative? Yes - the program must accommodate the recommendation of the participant’s physician

21. 21 Outcome-based Programs and Activity-only Programs  Any description of a health contingent wellness program must disclose the availability of a reasonable alternative standard, with ●contact information for obtaining the alternative, and ●a statement that recommendations of an individual’s personal physician will be accommodated.  Announcement of the availability of the program only, does not require disclosure ●The notice requirement would not be triggered by a summary of benefits and coverage that states that the cost sharing may vary based on participation in a diabetes wellness program, without describing the standards of the program ●The requirement is triggered if the document states that premium differential is based on tobacco use (standard) or the results of a biometric exam (outcome-based)  For outcome based-wellness programs, notice of a reasonable alternative is provided to any individual who did not satisfy an initial outcome-based standard Sample: Your health plan is committed to helping you achieve your best health. Rewards for participating in a wellness program are available to all employees. If you think you might be unable to meet a standard for a reward under this wellness program, you might qualify for an opportunity to earn the same reward by different means. Contact us [contact information] and we will work with you (and if you wish, with your doctor) to find a wellness program with the same reward that is right for you in light of your health status. 5. Notice of Availability of Reasonable Alternative Standards FIVE CONDITIONS FOR A NON-DISCRIMINATORY HEALTH CONTINGENT PROGRAM

22. 22 Application to Grandfathered Plans and Effective Date of Changes Then and Now

23. 23  Final regulations are applicable to group health plans and health insurance issuers in the group and individual markets for plan years (in the individual market policy years) beginning on or after January 1, 2014  To promote consistency between grandfathered and non-grandfathered plans, and to allow flexibility for grandfathered plans, the final wellness regulations will apply to both  Proposed Rule addresses how to calculate minimum value for wellness incentives – 78 Fed. Reg. 25909 (May 3, 2013) ● If wellness incentive is premium credit, may be able to count toward affordability test ●If wellness incentive affects deductible, copayment, cost sharing, may be able to count toward minimum value test ●Tobacco use incentives can be used by employer for all employees, whether or not the incentive was earned o Example: if premium is $1,000 and employer offers $200 premium credit for not smoking, then for the affordability calculation the employer can count the $200 premium credit and consider employee premium to be $800 ($1,000 - $200 tobacco credit)  Transition rule for 2014 only, counts other (non-tobacco) program incentives if the reward, the terms of program and the eligibility was all in place as of May 3, 2013 Then and Now APPLICATION TO GRANDFATHERED PLANS AND EFFECTIVE DATE OF CHANGES

24. 24 No Effect on Other Laws Compliance Here and There

25. 25 “Compliance with the ACA non-discrimination requirements is not determinative of compliance with any other applicable requirements.”  ERISA – Employee Retirement Income Security Act of 1974  ADA /ADAAA – Americans with Disability Act of 2008/ the Americans with Disabilities Act Amendments Act  GINA - Genetic Information Nondiscrimination Act of 2008  HIPAA Privacy Rule  FMLA - Family Medical Leave Act of 1993  Tax – Internal Revenue Code  Title VII of the Civil Rights Act of 1964  ADEA – Age Discrimination in Employment Act of 1967 Compliance Here and There NO AFFECT ON OTHER LAWS

26. 26 Conclusions Summary of Call, Important Take-Aways and the Coming Attractions

27. 27  The Wellness Legal Landscape: Big Ideas and Important Terms  Participatory Wellness Programs  Health Contingent Wellness Programs ●Activity-only Wellness Programs ●Outcome-based Wellness Programs  What Has Changed? Five Conditions of a Health Contingent Wellness Plan: ●Frequency of Opportunity to Qualify ●Size of Reward ●Reasonable Design ●Uniform Availability and Reasonable Alternative Standard ●Notice of Availability of Reasonable Alternative Standard  Application to Grandfathered Plans and Effective Date of Changes  No Effect on Other Laws Summary CONCLUSIONS

28. 28  The five-part non-discrimination test does not apply to participatory wellness programs  There are two types of health contingent wellness programs ●Outcome-based ●Activity-only  A health contingent wellness plan must meet all five requirements of ACA’s non- discrimination regulations: ●Frequency of Opportunity to Qualify for Reward ●Size of Reward ●Reasonable Design ●Uniform Availability and Reasonable Alternative Standards ●Notice of Availability of Reasonable Alternative Standards  Benign discrimination is acceptable  New rules are effective for plan years on or after January 1, 2014 Important Take-Aways CONCLUSION

29. 29 Thank You Questions?

30. 30 Health & Wellness and employee motivation: Making the connection Health and Productivity Solutions Kristin Tugman| August 27 th 2013 This program has been submitted for 1.50 (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute. All attendees will be notified by email of the program ID number once approval is granted to include on your recertification application form. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.

31. 31 Health & Wellness and employee motivation: Making the connection Health and Productivity Solutions Kristin Tugman| August 27 th 2013 www.UBAbenefits.com www.unum.com Thank you for your participation in the UBA WisdomWorkplace presentation. To view a recording of this presentation, or to register for future presentations, contact your local UBA Member Firm.