1. WORKSITE WELLNESS: THE FUTURE IS NOW STAYING HEALTHY LEGALLY SPEAKING Presented by: Timothy G. Kenneally, Esquire FOLEY & FOLEY, PC Friday, May 6, 2011 1

2. GOALS LEGAL DO’S, DON’T’S and WHY’S OF WELLNESS PLANS 2

3. KEY LAWS HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”) AMERICANS WITH DISABILITY ACT OF 1990 (“ADA”) EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 (“ERISA”) 3

4. POP QUIZ 1 4

5. QUESTION 1 VALID WELLNESS PROGRAM UNDER THE LAW? –A group health plan gives an annual premium discount of 20 percent of the cost of employee-only coverage to participants who adhere to a wellness program. The wellness program consists solely of giving an annual cholesterol test to participants. Only those participants who achieve a count under 200 receive the premium discount for the year. 5

6. ANSWER 1 NOT VALID –Program is not available to all similarly situated individuals because some participants may be unable to achieve a cholesterol count of under 200. The premium discount violates the law because it may require an individual to pay a higher premium based on a health factor. 6

7. GENERAL RULE PROGRAM MUST BE AVAILABLE TO SIMILARLY SITUATED INDIVIDUALS NO CONDITION FOR REWARD CAN BE BASED ON A HEALTH FACTOR VOLUNTARY… MAYBE 7

8. HEALTH FACTORS? NON-DISCRIMINATION REGULATIONS –Prior Medical Care; –Current Medical Conditions; –Medical Claim History; –Health Status; 8

9. HEALTH FACTORS cont. –Prior Use of Healthcare; –Genetics; –Insurability (Risky Behavior/Abuse); and –Disability 9

10. POP QUIZ 2 VALID? A group health plan gives an annual premium discount of 20 percent of the cost of employee-only coverage to participants who adhere to a wellness program. Those participants who attend one fitness class a month at a local fitness center receive the premium discount for the year. Employees medically unable to participate in fitness classes may receive the discount by attending monthly healthy-living classes at the fitness center. The program renews annually. 10

11. ANSWER 2 VALID –THIS PLAN MEETS THE REQUIREMENTS OF THE EXCEPTION TO THE GENERAL RULE FOUND IN 29 CFR 2590.702(f)(2). 11

12. EXCEPTION REWARD BASED ON HEALTH FACTOR PERMITTED IF: –ALL SIMILARLY SITUATED INDIVDUALS –TOTAL REWARDS NOT > 20% OF ANNUAL COST –PROMOTES HEALTH OR PREVENTS DISEASE –REASONABLE/NOT OVERLY BURDENSOME –ANNUAL OPPORTUNITY TO QUALIFY –REASONABLE ALTERNATIVE –PROPER DISCLOSURE 12

13. POP QUIZ 3 VALID? Plan waives annual deductible for all participants with diabetes if they enroll in a disease management program and follow their doctor’s recommendations regarding exercise and medication. 13

14. ANSWER 3 VALID –THIS WELLNESS PLAN PROVISION IS AN EXAMPLE OF “BENIGN DISCRIMINATION”. –ALLOWED BECAUSE PLAN REWARDS AND DOES NOT PENALIZE DIABETICS. 14

15. ADA MANDATORY PLANS WITH PENALTIES 15

16. SEFF V. BROWARD COUNTY HEALTH QUESTIONNAIRE/BIOMETRIC SCREENING – OR $20 PENALTY VIOLATED ADA? E-IDENTIFIED AGGREGATE DATA USED DATA TO DEVELOP FUTURE PLANS 16

17. SEFF V. BROWARD COUNTY DID NOT VIOLATE ADA SAFE HARBOR PROVISIONS APPLY GOAL ADA – ELIMINATE DISCRIMINATION RISK ASSESSMENT WAS GOAL OF PLAN 17

18. BEST PRACTICES AVOID PLANS THAT PENALIZE TRUSTED ADVISOR/ADMINISTRATOR WELL WRITTEN OPERATING PLAN PRACTICAL SUGGESTIONS 18