New Law Requires a Rework of Health Risk Assessments

For Concentra, a Dallas-based health care company, the impact of the new genetics nondiscrimination law primarily has boiled down to a single question. Last year, Concentra leaders trimmed that question, about family history, from the 39-question health risk assessment it uses with its 6,000 employees and recommends to other employers.

Typically, risk assessments run 30 to 45 questions long, with no more than one or two delving into family history, says Jim Greenwood, CEO of Concentra, which operates more than 550 medical centers and work-site clinics.

“You are still collecting a wealth of information on an individual and their lifestyle,” he says. “The key point is that employers want their people to be aware of any health risks that they have regardless of the genesis of that health risk, whether that’s behavior or genetics.”

Prior to the implementation of the Genetic Information Nondiscrimination Act, which went into effect for many health plans this year, some employers and related interest groups expressed concern that the new law would erode their ability to motivate employees to improve their own health.

The law prohibits the collection of any individual’s genetic information—including family history—for any purposes related to insurance underwriting. According to the interim final rules that implement the act, it also stipulates against using any incentives to encourage the completion of a health risk assessment or participation in a wellness program. “Incentives” is a broad category that includes discounts, rebates or other premium payment changes.

Some groups, including the American Benefits Council, are pushing for the finalized wording to be more conducive to wellness efforts. To date, though, the ripple effect has been limited, with many employers simply removing family history questions in advance of the law’s implementation, according to several workforce experts interviewed.

“I think employers have already made their decision—they’ve decided that they are going to scrub [the family history questions],” says J.D. Piro, principal and leader of the health care law consulting group at Hewitt Associates.

But employers should remain vigilant about shielding employee health information, particularly in light of the new law’s protections in regard to genetics-related employment discrimination, says Stephen Paskoff, an attorney and president of ELI, an Atlanta-based training company. A terminated employee could allege that he was fired in part because the boss knew of an underlying genetic risk, such as a family history of Huntington’s disease.

Employees know that employers are watching every dollar they spend, thus elevating their index of suspicion about employer actions, Paskoff says. “I think proving that causal link [to genetic discrimination] will be an issue probably,” he says. “But it adds an issue of complexity that I can tell you that I think most people are not aware of right now.”

Wellness hurdles?
Meanwhile, wellness incentives are more popular than ever, thanks to rising health care costs. By 2010, 53 percent of large employers were providing financial incentives to those who enrolled in wellness programs, such as weight loss or smoking cessation, according to a survey released in March by Towers Watson and the National Business Group on Health. An additional 23 percent planned to do so by 2011. The survey results were based on 507 employers with 1,000-plus employees.

In a comment letter sent to federal officials in December 2009, the American Benefits Council and the HR Policy Association raised concerns about the wording of the interim final rules for the implementation of GINA, saying they force group health plans to choose between providing incentives or asking for details about family history.

Incentives typically encourage employees to complete the assessments, says Kathryn Wilber, senior counsel for health policy at the American Benefits Council. “You kind of have to sacrifice your [employee] participation, since incentives do work well, or you lose some meaningful information in terms of health risk assessment,” she says.

The Genetic Information Nondiscrimination Act will influence employer-driven wellness initiatives, although to what degree is still unclear, says Daniel Vorhaus, a North Carolina attorney and editor of the online Genomics Law Report. “There are fewer degrees of freedom in terms of what they can ask about and how they can structure the incentives around wellness programs compared with pre-GINA,” he says.

“Does that mean wellness programs can’t be effective? No,” he says. “Does that mean in some instances they may be less effective? Maybe.”

Maintaining the wall
To protect themselves, employers now need to maintain a firm separation between those handling workers’ health information and those making hiring and firing decisions, says ELI’s Paskoff. For GINA to be triggered, he says, a claimant would have to prove some level of knowledge about a genetic condition by the person who fired or failed to hire.

GINA does contain what’s frequently dubbed a “water-cooler exemption,” adds Connie Walters, ELI’s general counsel. “Managers don’t have to be frightened about asking the question of ‘How are you feeling today?’ But stay away from more detailed questions, she advises. If an employee mentions they have a sick family member, she says: “Don’t ask, ‘What exactly is wrong?’ You don’t want to push.”

Current uncertainties will ease over time, as society becomes more comfortable with not only the law, but also the inherent limits of genetic information itself, Vorhaus says. After all, genes typically indicate some underlying risk, rather than providing a set template for future health complications, he says. Neither, he says, is “every use of genetic information harmful and a misuse, and that includes by employers.”

At Concentra, the one question deleted from the risk assessment focused on health problems in the employee’s immediate family. It specifically asked about a half-dozen medical diagnoses, including colon and breast cancer, diabetes and heart attacks before age 55 in men (65 in women).

But employers are moving away from relying on questionnaires alone, Greenwood says. Risk assessments ultimately are only as reliable as what the employees know or are willing to report, he says. The better route is to pair the assessments with biometric screenings, such as weight and blood pressure readings. This approach provides a better window into health risks, some of which the employees themselves may not realize that they have.

That includes Concentra’s own employees. “We want them to know their own numbers,” Greenwood says. Although Concentra did drop the family history question, it still provides incentives. Employees who complete the health risk assessment and biometric screenings benefit by getting a lower premium on their health insurance.

Workforce Management Online, April 2010 — Register Now!