Speaker Firms and Organizations Profiled at Health Benefits Law Event

Speaker Firms and Organization:

Partner Firms:

Presented By:

Alyson Mathews
Partner
Lamb & Barnosky, LLP
Kendra Roberson
Of Counsel
Covington & Burling LLP
Joseph F. Coniglio
Shareholder
Greenberg Traurig, LLP
Magan Pritam Ray
Shareholder
Jim Pshock
Founder and Chief Executive Officer
Bravo Wellness

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January 30, 2014

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January 30, 2014

Partner Firms:

Lamb & Barnosky, LLP is one of Long Island's largest and most respected
law firms, representing a wide variety of corporate, municipal and individual
clients. As a full-service law firm, Lamb & Barnosky, LLP is comprised of
numerous practice areas, including Banking; Real Estate; Taxation;
Corporate Mergers and Acquisitions; Education; Labor and Employment;
Municipal; Health Care; Intellectual Property, Land Use, Planning,
Environmental and Zoning; and Trusts and Estates.
The firm has an AV rating from Martindale-Hubbell, the nationally renowned
legal directory, recognizing the firm's commitment to providing the highest
standard of legal ability, professional conduct and ethics. Additionally, the
firm has been named to the Bar Register of Preeminent Lawyers. The firm
proudly honors its commitment to pro bono and bar association work by
having several partners who have served/currently serve on New York State
and local bar association boards.

Covington & Burling LLP, a full-service firm with over 850 lawyers in Beijing,
Brussels, London, New York, San Diego, San Francisco, Seoul, Shanghai,
Silicon Valley, and Washington, is one of the leading international life
sciences law firms in the world. Covington represents most of the major
biotechnology and pharmaceutical companies in the United States and
Europe and numerous other life sciences companies worldwide. Covington
also advises and represents hospitals, health plans, and other health care
providers on issues involving payment and reimbursement under a range of
federal and state health care programs and on issues of health information
privacy. With its multi-disciplinary and multi-jurisdictional practice that
integrates regulatory, corporate, transactional, intellectual property, litigation,
competition, and trade law expertise, Covington meets the specialized needs
of life sciences and health care companies.

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January 30, 2014

Partner Firms:

Greenberg Traurig, LLP is an international, multi-practice law firm with
approximately 1750 attorneys serving clients from 36 offices in the United
States, Latin America, Europe, the Middle East and Asia. Greenberg Traurig
is among the Top 10 law firms on The National Law Journal's 2013 NLJ 350,
an annual ranking of the largest firms in the U.S.
GT provides integrated legal services for clients worldwide. The firm offers a
multidisciplinary team, including senior lawyers who have been the chief
legal officers at major multinational companies and have spent years solving
real-world problems in the business, political and legal environments of
major commercial centers. GT’s experience in more than 100 practice areas
and their network of contacts throughout the world positions them to help
clients achieve their objectives both domestically and in the global
marketplace.

Founded in 2008, Bravo Wellness is the thought leader in health-contingent
wellness incentive programs. Bravo's market leadership provides unique
insights into industry best practices, identifies ways to mitigate the cost of
healthcare, and minimize potential legal risks or compliance concerns. Bravo
helps employers engage their employees, foster personal accountability, and
bring about real behavior change towards better health and wellness. Bravo
Wellness and its subsidiary, IncentiSoft Solutions, are headquartered in
Cleveland, OH. For more information, visit www.bravowell.com.

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January 30, 2014

Brief Speaker Bios:
Alyson Mathews
Alyson Mathews represents employers in labor and employment law matters. She has assisted clients with grievance arbitrations,
improper practice charges before PERB, disciplinary charges and contract negotiations. Ms. Mathews has comprehensive knowledge
of the Affordable Care Act, including employer implementation strategies and best personnel practices. She has been featured in
the Long Island Business News' Who's Who in Women in Professional Services.

Kendra Roberson
Kendra Roberson, of counsel at Covington & Burling LLP, advises clients on a broad spectrum of employee benefits matters, including
tax-qualified retirement plans, employee stock ownership plans, executive compensation arrangements, stock option and other equitybased compensation plans, cafeteria plans, VEBAs, self-insured medical plans, and other health and welfare plans. Her experience
includes plan design and drafting, regulatory compliance, ERISA litigation, and handling employee benefits matters and plans in
corporate transactions. In addition, Ms. Roberson has extensive experience advising employers and state governments on compliance
with the Patient Protection and Affordable Care Act ("PPACA")

8
January 30, 2014

Brief Speaker Bios:
Joseph F. Coniglio
Joseph F. Coniglio has wide-ranging experience in the areas of health care law and complex business litigation. He represents
hospitals, physicians, and other related health care entities in litigation and transactional matters. He also provides service on a
national basis to privately held and publicly traded companies related to corporate entity issues and health care regulatory matters. Joe
advises health care clients on operational matters, liability exposure of corporate entities, federal and state health care regulatory
compliance involving complex fraud issues and health care reimbursement disputes, as well as professional liability and risk
management. He also represents health care providers before their respective state boards in grievance and disciplinary proceedings.
Joe received his J.D., cum laude, from Texas Tech University School of Law.

Magan Pritam Ray
Magan Pritam Ray has wide-ranging experience in all facets of employee benefits, compensation and ERISA matters, including the
design, implementation and operation of retirement plans, health and welfare benefit plans, cafeteria plans, fringe benefit plans, and
non-qualified deferred compensation programs. Magan is a specialist in counseling clients on the business impact, strategic response,
plan design and compliance with health care reform. Magan regularly advises clients, from startups to Fortune 100 companies, on
issues in mergers, acquisitions, spin-offs and joint ventures. Magan also has experience in representing companies undergoing
employee benefits, employment and tax audits before the IRS, DOL and EDD. She received her J.D., with distinction, from Stanford
Law School.

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January 30, 2014

Brief Speaker Bios:
Jim Pshock
Jim Pshock is a leader known for cutting-edge innovation in the healthcare sector. His career spans over 20 years in the health
insurance industry including executive positions in technology, operations, sales, marketing and corporate strategy with carriers and
third-party administrators. Jim has developed a comprehensive and unique expertise in the regulations related to governing wellness
programs and the practical application of incentives to improve employee health.
Jim frequently presents to regional and national audiences, including human resource professionals, occupational health professionals
and insurance industry associations. He also serves on a national committee of HERO, an advocacy group exploring the innovation
and evaluation of worksite wellness. Jim was recognized for his talents receiving the Northeast Ohio Ernst & Young Entrepreneur of
the Year® Award in 2011.

► For more information about the speakers, you can visit:

http://www.knowledgecongress.org/speakers_2014_Final_Wellness.html

10
January 30, 2014

Recently, the Department of Health and Human Services (DHHS) issued final wellness regulations governing
health- out-come-based wellness programs increasing rewards to up to 50 percent for healthy activity such as
smoking cessation. The new regulations were published on June 3, 2013 and become effective on January 1,
2014 (or upon renewal after January 1, 2014). As compliance date draws near, companies should have a complete
and thorough understanding of the final rules to avoid potentially steep penalties.
The Knowledge Group has assembled a panel of key thought leaders and practitioners to provide the audience
with an in-depth analysis of the Final Wellness Regulations. In a two-hour live webcast, speakers will discuss:
- Recent Developments and Key Changes on Final Wellness Regulations
- Enforcement of and Compliance with the Final Rules
- Impact of the Final Rules
- Penalties and Exemptions
- Best Practices in Compliance
- Up to the Minute Regulatory Changes
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January 30, 2014

Featured Speakers:

SEGMENT 1:

SEGMENT 2:

Alyson Mathews
Partner

Kendra Roberson
Of Counsel

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

SEGMENT 4:
Jim Pshock
Bravo Wellness

12
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

Introduction
Alyson Mathews represents employers in labor and employment law matters. She has assisted clients with grievance
arbitrations, improper practice charges before PERB, disciplinary charges and contract negotiations. Ms. Mathews has
comprehensive knowledge of the Affordable Care Act, including employer implementation strategies and best personnel
practices. She has been featured in the Long Island Business News' Who's Who in Women in Professional Services.
Ms. Mathews is actively involved in the NYSBA and serves on the Electronic Communications Committee and on the
Executive Committee of the Labor and Employment Law Section. She is a co-editor of NYSBA's second edition ofImpasse
Resolution under the Taylor Law. Ms. Mathew is also a member of the American Bar Association and the Suffolk County
Bar Association.
Ms. Mathews received her law degree from Brooklyn Law School and her undergraduate degree, cum laude, from Boston
College.

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January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

Overview of Wellness Programs
•

•

Program Goals:
– Promote health and prevent disease
– Keep healthy individuals healthy
– Encourage unhealthy individuals to change their behavior to reduce or eliminate risk factors
Incentives (“Carrot & Stick Approach”)
– Carrot  Reward
• Reduction in premium costs
• Waiver of copays or deductibles
– Stick  Penalty
• Surcharge

14
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

HIPAA Non-Discrimination Rules
•
•

The Health Insurance Portability and Accountability Act (HIPAA) prohibits a group health plan from
discriminating against similarly situated participants based upon health status.
A wellness program is not a group health plan if, in general, the program is offered to all employees
regardless of whether they are enrolled in the employer’s health plan and the program does not
provide any medical care.
– Example: A wellness program that provides employees with a discounted gym membership is
not a group health plan.

15
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

HIPAA Non-Discrimination Rules
•

•
•

Providing medical care may include:
– Health assessments
– Screenings
– Immunizations
In addition, a wellness program becomes a group health plan if it provides rewards or penalties with
regard to premiums.
The final wellness program regulations, as amended by the Affordable Care Act, set forth the
requirements for wellness programs to comply with the HIPAA non-discrimination rules.
– Regulations apply to any group health plan (grandfathered or nongrandfathered) and group
health insurance issuers offering coverage for plan years beginning on or after January 1, 2014

16
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

Two Types of Wellness Programs
•

Participatory
– Eligibility for reward is unrelated to a health factor; or
– No reward offered
– Must be available to all “similarly situated individuals,” regardless of health status

•

Health-Contingent
– Must satisfy a standard related to a health factor in order to obtain a reward; or
– Must do more than a similarly situated individual based on a health factor to obtain the same
reward

17
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

Examples of Participatory Wellness Programs that
Are Unrelated to a Health Factor
•
•
•
•
•
•

Reimburse employees for all or part of cost for gym membership
Reward for participation in diagnostic testing program (without regard to outcome)
Encourage preventive care by waiving copay or deductible
Reimbursement for participating in smoking cessation program (without regard to whether employee
quits)
Reward for attending a monthly, no-cost health education seminar
Reward for completing health risk assessment regarding current health status

18
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

Two Types of Health-Contingent Wellness Programs
•

•

Activity-Only
– Requires individual to perform or complete an activity that is related to a health factor in order to
obtain a reward, but does not require a specific outcome
• Examples: Diet or exercise program
Outcome-Based
– Requires individual to attain or maintain a specific health outcome in order to obtain a reward or
avoid a penalty
• Examples: Attain/maintain healthy BMI or cholesterol level

19
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

Requirements for Health Contingent Programs
Generally, the same requirements apply to activity-only and outcome-based wellness programs.
•Frequency: Must be able to qualify for full reward at least once per year
•Size of Reward: up to 30% of total cost of employee coverage, or up to 50% if additional percentage is
in connection with a program designed to prevent or reduce tobacco use
– If spouses and dependents can participate in the wellness program, then the size of the reward
is based on the total cost of the coverage in which they are enrolled.

20
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

•

Reasonable Design:
– Must have reasonable chance of improving the health of, or preventing disease in, participating
individuals
– Must not be overly burdensome
– Must not be a subterfuge for discriminating based upon a health factor
– Must not be highly suspect in the method chosen to promote health or prevent disease

21
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

•

Uniform Availability and Reasonable Alternative Standards: must be available to all similarly situated
individuals
– Achieved by providing reasonable alternative standard (or waiver of otherwise applicable
standard)
– Differences between activity-only and outcome-based wellness programs

22
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

•

Notice of Availability of Reasonable Alternative Standard:
– All plan materials describing the terms of the wellness program must disclose the availability of
a reasonable alternative standard (or the possibility of a waiver)
– Must include contact information for obtaining a reasonable alternative standard
– Must include a statement that the recommendations of an individual’s personal physician will be
accommodated
– For outcome-based programs, must also include the availability of a reasonable alternative
standard in any disclosure that an individual did not satisfy the initial outcome-based standard

23
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

Uniform Availability & Reasonable Alternative Standard
Activity-Only Wellness Programs
•

•

Plan must provide a reasonable alternative standard for obtaining the reward (or waiver of otherwise
applicable standard) for any individual for whom, for that period, it is:
– Unreasonably difficult due to a medical condition to satisfy the otherwise applicable standard; or
– Medically inadvisable to attempt to satisfy the otherwise applicable standard
No obligation to determine a reasonable alternative standard in advance, but one must be furnished
upon request or the condition for obtaining the reward must be waived.

24
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

•

All facts and circumstances are taken into account to determine whether the plan offered a
reasonable alternative standard including, but not limited to:
– If the reasonable alternative standard is an educational program, the program is made available
by the plan (or assistance is given for finding one) and is free of charge.
– If the reasonable alternative standard is a diet program, the plan must pay for the membership
or participation fee, but not the cost of food.
– Whether required time commitment is reasonable
– If individual’s personal physician states that a plan standard is not medically appropriate, plan
must provide a reasonable alternative standard that accommodates the physician’s
recommendations.

25
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

•

A reasonable alternative standard may be participatory, activity-only or outcome-based
– If participatory, the individual is eligible for the reward so long as he/she participates. No
additional reasonable alternative standard must be provided if the individual elects not to
participate.
– If activity-only, a second reasonable alternative standard must be provided if the first reasonable
alternative standard was unreasonably difficult to complete due to a medical condition or
medically inadvisable to attempt to complete.
– If outcome-based, must satisfy rules for outcome-based programs

26
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

Outcome-Based Wellness Programs
•

•

Plan must provide reasonable alternative standard (or waiver of otherwise applicable standard) for
any individual who does not meet the initial standard based on the measurement, test or screening
– Does not matter whether initial standard was unreasonably difficult
– Does not matter whether initial standard was medically inadvisable to attempt to achieve
– Cannot require physician verification that a health factor makes it unreasonably difficult to satisfy
or medically inadvisable for the individual to attempt to satisfy the otherwise applicable standard
as a condition of providing a reasonable alternative standard
Whether plan furnished a reasonable alternative standard depends on the facts and circumstances
(same rules as for activity-only)

27
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

•

A reasonable alternative standard may be participatory, activity-only or outcome-based
– If participatory, the individual is eligible for the reward so long as he/she participates. No
additional reasonable alternative standard must be provided if the individual elects not to
participate.
– If activity-only, then a second reasonable alternative standard must be provided if the first
reasonable alternative standard was unreasonably difficult to complete due to a medical
condition or medically inadvisable to attempt to complete.
– If outcome-based, must satisfy rules for outcome-based programs, subject to additional special
rules.

28
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

•

Special Rules
– Reasonable alternative standard cannot be a requirement to meet a different level of the same
standard without additional time to comply that takes into account the individual’s
circumstances.
• Example: If the initial standard is achieving a BMI of less than 30, the reasonable
alternative standard cannot be to achieve a BMI of less than 31 as of the same deadline.
A permissible reasonable alternative standard could be to reduce the individual’s BMI by a
small percentage over a realistic period of time, such as one year.
– Individual must be given the opportunity to comply with the recommendations of his/her
personal physician as a second reasonable alternative standard, but only if the physician joins in
the request. The individual may request to involve his/her personal physician’s
recommendations at any time, and the personal physician can adjust his/her recommendations
at any time, “consistent with medical appropriateness.”

29
January 30, 2014

SEGMENT 1:
Alyson Mathews
Partner

Trust, Personal Attention and Results ®
Alyson Mathews, Esq.
534 Broadhollow Road - Suite 210
P.O. Box 9034
Melville, New York 11747
631-414-5825
am@lambbarsnoky.com
lambbarnosky.com
30
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

Introduction
Kendra Roberson, of counsel at Covington & Burling LLP, advises clients on a broad spectrum of employee benefits
matters, including tax-qualified retirement plans, employee stock ownership plans, executive compensation arrangements,
stock option and other equity-based compensation plans, cafeteria plans, VEBAs, self-insured medical plans, and other
health and welfare plans. Her experience includes plan design and drafting, regulatory compliance, ERISA litigation, and
handling employee benefits matters and plans in corporate transactions. In addition, Ms. Roberson has extensive
experience advising employers and state governments on compliance with the Patient Protection and Affordable Care Act
("PPACA")

31
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

Disclaimer
This presentation provides general information, not legal advice as to any specific matter. It should not
be used as a substitute for appropriate legal advice.

32
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

Americans with Disabilities Act (ADA): Application to Benefits
•

Prohibits providing benefits on a less favorable basis because of a disability
– however, disability-based distinctions permissible if not a “subterfuge” to evade ADA
– subterfuge if not justified by risks or costs

33
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

ADA: Application to Employers
•
•

Requires reasonable accommodation to enable disabled to participate in wellness program
Limits employer’s ability to make disability-related inquiries or require medical exams
– E.g., cholesterol screenings, health risk assessments
– EEOC has said permissible if “voluntary”

34
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

ADA: Voluntary Inquiries/Exams
•

Meaning of voluntary unclear based on EEOC guidance:
– clearly “involuntary” to condition health coverage on completion of HRA
– “Could be involuntary” to provide financial incentive – threshold amount unknown.

35
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

ADA: Voluntary Inquiries/Exams
•

Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012)
– a wellness program that is part of a bona fide group health plan might not violate ADA even if
“involuntary”
– must not be a subterfuge for evading ADA
– must have an underwriting purpose

36
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

ADA: Key Questions
•
•
•

Is there a disability-related inquiry or medical examination?
Is there a financial incentive?
Is reasonable accommodation provided?

37
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

ADA: Examples
•

•

Reward for completing medical questionnaire about family medical history:
– genetic information = disability-related inquiry (ADA applies)
– Generally not permitted unless voluntary
– Incentive might make involuntary
Reward for walking 3 miles per week (activity-only program)
– Must provide reasonable accommodation
– May require documentation that accommodation necessary

38
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

GINA and Health Risk Assessments
•

Genetic information
– genetic test (individual and family members)
– family medical history (manifestation of disease/disorder)
– genetic services/information (individual, family, fetus, embryo)

39
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

•

Title I: Prohibits plans from requesting, requiring, or purchasing GI
– prior to or in connection with enrollment
• date coverage is effective
– for purposes of underwriting
• includes financial incentive for providing GI, including family history
• cannot use voluntarily provided GI to guide employee to a wellness program

40
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

•

Title II: prohibits employer from requesting, requiring, or purchasing genetic information about job
applicant or employee
– exception for voluntary wellness programs
– information can be used to guide employees and provide financial incentives to participate in
wellness programs

41
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

•

Employer has three options
– Do not offer financial incentive to complete HRA
– Offer incentive but do not include questions concerning family medical history (and state that
should not volunteer family medical history)
– Offer incentive only for completing questions that do not relate to family medical history (and
identify questions)

42
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

GINA: Key Questions
•
•
•

Is the request made by employer or health plan?
– If health plan, is request made prior to enrollment?
Is there a financial incentive?
Is genetic information sought?

43
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

GINA: Examples
•

•

Reward for completing medical questionnaire about family medical history:
– family medical history = genetic information (GINA applies)
– No incentive is permitted by employer/plan
– If no incentive, employer could use to guide to wellness program; plan could not give before
enrollment or use to guide to wellness programs
Reward for walking 3 miles per week (activity-only program)
– GINA does not apply

44
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

ADA and GINA Enforcement
•
•

ADA and Title II GINA: EEOC or employee lawsuit seeking compensatory and punitive damages
Title I GINA: Excise taxes under IRC, agency enforcement actions, and private lawsuits under
ERISA

45
January 30, 2014

SEGMENT 2:
Kendra Roberson
Of Counsel

Questions?

Kendra Roberson
(202) 662-5044
kroberson@cov.com

46
January 30, 2014

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o Multiple Technical Back-ups & Redundancies to Ensure a Perfect Live Event
o Webcast Recording (MP3 Audio & MP4 Video)
o Post Webcast Performance Survey
CLE and CPE Processing
Private Label Programs Start at just $999

47
February 11, 2014

RESEARCH & BUSINESS PROCESS OUTSOURCING
The Knowledge Group specializes in highly focused and intelligent market and topic research. Outsource your research projects and business processes to our team
of experts. Normally we can run programs for less than 50% of what it would cost you to do it in-house.
Here are some ideal uses for our services:
Market Research and Production
o
List Research (Prospects, Clients, Market Evaluation, Sales Lists, Surveys)
o
Design of Electronic Marketing Collateral
o
Executing Online Marketing Campaigns (Direct Email, PR Campaigns)
o
Website Design
o
Social Media
Analysis & Research
o
Research Companies & Produce Reports
o
Research for Cases
o
Specialized Research Projects
eSales (Electronic Inside Sales – Email and Online)
o
Sales Leads Development
o
eSales Campaigns

Inside Sales people will prospect for leased, contact them and coordinate with your sales team to follow up.

Our Inside eSales reps specialize in developing leads for big-ticket enterprise level products and services.
o
Electronic Database Building – Comprehensive service which includes deveolment od sales leads, contacting clients, scoring leads, adding notes and
transferring the entire data set to you for your internal sales reps.
eCustomer Service (Electronic Inside Sales – Email and Online)
o
Real-Time Customer Service for Your clients

Online Chat

Email
o
Follow-Up Customer Service

Responds to emails

Conducts Research

Replies Back to Your Customer
Please note these are just a few ways our experts can help with your Business Process Outsourcing needs. If you have a project not specifically listed above please
contact us to see if we can help.

48
February 11, 2014

SEGMENT 3:
Joseph F. Coniglio
Shareholder

Introduction
Joseph F. Coniglio has wide-ranging experience in the areas of health care law and complex business litigation. He
represents hospitals, physicians, and other related health care entities in litigation and transactional matters. He also
provides service on a national basis to privately held and publicly traded companies related to corporate entity issues and
health care regulatory matters. Joe advises health care clients on operational matters, liability exposure of corporate
entities, federal and state health care regulatory compliance involving complex fraud issues and health care reimbursement
disputes, as well as professional liability and risk management. He also represents health care providers before their
respective state boards in grievance and disciplinary proceedings. Joe received his J.D., cum laude, from Texas Tech
University School of Law.

49
January 30, 2014

SEGMENT 3:
Magan Pritam Ray
Shareholder

Introduction
Magan Pritam Ray has wide-ranging experience in all facets of employee benefits, compensation and ERISA matters,
including the design, implementation and operation of retirement plans, health and welfare benefit plans, cafeteria plans,
fringe benefit plans, and non-qualified deferred compensation programs. Magan is a specialist in counseling clients on the
business impact, strategic response, plan design and compliance with health care reform. Magan regularly advises clients,
from startups to Fortune 100 companies, on issues in mergers, acquisitions, spin-offs and joint ventures. Magan also has
experience in representing companies undergoing employee benefits, employment and tax audits before the IRS, DOL and
EDD. She received her J.D., with distinction, from Stanford Law School.

50
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

ACA Directives Regarding Wellness Programs
>

Includes provisions intended to encourage workplace health promotion as a means to reduce the
burden of chronic illness, improve health, and slow the growth of health care costs.

>

A “wellness program” is defined as a program offered by an employer designed to promote health or
prevent disease.

>

Interventions directed at healthy behaviors can change the trajectory of long-term health.

51
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Wellness Program Recap
>

Participatory Wellness Programs

>

Health-Contingent Wellness Programs
–

Activity-Only Program

–

Outcome-Based Program

**Health-contingent wellness programs must meet certain requirements to avoid being deemed
discriminatory.

52
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Potential Impact of Wellness Programs
>

1 in 10 Americans has diabetes today.

>

CDC projects diabetes rate to be 1 in 3 Americans by 2050.

>

Lifestyle interventions (reduce body weight, dietary changes, physical activity) reduce development
by 60%.

>

Programs are viable strategy to contain health care costs.

53
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Increase of Wellness Promotion Initiatives
>

Approximately half of U.S. employers with 50 or more employees offer wellness promotion initiatives.

>

Wellness benefits can be offered by employers directly to all employees or though group health plans
to members.

>

69% of Employers with wellness programs use “rewards” or financial incentives to encourage
utilization.

>

Most common monetary incentive is Health Risk Assessment (HRA) completion or lifestyle
management programs.

54
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

The Future of Wellness Programs
>

Long Term Health Impact of Wellness Programs
–

Longer follow up required given latency between health risks and development of chronic
disease.

>

Impact on Broader Range of Measures

>

Absenteeism, Productivity, and Retention are Critical to Employers.

55
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

The Future of Wellness Programs
>

Program Design and Delivery
–

Accreditation of certain programs and operation by third parties.

–

Address concerns regarding discriminatory programs by permitting a “safe harbor” for those
employers who establish conduct for reasonable design of a wellness program.

–

Questions remain regarding level of participation and cooperation of physicians in crafting
wellness program alternative standards.

56
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Case Studies
>

Group health plans are prohibited from discriminating against participants with respect to eligibility,
benefits, or premiums based on a health factor.

>

As an exception to this rule, a properly designed wellness program may provide rewards.

>

Not all wellness programs are via a group health plan.

>

Participatory Programs do not require an individual to satisfy a standard related to a health factor
but must be available to all similarly situated individuals.

>

Health-Contingent Programs (Activity-Only or Outcome-Based) require an individual to satisfy a
standard and must comply with 5 requirements.

57
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

5 Requirements for Health-Contingent Programs
>

Must have a chance to qualify for the reward at least once per year (frequency).

>

Total reward may not exceed 30% of cost of coverage with an additional 20%, for total of 50%, for
programs aimed at reducing tobacco use.

>

Must be “reasonably designed” to promote health or prevent disease.

>

Reward must be available to all similarly situated individuals; must offer a “reasonable alternative
standard” (RAS) or waiver.

>

Notice of availability of RAS.

58
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

59
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Case Study One – Outside Health Plans
>

Employer subsidizes gym membership ($50/month).
–

>

Employer offers to pay for weight loss program for all employees (regardless of whether they are in
health plan).
–

>

Not part of health plan but ensure proper tax treatment.

Not part of health plan but ensure proper tax treatment.

Employer gives $100 gift certificate to each employee (and spouse) who completes an HRA, which
does not ask for family history or other genetic information.
–

May/may not be through health plan but ensures tax treatment of gift cards is addressed.

–

HRA complies with GINA.

60
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Case Study Two – Health Risk Assessment
>

Employer provides $50 a month premium discount for completion of an HRA and biometric
screening, which does not ask for family history or other genetic information and does not base the
reward on the information (e.g., whether the employee is a smoker or not or what level blood
pressure is).
–

HRA complies with GINA.

–

This is a Participatory Program and not a Health-Contingent Program because the reward is
not based on the outcome of the answers to the HRA or results of biometric screening, so no
need to analyze frequency, size of reward, design, RAS, or notice requirements.

61
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Case Study Three – Smoking Cessation
>

Employer continues with earlier wellness programs and adds a reimbursement for the cost of
participating in a smoking cessation program without regard to whether the individual quits smoking.
–

This is a Participatory Program because the reward is participation in the smoking cessation
program and not the outcome (i.e. quitting smoking).

–

As a Participatory Program no need to analyze frequency, size of reward, design, RAS or
notice requirements.

62
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Case Study Four – Exercise Program
>

Employer adds a “healthy heart” program which provides $100 premium reduction for participating in
a walking program (e.g., 150 minutes per week). Employee only coverage is $400.

>

“Healthy heart” is an Activity-Only Health-Contingent Program.
–

Should be able to meet frequency, reasonable design and notice requirements.

–

Reward of $100 (25%) is within maximum range.

–

RAS must be provided if medically inadvisable to attempt , or due to medical condition it is
unreasonably difficult, to meet standard.
 May seek verification from physician but must take into account recommendations in
establishing a RAS.
 RAS may include, e.g., other exercise (activity rules apply), diet or education program
(must pay for course but not food).

63
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Case Study Five – Tobacco Surcharge
>

Employer requires a certification (as part of HRA) regarding tobacco use and provides premium
reductions of $50/month for completion of HRA and $100/month for certification of no tobacco use.

>

Full $100 reward available to tobacco users who certify they will complete a tobacco cessation
program without regard to whether they quit.

>

This is an Outcome-Based Health-Contingent Program because standard is to be a non-tobacco
user.

>

Potential frequency issues related to mid-year hires and length of cessation programs.

>

Reward of $150 is 37.5% of total cost of employee coverage ($400/$150 = 37.5%) which is within
50% maximum.

64
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Case Study Five – Tobacco Surcharge cont’d.
>

To meet reasonable design test, smokers must be given a RAS whether or not individual has
medical condition or it is medically inadvisable to meet the standard.

–

Employer voluntarily established the completion of the tobacco cessation program (without regard to
outcome) as a RAS up front.

–

The tobacco cessation program is Participatory Program so no further alternatives are required.

–

Employer must find and pay for cessation program.

>

Notice of availability of RAS must be provided in plan materials that describe program and in
disclosure that individual did not meet standard to be tobacco free.

65
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Case Study Six– Biometric Levels
>

Employer continues HRA/biometric screening and smoking cessation and adds a $50 per month
premium reduction if BMI is at/under 28.

>

This an Outcome-Based Health-Contingent Program.

>

Total available reward $200 ($50 for HRA/biometric screening, $100 for tobacco-free
certification/tobacco cessation program, $50 for meeting BMI standard) is within maximum allowable
reward.
–

$400/$200 = 50% for all rewards.

–

$50 for HRA and $50 for BMI tested separately are within maximum for non-tobacco related
programs ($400/$100 = 25%).

66
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Case Study Six– Biometric Levels cont’d.
>

To meet reasonable design test, if BMI exceeds 28, a RAS must be given whether or not individual
has a medical condition or it is medically inadvisable to meet standard.
–
–

RAS may be a walking program (which must comply with the Activity-Only rules).

–

>

RAS may be to reduce BMI by 1 point but since RAS is Outcome-Based, individual must be
given opportunity to comply with doctor recommendations as a RAS, if doctor joins the request.

RAS may be a diet or exercise course (employer must pay for course).

Notice of availability of RAS must be in plan materials that describe the program and with results
for those who do not meet the BMI standard.

67
January 30, 2014

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

Things to Consider
>

Is the wellness program part of the group health plan?

>

If not, has the tax treatment and other legal requirements (e.g. ADA) been addressed?

>

If yes, have all the compliance issues, e.g. ERISA (reporting, disclosure, fiduciary duties etc.),
COBRA, HIPAA, GINA, ACA, been addressed?

>

Design of plan is company decision but implementation and ongoing administration are fiduciary
duties; have governance issues been addressed?

>

How are vendors selected and do the contracts contain appropriate provisions (clear allocation of
duties, standards for delivery of services, risk allocation, indemnity, reasonable fees, termination,
HIPAA privacy/security etc.)?

68
January 30, 2014

SEGMENT 4:
Jim Pshock
Bravo Wellness

Introduction
Jim Pshock is a leader known for cutting-edge innovation in the healthcare sector. His career spans over 20 years in the
health insurance industry including executive positions in technology, operations, sales, marketing and corporate strategy
with carriers and third-party administrators. Jim has developed a comprehensive and unique expertise in the regulations
related to governing wellness programs and the practical application of incentives to improve employee health.
Jim frequently presents to regional and national audiences, including human resource professionals, occupational health
professionals and insurance industry associations. He also serves on a national committee of HERO, an advocacy group
exploring the innovation and evaluation of worksite wellness. Jim was recognized for his talents receiving the Northeast
Ohio Ernst & Young Entrepreneur of the Year® Award in 2011.

69
January 30, 2014

Beyond the laws of what’s legal and what’s not – we can’t dismiss why
implementing wellness is important.
•

Chronic diseases related to lifestyle account
for 75% of national medical costs.1

•

Over the last five years:2
- Employers saw a 34% increase in
healthcare spending.
- Employees saw a 40% increase in
contributions to healthcare.
Prior to 2007, only participation could be
rewarded.

•
1
2

www.cdc.gov/chronicdisease/overview/index.htm
Towers Watson/National Business Group on Health (2012)

70

Risks Drive Conditions
Even moderate health improvement could result in significant cost reduction.

AON Hewitt 2012 Health Care Survey

http://www.aon.com/attachments/human-capital-consulting/2012_Health_Care_Survey_final.pdf

“Outcomes-Based” Programs Are Growing
Employers planning to reward or penalize based on biometric outcomes
other than smoker, tobacco-use status
(Towers Watson/National Business Group on Health Annual Survey 2013)

50%
45%
40%
35%
30%
25%

47%
47%

20%
15%
10%
5%

12%
12%

10%
10%

16%
16%

0%
2011

2012

2013

2014

Bravo Wellness Fact Sheet
•Technology platform and administrative service company dedicated to the
administration of participation, improvement, and outcomes-based wellness incentives
•Over 300 unique plan designs managed and tracked for efficacy
•Over one million participant screening result records tracked
•Winner of numerous business awards with numerous clients winning wellness program
success-based awards and recognition
•125 full time employees based in Cleveland, OH serving technology and administrative
support needs of employers, insurance companies and wellness companies
•Experts in designing “cost-neutral” programs that create win/win opportunities
•Screening, coaching, HRA and intervention program agnostic; serves as platform to
connect the right people with the right resources at the right time
•Average participation in annual blood draw and biometric screening: 97%

“Reasonable alternatives” must be provided for all health-contingent
wellness programs.
• Activity-only programs can be limited to “medically inadvisable” situations.
• Outcomes-based programs must always have an alternative; may be
automatically offered or “upon request.”
- A medically sound progress goal IS considered a reasonable alternative (e.g.
have a BMI less than 27.5 or reduce your BMI by 1 point).
- Must provide adequate notice of the progress goal (Bravo suggests 60 day
minimum).
- Must provide an alternative to the alternative if a medical issue makes the goal
unreasonably difficult or medically inadvisable.

Personal physicians can always provide an alternative goal that is more
medically appropriate. Health coaches and physicians of the wellness plan
may suggest a goal but cannot override personal physician recommendations.
Bravo Best Practice
74

How It Can Work In Two Cycles
Cycle One

Reward Categories

National Institutes of
Health (NIH) Goals

Employer’s
Goals

Body Mass Index

≤ 24.9 kg/m2

Participation

Blood Pressure

≤ 120/80 mmHg

Participation

LDL Cholesterol

≤ 100 mg/dL

Participation

Tobacco / Nicotine

Negative

Negative

Alternative
Goals^

Financial
Impact

N/A

+ $50/mo.

Complete Cessation
Program

+ $50/mo.

Participant receives results, client receives aggregate report, health improvement resources are utilized all
year.

Cycle Two

Reward Categories

National Institutes of
Health (NIH) Goals

Employer’s Goals

Alternative Goals^

Financial
Impact

Body Mass Index

≤ 24.9 kg/m2

≤ 27.5 kg/m2- OR - Waist
<33 Female/ <35 Male

10% Weight Loss
- OR -Move to
Improved Category

$30/mo.
$10/mo.

EXAMPLE HEALTH
IMPROVEMENT RESOURCES
HEALTH IMPROVEMENT
PROVIDER OR EMPLOYER
CONTRACTED
•Health Assessment
•Health Monitor
•Healthy Aging Guide
•Healthy Recipe Collection
•Symptom Checker
•Women’s Health Guide
•And so much more!

HEALTH PLAN COVERS

•Preventative Services at 100%
•Chantax and Nicotine Replacement
Therapy
•Nutritional Counseling

OTHER PROGRAMS

Blood Pressure

≤ 120/80 mmHg

≤ 130/86 mmHg

Move to Improved
Category

LDL Cholesterol

≤ 100 mg/dL

≤ 130 mg/dL

Move to Improved
Category

$10/mo.

Tobacco / Nicotine

Negative

Negative

Complete Cessation
Program

$50/mo.

•Offers Financial Planning and Stress
Mgmt.
•Offers Tobacco Cessation Program
•Weight Watchers at Work
•Fitness Center Reimbursement
•Health Coaching

Participant receives results, client receives aggregate report, health improvement tools are utilized.
Strategic planning for Cycle 3 and following.

75

Design Goals For Your Culture & Budget
If Bravo does not have prior
results, participants will be
provided with the information
needed to request an alternative
goal in the results letter.
What defines improvement?
As an example: If your 2013
screening result for glucose is
126 (Elevated III), you would
need to either improve your
glucose into the Elevated II
range of 111-125 – OR –
achieve the employer’s goal at
your 2014 screening.

Sample Improvement Categories
BLOOD PRESSURE
(mmHg)
Systolic

Diastolic

Desirable

Below 120

Below 80

Elevated I

120 - 135

80 - 85

Elevated II

136 - 139

86 - 89

Elevated III

140 - 159

90 - 99

Elevated IV

160 or Higher

BODY MASS INDEX
(kg/m2)
10% weight loss or reduce
your BMI by 2 points since
prior year screening

Improvement category levels are not intended to identify risk or medical appropriateness.
Always consult with your medical doctor before starting any new exercise or nutrition program.

LDL CHOLESTEROL
(mg/dL)

Reduce your LDL cholesterol by
100 or Higher
10% from prior year screening

GLUCOSE
(mg/dL)
Desirable

Below 100

Elevated I

100 - 110

Elevated II

111 - 125

Elevated III

126 or Higher

Administering Alternatives & Appeals
Bravo has classified appeals and alternatives as
follows:
•
•
•
•

Alternative Requests: Completing an
improvement goal or program regardless of a
medical issue
Type One: Disputing the accuracy of results
Type Two: Exceptions due to medical issues
preventing achievement of goal or alternative
goal
Type Three: Progress made off-cycle for nonretroactive rewards

Medical Issues
Bravo works with individuals and their healthcare
providers to set personalized alternative goals and
complete healthy lifestyle programs when appropriate.
77

“What if a
participant has a
genetic issue?”

“Is BMI really fair?”
“Do screenings need
to be done on the
clock?”

“How can I avoid having
dozens of different premium
contributions to manage?”

“Will people change behavior for $10/month or $50/month?”

ANSWERS HDL or
“Do penalties work
“Does this ITH “Can I use
EPARED W total cholesterol
better thanBE PR
rewards?”

violate the
ADA?”

instead of LDL?”

“What about privacy concerns?”
“What about
new employees
and COBRA
participants?”

“Have any unions agreed
to a model like this?”

“Does this impact my
employee’s W2?”

“How can we
involve
spouses?”
“Can we
test for
nicotine?”

78

Bravo’s Data On Spouse Engagement

THREE-YEAR
STRATEGIC
ROLL OUT

YEAR ONE
HRA participation and baseline
biometric screening, impacting
full premium ($200+/month)

YEAR TWO

YEAR THREE

HRA participation and modified
biometric goals with outcomesbased incentives (added
$50/month)

HRA participation and tighter
biometric goals with progress
goals introduced

After only one year of applying the outcomes-based
model, Southwest General saw a dramatic slowing in
the increase in claims. Claims increased by 16% in the
initial (participation-based) year, yet by only 1% from
year 2 to 3.

80

After experiencing a 20% premium increase in
their healthcare costs, management introduced
a wellness program to accomplish two goals –
improve the health of its employees and reduce
the cost trend.
Year 2 to Year 3 Change

After implementing an outcomes-based
program, they saw the following
results:
• 99+% participation each year
• In year three: 7.6% participants
stopped smoking and of those who
failed BMI year two, 16.4% had a
BMI reduction of 2 or more points
in year three
• Net savings of $124 per employee,
per year enabling them to continue
to invest in wellness programs
81

•
•

•
•

Workers’ compensation expenses have
been reduced by two-thirds.
Elimination of activity impact on healthcare
costs while maintaining high participation in
health activities and programs.
Decrease of almost 50% of participants
with more than 1 risk factor.
High program impact - Obese participants
lowered from 37.2% to 31.2%. High LDL
cholesterol has had a relative decrease of
more than 50%. High blood pressure has
gone down 80% amongst Graco
participants.

2013 Honorable Mention

Graco’s Medical And Pharmacy Cost Trends
$600.00
$550.00
$500.00
$450.00
$400.00
$350.00
$300.00
$250.00
$200.00
$150.00

$564.00
$529.00

$426.00

$328.00

$320.00
$311.00
$215.00
$189.00

2008

$193.00

2009

Employee

2010
Spouse

2011
Child

2012

Graco’s Financial Impact
Workers’ compensation expense reduction
Measure

2008

2009

2010

2011

2012

Safety Incident Rate

5.71

3.77

4.24

3.63

3.60

$452,000

$273,000

$345,000

$145,000

$124,000

$179,000

$107,000

$307,000

$328,000

Workers’ Compensation
Expense
WC Expense Reduction
(from 2008 baseline)

Total

$921,000

Total financial impact on medical/pharmacy trend and workers’ compensation expense
Measure

2009

2010

2011

2012

Total

Med-Pharm Claims

-$265,015

$1,243,604

$1,623,789

$1,569,109

$4,171.487

Workers’ Compensation

$179,000

$107,000

$307,000

$328,000

$921,000

Total Financial Impact

-$86,015

$1,350,604

$1,930,789

$1,897,109

$5,092,487

Med-Pharm claims show cost avoidance assuming employees health care costs
would have trended at the same rate as spouses without a wellness program.

Q&A:

SEGMENT 1:

SEGMENT 2:

Alyson Mathews
Partner

Kendra Roberson
Of Counsel

SEGMENT 3:

SEGMENT 3:

Joseph F. Coniglio
Shareholder

Magan Pritam Ray
Shareholder

SEGMENT 4:
Jim Pshock
Bravo Wellness

► You may ask a question at anytime throughout the presentation today. Simply click on the question mark icon located on the floating tool bar on the bottom right side of your screen. Type
your question in the box that appears and click send.
► Questions will be answered in the order they are received.

85
January 30, 2014

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•Sign up online by clicking the link contained in the post conference survey email.
3. Click the link below or the one we just posted in the chat window to the right.
Discounts:
Enroll today and you will be eligible for the “Triple Play” program and 3% off if you pay by credit card. Also we will waive the $49
CLE/CPE processing fee for today’s conference. See the form attached to the post conference survey email for details.
Questions: Send an email to: info@knowledgecongress.org with “Unlimited” in the subject.

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ABOUT THE KNOWLEDGE GROUP, LLC.
The Knowledge Group, LLC is an organization that produces live webcasts which examine regulatory
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Disclaimer:
The Knowledge Group, LLC is producing this event for information purposes only. We do not intend to
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The contents of this event are based upon the opinions of our speakers. The Knowledge Congress
does not warrant their accuracy and completeness. The statements made by them are based on their
independent opinions and does not necessarily reflect that of The Knowledge Congress' views.
In no event shall The Knowledge Congress be liable to any person or business entity for any special,
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