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Are Health Incentives Illegal?

by Scott MacStravic

A logical and frequently used method for giving employees incentives to manage their health and risks or diseases better is the use of higher premiums for the unhealthy and lower for the healthy, or with high-deductible health insurance, higher deductibles for the unhealthy and lower for the healthy. Premium carrots/sticks are limited by HIPAA regulations to 20% of the costs of covering employees, so there is plenty of “wiggle room” there. But the Employee Benefits Security Administration recently issued guidelines indicating that group health insurance: “…must not differentiate among individuals in eligibility, benefits, or premiums based on any health factor of an individual”. [V. Knight “Wellness Programs May Face Legal Tests” Wall Street Journal Online Jan 16, 2008]

This merely closes what had been a loophole or way around the HIPAA guidelines, rather than further restricting the use of incentives. It also clearly shows that so-called “positive” incentives, or “carrots” such as reduced premiums or deductibles for the healthy amounts to “negative” incentives or “sticks” for the unhealthy. Many employers, for example, have raised employee premium contributions for all employees, then offered ways that healthy employees can gain rebates or reductions by meeting certain healthy behavior, wellness participation, or health status standards.

In general, it is becoming increasingly difficult, if not impossible to differentiate among employees (offer carrots or sticks) based on their health status. Obesity is frequently deemed a “disease” based on genetic predisposition, for example, rather than a lifestyle choice. Smoking is often considered an “addiction” eligible for medical treatment, but not an acceptable basis for differentiation. And in group insurance, at least, having a chronic disease (“pre-existing condition” is not an acceptable basis for either “underwriting” = denying coverage, or higher premiums, though it is in individual insurance.

The use of high-deductible health plans, per se, offers incentives to employees in that unhealthy members are far more likely to have to spend their own money to meet the deductible, which could amount to thousands of dollars per family, than are healthy ones. By offering defined contribution rather than defined benefit insurance coverage, in the form of “vouchers”, while individual employees have to purchase individual insurance could offer even greater incentives for employees to manage their health, assuming insurers could price their plans differently for healthy vs. unhealthy applicants under such arrangements.

But there is also a simple and straight-forward method for differentiating among employees that would presumably pass muster in all but strongly union-dominated industries and firms – paying for performance (P4P). It is both a long-recognized belief (Adam Smith wrote about it in the 18th century) and a recently demonstrated reality that healthy workers produce more and perform better than do unhealthy ones. Obese workers, for example, have been found to have far more absences and dramatically higher workers compensation costs than do their healthy-weight peers.

Smokers who are truly committed to frequent smoke breaks automatically reduce their productivity and performance, since these breaks must usually be taken away from their workstations. Some have even suggested that since smokers get more “breaks” then non-smokers, the non-smokers should be granted “equal time” privileges, preferably to use them for health-promoting activities such as brief naps, exercises, or other efforts that will improve their health. Not only has “unhealth” been shown to impair productivity/performance (P/P), but improving health, particularly by reducing the number of unhealthy behaviors or conditions affecting each individual, has been shown to improve both, when measured.

In effect, a pay-for-performance system of worker compensation will function as a carrot/stick element while differentiating among workers on the one basis that has always been accepted and widely used – their P/P value to the employer. This will require, of course, that employers create P4P systems that measure P/P far better than most do now, however. The best incentives are those that can match changes in P/P value as soon as they occur, rather than the common annual performance reviews used to determine salaries and wages in general.

One of the other rules under which health incentives operate is that when employees qualify for the limited incentives allowed under HIPAA because they quit smoking, or participate in some effort to improve their health, there must be “equal opportunity” for other employees who already do not smoke, or are healthy to begin with, to qualify for the same kinds of incentives. This could automatically makes it necessary to pay all employees the same incentives, rather than only those who participate in “reform” efforts.

P4P gets around that requirement as well, since as yet no regulations require paying employees who are poor performers the same as those who are top performers. Moreover, P4P systems have been repeatedly shown to improve productivity of the workforce, compared to the far more common hourly wage systems. One employer achieved a 44% improvement in total production and revenue through switching to P4P, for example, with only a 10% increase in overall compensation. [E. Lazar “Performance Pay and Productivity” American Economic Review 190:5 Dec 2000 1346-1361]

Moreover, the same employer found that in the first year of the P4P system, worker turnover was affected in a positive way, with turnover declining among high performers, and increasing by more than 10% among lower performers. With P4P systems, it is often in low-performers best interests to seek employment elsewhere, where their low performance will not be so directly and heavily penalized. By contrast, it is in high-performers best interests to remain where they are directly rewarded for their better performance. Over time, this dynamic will automatically increase the number of employees in the workforce who are higher, while decreasing the number who are lower performers, and increase the organization’s overall performance in that manner, as well.

An employer could easily couple a P4P wage/salary scheme to an employee health management (EHM) strategy. The measures used to determine P/P for pay purposes would serve as a more credible basis for gauging worker impairment levels based on their health – or on any other factor for that matter. By rewarding individuals who improve their performance automatically when their health improves, or for any other reason for that matter, the EHM/P4P combination could eliminate the need for other incentives, thereby saving costs for the EHM program, and make the performance-based incentives match the added value that healthier employees deliver.

An added element could be making supervisors and managers accountable to the same degree, with P4P salaries or bonuses based on the performance of the employees they manage. This should stimulate managers’ efforts to support EHM efforts, once they believe or have been shown how much such efforts improve performance of their teams, units, or departments. It should also stimulate managers to work on maintaining or improving their own health, since that will both serve as a useful role model function, as well as improve their individual performance.

EHM efforts, themselves, should be integrated with other management efforts, in workforce training and development, for example, work/life balance, morale and motivation building, to improve both the effectiveness and efficiency of performance improvement efforts. While this necessarily complicates the allocation of credit among such programs when performance improves, this should be more than compensated by the degree of improved performance achieved across the workforce and the organization as a whole.


5 Comments »

  Barbara Saunders wrote @ February 15th, 2008 at 3:59 pm

I believe true pay-for-performance would debunk some of the myths still present in your article. I don’t believe that time away from the workstation, for smoking or any other purpose, “automatically” reduces productivity. (How about time for a gym break?!)

  PeterC wrote @ February 17th, 2008 at 12:30 pm

I think most people are missing the point on these programs, at least the ones I work with on a regular basis. These programs offer incentives to people who choose to chaange certain unhealthy behaviors which are KNOWN to create, generally speaking, adverse health outcomes. They focus on the behavior and at least the “attempt” to change it- not necessarily the outcome. For example- take smokers. If someone smokes and goes through a program to quit and they actually quit- great, they get the credit and the point associated. However, they also get the same points just for completing the quit smoking program. Focused on behavior and choices- not the result. For the sake of equity, non-smokers automatically get the credit toward the incentives by just ticking the box saying they don’t smoke. These are not perfect systems and are open to abuse (such as people lying) but they are designed to create awareness and enlightenment to get those people who could make a few changes and improve their long term health to get moving. These are NOT programs that penalize the ill, at least not if an employer works with a high quality consultant with depth of experience in the space

  Mike Critelli wrote @ February 20th, 2008 at 11:29 pm

The federal government regulations that put limits on wellness incentives were well-intentioned, but poorly-crafted. I believe that punishing people because of health conditions over which they have no or very limited control is morally wrong, but I also believe that health plans and employers need tools to drive unquestionably good behaviors, and that the right percentage incentives should never be decided by government regulation. Each population is different, and each person requires different types of carrots and sticks to get the right behaviors. Rigid government regulations prevent our society from ever finding out what works through a trial-and-error process.

Incidentally, this is one of the reasons I am strongly opposed to single-payer plans. While they solve the problems of universal and affordable health care coverage, and eliminate the risk of a person being financially wiped out by large health care costs, they embed into our health care system politically driven and bad medical decisions that become exceptionally difficult to change. This is just one example of an ill-advised set of regulations that takes us backwards.

  Scott MacStravic wrote @ February 21st, 2008 at 8:05 pm

I agree that incentive programs normally do not intend to punish those who fail to modify their behavior, improve their health status, etc. but that when employers initiate a new arrangement whereby everybody will pay an extra $1000 for their health insurance, with special discounts for those who are healthy behavers, this is likely to look a lot like a punishment, and may have effects that look like a lot of employees thought it was.

  Scott MacStravic wrote @ February 21st, 2008 at 8:16 pm

I hate to think that I am promoting “myths” about smokers losing time at work and output due to their taking smoke breaks. Clearly the number they take, how long they are, and whether they make up for lost time while they are at their workstations all make a difference in individual cases, but the research data makes it pretty clear that smokers are, on average, less productive than their non-smoking peers, and not because of health issues alone. This would all be taken care of, of course, if workers were paid for their actual performance and output, a move that tends to increase both by itself, rather than through incentives for healthier behavior or status alone. No one that I know of, and certainly not I, believes that improving health behaviors or status ALONE will improve productivity and performance. There are other things such as individual talent and motivation that can improve or depress both far more than health factors. I try not to simply “believe” that what I write is true, but whenever possible base it on published research, though that is not, of course, always possible. It is, however, relative to smokers.

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