Employer Health Plan Obligations to Offer Evidence-Based Wellness Options as Alternatives to Opioids

The following article does NOT constitute legal advice and should not be used as such. It is for educational purposes only. Readers should retain legal counsel to obtain definitive answers.

Many in the workplace wellness industry are aware of the benefits of wellness services such as acupuncture, chiropractic, physical or exercise therapy, yoga and others to offer evidence-based alternatives to opioids for treating pain and stress. See The Consortium Pain Task Force, Evidence-Based Non-Pharmacologic Strategies for Comprehensive Pain Care, White Paper (hereinafter “Pain Task Force White Paper”; see also Peter Jaret, Alternative Therapies for Chronic Pain, Berkeley Wellness. What workplace wellness industry professionals may not be aware of is a legal obligation for employers to offer the best treatment at the best price through the employer’s health plan.

The Employee Retirement Income Security Act of 1974 (ERISA) imposes a “fiduciary” obligation on group health plans to take care of plan resources and to spend those resources with the care, skill, prudence and diligence under the circumstances that a prudent person acting in a similar capacity and familiar with such matters would act. ERISA § 404 (stating that a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries); see also U.S. Dept. of Labor, Understanding Your Fiduciary Responsibilities Under a Group Health Plan (Sept. 2015) (hereinafter “DOL document”). Fiduciary obligations require those who make decisions about a group health plan to do so in the best interest of the beneficiaries. Group health plan decision makers should document what decisions they make and why they made them. DOL document. Given these legal expectations of group health plan operation, one could question whether a plan meets its fiduciary obligation if it fails to offer the best care at the best price.

For example, “there is a growing recognition that current conventional medical treatment may not be the best starting point” for addressing pain, and it is often insufficient. See Pain Task Force White Paper, at 5. Indeed, there is increasing evidence that conventional treatment strategies, such as prescribing opioids or surgery to address pain, is fueling America’s opioid crisis. Id. The opioid crisis is hitting employers hard. In 2015, private insurers and self-funded employer plans paid nearly $16,000 more per patient with a diagnosis of opioid abuse or dependence than for those with any diagnosis. Id. at 7.

Courts have generally let employers decide what, if any, benefits to offer have not considered such decisions within the employer’s fiduciary capacity. See DOL Document, at 2. However, one could argue that failing to offer benefits known to reduce employee pain and stress while having the potential to alleviate opioid addiction would not be acting in the best interest of employees or plan resources. Moreover, because employers have legal control over their health benefit plans, employers can and should demand health and wellness providers who adopt evidence-based methods for addressing pain and stress. A recent white paper discussed the evidence that acupuncture, massage therapy, spinal manipulation therapy (such as through chiropractic), yoga and certain directed exercise, strengthening and posture activities can reduce pain (both acute and chronic in most cases). See generally Pain Task Force White Paper. This pain reduction occurs without the use of opioids. Furthermore, studies have found these alternatives to opioids to be more cost effective when compared to medication. Id. at 42.

Avoiding opioid use reduces the chance that patients will become dependent and then addicted to opioids. Patients often receive opioids after an acute problem such as a dental procedure, surgery or injury. Alarming numbers of patients then transition to chronic use of opioids, and eventually heroin. Pain Task Force White Paper, at 17. This reliance on opioids to treat pain explains why opioid dependence rose by 3,203% among privately insured patients between 2007 and 2014. Id.

Workplace wellness professionals are in a position to encourage employer health plans to offer safer, more cost-effective options to pain treatment through the employer’s wellness program. One tool workplace wellness professionals can use to convince employers to offer such services is ERISA’s fiduciary rule. An employer’s fiduciary duty under ERISA could persuade an employer to offer options to pain treatment that are not only effective at treating pain, but save money too. By convincing employers to offer evidence-based benefits to help employees manage pain and stress, wellness professionals will not only be helping the employer fulfill its fiduciary duty, but also helping put a dent in America’s opioid epidemic.

Barbara J. Zabawa

President of the Center for Health and Wellness Law, LLC
wellnesslaw.com