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Massachusetts’ Workplace Wellness Program Law May Set the Standard

BY: Barbara J. Zabawa, JD, MPH • Attorney & President | Center for Health and Wellness Law, LLC

Many people may not realize that some states have workplace wellness program laws; it’s not just the province of the federal government. Massachusetts happens to have one of the most comprehensive workplace wellness program laws, and it may just set the bar for other states to follow.

Specifically, Massachusetts has a law that applies to Certified Group Purchasing Cooperative Wellness Programs (or entities that contract with such cooperatives). See 211 CMR 115.15. Massachusetts law defines “Group Purchasing Cooperative” as either: 1) a nonprofit; or 2) an association of entities organized for the purpose of advancing the occupational, professional, trade, or industry interests of Association members, and who also negotiate health plans for their respective members. 211 CMR 115.

The Massachusetts law has the following legal requirements for Group Purchasing Cooperative wellness programs:

  • The wellness program must be conducted pursuant to a written plan under the supervision of a properly trained health practitioner;
  • The wellness program must be staffed by appropriately trained and qualified personnel;
  • The wellness program must include a documented process to:
    • Conduct health risk assessments (HRAs) at least annually of all insureds participating in the wellness program according to a tool that has been accredited by the National Committee on Quality Assurance (NCQA);
    • Develop reasonable health maintenance or improvement goals with each wellness program participant based on factors derived from the HRA;
    • Record each participant’s activities designed to address wellness goals and, as appropriate, provide workplace or other geographically convenient wellness monitoring locations;
    • Monitor participants’ progress toward meeting wellness goals and assign trained and qualified lifestyle coaches to assist participants to keep on track with goals and develop ways to encourage continued activities to achieve desired goals including through financial or other incentives, periodic reminders and/or motivational interviewing;
    • Measure, at least annually, the wellness program’s effectiveness at developing goals that improve participants’ health status, promoting adherence to planned goals and changing overall trends in health status, and redesigning the program to address new or persistent health issues;
    • Maintain the confidentiality of each participant’s HRA and progress toward reaching the participant’s individualized health goals; and
    • Maintain wellness programs consistent with state and federal statutes, regulations and guidelines, including required accommodations made for those with physical or other disabilities that could prevent participation in standard programs.
  • The wellness program must be designed to address the prevention and management of heart disease, stroke, diabetes, asthma, cancer and the following risk factors:
    • High blood pressure
    • Smoking
    • Substance abuse and prescription non-compliance
    • Adult and child obesity
    • Depression
    • Stress and work-life balance
    • Inactivity
    • Unhealthy diets (high sugar, high sodium, high saturated fat and low fiber)
    • Elevated cholesterol
    • Elevated blood glucose
    • Workplace policies/environments that may impact individual health.
  • The criteria for the wellness program shall be, to the maximum extent feasible, scientifically derived and evidence-based, and developed with the input of appropriate medical professionals.
  • The group purchasing cooperative must coordinate with an insurance carrier’s wellness program data processing systems to enable the group purchasing cooperative to effectively provide guidance to eligible association members, eligible small businesses, eligible employees and eligible dependents regarding targeted wellness programs.
See 211 CMR 115.

The statute defines “eligible small business” to include a sole proprietorship, firm, corporation, partnership, or association actively engaged in business which, on at least 50% of its working days during the preceding year, employed from among one to not more than 50 Eligible Employees, the majority of whom worked in Massachusetts. See 211 CMR 115.03.

The Massachusetts law, though limited to group purchasing cooperatives and nonprofits, is quite prescriptive when it comes to what a workplace wellness program should look like. Other states could adopt the Massachusetts law and apply it to a broader audience of wellness programs. Moreover, for group purchasing cooperatives, the Massachusetts law goes way beyond federal Affordable Care Act wellness incentive rules, which offer more flexibility to employers as to what constitutes a “reasonably designed” wellness program. Even more unique is the requirement that the program be evidence-based and that the HRA must be accredited by the NCQA.

As more workplace wellness program lawsuits continue to occur, more states may try to create laws similar to Massachusetts to reduce legal risk and provide more confidence to employers and employees who engage in these programs. If you would like to learn more about workplace wellness compliance and how your program can be more protected against legal risk, please contact Wellness Law, LLC.

Barbara Zabawa

Barbara J. Zabawa

President of the Center for Health and Wellness Law, LLC