Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in News
Jul 27 2019
NEW HAVEN — Christine Turecek, a cook at Jonathan Edwards College, is a 10-year cancer survivor, proud of how she takes care of her health.
So when Yale University implemented its Health Expectations Program last year, she had no problem filling out the forms.
“I thought it was kind of a good idea,” said Turecek, 56. “Who doesn’t want to be healthy? It’s one of the motivating reasons that you work at Yale is you got great health benefits. … Why would you want great health benefits if you’re not going to use them?”
But she said even though she underwent a double mastectomy in 2009, a male representative of the program has called her several times to ask why she hasn’t had a mammogram.
“Some health coach called me two, three, four times in a row asking, when am I going to do it?” she said.
Besides being unable to have a mammogram, Turecek said, “It’s so uncomfortable talking about it again and again and again. I take care of myself and then this guy keeps calling me about this procedure I can’t even get done.”
Turecek is one of the named plaintiffs in a federal class-action lawsuit brought by Locals 34 and 35 and the AARP against Yale, claiming that it is forcing members to participate in its HEP, facing mandatory coaching if they fail to meet certain health criteria or a weekly $25 fine.
The case highlights the growing number industry of employee wellness programs in Connecticut and nationwide.
Turecek, like other plaintiffs who said Yale’s plan invades their privacy and is coercive, said her doctor is the only person who needs to know her medical history and what procedures she needs to undergo. “She tells me exactly what I need to know and what I need to do and I do it. This extra layer is invasive,” she said. So far, she hasn’t been fined, she said.
Lisa Kwesell, a part-time assistant to the head of Jonathan Edwards College, enrolled in Yale’s program because she said she can’t afford $1,300 a year fine. But she’s still faced with a potentially high cost.
Yale requires a colonoscopy once every 10 years or a fecal immunochemical test or fecal occult blood test once a year for employees over 50. Kwesell, 56, does not want to undergo a colonoscopy but had a Cologuard test, which tests DNA in the stool, last year. Her problem is that “my insurance company will only pay once every three years” for the Cologuard test.
In order to meet Yale’s annual requirement, Kwesell said she either would have to have a colonoscopy or pay $700 for the Cologuard test.
“I’m being forced to have an invasive procedure that I don’t want to have,” she said. “I went through all the protocols to be in compliance last year.”
However, Cara Connelly, a spokeswoman for Cologuard, said it is not one of the tests Yale asks for and is only recommended once every three years by the American Cancer Society.
Joshua Goodbaum, the New Haven attorney representing the plaintiffs, said the case is not about what test an employee must undergo, but “the requirement that employees undergo medical tests or procedures or pay money not to. We believe the federal civil rights laws prohibit that sort of involuntary program, and that is why we are proud to stand with Lisa and the other named plaintiffs in opposing this practice.”
What really angers Kwesell is that a company hired by Yale is telling her what medical tests she needs to have done.
“No one in the entire world needs to know my medical business other than me and my doctor,” she said. “Why does my employer need to know my medical business?”
Kwesell said she is not at high risk for colorectal cancer. “I have an alternative option choice that’s available to me … and it is more convenient, it’s less invasive and it works for me and the HEP and my employer doesn’t have the right to tell me what my choice is,” she said.
$8 billion for wellness
Employer-sponsored health benefits increasingly include employee wellness programs. The lawsuit against Yale cites a National Public Radio report that the programs have become an $8 billion industry, with their growth encouraged by the Affordable Care Act of 2010. But studies are unclear as to how well they work. Those who sign up may be those, like Turecek, who already follow healthy practices.
Questions also have arisen about how large an incentive employers can offer and whether they truly are voluntary.
The state of Connecticut offers a Health Enhancement Program to more than 62,000 state employees and retirees. All but 358 are enrolled in the plan, which the state calls a voluntary one.
The employees in the state plan with seven chronic conditions must “take an online survey, read a fact sheet about your condition(s), or speak to a HEP nurse” to comply with the program, according to cthep.com. Those conditions are diabetes, asthma, chronic obstructive pulmonary disease, coronary artery disease, heart failure, high cholesterol and high blood pressure.
State employees who do not enroll have $46.15 deducted from their biweekly paycheck, or $1,199.90 a year.
Those who have signed up, besides paying lower premiums, have their $350 annual in-network deductible waived (up to $1,400 per family), pay no co-payments for treatment of any of the seven chronic conditions and pay lower co-pays for prescriptions for those conditions.
Comptroller Kevin Lembo, whose office oversees the state employee health insurance program, said in an emailed statement, “The state’s Health Enhancement Program has successfully provided voluntary comprehensive wellness benefits to state employees for at least eight years now — driving down state costs by millions of dollars, making it easier for employees to access preventive care and wellness services more affordably and helping employees identify life-threatening illnesses in time to actually save their lives.
“It has not only improved the efficiency of the state health plan, but it has improved health care outcomes for tens of thousands of employees.”
The HEP was negotiated as part of the 2011 contract with the state’s labor unions. The state is self-insured, with employees’ health insurance administered by Anthem and United Healthcare/Oxford. WellSpark Health, owned by ConnectiCare, administers the Health Enhancement Program.
To Dara Smith of AARP, one of the attorneys who is representing the Yale plaintiffs, whether a plan is called mandatory or voluntary may not make much of a difference to an employee who doesn’t want to hand over her health information but can’t afford the extra fee.
“The problem is, a lot of employers tend to frame what is a penalty as an incentive,” she said. “Really, it’s six of one, half a dozen of the other.”
While state employees must sign up to the HEP, Yale’s union members are automatically enrolled as part of their medical benefit plan. Opting out costs $25 per week; employees can opt in or out each quarter. And while conditions that “may require coaching” include six of the seven the state lists (asthma is not included), there are other triggers that may result in a call telling the employee he or she needs to be coached. Those include “failure to meet required screenings based on age and/or non-adherence to treatment plans, multiple chronic conditions, blood work results and hospital and Emergency Department utilization patterns.”
The lawsuit against Yale states that some union members make as little as $16.92 an hour, so the $25 weekly fine “infringes on their ability to pay for basic necessities such as food, housing, and utilities.”
Yale implements its plan through two third-party companies: HealthMine of Dallas, which administers the HEP; and TrestleTree of Fayetteville, Ark., which provides the coaching services. HealthMine is a covered entity under the Health Insurance Portability and Accountability Act, which protects the privacy of patients’ medical information.
TrestleTree, however, is not covered by HIPAA, according to the lawsuit and its own notice of privacy practices, and Yale employees in the HEP must sign a waiver giving the company access to their health information.
HealthMine determines who will receive a call from TrestleTree by “reviewing individuals’ test results and insurance claims data — which include diagnoses codes, among other things — for what it deems ‘risk factors,’ such as multiple chronic conditions or ‘lab values out of range,’” according to the lawsuit against Yale.
The suit states that while 50 percent of large employers had wellness programs that included a health risk assessment or testing for such things as blood pressure and cholesterol, fewer than 5 percent assessed a fine of more than $1,000, according to a Kaiser Family Foundation report in 2018.
The lawsuit also claims that, based on the Affordable Care Act (known as Obamacare) employee wellness programs must be voluntary under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
In 2016, the Equal Employment Opportunities Commission attempted to allow fines for noncompliance as long as they didn’t exceed 30 percent of an employee’s total health insurance costs, but that was struck down by the courts.
“What we’re saying is that those programs have to be voluntary and this is not a voluntary program,” Goodbaum said. “We’re not engaged in a policy argument about whether these are good programs or bad programs.”
Smith of the AARP said, “Releasing the information at all if there’s a penalty involved in not releasing it, is the basis of this lawsuit.”
Included in union contracts
Yale’s Health Expectations Program was incorporated into the two unions’ contracts in 2017. Local 34 represents about 4,000 clerical and technical workers, and Local 35 represents about 1,400 maintenance and service workers. Representatives of the unions did not reply to requests for comment.
Karen Peart, a spokeswoman for Yale, issued a statement in an email, saying, “The Health Expectations Program (HEP) is a thoughtfully designed wellness program.
“It was carefully vetted and jointly implemented in partnership between Yale and its unions with the goal of improving the long-term health of employees and spouses. It complements a generous health insurance program in which 4 of 5 unionized staff pay no healthcare premiums,” Peart said in the email. “In fact, a unionized employee who is now receiving Yale’s free health insurance can opt out of HEP and still pay only about $110 a month for excellent coverage. Yale requires that all HEP services apply the same strict confidentiality and privacy rules that Yale applies under HIPAA. The university will defend itself against the unfounded claims made in the suit.”
A difficult experience
Cristal Coleman, 46, was working at her job in Yale’s library business office on Sept. 18, 2018, when a co-worker told her she should check her HEP portal. The co-worker was in tears because she was told she had to attend three coaching sessions and that she needed to get an immunization for shingles.
Coleman found a notice that she needed to make a coaching appointment. She said she had received no emails or other communications about the coaching requirement and that others in the office were as surprised as she was that they had to meet a Sept. 30 deadline or be fined $25 a week.
The notice said, “You have been identified as a Health Expectation Program (HEP) participant who qualifies for health coaching. Since your current health status indicates the presence of risk factors in addition to a chronic health condition, health coaching is an additional HEP requirement for you.” However, Coleman said her file was up to date and that she had no known risk factors.
Coleman said she filed a request for an exception but was told by her doctor’s nurse that it wouldn’t be accepted. She was so incensed about having to attend a coaching session that “by the time I got to that appointment … I said, ‘I have nothing to say to you.’”
She said the woman told her, “‘I understand … and I have not opened your file.’ … She said a lot of people are upset. … At that moment me and this woman agreed we’re not going to talk about my file. It was like therapy sessions.”
Coleman did not ask the coach to look up the reason she was required to attend the sessions and still does not know.
Goodbaum said there are other issues with the TrestleTree coaches, whom Kwesell and Turecek have communicated with only by phone.
“We’re not talking about health consultants who are trained physicians or even health care providers, at least that’s what we believe,” he said. “We’re talking about customer service representatives. I do not believe they are trained medical professionals.”
However, a customer service representative from TrestleTree, who would identify herself only as Jennifer H., said, “We’re trained as employees to be HIPAA compliant and guard their privacy and confidentiality with great rigor. Our coaches go through training and they all typically have some degree or background in health-related fields.”