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January 29, 2013

Ranking House health-related committee members submit comments on the proposed nondiscriminatory wellness programs rule, caution against discrimination

By Sarah E. Baumann, JD

Six Democratic ranking members of committees and subcommittees with jurisdiction over health policy submitted comments to the Secretaries of the Treasury, Labor, and Health and Human Services in response to a proposed rule that was issued on November 26, 2012. The rule, titled "Incentives for Nondiscriminatory Wellness Programs in Group Health Plans," (77 FR 70620) provided guidelines for health-based incentive programs offered by employers to employees participating in group health plans, as discussed in the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148). The ranking members, who responded on the last day that comments were accepted, cautioned the Secretaries against promulgating a rule that would encourage discrimination in the employer-sponsored health market.

Proposed rule. Under the proposed rule, employers could offer incentives up to 30 percent of the cost of employee-only coverage, or up to 50 percent of the cost of coverage with respect to plans designed to prevent tobacco use. The rule outlined two categories of wellness programs: participatory and health-contingent. Participatory wellness programs are those in which all employees can automatically participate, such as programs that offer health-related seminars or pay for employee gym memberships. Health-contingent wellness programs, on the other hand, reward employees who qualify based on certain health status factors, such as body mass index or blood pressure. Some health-contingent programs provide incentives for employees who do not use tobacco. The proposed rule was intended to include safeguards to prevent discrimination in the programs.

Recommendations. The members approved of the extension of participatory wellness programs, but cautioned against the expansion of health-contingent wellness programs. They noted that PPACA eliminated numerous forms of discrimination in the health insurance marketplace, including an insurer's ability to charge higher premiums or provide less comprehensive coverage to people with pre-existing conditions, and feared that the proposed rule would create a possibility for discrimination in the employer market.

The congressmen suggested that the Secretaries limit health-contingent wellness programs to those that discourage tobacco use. In the alternative, they recommended that an appropriate body should approve employer incentive programs before they may be offered to employees. Programs should be based on the results of publically available, scientific studies. While the proposed rule would provide reasonable alternatives to participation for those who are medically unable to participate, for example, by completing an educational program or participating in a diet plan, the representatives strongly believed that reasonable alternatives should be clearly defined prior to program approval and should be made known and available to all employees without the need for an employee to request such an alternative. Employees should also be made aware of remaining requirements and qualifications ahead of time. Finally, the ranking members also stated that the rule should define terms like "overly burdensome" and "subterfuge for discriminating" to ensure that non-complying programs are easily identifiable.

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