I
Introduction

My experience with law review articles is that for the most part they are very difficult to read, rarely practical, and rarely on the cutting edge of things with respect to how practitioners are concerned. There are exceptions. For example, in my book, in the ADA and Sports chapter, I spent quite a bit of time discussing an excellent article by Christopher Bidlack entitled The Prohibition of Prosthetic Limbs in American Sports: the Issues and the Role of the Americans With Disabilities Act 19 Marquette Sports Law Journal 613 (Spring 2009). Just a couple of days ago, I came across an article by David Knoespel entitled Biometric Testing in Employer Wellness Programs and the Unanticipated Consequences of Healthcare Reform: Why Challenges Under the ADA Medical Examination Provision Reach the Merits After Seff v. Broward County. David’s article was actually the second place article in the American Bar Association’s Section of Labor and Employment Law and the College of Labor and Employment Lawyers national law student writing competition. His article was easy to read, practical, and cutting-edge in the real world.

His thesis is essentially this: the Affordable Care Act, which mandates health coverage for everyone, and in many ways does away with underwriting, means that wellness programs may no longer be subject to the ADA safe harbor and that now employers will have to worry about complying with how the ADA deals with medical exams with respect to their wellness programs.

This particular blog entry is divided into various sections: introduction; the applicable provisions of the Affordable Care Act and the Americans with Disabilities Act; discussion of Seff v. Broward County; and conclusions. The reader is free to concentrate on any and/or all of the sections.

II
The Applicable Provisions of the Affordable Care Act and the ADA

It’s an excellent article and I think he is onto something. Here’s why (much of what follows is in his article, and I commend the reader to read it. I add some wrinkles as we go along):

1. The Affordable Care Act mandates that each health insurance issuer must offer health insurance coverage in the individual group market in the State to every employer and individual in that State that applies for coverage. 42 U.S.C. § 300gg-1(a).

2. With respect to network plans, coverage must be offered uniformly to all employers and individuals without regards to the claims experience of those individuals, employers and their employees (and their dependents) or any health status-related factor relating to such individuals, employees, and dependents. 42 U.S.C. §300gg-1(c)(3).

3. Under the Affordable Care Act, a health insurance issuer must renew or continue in force a person’s coverage at the option of the plan sponsor or the individual. There are exceptions to the rule, but none of those exceptions include termination because a person developed a health condition. See 42 U.S.C. § 300gg-2(a),(b)

4. 42 U.S.C. § 18022 mandates essential health benefits that insurers must include in their plans. It also sets forth different levels of plans, and gives the Health and Human Services Department after notice and public comment, the ability to revise what essential health benefits are.

5. The Affordable Care Act allows for variation in health insurance premiums, but only on the basis of age, tobacco use, geographical area, and family size. 42 U.S.C. § 300gg(a)

6. If an individual fails to obtain health insurance coverage, they have to pay a tax to the Internal Revenue Service. 26 U.S.C. § 5000A

7. 42 U.S.C. § 300gg-4 prohibits discrimination against individual participants and beneficiaries based on health status.

8. In short, as David mentions in his article, it would be correct to say that the guaranteed issue provision, essential benefit provision, and premium guidelines of the Affordable Care Act eliminate health status underwriting.

9. Even so, the Department Of Health and Human Services has recognized that the Affordable Care Act does allow for wellness programs.

10. As David mentions in his article, there are two kinds of wellness programs. In the first, you have a program that does not provide a reward or does not include any condition for obtaining reward based upon the individual satisfying a standard related to a health factor. In the second, you have a wellness program that does reward or penalize an individual based on satisfying a health-related standard related to a health status factor. The former is referred to as a participatory wellness program, while the latter is referred to as a health contingent program.

11. The Affordable Care Act does not override the ADA.

12. Under the ADA, a medical exam can be given after a conditional job offer. 29 C.F.R. § 1630.14(b). With respect to a current employee, a medical exam can be done if it is job-related and consistent with business necessity. Kroll V. White Lake Ambulance Authority, 691 F.3d 809, 820 (6th Cir. 2012)

III
Seff v. Broward County, 778 F. Supp. 2d 1370 (S.D. Fla. 2011), affirmed 691 F.3d 1221 (11th Cir. 2012).

A.
Facts

Broward County had a wellness program requiring employees to fill out a health risk assessment questionnaire and undergo a biometric screening. The questionnaire was confidential and conducted online. The biometric screening was also confidential and required a fingerstick blood tests to measure glucose and cholesterol levels. While participation in the program was not required for health coverage, beginning in June 2010, any employee not completing the questionnaire and undergoing the screening was charged $20 on their biweekly paycheck. In August of 2010, the plaintiff filed a class action arguing that requiring employees to undergo a medical examination and the making of medical inquiries of its employees violated the ADA.

B.

Court’s Reasoning

1. The ADA, 42 U.S.C. § 12201(c)(1),
contains a safe harbor that specifically allows a bona fide benefit plan based on underwriting risks, classifying risks, or administering such risks so long as they do it in a manner consistent with state law.

2. The court found that the wellness program was a term of the county’s group health plan because the insurer was paid to administer the program under its healthcare contract with the county. Also, only those enrolled in the county’s health plan could participate in the wellness program.

3. The wellness program was designed to develop and administer present and future benefit plans using accepted principles of risk assessment.

4. The reasoning of the Southern District of Florida was affirmed by the 11th circuit, as noted above.

IV
Conclusions

1. The Affordable Care Act does not preempt the ADA.

2. The ADA only allows a medical exam after a conditional job offer or with respect to current employees, if it is job-related and consistent with business necessity.

3. The EEOC has a seven factor test for determining whether something is a medical exam. Certainly, biometric screening, obtaining blood, would be considered a medical exam. It is also possible that the healthcare questionnaire for the wellness program might also be considered a medical exam.

4. The Affordable Care Act provisions discussed above clearly mean that a wellness plan can no longer be used for the purpose of underwriting, rather such a plan would be used for improving the health of the company’s employees. As such, the safe harbor is no longer applicable.

5. I am not a big fan of guidances for a couple of reasons. First, I have not always been convinced that the guidances are a fair reading of the law. Second, guidances do not go through the rulemaking procedure and therefore, can be ignored by the courts. Third, I have always felt that guidances become a crutch for attorneys and start substituting for the attorney’s independent judgment. However, in this case, I do believe a guidance on wellness plans is in order. Recently, I read that the EEOC will be coming up with the guidance on wellness plans. Considering the provisions of the Affordable Care Act and the prohibitions and restrictions on medical exams in the ADA, such guidance will become very helpful to the practitioner, though, as just mentioned, such guidance could not be the final say on the matter. If the EEOC were to adopt a rule through the proper rulemaking process rather than a guidance, then it would be more likely for their view on wellness plans to be taken as the final word by the courts.

6. Thanks to the terms of the Affordable Care Act and the ADA prohibition on medical exams, as David’s article points out, you clearly have a clash between the two. Accordingly, for those companies with wellness programs, you definitely want to evaluate whether the implementation of those programs involve medical exams in a way prohibited by the ADA. Also, hopefully the EEOC will issue guidance on this as soon as they can.

4 Responses to Goodbye Safe Harbor Thanks to the Affordable Care Act?

Last week, the EEOC came out with its long-awaited guidance on wellness plans. An excellent synopsis of the proposed regulations can be found here:

http://www.theemployerhandbook.com/2015/04/revealed-the-eeocs-new-proposed-wellness-program-rules.html#more-2238

The only thing I would add to Eric’s analysis is that the rules of the EEOC on wellness plans only apply to wellness plans containing disability-related inquiries or medical exams.

Also, I know Jon Hyman has weighed in on this, which bears reading (http://www.ohioemployerlawblog.com/2015/04/eeoc-issues-balanced-interpretation-of.html ), and I would fully expect Robin Shea to weigh in as well.

Bill, thank you very much for the acknowledgement! In the EEOC’s new proposed wellness/ADA regs (issued on 4/20/15, long after you wrote this post), it’s clear that the EEOC does not see eye-to-eye with the Eleventh Circuit on Seff.

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