Wellness Programs Under the Affordable Care Act (“ACA”) and Related Federal Laws

Does health care reform discuss wellness and prevention?Yes, among other things, the Affordable Care Act (“ACA”) provides incentives for individuals to focus on wellness.

The origins of this effort go back to regulation of wellness programs under HIPAA.

Under HIPAA, certain non-discrimination and wellness provisions (29 CFR 2590.702(f)) prohibit group health plans and issuers from discriminating against individuals and beneficiaries in eligibility, benefits, or premium discounts based on a “health factor.” And, both HIPAA and a series of subsequent regulations set forth 8 health status-related factors (for which discrimination is prohibited); an important exception allows premium discounts, rebates, or modifications to cost-sharing (copayments, deductibles, or coinsurance) in return for adherence to certain programs of health promotion and disease prevention.

Keying off this exception for programs of health promotion and disease prevention, tri-agency proposed regulations (11/26/12) under the ACA creates two types of permissible wellness programs:

Participatory wellness programs

• Examples: reimbursement of costs of fitness center reimbursement
• Reward for diagnostic test regardless of outcome
• Reimburse cost of, or reward you for, participating in smoking cessation program
• Reward you for attending a monthly, no-cost health educations seminar

Health-contingent wellness programs (reward is based on satisfying a standard)

• Examples: program that uses biometric screening and rewards those within a normal or healthy range, or requires those outside the range to take certain steps (i.e, meeting with a health coach, taking a fitness course, etc.).

Among other things, the program must be reasonably designed to promote health or prevent disease

The bottom line is that in designing a reimbursable wellness program, one must be mindful of legal constraints, such as the anti-discrimination provisions of HIPAA, and the regulations under the ACA–as well as nondiscrimination and related provisions of the Americans with Disabilities Act (ADA), the ADEA, and GINA (which prohibits genetic discrimination).