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Statutory Text

‘‘SEC. 2705 [42 U.S.C. 300gg–4]. PROHIBITING DISCRIMINATION
AGAINST INDIVIDUAL PARTICIPANTS AND BENEFICIARIES
BASED ON HEALTH STATUS.
‘‘(a) IN GENERAL.—A group health plan and a health insurance
issuer offering group or individual health insurance coverage may
not establish rules for eligibility (including continued eligibility) of
any individual to enroll under the terms of the plan or coverage
based on any of the following health status-related factors in relation
to the individual or a dependent of the individual:
‘‘(1) Health status.
‘‘(2) Medical condition (including both physical and mental
illnesses).
‘‘(3) Claims experience.
‘‘(4) Receipt of health care.
‘‘(5) Medical history.
‘‘(6) Genetic information.
‘‘(7) Evidence of insurability (including conditions arising
out of acts of domestic violence).
‘‘(8) Disability.
‘‘(9) Any other health status-related factor determined appropriate
by the Secretary.
‘‘(j) PROGRAMS OF HEALTH PROMOTION OR DISEASE PREVENTION.—
‘‘(1) GENERAL PROVISIONS.—
‘‘(A) GENERAL RULE.—For purposes of subsection
(b)(2)(B), a program of health promotion or disease prevention
(referred to in this subsection as a ‘wellness program’)
shall be a program offered by an employer that is designed
to promote health or prevent disease that meets the applicable
requirements of this subsection.
‘‘(B) NO CONDITIONS BASED ON HEALTH STATUS FACTOR.—If
none of the conditions for obtaining a premium
discount or rebate or other reward for participation in a
wellness program is based on an individual satisfying a
standard that is related to a health status factor, such
wellness program shall not violate this section if participation
in the program is made available to all similarly situated
individuals and the requirements of paragraph (2) are
complied with.
‘‘(C) CONDITIONS BASED ON HEALTH STATUS FACTOR.— If any of the conditions for obtaining a premium discount
or rebate or other reward for participation in a wellness
program is based on an individual satisfying a standard
that is related to a health status factor, such wellness program
shall not violate this section if the requirements of
paragraph (3) are complied with.
‘‘(2) WELLNESS PROGRAMS NOT SUBJECT TO REQUIRE- MENTS.—If none of the conditions for obtaining a premium discount
or rebate or other reward under a wellness program as
described in paragraph (1)(B) are based on an individual satisfying
a standard that is related to a health status factor (or if
such a wellness program does not provide such a reward), the
wellness program shall not violate this section if participation
in the program is made available to all similarly situated individuals.
The following programs shall not have to comply with
the requirements of paragraph (3) if participation in the program
is made available to all similarly situated individuals:
‘‘(A) A program that reimburses all or part of the cost
for memberships in a fitness center.
‘‘(B) A diagnostic testing program that provides a reward
for participation and does not base any part of the
reward on outcomes.
‘‘(C) A program that encourages preventive care related
to a health condition through the waiver of the copayment
or deductible requirement under group health
plan for the costs of certain items or services related to a
health condition (such as prenatal care or well-baby visits).
‘‘(D) A program that reimburses individuals for the
costs of smoking cessation programs without regard to
whether the individual quits smoking.
‘‘(E) A program that provides a reward to individuals
for attending a periodic health education seminar.
‘‘(3) WELLNESS PROGRAMS SUBJECT TO REQUIREMENTS.—If
any of the conditions for obtaining a premium discount, rebate,
or reward under a wellness program as described in paragraph
(1)(C) is based on an individual satisfying a standard that is
related to a health status factor, the wellness program shall
not violate this section if the following requirements are complied
with:
‘‘(A) The reward for the wellness program, together
with the reward for other wellness programs with respect
to the plan that requires satisfaction of a standard related
to a health status factor, shall not exceed 30 percent of the
cost of employee-only coverage under the plan. If, in addition
to employees or individuals, any class of dependents
(such as spouses or spouses and dependent children) may
participate fully in the wellness program, such reward
shall not exceed 30 percent of the cost of the coverage in
which an employee or individual and any dependents are
enrolled. For purposes of this paragraph, the cost of coverage
shall be determined based on the total amount of
employer and employee contributions for the benefit package
under which the employee is (or the employee and any
dependents are) receiving coverage. A reward may be in
the form of a discount or rebate of a premium or contribution,
a waiver of all or part of a cost-sharing mechanism
(such as deductibles, copayments, or coinsurance), the absence
of a surcharge, or the value of a benefit that would
otherwise not be provided under the plan. The Secretaries
of Labor, Health and Human Services, and the Treasury
may increase the reward available under this subparagraph
to up to 50 percent of the cost of coverage if the Secretaries
determine that such an increase is appropriate.
‘‘(B) The wellness program shall be reasonably designed
to promote health or prevent disease. A program
complies with the preceding sentence if the program has a
reasonable chance of improving the health of, or preventing
disease in, participating individuals and it is not
overly burdensome, is not a subterfuge for discriminating
based on a health status factor, and is not highly suspect
in the method chosen to promote health or prevent disease.
‘‘(C) The plan shall give individuals eligible for the
program the opportunity to qualify for the reward under
the program at least once each year.
‘‘(D) The full reward under the wellness program shall
be made available to all similarly situated individuals. For
such purpose, among other things:
‘‘(i) The reward is not available to all similarly situated
individuals for a period unless the wellness program
allows—
‘‘(I) for a reasonable alternative standard (or
waiver of the otherwise applicable standard) for
obtaining the reward for any individual for whom,
for that period, it is unreasonably difficult due to
a medical condition to satisfy the otherwise applicable
standard; and
‘‘(II) for a reasonable alternative standard (or
waiver of the otherwise applicable standard) for
obtaining the reward for any individual for whom,
for that period, it is medically inadvisable to attempt
to satisfy the otherwise applicable standard.
‘‘(ii) If reasonable under the circumstances, the
plan or issuer may seek verification, such as a statement
from an individual’s physician, that a health status
factor makes it unreasonably difficult or medically
inadvisable for the individual to satisfy or attempt to
satisfy the otherwise applicable standard.
‘‘(E) The plan or issuer involved shall disclose in all
plan materials describing the terms of the wellness program the availability of a reasonable alternative standard
(or the possibility of waiver of the otherwise applicable
standard) required under subparagraph (D). If plan materials
disclose that such a program is available, without describing
its terms, the disclosure under this subparagraph
shall not be required.
‘‘(k) EXISTING PROGRAMS.—Nothing in this section shall prohibit
a program of health promotion or disease prevention that was
established prior to the date of enactment of this section and applied
with all applicable regulations, and that is operating on such
date, from continuing to be carried out for as long as such regulations
remain in effect.
‘‘(l) WELLNESS PROGRAM DEMONSTRATION PROJECT.— ‘‘(1) IN GENERAL.—Not later than July 1, 2014, the Secretary,
in consultation with the Secretary of the Treasury and
the Secretary of Labor, shall establish a 10-State demonstration
project under which participating States shall apply the
provisions of subsection (j) to programs of health promotion offered
by a health insurance issuer that offers health insurance
coverage in the individual market in such State.
‘‘(2) EXPANSION OF DEMONSTRATION PROJECT.—If the Secretary,
in consultation with the Secretary of the Treasury and
the Secretary of Labor, determines that the demonstration
project described in paragraph (1) is effective, such Secretaries
may, beginning on July 1, 2017 expand such demonstration
project to include additional participating States.
‘‘(3) REQUIREMENTS.—
‘‘(A) MAINTENANCE OF COVERAGE.—The Secretary, in
consultation with the Secretary of the Treasury and the
Secretary of Labor, shall not approve the participation of
a State in the demonstration project under this section unless
the Secretaries determine that the State’s project is
designed in a manner that—
‘‘(i) will not result in any decrease in coverage;
and
‘‘(ii) will not increase the cost to the Federal Government
in providing credits under section 36B of the
Internal Revenue Code of 1986 or cost-sharing assistance
under section 1402 of the Patient Protection and
Affordable Care Act.
‘‘(B) OTHER REQUIREMENTS.—States that participate in
the demonstration project under this subsection—
‘‘(i) may permit premium discounts or rebates or
the modification of otherwise applicable copayments or
deductibles for adherence to, or participation in, a reasonably
designed program of health promotion and
disease prevention;
‘‘(ii) shall ensure that requirements of consumer
protection are met in programs of health promotion in
the individual market;
‘‘(iii) shall require verification from health insurance
issuers that offer health insurance coverage in
the individual market of such State that premium discounts—
‘‘(I) do not create undue burdens for individuals
insured in the individual market;
‘‘(II) do not lead to cost shifting; and
‘‘(III) are not a subterfuge for discrimination;
‘‘(iv) shall ensure that consumer data is protected
in accordance with the requirements of section 264(c)
of the Health Insurance Portability and Accountability
Act of 1996 (42 U.S.C. 1320d–2 note); and
‘‘(v) shall ensure and demonstrate to the satisfaction
of the Secretary that the discounts or other rewards
provided under the project reflect the expected
level of participation in the wellness program involved
and the anticipated effect the program will have on
utilization or medical claim costs.
‘‘(m) REPORT.—
‘‘(1) IN GENERAL.—Not later than 3 years after the date of
enactment of the Patient Protection and Affordable Care Act,
the Secretary, in consultation with the Secretary of the Treasury
and the Secretary of Labor, shall submit a report to the
appropriate committees of Congress concerning—
‘‘(A) the effectiveness of wellness programs (as defined
in subsection (j)) in promoting health and preventing disease;
‘‘(B) the impact of such wellness programs on the access
to care and affordability of coverage for participants
and non-participants of such programs;
‘‘(C) the impact of premium-based and cost-sharing incentives
on participant behavior and the role of such programs
in changing behavior; and
‘‘(D) the effectiveness of different types of rewards.
‘‘(2) DATA COLLECTION.—In preparing the report described
in paragraph (1), the Secretaries shall gather relevant information
from employers who provide employees with access to
wellness programs, including State and Federal agencies.
‘‘(n) REGULATIONS.—Nothing in this section shall be construed
as prohibiting the Secretaries of Labor, Health and Human Services,
or the Treasury from promulgating regulations in connection
with this section.