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Wellness Program Survives ADA Challenge (Wednesday, September 26, 2012)

Broward County, Florida offered its employees a group health insurance plan sponsored by Broward County's group health insurer, a company called Coventry Healthcare.

The wellness program consisted of two components: a biometric screening described as a "finger stick for glucose and cholesterol," and an online health risk assessment questionnaire, which gathered information to identify employees who had asthma, hypertension, diabetes, congestive heart failure, or kidney disease. Employees received the opportunity to participate in a disease management coaching program. If they did so, they became eligible to receive co-pay waivers for certain medications.

Participation in the employee wellness program was not a condition for enrollment in Broward County's group health plan. As an incentive to participate, however, Broward County imposed a $20 charge on each pay check, beginning in April 2010, for employees who enrolled in the group health insurance plan but who refused to join the employee wellness program. Broward later suspended the charges on January 1, 2011.

Bradley Seff filed a class action, alleging that the employee wellness program's biometric screening and online health risk assessment questionnaire violated the Americans with Disabilities Act's ("ADA") prohibition on non-voluntary medical examinations and disability-related inquiries.

The district court found that the ADA's safe harbor provision for insurance plans exempted Broward County's employee wellness program. Seff appealed.

Under the ADA, a covered entity is prohibited from requiring a medical examination, or making certain inquiries related to disability, unless such an examination or inquiry is shown to be job-related and consistent with business necessity.

The ADA has a safe harbor for certain insurance plans. More specifically, the ADA is not to be construed as prohibiting a covered entity from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks. The issue was whether the wellness program was a "term" of a benefit plan.

Seff's argument on appeal was that Lisa Morrison, Broward County's corporate representative and acting benefits manager, had testified in a deposition that the employee wellness program was not a term of Broward County's benefit plan and that the employee wellness program was not a term contained in Broward County's health and pharmacy plans.

According to the appeals court, however, the record established that Coventry Healthcare sponsored the employee wellness program as part of the contract to provide Broward County with a group health plan, the program was only available to group plan enrollees, and Broward County presented the program as part of its group plan in at least two employee handouts.

The court of appeals concluded the district court did not err in finding as a matter of law that the employee wellness program was a "term" of Broward County's group health insurance plan. Therefore, the employee wellness program fell within the ADA's safe harbor provision, and the case was properly dismissed.

Seff v. Broward County, Florida, ____ F.3d ____, 2012 WL 3552650 (11th Cir. 2012).

· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311
· MLied@howardandhoward.com