Employer Wellness Incentives, the ACA, and the ADA: Reconciling Policy Objectives

Source: Kristin M. Madison, Northeastern University School of Law Research Paper No. 261-2016, October 2015

From the abstract:
Employer-based wellness programs have become increasingly common. Many large firms offer incentives for completing health-related questionnaires or undergoing biometric testing; some offer incentives for meeting targets related to biometric measures such as blood pressure or body-mass index. Over the last two decades, policy makers have both promoted and restricted incentive-based wellness programs. The 2010 Affordable Care Act (ACA) reflected both impulses: it imposed limits on the use of incentives, but signaled support for incentive-based programs by raising a previously existing ceiling on incentive magnitude. More recently, however, federal actions taken in connection with the Americans with Disabilities Act (ADA) threatened to undermine some ACA compliant, incentive-based wellness programs, eliciting protests from some employers. This essay examines the congruence of policy objectives underlying health plan regulations, the ADA, and their wellness program exceptions. While health plan regulations seek to preserve insurance affordability, regardless of health status, the ADA’s wellness program exception seeks to ensure the voluntariness of employees’ provision of information. The author argues that incentives can be compatible with voluntariness, and should therefore be permitted under the ADA, but that the ADA’s focus on voluntariness should lead to incentive regulations that are structured differently from those under the ACA.