Hostname: page-component-8448b6f56d-gtxcr Total loading time: 0 Render date: 2024-04-24T07:47:38.398Z Has data issue: false hasContentIssue false
  • English
  • Français

When Public Health and Genetic Privacy Collide: Positive and Normative Theories Explaining How ACA's Expansion of Corporate Wellness Programs Conflicts with GINA's Privacy Rules

Published online by Cambridge University Press:  01 January 2021

Jennifer S. Bard
Get access Rights & Permissions [Opens in a new window]

Extract

The passing of the Patient Protection and Affordable Care Act (ACA) is a triumph for the field of public health. Its inclusion of many provisions intended to prevent illness and promote health endorses the core belief of public health as expressed by Dr. Georges Benjamin, the long-time executive director of the American Public Health Association, in a Washington Post opinion piece praising ACA for “provid[ing] care as far upstream as possible… [in order to] reduce costs by identifying problems early and then managing them to reduce or eliminate the need for more costly care in the future.” In this article, I consider the conflict between ACA’s adoption of public health goals seeing population health and societal interests in protecting individuals from discrimination based on their health. The article focuses on one aspect of ACA which seeks to lower the costs to employers who provide health insurance for their employees by making it easier for them to offer their employees substantial incentives for participating in and meeting the goals of employer-sponsored Wellness Programs.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 39 , Issue 3 , Fall 2011 , pp. 469 - 487
Copyright
Copyright © American Society of Law, Medicine and Ethics 2011

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Patient Protection and Affordable Care Act (PPACA or ACA), Pub. L. No. 111–148, 124 Stat. 119 (2010) as amended by Health Care and Education Reform Act of 2010, Pub. L. No. 111–152, 124 Stat. 1209 (2010) (codified as amended in scattered sections of 42 U.S.C.).Google Scholar
Benjamin, G. P., “Proven Savings from Prevention, Early Intervention,” Washington Post, July 21, 2009, available at <http://views.washingtonpost.com/healthcarerx/panelists/2009/07/costs-benjamin.html> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
ACA § 4303; There is no universally recognized definition of “Wellness.” One typical description of a Wellness Program is a “comprehensive health program designed to maintain a high level of well-being through proper diet, light exercises, stress management, and illness prevention.” See <http://www.busi*-nessdictionary.com/definition/wellness-program.html> (last visited July 26, 2011).+(last+visited+July+26,+2011).>Google Scholar
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 29 C.R.F. § 1635.8 (2010). Employee Wellness Programs are organized efforts by employers who provide health insurance to their employees to reduce illness and absenteeism by encouraging employees to adopt healthier lifestyles. These programs typically target behaviors like quitting smoking, losing weight, and lowering blood pressure and cholesterol.Google Scholar
This article adopts the definition provided by ACA for a “comprehensive workplace wellness program” which is one that includes the following: “1. health awareness initiatives, including health education, preventive screenings, and health risk assessments; 2. efforts to maximize employee engagement, including mechanisms to encourage employee participation; 3. initiatives to change unhealthy behaviors and lifestyle choices, including counseling, seminars, online programs, and self-help materials; and 4. supportive environments efforts, including workplace policies to encourage healthy lifestyles, healthy eating, increased physical activity, and improved mental health.” (section 10408(c)). This article leaves for another time the argument that a population which protects its members from discrimination is, in fact, acting in its own best interests in that it is upholding the ethical principles of fairness which it has adopted for itself.Google Scholar
Doyle, A. C., “Silver Blaze,” in The Adventures and the Memoirs of Sherlock Holmes, Glinert, E., ed. (New York: Penguin Group, 2001).Google Scholar
For an overview of the individual liberties perspective of public health law, see Gostin, L. O., Public Health Law: Power, Duty, Restraint, 2nd ed. (Berkeley: University of California Press, 2008): At 87.Google Scholar
Leonard, E. W., “State Constitutionalism and the Right to Health Care,” University of Pennsylvania Journal of Constitutional Law 12, no. 5 (2010): 1325–1406, at 1382.Google Scholar
Id.Google Scholar
Koh, H. K. Sebelius, K. G., “Promoting Prevention through the Affordable Care Act,” New England Journal of Medicine 363, no. 14 (2010): 1296–1299, available at <http://healthpolicyandreform.nejm.org/> (last visited July 1, 2011).CrossRefGoogle Scholar
Id.Google Scholar
Id. (quoting Koh, H. K., “A 2020 Vision for Healthy People,” New England Journal of Medicine 362, no. 18 [2010]: 1653–1656).CrossRefGoogle Scholar
Id. The provisions of the law which direct “the secretary of health and human services to assess existing federal health and wellness initiatives and directs the Centers for Disease Control and Prevention (CDC) to survey worksite health policies and programs nationally” are beyond the scope of this article.Google Scholar
ACA § 4303.Google Scholar
See Koh and Sebelius, supra note 10.Google Scholar
Id.Google Scholar
Leezer, J. Long, A. Bass, C., “Understanding the Impact of Health Care Reform on Wellness Promotion,” The Slant 26, (October 2010): 1–6, at 1, available at <https://www.onlife-health.com/em_newsEvents.aspx> (last visited July 7, 2011).Google Scholar
PBS, “Issue Clash,” available at <http://www.pbs.org/now/shows/health-care-reform/ic-health-care-costs.html> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
UN AIDS, RSTESA, “AIDS,” available at <http://www.unaidsrstesa.org/articles/aids.html> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Id.Google Scholar
World Health Organization (WHO), “Poliomyelitis,” available at <http://www.who.int/mediacentre/factsheets/fs114/en/index.html> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Rollback Malaria, “Malaria Endemic Countries,” available at <http://www.rollbackmalaria.org/endemiccountries.html> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
According to UNICEF, “Almost fifty per cent of the developing world's population – 2.5 billion people – lack improved sanitation facilities, and over 884 million people still use unsafe drinking water sources.”.Google Scholar
WHO, “Mental Health: Strengthening Our Response,” available at <http://www.who.int/mediacentre/factsheets/fs220/en/> (last visited July 7, 2011).+(last+visited+July+7,+2011).>Google Scholar
Institute of Medicine, U.S. Preventive Services Task Force (USPSTF), “Screening for Obesity in Adults,” available at <http://www.ncbi.nlm.nih.gov/books/NBK15358/> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Maciosek, M. V. Coffield, A. B. Edwards, N. M. Flottemesch, T. J. Goodman, M. J. Solberg, L. I., “Priorities among Effective Clinical Preventive Services: Results of a Systematic Review and Analysis,” American Journal of Preventive Medicine 31, no. 1 (2006): 52–61, available at <http://prevention-info.org/data/files/initiativesprioritiesamongeffectiveclinical*-preventivesvcsmethods.pdf> (last visited July 1, 2011).CrossRefGoogle Scholar
Kottke, T. E. Pronk, N. P. Isham, G. J., “Does Prevention Save Money?” Health Affairs 28, no. 5 (2009): 1554–1555, at 1555.CrossRefGoogle Scholar
Id.Google Scholar
Mariner, W. K., “Social Solidarity and Personal Responsibility in Health Reform,” Connecticut Insurance Law Journal 14, no. 2 (2008): 199–228, at 225.Google Scholar
Thomas, J. D., “Mandatory Wellness Programs: A Plan to Reduce Health Care Costs or a Subterfuge to Discriminate Against Overweight Employees?” Howard Law Journal 53, no. 2 (2010): 513–555, at 517–518.Google Scholar
Id., at 519. See also this description from an employee benefits consulting firm: “Worksite wellness programs give employers a way to encourage their employees to take personal responsibility for their health and, in some cases, even reward them for making behavioral and lifestyle changes. Healthier employees utilize fewer health care services, are absent less often, and are more productive.” Highmark, Close Up: PPACA Makes Changes to Support Workersite Wellness, available at <https://www.highmarkonhealthreform.com/media/pdf/65_Close-Up11–01.pdf> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
See Thomas, supra note 31, at 518.Google Scholar
McIlvaine, A. R., “A Culture of Health,” Human Resource Executive Online, available at <http://www.hreonline.com/HRE/story.jsp?storyId=533337130> (May 1, 2011) (last visited July 1, 2011).+(May+1,+2011)+(last+visited+July+1,+2011).>Google Scholar
Coronary Health Improvement Project, Lifestyle Intervention Programs for Employee Health, “6 CHIP Employee Wellness Programs: Pooled Analysis of 8-Week Results (n=442),” available at <http://www.lifestylehealthcenter.org/corporates.htm#0z> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Linnan, L. Bowling, M. Childress, J. Lindsay, G. Blakey, C. Pronk, S. Wieker, S. Royall, P., “Results of the 2004 National Health Worksite Survey,” American Journal of Public Health 98, no. 8 (2008): 1503–1509, at 1504, available at <http://www.rwjf.org/files/research/ajph.3407.2007.115626v1.pdf> (last visited July 1, 2011).CrossRefGoogle Scholar
Id.Google Scholar
Berry, L. L. Mirabito, A. M. Baun, W. B., “What's the Hard Return on Employee Wellness Programs?” Harvard Business Review 88, no. 12 (December 2010): 104–112.Google Scholar
Id., at 105.Google Scholar
U.S. Equal Employment Opportunity Commission, Fiscal Year 2012 Congressional Budget Justification, available at <http://www.eeoc.gov/eeoc/plan/2012budget.cfm#_Toc282609575> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Mello, M. M. Rosenthal, M. B., “Wellness Programs and Lifestyle Discrimination – The Legal Limits,” New England Journal of Medicine 359, no. 2 (2008): 192–199, at 198, available at <http://www.hsph.harvard.edu/faculty/michelle-mello/files/Wellness_paper_PDF.pdf> (last visited July 1, 2011).CrossRefGoogle Scholar
See Rosenbaum, supra note 34, at 11.Google Scholar
Pendo, E., “Working Sick: Lessons of Chronic Illness for Health Care Reform,” Yale Journal of Health Policy, Law, and Ethics 9, no. 2 (2009): 453–5470, available at <http://ssrn.com/abstract1435545> (last visited July 14, 2011).Google Scholar
See Rosenbaum, supra note 34, at 11 (citation omitted).Google Scholar
Id.Google Scholar
See Mello, Rosenthal, , supra note 43; Rothstein, M. A. Harrell, H. L., “Health Risk Reduction Programs in Employer-Sponsored Health Plans: Part II—Law and Ethics,” Journal of Occupational and Environmental Medicine 51, no. 8 (2010): 951–957; Dow, A. E., “Genomics Law Report, Genetic Exceptionalism and the Precautionary Principle,” available at <http://www.genomicslawreport.com/index.php/2009/10/06/genetic-exceptionalism-and-the-precautionary-principle/> (last visited July 1, 2011).Google Scholar
Underwood, T., “Front-Line Managers Are Key to Wellness Program Participation,” The Health Care Blog, available at <http://thehealthcareblog.com/blog/2010/09/11/front-line-managers-are-key-to-wellness-program-participation> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Parker, K., “The Harried Life of the Working Mother,” The Working Poor Families Project Policy, available at <http://www.workingpoorfamilies.org/pdfs/policybrief-winter2011.pdf> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
U.S. Department of Labor Bureau of Labor Statistics. “Women in the Labor Force: A Databook,” September 2008, available at <http://www.bls.gov/cps/wlf-databook2008.htm> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Roberts, B. Povich, D. Mather, M., “Great Recession Hit Hard at America's Working Poor: Nearly 1 in 3 Working Families in United States Are Low-Income,” The Working Poor Families Project Policy Brief (Winter 2010–2011), available at <http://www.workingpoorfamilies.org/pdfs/policybrief-win*-ter2011.pdf> (last visited July 1, 2011). (last visited July 1, 2011).' href=https://scholar.google.com/scholar?q=Roberts,+B.+Povich,+D.+Mather,+M.,+“Great+Recession+Hit+Hard+at+America's+Working+Poor:+Nearly+1+in+3+Working+Families+in+United+States+Are+Low-Income,”+The+Working+Poor+Families+Project+Policy+Brief+(Winter+2010–2011),+available+at++(last+visited+July+1,+2011).>Google Scholar
Thomas, J. D., “Mandatory Wellness Programs: A Plan to Reduce Health Care Costs or a Subterfuge to Discriminate against Overweight Employees?” Howard Law Journal 53, no. 2 (2010): 513–555, at 513.Google Scholar
See Kottke, et al supra note 28.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
See Thomas, , supra note 53.Google Scholar
Id., at 553 (citing Success Performance Solutions, “2006 SPS Health Care Benefits Survey,” available at <http:/www.super*-solutions.com/SPSHealthCareBenefitsSurvey2006.asp> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Leade Health, “The Business Case for Weight/Obesity Management Using Health Coaching Interventions,” available at <http://www.leadehealth.com/index_wp2.html> (last visited July 14, 2011).+(last+visited+July+14,+2011).>Google Scholar
The Perfect Labor Storm, “Workforce Indicators, Statistics, Facts and Trends,” available at <http://www.perfectlabor*-storm.com/facts.html> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Center for Disease Control and Prevention (CDC), “Genomics and Health,” available at <http://www.cdc.gov/genomics/resources/diseases/obesity/index.htm> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Must, A. et al., “Improving Coordination of Legal-Based Efforts across Jurisdictions and Sectors for Obesity Prevention and Control,” Journal of Law, Medicine & Ethics 37, no. 2 (2009): 90–98, at 92.CrossRefGoogle Scholar
Cong. Research Serv., H.R. 3590, Patient Protection and Affordable Care Act (2010) available at <http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR03590:@@@D&summ2=m&> (last visited July 1, 2011) (Bill “Provides that nothing in this Act shall be construed to require that an individual terminate coverage under a group health plan or health insurance coverage in which such individual was enrolled on the date of enactment of this Act.”); Reinhardt, U. E., “Wrapping Your Head around the Health Bill,” New York Times, March 24, 2010, available at <http://economix.blogs.nytimes.com/2010/03/24/wrapping-your-head-around-the-health-bill/> (last visited July 1, 2011).+(last+visited+July+1,+2011)+(Bill+“Provides+that+nothing+in+this+Act+shall+be+construed+to+require+that+an+individual+terminate+coverage+under+a+group+health+plan+or+health+insurance+coverage+in+which+such+individual+was+enrolled+on+the+date+of+enactment+of+this+Act.”);+Reinhardt,+U.+E.,+“Wrapping+Your+Head+around+the+Health+Bill,”+New+York+Times,+March+24,+2010,+available+at++(last+visited+July+1,+2011).>Google Scholar
Id.Google Scholar
Monahan, A. Schwarcz, D., “Will Employers Undermine Health Care Reform by Dumping Sick Employees?” Virginia Law Review 97, no. 1 (2011): 125–198 (presenting their empirical research on the possible effect of wellness programs to dump patients into public exchanges).Google Scholar
Id., at 130–131.Google Scholar
Id., at 170.Google Scholar
Id.Google Scholar
Id., at 169–170.Google Scholar
ACA § 4303.Google Scholar
See Mello and Rosenthal, supra note 43, at 197–198.Google Scholar
Id., at 197.Google Scholar
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 112(d) (1990); Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C § 300 gg-41 (1996). For an overview of ACA's amendments to HIPAA, See Rowen, H., “How the Federal Healthcare Reform Law Will Affect Healthcare Premiums, Healthcare Benefits and the Market for Coverage,” Health Lawyer 23, no. 4 (2011): 55–60, at 56.Google Scholar
See Mello and Rosenthal, supra note 43, at 197.Google Scholar
See Berry, et al supra note 40.Google Scholar
Id.Google Scholar
Ormond, B. A. Spillman, B. C. Waidmann, T. A. Caswell, K. J. Tereschenko, B., “Potential National and State Medical Care Savings from Primary Disease Prevention,” American Journal of Public Health 10, no. 1 (2011): 157–164, available at <http://healthyamericans.org/assets/files/Urban%20AJPH%202010.pdf> (last visited July 1, 2011).CrossRefGoogle Scholar
Id.Google Scholar
American College of Occupational and Environmental Medicine, “Healthy Workforce/Healthy Economy: The Role of Health, Productivity, and Disability Management in Addressing the Nation's Health Care Crisis: Why an Emphasis on the Health of the Workforce Is Vital to the Health of the Economy,” Journal of Occupational and Environmental Medicine 51, no. 1 (2009): 114–119, at 115, available at <http://www.acoem.org/uploadedFiles/Healthy_Workplaces_Now/Healthy%20Work*-force%20-%20Healthy%20Economy.pdf> (last visited July 1, 2011).CrossRef+(last+visited+July+1,+2011).>Google Scholar
ACA § 2801(c)(1).Google Scholar
According to the Congressional Budget Office § 1001 of ACA creates or modifies five laws related to Wellness programs. They are: § 2717 in the Public Health Services Act (PHSA) concerning reporting requirements for group health plans; PPACA § 1201, which creates a new § 2705 in the PHSA prohibiting discrimination on the basis of health status; PPACA § 4303, amended by § 10404 of P.L. 111–152, creates sections in the PHSA, including section 399MM, which provides for Centers for Disease Control (CDC) grants for employer-based wellness programs; and PPACA § 10408, concerning workplace wellness grants Congressional Research Services, “Wellness Programs: Selected Legal Issues,” available at <http://www.disabilityleavelaw.com/uploads/file/CRS%20Wellness%20Report(1).pdf> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
ACA §§ 399MM-1, -3.Google Scholar
Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001–1461, 1181 (1974); Mariner, W. K., “Health Reform: What's Insurance Got to Do with It? Recognizing Health Insurance as a Separate Species of Insurance,” American Journal of Law & Medicine 36, nos. 2 & 3 (2010): 436–451, at 442.CrossRefGoogle Scholar
Bridgeford, L. C., “Employee Benefit News,” available at <http://ebn.benefitnews.com/news/ppaca-makes-strange-bed-fellows-medicare-corporate-wellness-2683986-1.html> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Id.Google Scholar
Paychex, “Company Information,” available at <http://www.paychex.com/company/aboutus.aspx> (last visited July 1, 2011) (“Paychex, Inc. is a recognized leader in the payroll and human resource industry, serving over a half million businesses nationwide”).+(last+visited+July+1,+2011)+(“Paychex,+Inc.+is+a+recognized+leader+in+the+payroll+and+human+resource+industry,+serving+over+a+half+million+businesses+nationwide”).>Google Scholar
Muneris, “PPACA Workplace Wellness Programs,” available at <http://munerisbenefits.com/healthcarereform/ppaca-work-place-wellness-programs/> (last visited July 1, 2011) (note, this quote refers to the bill as PPACA).+(last+visited+July+1,+2011)+(note,+this+quote+refers+to+the+bill+as+PPACA).>Google Scholar
The changes to ERISA essentially remove the conflicts with existing provisions created by the amendments to HIPAA and the ADA.Google Scholar
ACA, “Technical Assistance for Employer-Based Wellness Programs,” § 399MM.Google Scholar
Id.Google Scholar
Health and Human Services. “Affordable Care Act Implementation FAQs-Set 5,” The Center for Consumer Information & Insurance Oversight, available at <http://cciio.hhs.gov/resources/factsheets/aca_implementation_faqs5.html#5> (last visited July 7, 2011); Department of Labor, “Compliance Assistance,” Employee Benefits Security Administration, available at <http://www.dol.gov/ebsa/compliance_assistance.html> (last visited July 10, 2011).+(last+visited+July+7,+2011);+Department+of+Labor,+“Compliance+Assistance,”+Employee+Benefits+Security+Administration,+available+at++(last+visited+July+10,+2011).>Google Scholar
Department of Labor, “FAQs about Affordable Care Act Implementation Part V and Mental Health Parity Implementation,” December 22, 2010, Employee Benefits Security Administration, available at <http://www.dol.gov/ebsa/pdf/faq-aca5.pdf> (last visited July 7, 2011).+(last+visited+July+7,+2011).>Google Scholar
Id.Google Scholar
Id. The inter-relationship between ACA and the various provisions regulating Wellness Programs is complex. This is how the Department of Labor explains the recent changes: “The Affordable Care Act added a new section 2705 to the PHS Act regarding nondiscrimination and wellness. Section 715(a)(1) of ERISA and section 9815(a)(1) of the Code incorporate section 2705 of the PHS Act by reference. PHS Act section 2705 largely incorporates the provisions of the Departments' joint final regulations with a few clarifications and changes the maximum reward that can be provided under a health-contingent wellness program from 20 percent to 30 percent. This change is effective in 2014.”.Google Scholar
HIPAA § 300 gg-41. For an overview of ACA's amendments to HIPAA, see Rowen, H., “How the Federal Healthcare Reform Law Will Affect Healthcare Premiums, Healthcare Benefits and the Market for Coverage,” Health Lawyer 23, no. 4 (2011): 55–60, at 56.Google Scholar
ADA § 112(d).Google Scholar
ERISA § 1002.Google Scholar
See supra at 475.Google Scholar
See infra at 477–478.Google Scholar
ACA § 4303.Google Scholar
U.S. Equal Employment Opportunity Commission, available at <http://www.eeoc.gov/policy/docs/guidance-inquiries.html> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Id.Google Scholar
HIPAA §300 gg-41; Americans with Disabilities Act of 1990, 42 U.S.C. § 112(d), amended by 47 U.S.C. § 255 (2008); ERISA §§ 1181–1183.Google Scholar
See infra at 479–481.Google Scholar
The Department of Labor has provided guidance to its field officers to determine whether an employer's wellness program is regulated under ERISA. The determining factors seem to be whether or not the program is part of a health insurance program offered by a covered entity. See Field Assistance Bulletin No. 2008–02 (February 14, 2008), available at <http://www.dol.gov/ebsa/regs/fab2008–2.html> (last visited July 1, 2011). (last visited July 1, 2011).' href=https://scholar.google.com/scholar?q=The+Department+of+Labor+has+provided+guidance+to+its+field+officers+to+determine+whether+an+employer's+wellness+program+is+regulated+under+ERISA.+The+determining+factors+seem+to+be+whether+or+not+the+program+is+part+of+a+health+insurance+program+offered+by+a+covered+entity.+See+Field+Assistance+Bulletin+No.+2008–02+(February+14,+2008),+available+at++(last+visited+July+1,+2011).>Google Scholar
These regulations were jointly issued by the Departments of Labor, the Treasury, and Health and Human Services. See 29 CFR 2590.702.Google Scholar
HIPAA § 300 gg-41; see Rosenbaum, supra note 34, at 110.Google Scholar
See Mello, Rosenthal, , supra note 43, at 198.Google Scholar
Id., at 198. See also U.S. Department of Labor, “ESBA Final Rule,” at 75021, available at <http://www.dol.gov/ebsa/regs/fedreg/final/2006009557.htm> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
See Mello and Rosenthal, supra note 43, at 198.Google Scholar
See Rosenbaum, supra note 34, at 111.CrossRefGoogle Scholar
Id., at 111.Google Scholar
Nondiscrimination and Wellness Programs in Health Coverage in the Group Market, 71 Fed. Reg. 75.013, 75,021 (Dec. 13, 2006) at <http://www.dol.gov/ebsa/regs/fedreg/final/2006009557.htm>; Requirements for the Group Health Insurance Market, 45 C.F.R. § 146.121(b)(2)(i)(B) (2010) (“[A] restriction on a benefit or benefits must apply uniformly to all similarly situation individuals and must not be directed at individual participants or beneficiaries based on any health factor of the participants or beneficiaries…”).;+Requirements+for+the+Group+Health+Insurance+Market,+45+C.F.R.+§+146.121(b)(2)(i)(B)+(2010)+(“[A]+restriction+on+a+benefit+or+benefits+must+apply+uniformly+to+all+similarly+situation+individuals+and+must+not+be+directed+at+individual+participants+or+beneficiaries+based+on+any+health+factor+of+the+participants+or+beneficiaries…”).>Google Scholar
45 C.F.R. § 146.121(f).Google Scholar
29 C.F.R. § 1635.8.Google Scholar
Id.Google Scholar
Nondiscrimination and Wellness Programs in Health Coverage in the Group Market, 71 Fed. Reg. at 75015, available at <http://www.dol.gov/ebsa/regs/fedreg/final/2006009557.html> (last visited May 22, 2011).+(last+visited+May+22,+2011).>Google Scholar
Rubenstein, D., “The Emergence of Mandatory Wellness Programs in the United States: Welcoming, or Worrisome?” Journal of Health Care Law and Policy 12, no. 1 (2009): 99–118, at 108.Google Scholar
Employers have become interested in lowering costs both for health care and from absenteeism by directly trying to influence the health of their employees. Pai, C.-W. Mullin, J. Payne, G. M. Love, J. O'Connell, G. Edington, D. W., “Factors Associated with Incidental Sickness Absence among Employees in One Health Care System,” American Journal of Health Promotion 24, no. 1 (2009): 37–48; Goetzel, R. Ozminkowski, R. Bruno, J. Rutter, K. Fikry, I. Wang, S., “The Long-Term Impact of Johnson & Johnson's Health & Wellness Program on Employee Health Risks,” Journal of Occupational and Environmental Medicine 44, no. 5 (2002): 417–424 (reporting “significant risk reduction in 8 of 13 risk categories examined for all employees who [enrolled in a risk reduction program who] participated in two health risk assessments over an average of 2 3/4 years”).CrossRefGoogle Scholar
Schuman, I., “Healthcare Employment Counsel, EBSA Clarifies GINA Provisions for Insurance Providers and Group Health Plans,” available at <http://healthcareemploymentcounsel.com/employee-benefits/federal-laws/gina/ebsa-clarifies-gina-provisions-for-insurance-providers-and-group-health-plans/> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
42 U.S.C. §12112(d)(4)(A)(1994); 29 C.F.R. § 1630.14(c) (1998).Google Scholar
EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), available at <http://www.eeoc.gov/policy/docs/guidance-inquiries.html#N_12_> (last visited July 1, 2011). Accompanying the memo is a state of acknowledgement that the ADA was amended in 2008 and that the Office of Legal Counsel would be reviewing all previously issued Guidance material. However, it is unlikely that these changes will change the prohibitions on when employers can ask about disabilities or who they can ask. As the EEOC explains, the changes primarily concern “the definition of the term ‘disability’ by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA,” available at <http://www.eeoc.gov/laws/statutes/adaaa_notice.cfm> (last visited July 1, 2011). (last visited July 1, 2011).' href=https://scholar.google.com/scholar?q=EEOC+Enforcement+Guidance+on+Disability-Related+Inquiries+and+Medical+Examinations+of+Employees+Under+the+Americans+with+Disabilities+Act+(ADA),+available+at++(last+visited+July+1,+2011).+Accompanying+the+memo+is+a+state+of+acknowledgement+that+the+ADA+was+amended+in+2008+and+that+the+Office+of+Legal+Counsel+would+be+reviewing+all+previously+issued+Guidance+material.+However,+it+is+unlikely+that+these+changes+will+change+the+prohibitions+on+when+employers+can+ask+about+disabilities+or+who+they+can+ask.+As+the+EEOC+explains,+the+changes+primarily+concern+“the+definition+of+the+term+‘disability’+by+rejecting+the+holdings+in+several+Supreme+Court+decisions+and+portions+of+EEOC's+ADA+regulations.+The+effect+of+these+changes+is+to+make+it+easier+for+an+individual+seeking+protection+under+the+ADA+to+establish+that+he+or+she+has+a+disability+within+the+meaning+of+the+ADA,”+available+at++(last+visited+July+1,+2011).>Google Scholar
Id.Google Scholar
Id.Google Scholar
Id. (citing See H.R. Rep. No. 101–485, pt. 2, at 75 (1990) (“As long as the programs are voluntary and the medical records are maintained in a confidential manner and not used for the purpose of limiting health insurance eligibility or preventing occupational advancement, these activities would fall within the purview of accepted activities.”).Google Scholar
Id.Google Scholar
Seff v. Broward Cnty, No. 10–61437, 2011 WL 1522558, at *4–5 (S.D. Fla. April 11, 2011).Google Scholar
Id.Google Scholar
Id.Google Scholar
Id., at *1.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id., at *3.Google Scholar
Id.Google Scholar
Id.Google Scholar
Rothstein, M. A., “Genetic Stalking and Voyeurism: A New Challenge to Privacy,” University of Kansas Law Review 57, no. 3 (2010): 539–577, at 562.Google Scholar
29 C.R.F. § 1635.8.Google Scholar
Id.Google Scholar
Id.Google Scholar
Hoffman, S., “The Importance of Immutability in Employment Discrimination Law,” William & Mary Law Review 52, no. 4 (2011): 1483–1546, at 1492 (pointing out that the courts have not heard any GINA discrimination cases).Google Scholar
Seff, 2011 WL 1522558, at *4–5.Google Scholar
Hope Health, New Federal Regulations May Change Your Wellness Program: What You Can Ask and What You Can't, 2010, available at <http://www.hopehealth.com/pdf/FreeReports/GINA.pdf> (last visited July 1, 2011). For the text of the rules see, <http://www.eeoc.gov/laws/types/genetic.cfm> (last visited July 1, 2011). (last visited July 1, 2011). For the text of the rules see, (last visited July 1, 2011).' href=https://scholar.google.com/scholar?q=Hope+Health,+New+Federal+Regulations+May+Change+Your+Wellness+Program:+What+You+Can+Ask+and+What+You+Can't,+2010,+available+at++(last+visited+July+1,+2011).+For+the+text+of+the+rules+see,++(last+visited+July+1,+2011).>Google Scholar
Andrews, L. B. Mehlman, M. J. Rothstein, M. A., Genetics: Ethics, Law and Policy, 3rd ed. (St. Paul, MN: Thomson/West, 2010) at 9 (citing Collins, F. S. McKusick, V. A., “Implications for the Human Genome Project for Medical Science,” JAMA 285, no. 5 [2001]: 540–544).Google Scholar
See Human Genome Project Info., “Facts About Genome Sequencing,” available at <http://www.ornl.gov/sci/techresources/Human_Genome/faq/seqfacts.shtml> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Bakalar, N., “New DNA Mapping Project to Trace Genetic Ills,” National Geographic Magazine (October 26 2005), available at <http://news.nationalgeographic.com/news/2005/10/1026_051026_dna_hapmap_2.html> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Id. (citing Holtzman, N. A., “Putting the Search for Genes in Perspective,” International Journal of Health Services 31, no. 2 (2001): 445–461).CrossRefGoogle Scholar
See Rothstein, supra note 135, at 563.Google Scholar
Id.Google Scholar
Id., at 563 n. 172 (citing GINA § 2(5)).Google Scholar
GINA, available at <http://www.ginahelp.org/#> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
CDC, “Family Health,” available at <http://www.cdc.gov/genomics/famhistory/index.htm> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Tsai, J., “Family Medical Info Off Limits for Insurers: Many Employers Will Be Forced to Rethink Health, Wellness Plans,” Dallas Business Journal (November 2009), available at <http://www.bizjournals.com/dallas/stories/2009/11/23/story9.html#ixzz1NDQjzR2A> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
See Berry, et al supra note 40, at 109.Google Scholar
Id.Google Scholar
Department of Health and Human Services, “Surgeon General's Family Health History Initiative,” available at <http://www.hhs.gov/familyhistory/> (last visited July 10, 2011); Centers for Disease Control and Prevention, “Family Reunions and Family Health History (2010), available at <http://www.cdc.gov/Features/FamilyReunionHistory/> (last visited July 10, 2011). (last visited July 10, 2011); Centers for Disease Control and Prevention, “Family Reunions and Family Health History (2010), available at (last visited July 10, 2011).' href=https://scholar.google.com/scholar?q=Department+of+Health+and+Human+Services,+“Surgeon+General's+Family+Health+History+Initiative,”+available+at++(last+visited+July+10,+2011);+Centers+for+Disease+Control+and+Prevention,+“Family+Reunions+and+Family+Health+History+(2010),+available+at++(last+visited+July+10,+2011).>Google Scholar
See Hope Health, supra note 144.Google Scholar
Id.Google Scholar
Id.Google Scholar
See Parisi, T. J., “The Onus Is on You: Wellness Plans and Other Strategies Being Employed for Patients to Take Ownership of Their Health,” Quinnipiac Health Law Journal 13, no. 2 (2010): 243–278.Google Scholar
Id.Google Scholar
Rodrigues v. Scotts Co., No. 07–10104-GAO, 2008 WL 251971, at *1–4 (D. Mass. Jan. 30, 2008); Conlin, M., “Get Healthy—Or Else: Inside One Company's All-Out Attack on Medical Costs,” Bloomberg Businessweek (February 26, 2007), available at <http://www.businessweek.com/magazine/content/07_09/b4023001.htm> (last visited July 1, 2011). See also Rubenstein, , supra note 116, at 113. For a discussion of how employer oversight of out-of-work activities are evidence of an increased emphasis on personal responsibility; see Blacksher, E., “Health Reform and Health Equity: Sharing Responsibility for Health in the United States,” Hofstra Law Review 39 (2011): 41–58, at 47–54. For a fuller discussion of state laws which can help or hinder wellness programs, See generally, Hendrix, A. Buck, J., “Employer-Sponsored Wellness Programs: Should Your Employer Be the Boss of More Than Your Work,” Southwestern Law Review 38, no. 3 (2009): 465–501; and Lipps, J., State Lifestyle Statutes and the Blogosphere: Autonomy for Private Employees in the Internet Age,” Ohio State Law Journal 72, no. 3 (2011): 645–685.Google Scholar
Pierotti, J., “The ‘Bottom Line’: A Smokescreen for the Reality That Anti-Tobacco Employment Practices Are Hazardous to Minority Health and Equality,” Journal of Contemporary Health Law and Policy 26, no. 2 (2010): 441–470, at 441.Google Scholar
Id., at 464–468 (American Indian is the term the author used and I have checked around and find that it is coming back into use and is currently preferable to “Native American”); see also Ferkassian, E., “Expanding Waistlines: How Some States and Employers Are Responding to the Obesity Epidemic and Its Impact on Rising Health Care Costs,” Annals of Health Law Advance Directive 20, no. 1 (2010) 116–124.Google Scholar
29 C.F.R. § § 1635.8.Google Scholar
United States Equal Opportunity Employment Commission, “Questions and Answers for Small Businesses: EEOL Final Rule on Title II of the Genetic Information Non-Discrimination Act of 2008,” available at <http://www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Id.Google Scholar
Smithey, S. Stanton, T., “Do Your Health and Wellness Plans Violate GINA?” available at <http://www.ogle*-treedeakins.com/publications/index.cfm?Fuseaction=PubDetail&PublicationID=946> (last visited July 1, 2011).+(last+visited+July+1,+2011).>Google Scholar
Brower, V., “Epigenetics: Unraveling the Cancer Code,” Nature 471 (March 23, 2011): S12–S13, available at <http://www.nature.com/nature/journal/v471/n7339_supp/full/471S12a.html> (“If the genetic code is the hardware for life, the epigenetic code is software that determines how the hardware behaves – and as such it can be rewritten.”).CrossRef+(“If+the+genetic+code+is+the+hardware+for+life,+the+epigenetic+code+is+software+that+determines+how+the+hardware+behaves+–+and+as+such+it+can+be+rewritten.”).>Google Scholar
See CDC, supra note 59.Google Scholar
See Hoffman, supra note 142, at 1499.Google Scholar