LA FE COMO RESPUESTA Y OPCION DE VIDA

The safe harbor protects disability-related distinctions in health insurance that are actuarially justified and “based on bona fide risk classification,”185 _{and disability-related} inquiries and medical exams may be utilized in the insurance underwriting process. When the court in Seff stated that the safe harbor provisions “collectively refer to the process of collecting information about the health of the insured in order to assess risks so the insurer may accurately establish premiums—in other words: the process of developing insurance plans,”186 _{it elided a core inference in} its analysis. More precisely, the language of the safe harbor refers to the actions of underwriting, classifying, and administering risks, and of establishing terms of a bona fide health insurance plan—courts have inferred that the process of collecting health information from insured employees is an implicit component of these insurance activities and therefore have, to various extents, concluded that the safe harbor also protects activities involving medical exams and inquiries.

As reflected in the discussion above, the question of whether and how the safe harbor “should apply to wellness programs” has produced inconsistent answers. As a response to the flawed framework in Seff, the EEOC’s new rule in 29 C.F.R. § 1630.14(d)(6) seems clear: the safe harbor provisions “do not apply” to “wellness programs” in the way that Seff and Flambeau applied those provisions to wellness programs.187 _{Yet, though the EEOC presented this} repudiation “in no uncertain terms,”188 _{framing the issue as} simply one of whether the safe harbor provisions “do not apply”189 _{or “shall apply”}190 _{to “wellness programs” glosses}

185 _{See supra Section III.A.}

186 _{Seff v. Broward Cty., 778 F. Supp. 2d 1370, 1374 (S.D. Fla. 2011).} 187 _{See supra Section III.E.}

188 _{EEOC v. Orion Energy Sys., Inc., No. 14-cv-1019, 2016 WL}

5107019, at *4.

over the heart of the controversy: the different constructions of the safe harbor discussed above ultimately boil down to differences in opinion as to how closely disability-related inquiries and medical exams must be related to the development of bona fide insurance plans to fall within the ambit of § 12201(c). It cannot be that the safe harbor protects all medical inquiries and exams that could conceivably become part of decisionmaking for an employer considering health insurance options (as suggested by the decision in Seff)—otherwise, the safe harbor would entirely engulf the prohibition of § 12112(d)(4)(A). Yet, some medical inquiries are essential enough to bona fide risk classification to justify gaining the protection of § 12201(c) (as evidenced by the decision in Barnes);191 _{the ADA does not disrupt how the} insurance industry does business.192

Though § 1630.14(d)(6) rejects the holdings of Seff and Flambeau, it does not appear to disturb the problematic way in which the courts and parties have framed the questions presented by these cases. Additionally, it appears to rest on an assumption that employers and insurers do not use data from health screening programs, which may be components of broader wellness programs, in the underwriting process.193 As such, the new rule does not fully address the complexities posed by factual scenarios such as the one in Flambeau, which presented a test case apt for the development of a nuanced analysis of the limits of and overlaps between the provisions in § 12112(d)(4) and § 12201(c). A comparison of the facts in Flambeau and those in Barnes illuminates some of the open questions that ought to be addressed in order to formulate a comprehensive and coherent doctrine respecting the safe harbor’s application to health screening programs. In its resolution of the case, the court in Flambeau might have offered, for instance, an analysis of the salient

190 _{Preserving Employee Wellness Programs Act, H.R. 1313, 115th}

Cong. § 3(a)(1)(C) (2017).

191 See supra Section III.B. 192 See supra note 100.

distinctions between Flambeau and Barnes—the facts that the employer in Flambeau offered a self-insured plan, required employees to complete a biometric screening in addition to a health questionnaire, and used the data from its health screening program in conjunction with its wellness management offerings instead of solely for the development of its health plan—to determine whether these distinctions do or should qualify the applicability of the safe harbor to a health screening program. This opportunity was lost, however, when the court proceeded in the wake of the reasoning in Seff.

An additional wrinkle is the issue of how to apply § 12112(d)(4)(A) in cases where the employer does not receive individualized medical information about its employees—an argument left on the table by the court in Orion. Though the parties in Patten agreed that the financial incentives attached to the HRA in that case rendered participation in the HRA “involuntary,”194 _{the court held that the HRA did} not pose disability-related inquiries as a threshold matter and therefore did not violate § 12112(d)(4)(A). Essentially, employers in cases like Seff and Flambeau, who only receive de-identified aggregate data from their health screening programs, could attempt to use the line of argument advanced in Patten to sidestep entirely questions of whether their health screening programs are “voluntary” under § 12112(d)(4)(B) or breach the maximum allowable incentives set forth by the EEOC’s new regulation. The next Part begins with an analysis of this issue before proceeding to outline a framework for determining the extent to which

194 _{Patten v. State, 359 P.3d 469, 472 (2015), review denied sub nom.}

Van Patten v. State, 368 P.3d 26 (2016) (“Although an employee’s eligibility for state sponsored health insurance does not depend on whether the employee has completed the assessment, those who do not complete it pay more for their insurance than those who do.The difference is currently $17.50 per month for individuals or $35.00 per month for couples. Nonparticipants also currently have a deductible that is $100.00 larger than participants. The parties agree that, because of this financial disincentive, participation in the assessment is not ‘voluntary’ as that term is defined in the ADA.”).

the provisions of the safe harbor provide protection to medical inquiries and exams comprising health screening programs.

IV. INTERPRETING § 12112(D)(4)(A)’S

PROHIBITION AND NAVIGATING THE

INSURANCE SAFE HARBOR

This Part of the Note begins by addressing Orion’s and the EEOC’s arguments in the Orion case about the proper interpretation of § 12112(d)(4)(A)’s prohibition on disability- related inquiries and medical examinations, and outlines a construction of the provision in light of the text, legislative history, and purpose of the ADA. This Part then analyzes how a proposed construction of § 12112(d)(4)(A) and § 12201(c) would apply to the type of wellness programs at issue in cases such as Seff, Flambeau, and Orion, and identifies possible concerns with how wellness programs will be implemented and designed in the future.