Expansion of employee wellness programs under PPACA creates additional barriers to healthcare insurance for individuals with disabilities.

• Jurisdiction: United States
• Author: Cheng, Amy B.
• Date: 22 June 2016

1. INTRODUCTION 192 II. MEANINGFUL ACCESS AFTER THE PPACA 196 A. Alexander v. Choate 197 B. Meaningful Access under the ADA 199 C. Meaningful Access and Premiums under PPACA 203 III. WELLNESS PROGRAMS SHIFTS COSTS TO THE EMPLOYEE 204 A. PPACA Antidiscrimination Provision 206 B. PPACA Continues Cycle of Discrimination 208 C. Seff v. Broward County 209 IV. REASONABLE ACCOMMODATION UNDER THE ADA AND ITS IMPACT ON WELLNESS PROGRAMS 211 A. Statutory Language Requirement for Alternative Considerations in Wellness Programs 212 B. Impact of Reasonable Accommodation to Wellness Programs for Individuals With Disabilities 213 V. CONCLUSION 215 A. Redefining What It Means to be Voluntary 215 B. Through the Eyes of an Egalitarian: Re-interpreting Reasonable Accommodation under the ADA 217 C. Additional Barriers in Healthcare 218 I. INTRODUCTION

   There are many barriers to healthcare for the general population that has been documented throughout the years, with one particularly affected group being individuals with disabilities. (1) One identified healthcare barrier for individuals with disabilities is the inability to gain access to the healthcare system through health insurance. (2) While many attempts have been made to resolve this issue, serious problems have yet to be resolved. (3) The Patient Protection Affordable Care Act ("PPACA") attempted to solve the issue by expanding Health Insurance Portability and Accountability Act of 1996's ("HIPAA") current regulations on employee wellness programs. The relevant regulations govern employee wellness programs to allow employers to offer their employees greater incentives for meeting employer-defined health targets. (4) This expansion has an adverse effect because it disadvantages groups like individuals with disabilities by penalizing them through higher premiums or cost sharing when they are unable to meet wellness targets. (5)

   The cost of healthcare in the United States ("U.S.") continues to rise every day, and is currently the highest per capita in the world. (6) In 2012, the U.S. spent an estimated $2.8 trillion on healthcare. (7) The continued rise of medical care and health insurance costs mainly impact the uninsured and the underinsured. (8) Such increases deprive over fifty million people of the proper healthcare they need, including many individuals with disabilities. (9) Many individuals with disabilities are either uninsured, underinsured, or both. (10) As a result, individuals with disabilities who are underinsured are burdened with high cost-sharing obligations, which prevent them from obtaining a variety of healthcare needs. (11) As a way to curb healthcare costs, employers who offer benefits to their employees now offer employee wellness programs. (12) Wellness programs, known as disease-management programs, can take many different forms and offer a wide range of benefits from informational to preventative care. (13)

   Health law means "laws that govern access to health services and health insurance coverage, as well as those intended to restore or promote health and wellness with a focus on 1) public health insurance, laws governing private health insurance, and 3) public health initiatives and regulation." (14) The PPACA is a health law that regulates the health industry. PPACA expands the employee wellness program, a program that promotes health and disease prevention at work. (15) This new rule allows employers to reasonably design and make available to every employee a health wellness program that reward or punish their employees monetarily through their health insurance payments plans as a way to encourage employees to meet a specific health standard. (16) PPACA appropriated $200 million dollars to assist certain groups of employers with providing comprehensive workplace wellness programs and authorized the Centers for Disease Control and Prevention ("CDC") to evaluate these employee based wellness programs for its effectiveness and ability for preventive care. (17) PPACA also expanded the employee wellness program exemption, which now allows employers to offer "incentives of up to thirty percent, expandable to up to fifty percent with approval from the secretaries of the DOL, HHS and the Treasury, of the total cost of coverage for standard-based wellness programs." (18) As a result PPACA intended to further the goals of the American Disabilities Act of 1990 ("ADA") by giving individuals to disabilities greater access to healthcare. (19)

   Nearly nineteen percent of the US population has some type of disability under the ADA. (20) The rate of disabilities also increases with age. (21) According to one report, in 2005, 89.4 million Americans had some type of disability. (22) Individuals with disabilities tend to be in poorer general health than other individuals and face many barriers regarding their care. (23) These individuals tend to use health care at a higher rate but use preventive services at a lower rate than individuals without disabilities. (24) However, many individuals with disabilities have no health coverage because the U.S. health care system can be so restrictive in its eligibility requirements. (25) There are key needs for individuals with disabilities, which most can only access if they have health care insurance, as Medicare and Medicaid have difficulty obtaining the care and services individuals with disabilities require. (26) Most individuals with disabilities do not qualify for private health plans because they are not able to obtain jobs where employers pay for their health insurance. (27) Even for those individuals with a disability who do have health insurance through their employer, such plans are not adequate. (28) Additional insurance barriers for individuals with disabilities include the inability to obtain private health insurance through employer based health insurance or, if accepted, significant premium surcharges, which makes insurance unaffordable for many individuals with disabilities. (29)

   The ADA protects individuals with disabilities from societal bias. (30) Employer based health insurance is the most common form of private health insurance to which many individuals with disabilities do not have access, since they remain unemployed. (31) The employee wellness program offered by employers' awards benefits based either on the result of a health test, or on how employees perform in mandated employee wellness programs at work. (32) Therefore, these employee wellness programs need both to allow individuals with disabilities equal access to the benefits of the program and to not impose additional barriers to avoid regulatory issues under the ADA. (33)

   Moreover, if the employer requires answers to medical questions or screening for the wellness program, these questions need to be conducted on a voluntary basis. (34) The Equal Employment Opportunity Commission ("EEOC") has long stood on the sidelines of what "voluntary" means. (35) The ADA and its amendments were meant to be an anti-discriminatory statute that protected the rights of individuals with disabilities and ensured remedies for instances of discrimination against this group by requiring employers to provide reasonable accommodations to employees with disabilities. (36) The ADA further imposes accessibility requirements on public accommodations. (37) On its face, the ADA prevents discrimination against individuals with disability; however, low employment rates post- ADA is continued evidence of discrimination towards individuals with disabilities in the workplace. (38)

   This article argues PPACA's requirement for employee wellness programs provides additional barriers to healthcare insurance for individuals with disabilities. Part I of this Comment describes how the healthcare industry discriminates against individuals with disabilities by continuing to deny them meaningful access to health care through payment of higher premiums. Part II examines how the wellness program provision allows employers to shift the cost of medical coverage to the employee for failure to participate in the wellness program. Part III summarizes how the ADA's reasonable requirement places an obligation on employers to make reasonable accommodation to individuals with disabilities, which will improve the health of working individuals with disabilities. Part IV concludes with suggestions for further reform.

2. MEANINGFUL ACCESS AFTER THE PPACA

   Most Americans are insured through a mixture of private and public health insurance. (39) Currently, the percentage of individuals with disabilities who are employed is lower compared to individuals who have no disability. (40) Since most private insurance is employer based, individuals with disabilities have a hard time obtaining private health insurance. (41) While the public health care system is designed to help individuals with disabilities, there is no duty to procure them the health benefits they need. (42) Therefore, many individuals who need healthcare access the most almost never get it. (43) As a result, the healthcare industry discriminates against individuals with disabilities by denying them meaningful access to care. This part analyzes A) the meaning of meaningful access after Alexander v. Choate, (44) B) the meaning of meaningful access under the ADA, and C) how PPACA hinders individuals with disability from achieving meaning access to healthcare.

   1. Alexander v. Choate (45)

      Alexander v. Choate was a case decided before the ADA was passed. (46) During the era of Choate, the Rehabilitation Act of 1973 protected the rights of individuals with disabilities. (47) Specifically, [section] 504 of the Rehabilitation Act states:

      No otherwise qualified individual with a disability in the United States, as defined in section 705 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving...