On December 13, 2006, the DOL, Treasury, and Health and Human Services published joint final regulations on the nondiscrimination provisions of the Health Insurance Portability and Accountability Act (“HIPAA”). These final regulations included guidance on the implementation of wellness programs.

The Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2008-02 (the “Bulletin”) to help employers determine whether the plan offers a program of health promotion or disease prevention that is required to comply with the DOL’s final wellness program regulations, and, if so, whether the program is in compliance with the regulations. The Bulletin provides a series of questions in the form of a “Wellness Program Checklist” to assist employers with this determination.

Noting that HIPAA’s nondiscrimination provisions generally prohibit a group health plan or group health insurer from denying an individual eligibility or charging a higher premium based on a health-related factor, the Field Assistance Bulletin notes that a plan may vary benefits and premiums or contributions based on whether an individual has met the standards of a wellness program that complies with the standards in 29 CFR 2590.702(f) which consider (1) the amount of reward offered under the plan, (2) whether the plan is reasonably designed to promote health or prevent disease, (3) whether participants are given a chance to qualify once per year, and (4) whether the reward is available to all similarly situated individuals and whether there is a reasonable alternative standard for obtaining the reward if it is unreasonably difficult due to a medical condition or medically inadvisable to attempt.