60 Pages Posted: 31 Jan 2009
Date Written: Winter 2008
Weight Watchers is available over lunch at work. So is a smoking cessation program. Flu shots are complementary in the employee lounge. Signs on the elevators encourage you to climb the four flights of stairs (plastered with encouraging pictures of healthy employees) instead. Perhaps your employer provides an onsite fitness facility or gym. All of these benefits, typical of many wellness programs, are offered to employees who volunteer. But what of those employees who don't take advantage of these resources? Research tells us that it is this set of individuals who disproportionately drive up health care costs. The employees who are not in shape. Who smoke. Who eat and drink too much. And while voluntary wellness programs are cost effective prevention measures, they are not targeting the cost driver employees who could improve their health - and the employer's bottom line - if they exercised more control over their health care.
But as we watch China institute weight limits for adoptive parents and Italian modeling agencies require health certificates from its models we ask ourselves whether we want health insurers (including our employers) second guessing our lifestyle choices in the name of improved health. At what point do insurers move from health promotion to unwarranted intrusion into our personal lives?
This article examines predominant individual behaviors that drive health care costs, including tobacco and alcohol use, exercise and diet. Next, it addresses the spectrum of new insurer programs that seek to curb unhealthy activities as these programs move toward stricter regulation of personal responsibility choices, from education programs to wellness centers to incentives to penalties for enrollees not following a prescribed individual health plan. It then turns to consider how programs that more overtly control our choices impact our legal rights, including privacy rights under HIPAA and common law, discrimination protections under the Americans with Disabilities Act, and the right to confidentiality in the physician-patient relationship. Next, the article examines whether these legal hurdles can be remedied by enrollee consent. Finally, the article concludes with suggestions for parameters and adequate consent procedures for monitoring employee health behaviors. It observes that turning our physicians into monitors has wellness costs of its own and urges study of outcomes before wholesale adoption of wellness plans that target individual enrollees.
Suggested Citation: Suggested Citation
Jesson, Lucinda, Weighing the Wellness Programs: The Legal Implications of Imposing Personal Responsibility Obligations (Winter 2008). Virginia Journal of Social Policy and the Law, Vol. 15, 2008. Available at SSRN: https://ssrn.com/abstract=1335497