I 

111TH CONGRESS 

1ST SESSION H. R. 3688 

To encourage programs of health promotion or disease prevention. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 1, 2009 

Mr. ARCURI (for himself, Mr. BUYER, Mr. CASTLE, Mr. POLIS of Colorado, 

Mr. DONNELLY of Indiana, and Mr. DEAL of Georgia) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Education and Labor and 

Ways and Means, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

A BILL 

To encourage programs of health promotion or disease 

prevention. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. PROGRAMS OF HEALTH PROMOTION OR DIS4 EASE PREVENTION. 

5 (a) IN GENERAL.—Nothing in the Employee Retire6 ment Income Security Act of 1974, the Internal Revenue 

7 Code of 1986, or the Public Health Service Act shall be 

8 applied, administered, or interpreted to prevent any promstockstill on DSKH9S0YB1PROD with BILLS

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1 vider or issuer of health insurance (including any em2 ployer) from establishing premium discounts or rebates, 

3 or modifying copayments or deductibles, in the case of in4 dividuals who adhere to, or participate in, a program of 

5 health promotion or disease prevention which meets the 

6 requirements of subsection (b). 

7 (b) PROGRAMS OF HEALTH PROMOTION OR DISEASE

8 PREVENTION TO WHICH SECTION APPLIES.— 

9 (1) GENERAL PROVISIONS.— 

10 (A) GENERAL RULE.—For purposes of 

11 subsection (a), a program of health promotion 

12 or disease prevention (referred to in this sub13 section as a ‘‘wellness program’’) shall be a pro14 gram that is designed to promote health or pre15 vent disease that meets the applicable require16 ments of this subsection. 

17 (B) NO CONDITIONS BASED ON HEALTH

18 STATUS FACTOR.—If none of the conditions for 

19 obtaining a premium discount or rebate or 

20 other reward for participation in a wellness pro21 gram is based on an individual satisfying a 

22 standard that is related to a health status fac23 tor, such wellness program shall not violate this 

24 section if participation in the program is made 

25 available to all similarly situated individuals 

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1 and the requirements of paragraph (2) are com2 plied with. 

3 (C) CONDITIONS BASED ON HEALTH STA4 TUS FACTOR.—If any of the conditions for ob5 taining a premium discount or rebate or other 

6 reward for participation in a wellness program 

7 is based on an individual satisfying a standard 

8 that is related to a health status factor, such 

9 wellness program shall not violate this section if 

10 the requirements of paragraph (3) are complied 

11 with. 

12 (2) WELLNESS PROGRAMS NOT SUBJECT TO

13 REQUIREMENTS.—If none of the conditions for ob14 taining a premium discount or rebate or other re15 ward under a wellness program as described in para16 graph (1)(B) are based on an individual satisfying 

17 a standard that is related to a health status factor 

18 (or if such a wellness program does not provide such 

19 a reward), the wellness program shall not violate 

20 this section if participation in the program is made 

21 available to all similarly situated individuals. The 

22 following programs shall not have to comply with the 

23 requirements of paragraph (3) if participation in the 

24 program is made available to all similarly situated 

25 individuals: 

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1 (A) A program that reimburses all or part 

2 of the cost for memberships in a fitness center. 

3 (B) A diagnostic testing program that pro4 vides a reward for participation and does not 

5 base any part of the reward on outcomes. 

6 (C) A program that encourages preventive 

7 care related to a health condition through the 

8 waiver of the copayment or deductible require9 ment under an individual or group health plan 

10 for the costs of certain items or services related 

11 to a health condition (such as prenatal care or 

12 well-baby visits). 

13 (D) A program that reimburses individuals 

14 for the costs of smoking cessation programs 

15 without regard to whether the individual quits 

16 smoking. 

17 (E) A program that provides a reward to 

18 individuals for attending a periodic health edu19 cation seminar. 

20 (3) WELLNESS PROGRAMS SUBJECT TO RE21 QUIREMENTS.—If any of the conditions for obtaining 

22 a premium discount, rebate, or reward under a 

23 wellness program as described in paragraph (1)(C) 

24 is based on an individual satisfying a standard that 

25 is related to a health status factor, the wellness promstockstill on DSKH9S0YB1PROD with BILLS

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1 gram shall not violate this section if the following re2 quirements are complied with: 

3 (A) The reward for the wellness program, 

4 together with the reward for other wellness pro5 grams with respect to the plan that requires 

6 satisfaction of a standard related to a health 

7 status factor, shall not exceed 30 percent of the 

8 cost of employee-only coverage under the plan. 

9 If, in addition to employees or individuals, any 

10 class of dependents (such as spouses or spouses 

11 and dependent children) may participate fully 

12 in the wellness program, such reward shall not 

13 exceed 30 percent of the cost of the coverage in 

14 which an employee or individual and any de15 pendents are enrolled. For purposes of this 

16 paragraph, the cost of coverage shall be deter17 mined based on the total amount of employer 

18 and employee contributions for the benefit 

19 package under which the employee is (or the 

20 employee and any dependents are) receiving 

21 coverage. A reward may be in the form of a dis22 count or rebate of a premium or contribution a 

23 waiver of all or part of a cost-sharing mecha24 nism (such as deductibles, copayments, or coin25 surance), the absence of a surcharge, or the 

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1 value of a benefit that would otherwise not be 

2 provided under the plan. The Secretaries of 

3 Labor, Health and Human Services, and the 

4 Treasury may increase the reward available 

5 under this subparagraph to up to 50 percent of 

6 the cost of coverage if the Secretaries determine 

7 that such an increase is appropriate. 

8 (B) The wellness program shall be reason9 ably designed to promote health or prevent dis10 ease. A program complies with the preceding 

11 sentence if the program has a reasonable 

12 chance of improving the health of, or preventing 

13 disease in, participating individuals and it is 

14 not overly burdensome, is not a subterfuge for 

15 discriminating based on a health status factor, 

16 and is not highly suspect in the method chosen 

17 to promote health or prevent disease. The plan 

18 or issuer shall evaluate the program’s reason19 ableness at least once per year. 

20 (C) The plan shall give individuals eligible 

21 for the program the opportunity to qualify for 

22 the reward under the program at least once 

23 each year. 

24 (D) The full reward under the wellness 

25 program shall be made available to all similarly 

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1 situated individuals. For such purpose, among 

2 other things: 

3 (i) The reward is not available to all 

4 similarly situated individuals for a period 

5 unless the wellness program allows— 

6 (I) for a reasonable alternative 

7 standard (or waiver of the otherwise 

8 applicable standard) for obtaining the 

9 reward for any individual for whom, 

10 for that period, it is unreasonably dif11 ficult due to a medical condition to 

12 satisfy the otherwise applicable stand13 ard; and 

14 (II) for a reasonable alternative 

15 standard (or waiver of the otherwise 

16 applicable standard) for obtaining the 

17 reward for any individual for whom, 

18 for that period, it is medically inadvis19 able to attempt to satisfy the other20 wise applicable standard. 

21 (ii) If reasonable under the cir22 cumstances, the plan or issuer may seek 

23 verification, such as a statement from an 

24 individual’s physician, that a health status 

25 factor makes it unreasonably difficult or 

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1 medically inadvisable for the individual to 

2 satisfy or attempt to satisfy the otherwise 

3 applicable standard. 

4 (E) The plan or issuer involved shall dis5 close in all plan materials describing the terms 

6 of the wellness program the availability of a 

7 reasonable alternative standard (or the possi8 bility of waiver of the otherwise applicable 

9 standard) required under subparagraph (D). If 

10 plan materials disclose that such a program is 

11 available, without describing its terms, the dis12 closure under this subparagraph shall not be re13 quired. 

14 (c) EXISTING PROGRAMS.—Nothing in this section 

15 shall prohibit a program of health promotion or disease 

16 prevention that was established prior to the date of enact17 ment of this section and applied with all applicable regula18 tions, and that is operating on such date, from continuing 

19 to be carried out for as long as such regulations remain 

20 in effect. 

21 (d) REGULATIONS.—Nothing in this section shall be 

22 construed as prohibiting the Secretaries of Labor, Health 

23 and Human Services, or the Treasury from promulgating 

24 regulations in connection with this section. 

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