II 

111TH CONGRESS 

1ST SESSION S. 2806 

To codify and enhance existing regulations designed to encourage individuals 

to adopt healthy behaviors through voluntary participation in programs 

of health promotion and disease prevention. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 19, 2009 

Mr. ENSIGN (for himself and Mr. CARPER) introduced the following bill; which 

was read twice and referred to the Committee on Health, Education, 

Labor, and Pensions 

A BILL 

To codify and enhance existing regulations designed to encourage individuals to adopt healthy behaviors through 

voluntary participation in programs of health promotion 

and 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. SHORT TITLE. 

4 This Act may be cited as the ‘‘Building Efforts for 

5 Wellness and Encouraging Longer Lives Act’’ or the ‘‘BE 

6 WELL Act’’. 


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1 SEC. 2. PROGRAMS OF HEALTH PROMOTION AND DISEASE 

2 PREVENTION. 

3 (a) INTERNAL REVENUE CODE OF 1986.—Section 

4 9802 of the Internal Revenue Code of 1986 is amended— 

5 (1) by redesignating the second subsection (f) 

6 as subsection (g); and 

7 (2) by adding at the end the following: 

8 ‘‘(h) PROGRAMS OF HEALTH PROMOTION AND DIS9 EASE PREVENTION.— 

10 ‘‘(1) APPLICABILITY.—The following shall apply 

11 with respect to a program of health promotion or 

12 disease prevention for purposes of subsection 

13 (b)(2)(B). Such programs shall be referred to as 

14 ‘wellness programs’. 

15 ‘‘(2) DEFINITION AND GENERAL RULE.— 

16 ‘‘(A) DEFINITION.—For purposes of this 

17 subsection, a wellness program is any program 

18 designed to promote health or prevent disease, 

19 including a program designed to encourage in20 dividuals to adopt healthy behaviors. 

21 ‘‘(B) GENERAL RULE.—For purposes of 

22 subsections (a)(2) and (b)(2) (which provide ex23 ceptions to the general prohibitions against dis24 crimination based on a health factor for group 

25 health plan provisions that vary benefits (in26 cluding cost-sharing mechanisms) or the preVerDate Nov 24 2008 04:23 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2806.IS S2806

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1 mium or contribution for similarly situated indi2 viduals in connection with a wellness program 

3 that satisfies the requirements of this sub4 section), if none of the conditions for obtaining 

5 a reward under a wellness program are based 

6 on an individual satisfying a standard that is 

7 related to a health factor, under this subsection, 

8 such wellness program does not violate this sec9 tion if participation in the program is made 

10 available to all similarly situated individuals. If 

11 any of the conditions for obtaining a reward 

12 under such a wellness program is based on an 

13 individual satisfying a standard that is related 

14 to a health factor, the wellness program shall 

15 not violate this section if the requirements of 

16 paragraph (4) of this section are satisfied. 

17 ‘‘(3) WELLNESS PROGRAMS NOT SUBJECT TO

18 REQUIREMENTS.—If none of the conditions for ob19 taining a reward under a wellness program are 

20 based on an individual satisfying a standard that is 

21 related to a health factor (or if a wellness program 

22 does not provide a reward), the wellness program 

23 shall not violate this section, if participation in the 

24 program is made available to all similarly situated 

25 individuals. Such programs need not satisfy the reVerDate Nov 24 2008 04:23 Nov 20, 2009 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2806.IS S2806

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1 quirements of paragraph (4), if participation in the 

2 program is made available to all similarly situated 

3 individuals. Wellness programs described in this 

4 paragraph include the following: 

5 ‘‘(A) A program that reimburses all or 

6 part of the cost for memberships in a fitness 

7 center. 

8 ‘‘(B) A diagnostic testing program that 

9 provides a reward for participation and does 

10 not base any part of the reward on outcomes. 

11 ‘‘(C) A program that encourages preven12 tive care through the waiver of the copayment 

13 or deductible requirement under a group health 

14 plan for the costs of, for example, prenatal care 

15 or well-baby visits. 

16 ‘‘(D) A program that reimburses employ17 ees for the costs of smoking cessation programs 

18 without regard to whether the employee quits 

19 smoking. 

20 ‘‘(E) A program that provides a reward to 

21 employees for attending a monthly health edu22 cation seminar. 

23 ‘‘(4) WELLNESS PROGRAMS SUBJECT TO RE24 QUIREMENTS.—If any of the conditions for obtaining 

25 a reward under a wellness program is based on an 


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1 individual satisfying a standard that is related to a 

2 health factor, the wellness program shall not violate 

3 this section if the requirements of this paragraph 

4 are satisfied. 

5 ‘‘(A) The reward for the wellness program, 

6 coupled with the reward for other wellness pro7 grams with respect to the plan that require sat8 isfaction of a standard related to a health fac9 tor, shall not exceed 30 percent of the cost of 

10 employee-only coverage under the plan. How11 ever, if, in addition to employees, any class of 

12 dependents (such as spouses or spouses and de13 pendent children) may participate in the 

14 wellness program, the reward shall not exceed 

15 30 percent of the cost of the coverage in which 

16 an employee and any dependents are enrolled. 

17 For purposes of this paragraph, the cost of cov18 erage shall be determined based on the total 

19 amount of employer and employee contributions 

20 for the benefit package under which the em21 ployee is (or the employee and any dependents 

22 are) receiving coverage. A reward may be in the 

23 form of a discount or rebate of a premium or 

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1 ments, or coinsurance), the absence of a sur2 charge, or the value of a benefit that would oth3 erwise not be provided under the plan. The Sec4 retaries of Labor, Health and Human Services, 

5 and the Treasury may increase the reward 

6 available under this subparagraph to up to 50 

7 percent of the cost of coverage under the plan 

8 if such Secretaries determine that such an in9 crease is appropriate. 

10 ‘‘(B) The wellness program shall be rea11 sonably designed to promote health or prevent 

12 disease. A program satisfies this subparagraph 

13 if it has a reasonable chance of improving the 

14 health of or preventing disease in participating 

15 individuals and it is not overly burdensome, is 

16 not a subterfuge for discriminating based on a 

17 health factor, and is not highly suspect in the 

18 method chosen to promote health or prevent 

19 disease. At least once per year, each plan or 

20 issuer offering a wellness program shall evalu21 ate the reasonableness of such program. 

22 ‘‘(C) The program shall give individuals el23 igible for the program the opportunity to qual24 ify for the reward under the program at least 

25 once per year. 


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1 ‘‘(D)(i) The reward under the program 

2 shall be available to all similarly situated indi3 viduals. 

4 ‘‘(ii) For purposes of clause (i), a reward 

5 is not available to all similarly situated individ6 uals for a period unless the program allows— 

7 ‘‘(I) a reasonable alternative standard 

8 (or waiver of the otherwise applicable 

9 standard) for obtaining the reward for any 

10 individual for whom, for that period, it is 

11 unreasonably difficult due to a medical 

12 condition to satisfy the otherwise applica13 ble standard; and 

14 ‘‘(II) a reasonable alternative stand15 ard (or waiver of the otherwise applicable 

16 standard) for obtaining the reward for any 

17 individual for whom, for that period, it is 

18 medically inadvisable to attempt to satisfy 

19 the otherwise applicable standard. 

20 ‘‘(iii) A plan or issuer may seek 

21 verification, such as a statement from an indi22 vidual’s physician, that a health factor makes it 

23 unreasonably difficult or medically inadvisable 

24 for the individual to satisfy or attempt to sat25 isfy the otherwise applicable standard. 


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1 ‘‘(E)(i) The plan or issuer shall disclose in 

2 all plan materials describing the terms of the 

3 program the availability of a reasonable alter4 native standard (or the possibility of waiver of 

5 the otherwise applicable standard) required 

6 under subparagraph (D). If plan materials 

7 merely mention that a program is available, 

8 without describing its terms, such disclosure is 

9 not required. 

10 ‘‘(ii) The following language, or similar 

11 language, may be used to satisfy the require12 ment of this subparagraph: ‘If it is unreason13 ably difficult due to a medical condition for you 

14 to achieve the standards for the reward under 

15 this program, or if it is medically inadvisable 

16 for you to attempt to achieve the standards for 

17 the reward under this program, call us at [in18 sert telephone number] and we will work with 

19 you to develop another way to qualify for the 

20 reward.’. 

21 ‘‘(5) REGULATIONS.—The Secretaries of Labor, 

22 Health and Human Services, and the Treasury may 

23 promulgate regulations, as appropriate, to carry out 

24 this subsection. 


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1 ‘‘(6) EFFECTIVE DATE.—This subsection shall 

2 take effect on the date of enactment of the BE 

3 WELL Act. 

4 ‘‘(7) EXISTING WELLNESS PROGRAMS.—During 

5 the period of time between the date of enactment of 

6 the BE WELL Act and the date on which the Secre7 taries of Labor, Health and Human Services, and 

8 the Treasury establish regulations to effectuate this 

9 subsection, a wellness program that was established 

10 prior to the date of enactment of the BE WELL Act 

11 may continue to operate in accordance with the re12 quirements in effect on the day before such date of 

13 enactment.’’. 

14 (b) PHSA GROUP MARKET.—Section 2702(b) of the 

15 Public Health Service Act (42 U.S.C. 300gg–1(b)) is 

16 amended by adding at the end the following: 

17 ‘‘(4) PROGRAMS OF HEALTH PROMOTION AND

18 DISEASE PREVENTION.—The provisions of section 

19 9802(h) of the Internal Revenue Code of 1986 shall 

20 apply to programs of health promotion and disease 

21 prevention offered through a group health plan or a 

22 health insurance issuer offering group health insur23 ance coverage.’’. 


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1 (c) ERISA.—Section 702(b) of the Employee Retire2 ment Income Security Act of 1974 (29 U.S.C. 1182(b)) 

3 is amended by adding at the end the following: 

4 ‘‘(4) PROGRAMS OF HEALTH PROMOTION AND

5 DISEASE PREVENTION.—The provisions of section 

6 9802(h) of the Internal Revenue Code of 1986 shall 

7 apply to programs of health promotion and disease 

8 prevention offered through a group health plan or a 

9 health insurance issuer offering group health insur10 ance coverage.’’. 

11 (d) APPLICATION OF WELLNESS PROGRAMS PROVI12 SIONS TO CARRIERS PROVIDING FEDERAL EMPLOYEE

13 HEALTH BENEFITS PLANS.— 

14 (1) IN GENERAL.—Notwithstanding section 

15 8906 of title 5, United States Code (including sub16 sections (b)(1) and (b)(2) of such section), sub17 sections (a), (b), and (c) of this section, including 

18 the amendments made by those subsections (relating 

19 to wellness programs), shall apply to carriers enter20 ing into contracts under section 8902 of title 5, 

21 United States Code. 

22 (2) PROPOSALS.—Carriers may submit separate 

23 proposals relating to voluntary wellness program of24 ferings as part of the annual call for benefit and 


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1 rate proposals to the Office of Personnel Manage2 ment. 

3 (3) EFFECTIVE DATE.—This subsection shall 

4 take effect on the date of enactment of this Act and 

5 shall apply to contracts entered into under section 

6 8902 of title 5, United States Code, that take effect 

7 with respect to calendar years that begin more than 

8 1 year after that date. 

9 (e) STATE DEMONSTRATION PROJECT.—Subpart 1 

10 of part B of title XXVII of the Public Health Service Act 

11 (42 U.S.C. 300gg–41 et seq.) is amended by adding at 

12 the end the following: 

13 ‘‘SEC. 2746. WELLNESS PROGRAM DEMONSTRATION 

14 PROJECT. 

15 ‘‘(a) IN GENERAL.—Not later than July 1, 2014, the 

16 Secretary of Health and Human Services, in consultation 

17 with the Secretary of the Treasury, shall establish a 10- 

18 State demonstration project under which participating 

19 States shall apply the provisions of 9802(h) of the Internal 

20 Revenue Code of 1986 to programs of health promotion 

21 offered by a health insurance issuer that offers health in22 surance coverage in the individual market in such State. 

23 ‘‘(b) EXPANSION OF DEMONSTRATION PROJECT.—If 

24 the Secretary of Health and Human Services, in consulta25 tion with the Secretary of the Treasury, determines that 


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1 the demonstration project described in subsection (a) is 

2 effective, such Secretaries may, beginning on July 1, 

3 2017, expand such demonstration project to include addi4 tional participating States. 

5 ‘‘(c) REQUIREMENTS.—States that participate in the 

6 demonstration project under this section shall— 

7 ‘‘(1) ensure that requirements of consumer pro8 tection are met in programs of health promotion in 

9 the individual market; 

10 ‘‘(2) require verification from health insurance 

11 issuers that offer health insurance coverage in the 

12 individual market of such State that premium dis13 counts— 

14 ‘‘(A) do not create undue burdens for indi15 viduals insured in the individual market; 

16 ‘‘(B) do not lead to cost shifting; and 

17 ‘‘(C) are not a subterfuge for discrimina18 tion; and 

19 ‘‘(3) ensure that consumer data is protected in 

20 accordance with the requirements of section 264(c) 

21 of the Health Insurance Portability and Account22 ability Act of 1996. 

23 ‘‘(d) EXISTING PROGRAMS OF HEALTH PROMOTION

24 OR DISEASE PREVENTION.—Nothing in this section shall 

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1 motion offered by a health insurance issuer that offers 

2 health insurance coverage in the individual market in such 

3 State that was established or adopted by State law on or 

4 after the date of enactment of the BE WELL Act. 

5 ‘‘(e) REGULATIONS.—The Secretaries of Health and 

6 Human Services and the Treasury may promulgate regu7 lations, as appropriate, to carry out this section.’’. 

8 (f) REPORT.— 

9 (1) IN GENERAL.—Not later than 3 years after 

10 the date of enactment of this Act, the Secretary of 

11 Health and Human Services, in consultation with 

12 the Secretary of the Treasury and the Secretary of 

13 Labor, shall submit a report to the appropriate com14 mittees of Congress concerning— 

15 (A) the effectiveness of wellness programs 

16 (as defined in section 9802(h)(2) of the Inter17 nal Revenue Code of 1986, as added by sub18 section (a)) in promoting health and preventing 

19 disease; 

20 (B) the impact of such wellness programs 

21 on the access to care and affordability of cov22 erage for participants and non-participants of 

23 such programs; 

24 (C) the impact of premium-based and cost25 sharing incentives on participant behavior and 


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1 the role of such programs in changing behavior; 

2 and 

3 (D) the effectiveness of different types of 

4 rewards. 

5 (2) DATA COLLECTION.—In preparing the re6 port described in paragraph (1), the Secretaries 

7 shall gather relevant information from employers 

8 who provide employees with access to wellness pro9 grams, including State and Federal agencies. 

Æ 


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