• Is Penn State’s new health assessment legal?

    The following is a guest post by Nicholas Bagley, University of Michigan Assistant Professor of Law.

    On Monday, Austin and Aaron cataloged the reasons for thinking that wellness programs won’t live up to the hype. Their poster child was Penn State’s aggressive new wellness program, Take Care of Your Health. As the New York Times reported this weekend, however, the program has sparked controversy not just because it probably won’t work. It’s also come under attack for intruding on employee privacy.

    Penn State’s program allows employees to avoid a $100 monthly surcharge for their health insurance only if they fill out an extensive questionnaire about their health.  Some of the questions—and you apparently can’t skip any—ask “whether employees have recently had problems with a supervisor, a separation or a divorce, their finances or a fear of job loss; another question asks female employees whether they plan to become pregnant over the next year.”

    The survey is meant to push employees to assess their personal health risks and what they might do to improve their health. As such, Penn State says, the survey responses “will not be used to remove or reduce health care benefits to you or your family, nor raise your health insurance premium.” Nonetheless, lots of people are understandably reluctant to share sensitive information with Penn State (or, more precisely, with the private health plan administrator that’s acting as its agent). That reluctance found expression at a recent faculty meeting—the video is available here—where professors raised particular concerns about the intrusiveness of the pregnancy-related question. Since then, some have claimed that Penn State has broken federal privacy and anti-discrimination laws by asking women about their pregnancy plans.

    Is that right? I don’t think so. The Supreme Court has never recognized a constitutional right to informational privacy and is unlikely to do so anytime soon. And the most significant federal laws governing privacy—the regulations that HHS has issued under HIPAA—just prohibit health plans and providers from disclosing individually identifiable health information. To my knowledge, nothing in those regulations prohibits the solicitation of private information from individuals.

    As for the antidiscrimination claim, keep in mind that the whole point of employer-sponsored wellness programs is to discriminate among employees. Smokers are treated worse than non-smokers, for example, to encourage employees to kick the habit. That kind of discrimination doesn’t usually raise any concerns under federal antidiscrimination law. So long as employers don’t treat people differently on the basis of race, religion, national origin, age, gender, or disability, they can typically discriminate among employees as much as they want.

    They can’t, however, discriminate on the basis of pregnancy. The Pregnancy Discrimination Act was enacted in 1978 to clarify that Title VII’s prohibition on sex discrimination in the workplace also extends to pregnancy-related discrimination. So if Penn State slapped a $100 surcharge on women who intended to become pregnant within the year, that would violate Title VII.

    But that’s not what’s happening here. Instead, Penn State is asking about pregnancy. As the Equal Employment Opportunity Commission has explained, “[f]ederal law does not prohibit employers from asking you whether you are or intend to become pregnant.” If that’s right—and I think it probably is—then an employee who is docked $100 per month because she refuses to answer the question hasn’t been discriminated against on account of pregnancy. She’s been discriminated against because she didn’t complete the health survey. Neither Title VII nor the Equal Protection Clause speaks to that.

    Now, one lingering question is whether the survey is gendered. Does it ask everyone, men and women alike, about whether they intend to have a child in the next year? Or is the question directed only at women? The reports I’ve read have been a bit vague about this. But if men aren’t asked about their family plans, it’s possible that docking a woman $100 per month for refusing to answer a question that men are never asked would count as sex discrimination.

    Even that’s not altogether clear, however. Consider a wellness program that asked women, but not men, about whether they’ve recently had a pap smear. Or one that asked men, but not women, about examinations for prostate cancer. Would it really violate Title VII to impose a surcharge on employees who failed to answer one of those questions? Although I’m not as familiar with the case law here as I’d like, it’s plausible to think that Title VII would allow employers to tailor questions in a medical survey to the physical differences between men and women. The ability to bear a child might be one of those differences.

    In short, I haven’t seen anything yet (emphasis on “yet”) that persuades me that Penn State has broken the law. But let me be very clear: just because something’s legal doesn’t make it right. The backlash against Penn State exposes the uncomfortable fact that wellness programs invite private employers to tinker with the health habits of their employees. Not everyone will appreciate this sort of corporate paternalism, just like not everyone appreciates the sort of government paternalism that animates lots of public-health measures. Add that to the growing list of reasons that companies should think twice before jumping on the wellness bandwagon.

    Share
    Comments closed
     
    • No, men are not asked about their family plans in the survey.

      An issue you don’t address, which has also been raised, has been the questions that ask faculty and staff about illegal activities–drunk driving, substance abuse, etc. Some have concerns that their responses could be used against them in course cases–divorce, custody, etc. I’d like to hear your thoughts on that.

      Penn State has rescinded the surcharge, perhaps the start of a much needed dialogue on more effective approaches: http://news.psu.edu/story/288132/2013/09/17/administration/penn-state-suspends-fee-employees-who-dont-take-health-care

      • Dennis,

        Thanks for the information — that’s helpful.

        On your question, my sense is that the concerns you flag should be taken pretty seriously. As you rightly suggest, some of the information that employees submit to the wellness program could be relevant to a range of disputes that might wind up in litigation. It’s plausible that, in a custody battle or divorce suit, a jilted spouse might subpoena the wellness program for that information.

        Would the wellness program have to disclose it? Well, HIPAA wouldn’t preclude the program from responding to the subpoena (see http://www.hhs.gov/hipaafaq/permitted/judicial/711.html). So that’s no help. The remaining question is whether a state-law privilege would protect the information. Every state has a physician-patient privilege of some kind; in Pennsylvania, for example, a statute provides that “[n]o physician shall be allowed, in any civil matter, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient … .”

        It’s not at all clear to me that the courts would extend such a privilege to a wellness program where there’s no physician-patient relationship in the picture. To be sure, some of the reasons for having such a privilege — that we want patients to be forthcoming, we want to establish a relationship of trust, etc. — would seem to apply in the context of a wellness program. That would argue in favor of an extension. In the end, however, I doubt the courts would be as solicitous of insurance companies as they are of physicians.

        Don’t take this as gospel — these are my tentative thoughts, and it’s very possible that wellness programs have more legal protections against forced disclosure than I’m aware of. But it’s reasonable to hope for some assurance of that.

        Best,
        Nick

    • Nick
      on your HA “growing list” link

      I have seen various citations on the cost of tobacco use on employers.

      Please have a look at link:
      http://tobaccocontrol.bmj.com/content/early/2013/05/25/tobaccocontrol-2012-050888

      The evidence mixed, but given the uncertainty, likely employers will continue to push and “discriminate” on current targets.

      Brad

    • In the latest news, Penn State has backed away from the $100/month surcharge for noncompliance.
      http://news.psu.edu/story/288132/2013/09/17/administration/penn-state-suspends-fee-employees-who-dont-take-health-care

    • Why would anyone answer the intrusive questions truthfully? From that standpoint alone these programs would seem a joke.

    • Surveys under the aegis of an employer asking about pregnancy plans and risky behaviors strike me as right up there with questions about one’s weaknesses. Well, the weakness I struggle with the most is working too hard. My boss has to tell me to go on vacation and I come in on weekends if we’re behind on a deadline.

    • -Seems like if companies are within their rights to refuse to hire, fire, or sanction employees on the basis of criminal activity (previous or current), illegal drug use, or speech outside of the workplace, then they can certainly do the same for other private behaviors that will either affect employee performance or otherwise increase the costs of employing someone, such as smoking and obesity.

      -”The backlash against Penn State exposes the uncomfortable fact that wellness programs invite private employers to tinker with the health habits of their employees. Not everyone will appreciate this sort of corporate paternalism, just like not everyone appreciates the sort of government paternalism that animates lots of public-health measures.”

      Do you really think that coercion/sanctions levied by an employer that one can leave at any time, for any reason constitute are as intrusive or coercive as those imposed by governments in general, and the Federal government in particular?

      • “Do you really think that coercion/sanctions levied by an employer that one can leave at any time, for any reason constitute are as intrusive or coercive as those imposed by governments in general, and the Federal government in particular?”

        Yes, I think that employer-based coercion can be more intrusive than Federal government coercion. Why? The government isn’t going to revoke my citizenship or throw me out of the country based upon my answers to a health questionnaire, but the employer can fire me, which drastically affects my life. Most people can’t really “leave at any time” because they need their jobs; and if lots of employers start doing the same thing, there’s no place else to go anyway.

        This Penn State case shows a really good reason why health insurance coverage should be completely decoupled from employment.,

        • “Yes, I think that employer-based coercion can be more intrusive than Federal government coercion.”

          That’s a fascinating assessment in light of the vast array of specifically enumerated coercive and punitive power that the state can wield to enforce compliance, and which corporations categorically lack – but I agree with you on the desirability of severing health insurance coverage from employment.

    • I work for a company that “offers” a Wellness Program. If you sign up for it, submit biometrics (age, sex, height, weight, glucose, and lipid panel), and answer a long questionnaire, then you save $500 off medical plan premiums per year. Actually, they kept medical plan premiums the same if employees signed up for it, and penalized those who don’t the extra $500/year. Spouses covered by the plan are required to fully participate as well, another $500/year.