David T. Andrews, Attorney for Day Ketterer
The threshold issue to determine whether ERISA applies to a wellness program is whether the wellness program rises to the level of a “Group Health Plan.”
ERISA defines a Group Health Plan as “an employer-sponsored welfare benefit plan to the extent that the plan provides medical care (…including items and services paid for as medical care) to employees or their dependents directly or through insurance or otherwise.” Many common wellness program initiatives will cause a wellness plan to become a Group Health Plan subject to ERISA, including health risk assessments that provide advice and counseling, employer-paid immunizations and employer-paid biometric screenings (i.e., blood pressure screening, BMI, cholesterol, etc.). In addition, a wellness program can become a Group Health Plan by becoming linked to a Group Health Plan, such as by rewarding employees for participation in a wellness program with a medical plan premium discount, or lower cost-sharing under the employer’s medical plan. Plans sponsored by government employers and church employers are not covered by ERISA.
If a wellness program is a Group Health Plan, then it must comply with ERISA’s requirements, including the plan document, summary plan description, claims procedure and Form 5500 filing requirements. Typically, these requirements can be rather easily satisfied by incorporating the wellness program into an existing plan document for the employer’s medical plan, or by creating a separate plan document for the wellness program that incorporates by reference key provisions from the medical plan.
Similarly, a wellness plan may be subject to COBRA regulations if it is part of the employer’s “Group Health Plan.” Typically, you will see this with self-insured plans that have a significant medical component to it (i.e. in-house wellness clinics, physicals, health contingent wellness incentives, etc.). If it is simply an educational and/or participation-only plan outside of the health insurance it would not be covered by COBRA.
For questions and a review of your existing health insurance plan and wellness plan documents, please contact Egon Singerman, Esq. at Be Well Solutions.