Broad wellness program provision in health care bill raises questions

Just what is a wellness program and how far would government regulators take such a program to promote health or prevent disease? Second Amendment advocates have read the language in HR 3590 and implied it may result in higher premiums for gun owners, but could the language be so broad to include other activities the government deems unhealthy?

Sure, some may think the legislation is anti-gun, but there are certainly many conservatives who may think this is tin-foil-hat territory. Wellness programs mentioned in the legislation could mean discounts on premiums of up to 30 percent, so this is a big deal. I’m not an expert at reading wordy legislation, but let’s take a look at how the Virginia-based Gun Owners of America reads the legislation. From the Washington Examiner.

The [Gun Owners of America] group warned that new “wellness and prevention” programs that would permit employers to offer employees lower premiums for healthier lifestyles do not include anything that would prohibit “rabidly anti-gun Health and Human Services Secretary Kathleen Sebelius from decreeing that ‘no guns’ is somehow healthier.”

With no specific legislative language relating to guns, it is unlikely the issue will become a major roadblock for the bill.

But critics and gun owners have highlighted a larger concern about government interference if the legislation becomes law. The bill would expand coverage to 31 million people through subsidies and Medicaid expansion.

“There is a broader issue here,” said Dave Kopel, research director of the Independence Institute of Colorado, a libertarian think tank. “The more you socialize costs, the more you empower the argument that the government has the authority to control private behavior.”

Kopel pointed to the Japanese health care system, where employee waistlines are measured and those who are overweight are put into special weight loss programs, as an example of where the U.S. health care system could be headed.

Let’s take firearms off the table here for a few moments. Here is the definition of a Wellness Program from Section 2705…

(1) GENERAL PROVISIONS. (A) GENERAL RULE. For purposes of subsection (b)(2)(b), a program of health promotion or disease prevention (referred to in this subsection as a wellness program) shall be a program offered by an employer that is designed to promote health or prevent disease that meets the applicable requirements of this subsection.85 (B) NO CONDITIONS BASED ON HEALTH STATUS FACTOR. If none of the conditions for obtaining a premium discount or rebate or other reward for participation in a wellness program is based on an individual satisfying a standard that is related to a health status factor, such wellness program shall not violate this section if participation in the program is made available to all similarly situated individuals and the requirements of paragraph (2) are complied with. (C) CONDITIONS BASED ON HEALTH STATUS FACTOR. If any of the conditions for obtaining a premium discount or rebate or other reward for participation in a wellness program is based on an individual satisfying a standard that is related to a health status factor, such wellness program shall not violate this section if the requirements of paragraph (3) are complied with.

Programs like this are already widely in use and include smoking cessation programs and discounted gym memberships. But the question is how far the government can take the definition of health promotion? No limits are defined.

Could the Department of Health and Human Services determine specific lifestyle choices to be less healthy and offer a program to kick the habit? The CDC report in 2006 high school football players had a higher injury rate as compared to other sports played by teens in the same age group. Should families with football players be kicked out of the low risk pool and be denied a premium discount?

Football had the highest injury rate (4.36 injuries per 1,000 athlete exposures) followed by wrestling (2.50), boys’ (2.43) and girls’ (2.36) soccer, and girls’ basketball (2.01). Boys’ basketball, volleyball, baseball, and softball each had injury rates of less than 2.0 injuries per 1,000 athlete exposures.

What about other activities perceived or actually more dangerous than walking your family dog? When I started scuba diving, my mom thought my tanks were filled with Oxygen and could blow up (perceived danger), but when I was living in the Bahamas I did almost 400 dives in less than one year – many with six-foot sharks within reach during a good portion of the dive … actual danger?

What about a health program to encourage families to fill in their back yard swimming pools? Thousands of children die each year from drowning and many more are permanently disabled from water-related injuries. Could the government take away more of our freedom and deem pool ownership a health risk and deny discounts due to the sin of having a back yard pool without a government sanctioned lifeguard on duty?

I know all of this is a stretch – as are the Gun Owners of America’s claims – but the point here is the legislation when actually read throws a very wide net when it comes to determining what is in the public health’s interest.

Kopel adds more information in a post over at Volokh Conspiracy, with my emphasis added.

This definition is extremely broad, and the assertion that it is not broad enough to encompass gun ownership appears to be incorrect. There is a very large body of “public health” scholarship which claims to show that gun ownership is a very large health risk to the family that has a gun in the home. I believe that much of this scholarship is of poor quality, and some of it is mere junk science. However, the existence of dozens of articles in public health and medical journals would almost certainly be enough for an anti-gun definition of “Wellness Program” by the Dept. of Health and Human Services to pass the deferential Chevron standard of review.

A regulation which said that a Wellness Program may (or “shall”) include a discount for not owning a gun (or not owning a handgun, or not owning a so-called “assault weapon”, or for not owning more than a certain number of guns) might be argued to be “overly burdensome.” But there’s no guarantee that a reviewing court would consider a mere discount for people who don’t own guns to be “overly” burdensome on gun owners.