| (a) A health-contingent wellness program that requires
an individual to perform or complete an activity related to a health
factor in order to obtain a reward but does not require the individual
to attain or maintain a specific health outcome is an activity-only
wellness program.
(b) An activity-only wellness program does not violate
this subchapter so long as the requirements of this section are met.
(1) Size of reward. The reward for the activity-only
wellness program, coupled with the reward for other health-contingent
wellness programs offered under the same plan, must not exceed in
total value 30 percent of the cost of employee-only or member-only
coverage under the plan; or 50 percent of the cost of employee-only
or member-only coverage under the plan if the program includes a program
designed to prevent or reduce tobacco use, except that no more than
20 percent of the reward may be attributable to the tobacco use program.
However, if, in addition to employees or members, any class of dependents--such
as spouses or spouses and dependent children--may participate in the
activity-only wellness program, the reward must not exceed 30 percent
of the cost of the coverage in which an employee or member, and any
dependents, are enrolled; or 50 percent of the cost of the coverage
in which an employee or member, and any dependents, are enrolled,
to the extent that the additional 20 percent is in connection with
a program designed to prevent or reduce tobacco use.
(A) For purposes of this section, the cost of coverage
is determined based on the total amount of employer and employee contributions
toward the cost of coverage, or member contributions toward the cost
of coverage, for the benefit package under which the employee or member
is, or the employee or member and any dependents are, receiving coverage.
(B) A reward can be in the form of a discount or rebate
of a premium or contribution; a waiver of all or part of a cost-sharing
mechanism such as deductibles, copayments, or coinsurance; the absence
of a surcharge; or the value of a benefit that would otherwise not
be provided under the plan.
(2) Reasonable design. The activity-only wellness program
must meet the criteria set out in §21.4705 of this title. This
determination is based on all the relevant facts and circumstances.
(3) Frequency of opportunity to qualify. The activity-only
wellness program must give individuals eligible for the program the
opportunity to qualify for the reward under the program at least once
per year.
(4) Uniform availability and reasonable alternative
standards. The full reward under the activity-only wellness program
must be available to all similarly situated individuals.
(A) A reward under this section is available to all
similarly situated individuals for a period so long as the program
allows, at a minimum:
(i) a reasonable alternative standard, or waiver of
the otherwise applicable standard, for obtaining the reward for any
individual for whom, for that period, it is unreasonably difficult
due to a medical condition or other health status-related factor to
satisfy the otherwise applicable standard; and
(ii) a reasonable alternative standard, or waiver of
the otherwise applicable standard, for obtaining the reward for any
individual for whom, for that period, it is medically inadvisable
to attempt to satisfy the otherwise applicable standard.
(B) To the extent that a reasonable alternative standard
under an activity-only wellness program is an activity-only wellness
program, it must comply with the requirements of this subtitle in
the same manner as if it were an initial program standard. To the
extent that a reasonable alternative standard under an activity-only
wellness program is an outcome-based wellness program, it must comply
with the requirements of §21.4708 of this title.
(C) If reasonable under the circumstances, a plan or
issuer may seek verification, such as a statement from an individual's
personal physician, that the medical condition or other health status-related
factor makes it unreasonably difficult for the individual to satisfy
or attempt to satisfy the otherwise applicable standard of an activity-only
wellness program. Plans and issuers may seek verification with respect
to requests for a reasonable alternative standard for which it is
reasonable to determine that medical judgment is required to evaluate
the validity of the request.
(5) Notice of availability of reasonable alternative
standard. The health benefit plan or policy, or health benefit plan
or policy issuer, must disclose, in all plan materials describing
the terms of an activity-only wellness program, the availability of
a reasonable alternative standard to qualify for the reward (and,
if applicable, the possibility of waiver of the otherwise applicable
standard required under paragraph (4) of this subsection), including
contact information for obtaining a reasonable alternative standard
and a statement that recommendations from an individual's personal
physician will be accommodated. If plan materials merely mention that
an alternative program is available, without describing its terms,
this disclosure is not required.
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