Archives for January 30, 2013

House Committee Members Comment On Proposed Nondiscriminatory Wellness Programs Rule

Six Democratic ranking members of committees and subcommittees with jurisdiction over health policy submitted comments to the Secretaries of the Treasury, Labor, and Health and Human Services in response to a proposed rule that was issued on November 26, 2012. The rule, titled “Incentives for Nondiscriminatory Wellness Programs in Group Health Plans,” (77 FR 70620) provided guidelines for health-based incentive programs offered by employers to employees participating in group health plans, as discussed in the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148). The ranking members, who responded on the last day that comments were accepted, cautioned the Secretaries against promulgating a rule that would encourage discrimination in the employer-sponsored health market.

Proposed Rule

Under the proposed rule, employers could offer incentives up to 30 percent of the cost of employee-only coverage, or up to 50 percent of the cost of coverage with respect to plans designed to prevent tobacco use. The rule outlined two categories of wellness programs: participatory and health-contingent. Participatory wellness programs are those in which all employees can automatically participate, such as programs that offer health-related seminars or pay for employee gym memberships. Health-contingent wellness programs, on the other hand, reward employees who qualify based on certain health status factors, such as body mass index or blood pressure. Some health-contingent programs provide incentives for employees who do not use tobacco. The proposed rule was intended to include safeguards to prevent discrimination in the programs.


The members approved of the extension of participatory wellness programs, but cautioned against the expansion of health-contingent wellness programs. They noted that PPACA eliminated numerous forms of discrimination in the health insurance marketplace, including an insurer’s ability to charge higher premiums or provide less comprehensive coverage to people with pre-existing conditions, and feared that the proposed rule would create a possibility for discrimination in the employer market.

The congressmen suggested that the Secretaries limit health-contingent wellness programs to those that discourage tobacco use. In the alternative, they recommended that an appropriate body should approve employer incentive programs before they may be offered to employees. Programs should be based on the results of publically available, scientific studies. While the proposed rule would provide reasonable alternatives to participation for those who are medically unable to participate, for example, by completing an educational program or participating in a diet plan, the representatives strongly believed that reasonable alternatives should be clearly defined prior to program approval and should be made known and available to all employees without the need for an employee to request such an alternative. Employees should also be made aware of remaining requirements and qualifications ahead of time. Finally, the ranking members also stated that the rule should define terms like “overly burdensome” and “subterfuge for discriminating” to ensure that non-complying programs are easily identifiable.

Food Safety Update: January, 2013

While the FDA’s proposed rules aimed at preventing foodborne illness are in their comment period, the troubling trend of food related recalls continues. Since January 1, 2013, the FDA has reported 14 food recalls for safety reasons. These recalls are based on contaminated products, undeclared ingredients and metal fragment contamination. Among the recalls:

  • Annie’s Inc., is recalling frozen pizza products that contain metal fragments. According to the company, a fine metal mesh screen failed at a third-party flour mill and fragments of the metal mesh have been found in flour and pizza dough.
  • Knott’s Fine Foods recalled chicken salad sandwiches due to their possible contamination with Listeria monocytogenes which is especially serious in the elderly, children, pregnant women and those with weakened immune systems. The sandwiches were sold in three states over 35 retail stores.
  • Belmont Confections recalled numerous lots of cookie and brownie bars that contain undeclared peanuts, after becoming aware of the problem by a distributor. The bars were distributed both in the United States and internationally from March to December of 2012.

These recalls highlight the issues the FDA is tackling with food safety in the United States. In its most recent Center for Food Safety “Constituent Update,” the FDA reported that it had “reinstated the food facility registration of Sunland Inc., a manufacturer and distributor of peanut products linked to an outbreak of Salmonella Bredeney last fall, after a federal judge entered a consent decree of permanent injunction imposing requirements on the firm.” This reinstatement came after Sunland Inc., was found to be the source of a 2012 tainted peanut butter outbreak.

Currently the FDA has no scheduled meetings regarding food safety, but a number of dockets are currently open for public comment regarding different food safety issues and proposed regulations.