HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, June 18, 2014

Guest Blogger Professor Wendy Mariner: Take Care of Your Health at Penn State . . . Or What?

MarinerLast summer, Pennsylvania State University was rocked back on its heels by faculty protesting a controversial new wellness program, “Take Care of Your Health.” [See Inside Higher Education.] By November, Penn State had paused the program and formed a Health Care Task Force (6 faculty, 2 staff, and 5 administrators) to explore alternative ways to control health care costs – the wellness program’s goal.

The Task Force submitted its report in late April 2014, criticizing the wellness program’s rollout for lack of transparency and poor communication – a glaring error in the wake of the Sandusky scandal. The Task Force was asked to present alternative health cost control measures for further consideration. It did a pretty good job on that score, mentioning putting third party health plan administration fees and pharmacy benefit plans out for new bids, using reference-based pricing for health care services, and using the American Board of Internal Medicine Foundation’s Choosing Wisely as a model for providing information about treatment choices and costs, among other options.

With respect to wellness programs, the Task Force determined:

workplace wellness programs appear to have, at best, a small but statistically significant short-run impact on some employee health behaviors, most notably smoking cessation and weight loss, but the longer run effects are still unclear. And, to the extent that these programs generate cost savings, they seem to arise from intensive disease management [for employees with chronic diseases]. Lifestyle management programs appear to be, at best, a breakeven proposition, and in many cases may cost more than they save in health care costs. 

Without explicitly recommending against instituting a wellness program, it concluded, “The mixed success of such programs that is noted in the academic review section, in conjunction with the negative response to the recent “Take Care of Your Health” initiative at Penn State, suggests that this option would need careful thought and consultation if implementation were being considered.”


I think the Task Force got it about right. Penn State created a lifestyle management program for largely middle class employees who were probably relatively healthy and already had access to primary care. More unusual was that this group was also willing and able to protest questionable employment policies.

Penn State’s program charged $100 per month to faculty and staff members who did not answer a health risk assessment (HRA) questionnaire and submit to biometric screening by Penn State’s self-insured health plan administrator, Highmark. The HRA reportedly asked about the use of alcohol, tobacco and drugs and whether women planned to become pregnant next year. The biometric screening included BMI, waist circumference, blood lipids and glucose levels. 

Faculty sent a petition to the president with over 2,000 signatures, demanding an end to the program, calling it “a harsh and coercive punishment system, in essence requiring employees to submit to intrusive questions.” The petition also objected to having individual medical information kept under ambiguous circumstances by WebMD, a Highmark subcontractor. One petition signer posted that the only way to see the questions (to decide whether to answer) was to create a WebMD account that gave the website access to all of one’s medical records.

Penn State halted the monthly $100 penalty pending the Task Force report, but added a $100 surcharge to cover employees’ spouses and partners who are eligible for coverage from their own employer and a $75 surcharge for smokers. That prompted renewed objections and the plan appears to be tabled for now, except for the smoking surcharge.

With the Affordable Care Act encouraging employer wellness programs, it may be politically incorrect to question their value. But, significant support was based on Safeway’s claim of cost savings, which turned out to be a myth. Recent research finds that randomized controlled studies were less likely than non-randomized studies to report success in either improving health or reducing costs. If relatively benign programs fail on either measure, will employers shift to more coercive programs that require a particular health status, such as a normal BMI, for continued employment? A growing number of employers already refuse to hire smokers on the grounds that smokers are less healthy and cost more to insure, the same rationale underlying wellness programs.

HRAs like Penn State’s are increasingly common in wellness programs, but by itself, answering questions does not improve health. HRAs have two major uses:  (1) creating an employee group health profile to adjust health insurance benefits or increase employee cost-sharing for expected services; and (2) identifying employees with health risks and “incentivizing” them to reduce their risks more effectively than they would through regular, non-workplace medical are.[1]  Thus, HRAs may lay the groundwork for more targeted incentives (rewards or penalties) to persuade employees to achieve health goals – as well as a positive return on the employer’s investment.

Penn State faculty objected to paying a penalty, but the university could have achieved the same result by increasing health plan premiums by $100 a month and offering a $100 reward to employees who completed the HRA and biometric screening. The ACA’s wellness program provision is an exception to the prohibition against discriminating against health plan participants on the basis of health status. Employer actions, however, may be subject to anti-discrimination laws, like the ADA, GINA, ADEA, and Title VII. HRA questions typically go beyond the types of questions that an employer may ask under the ADA, which must be voluntary and “job related and consistent with business necessity.” The EEOC is considering whether rewards, as well as penalties, could make a wellness program involuntary. For low-income employees, rewards and penalties are often two sides of the same coin.

Ultimately, the question is where should people seek wellness care – from employers, health plans or physicians. Placing wellness initiatives inside employer health plans offer possibilities for discrimination based more on hope than evidence. We should be wary of employer programs that are designed or implemented in ways that discriminate against disadvantaged employees, especially those in low-wage jobs, who are the target of many such programs.

-Professor Wendy Mariner 

[1] Jill R. Horwitz, Brenna D. Kelly & John E. DiNardo, Wellness Incentives in the Workplace: Cost Savings Through Cost Shifting to Unhealthy Workers, 32((3) Health Affairs 468 (2013), See also Soeren Mattke et al., Workplace Wellness Programs Study: Final Report (RAND Corporation 2013),

| Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Guest Blogger Professor Wendy Mariner: Take Care of Your Health at Penn State . . . Or What?:


Post a comment