SEFF v. BROWARD COUNTYCase No. 1061437-CIV-MOORE/SIMONTON.
BRADLEY SEFF, Plaintiff,
BROWARD COUNTY, Defendant.
BROWARD COUNTY, Defendant.
United States District Court, S.D. Florida.
May 11, 2011.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT: ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
K. MICHAEL MOORE, District Judge.
THIS CAUSE came before the Court upon the Parties' Cross-Motions for Summary Judgment. Plaintiff filed a Motion for Partial Summary Judgment on Liability (ECF No. 32). Defendant subsequently filed a Motion for Summary Judgment (ECF No. 35). The Motions have been fully briefed.
UPON CONSIDERATION of the Motions, the Responses, the Replies, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.
This is a class action case brought by present and former employees of Broward County who incurred a $20.00 charge for declining to participate in a health questionnaire and biometric screening as part of a "wellness program." The material facts of the case are largely undisputed by the parties.
In 2009, saddled with an aging workforce, Broward County implemented plans to address rapidly escalating healthcare costs. As a part of this initiative, the County sought ways to improve the overall health of its workforce. Edify USA, the County's healthcare consultant, recommended a "wellness program" that would encourage employees to become active in managing their own healthcare. These kinds of programs have become increasingly popular throughout the United States. They are designed to aid employees in early detection of disease, and to provide them with the tools needed to lead healthier lives.
In October 2009, Broward County adopted a wellness program as a part of its consumer-driven health plan's Open Enrollment process. The wellness program has two components: a Health Risk Assessment questionnaire and a biometric screening. The questionnaire is confidential and conducted online. The biometric screening is also confidential and requires a finger stick blood test to measure glucose and cholesterol levels. The screening may also be done through an at-home kit.
The wellness program is administered and paid for by the County's health insurer, Coventry, and participation in the wellness program is not required for health coverage. Any personal information obtained from the questionnaire and biometric screening is not disclosed to Broward County. Broward County does receive de-identified aggregate data that it may consider in creating future benefit plans. An employee who completes the program and is identified by the insurer to have one of five disease states—asthma, hypertension, diabetes, congestive heart failure, or kidney disease—is given the opportunity to participate in a disease management coaching program. Morrison Dep. 20:5-22:22 (ECF No. 37-1). After coaching, the employee is eligible to receive certain medications associated with the identified disease at no additional cost to the employee.
In 2010, the County decided to use a financial incentive to increase participation in the wellness program. Beginning June 2010, any employee who did not complete the questionnaire and undergo the screening would incur a $20.00 charge on each bi-weekly paycheck. Though the County considered giving a $20.00 credit to those who participated, it found it would be too difficult to implement and apply to the payroll system. The County suspended the surcharge on January 1, 2011.
On August 8, 2010, named Plaintiff Bradley Seff ("Seff"), a former County employee who incurred the $20.00 charge, filed a class action complaint against the County. He alleges that the County violated the Americans with Disabilities Act ("ADA" or "the Act") by requiring employees to undergo a medical examination and making medical inquiries of its employees. He seeks damages, costs, and attorneys' fees.
Defendant claims that it did not violate the ADA's medical examination and inquiry prohibition
42 U.S.C. § 12201(c). This safe-harbor applies to the medical examination and inquiry prohibition contained in subchapter I of the Act. Therefore, if the wellness program is a benefit plan like the one described in the safe-harbor provision, then the County, in its role as administrator of a benefits plan, may require a covered employee to undergo a medical examination or answer medical inquiries.
There is no question as to whether the County is an organization covered by the chapter and, as such, the first question is whether the wellness program is a "term" of a bona fide benefit plan, or is such a program itself. Plaintiff argues that the wellness program is not a term of the County health insurance plan, nor is it independently a benefit plan. Specifically, Plaintiff states that the wellness program is not a term of the County's group health plan because "whether an employee participated in the voluntary wellness program did not dictate whether they were eligible to receive insurance benefits under one of the different insurance plans." However, as Plaintiff argues for the greater part of his memoranda, the wellness program is not entirely optional: plan enrollees face a $20.00 surcharge for non-participation. Furthermore, an optional term does not remove that term from the scope of an overall benefits plan. For instance, many insurance policies offer a variety of optional benefits—this does not make them independent terms.
This Court views the wellness program as a term of the County's group health plan.
Next, the Court must determine whether the program is "based on underwriting risks, classifying risks, or administering such risks." In the context of the ADA safe harbor provision, at least one court has defined underwriting as "generally referring] to the application of the various risk factors or risk classes to a particular individual or group for the purposes of determining whether to provide coverage."
The wellness program falls under the safe harbor provision because it is designed to develop and administer present and future benefits plans using accepted principles of risk assessment. The program renders aggregate data to the County that it may analyze when developing future benefit plans. The County uses this information to classify various risks and decide what type of benefits plans will be needed in the future in light of these risks. The County is thus determining what kind of coverage will need to be provided. Though it is not underwriting or classifying risks on an individual basis, it is underwriting and classifying risks on a macroscopic level so it may form economically sound benefits plans for the future. Furthermore, the wellness program is an initiative designed to mitigate risks. It is based on the theory that encouraging employees to get involved in their own healthcare leads to a more healthy population that costs less to insure. In other words, the program is based on underwriting, classifying, and administering risks because its ultimate goal is to sponsor insurance plans that maintain or lower its participant's premiums.
The facts here are analogous to
Plaintiff would have the Court believe that Broward County developed this wellness program, not for managing risks, but out of some sense of altruism—that it is based solely on the County's wish to keep employees healthy. Broward County also states that it implemented the wellness program, in part, to get employees involved in managing their own health. Ultimately, Broward County initiated this program for financial reasons. An employee's health is of great economic importance to an employer. When an employer offers employees healthcare plans, the employer takes on extra costs associated with high numbers of insurance claims. This is especially the case in areas such as Broward County which has an aging population and increased incidents of claims. It is the economic loss suffered by employers that spurs the development of these programs, not some beneficent wish for its employees to be healthy. Thus, to the extent Plaintiff argues the wellness program is not based on insurance and risk assessment principles, but some independent desire for a healthy workforce, the Court does not agree.
Finally, Plaintiff can point to no Florida law that is inconsistent with the program, nor does the Complaint allege any sort of subterfuge to evade the purpose of the Act. The purpose of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b). Though Plaintiff brings this claim under the ADA, it is hard to see how the wellness program relates to discrimination in any way. In fact, the program is enormously beneficial to all employees of Broward County—disabled and non-disabled alike. It is clear to this Court that the wellness program is not a subterfuge: it was not designed to evade the purpose of the ADA. Rather, it is a valid term of a benefits plan that falls within the ambit of the ADA's safe-harbor provision.
Thus, summary judgment for Broward County is warranted.
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that Defendant Broward County's Motion for Summary Judgment (ECF No. 35) is GRANTED. It is further
ORDERED AND ADJUDGED that Plaintiff Bradley Seff's Motion for Partial Summary Judgment is DENIED.
All claims against Defendant Broward County are DISMISSED WITH PREJUDICE. The Clerk of Court is directed to CLOSE this case. All pending motions are DENIED AS MOOT.
DONE AND ORDERED.
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