U.S. Department of Labor
Health Benefits Advisor for Employers
Determining Compliance with the HIPAA Provisions in Part 7 of ERISA
Compliance with the Wellness Program Provisions
If the program discriminates based on a health factor, is the program saved by the benign discrimination provisions?
Example: A plan grants participants who have diabetes a waiver of the plan's annual deductible if they enroll in a disease management program that consists of attending educational classes and following their doctor's recommendations regarding exercise and medication. This is benign discrimination because the program is offering a reward to individuals based on an adverse health factor.
Tip: The benign discrimination exception is NOT available if the plan asks diabetics to meet a standard related to a health factor (such as maintaining a certain body mass index (BMI)) in order to get a reward. In this case, an intervening discrimination is introduced and the plan cannot rely solely on the benign discrimination exception.
