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Advocates Charge That Senate Overhaul Penalizes Workers with Chronic Conditions

By Jane Norman, CQ HealthBeat Associate Editor

January 7, 2009 -- Health care advocates on Thursday slammed a wellness provision in the Senate health care bill that would allow insurers to greatly increase penalties on workers who fail to meet health standards for conditions such as obesity or high cholesterol.

Richard Kirsch of the liberal-leaning Health Care for America Now said a major goal for change in the health care system is to wipe out discrimination by insurance companies on the basis of patients' pre-existing conditions. Both the Senate bill (HR 3590) and the House bill (HR 3962) aim to do so, but Kirsch said a "loophole" in the Senate bill would allow insurers to charge thousands of dollars more to people with chronic conditions.

"We fear this could really become medical underwriting by another name," he said in a conference call with reporters.

The provision would apply to the 150 million U.S. employees enrolled in employers' group health insurance plans and would launch pilot programs in the individual market in 10 states.

Current law permits employers to provide rewards or penalties to workers who take part in wellness programs. Those who decline to participate can be charged up to 20 percent more for their coverage; those who do take part can be charged up to 20 percent less. The Senate would allow that to rise to 30 percent, and as high as 50 percent with government approval.

The penalty or reward would apply to the total cost of coverage paid for by both employers and employees. That means for a policy with a total cost of $13,375 for a family, the average in 2009, a 30 percent penalty or discount would carry a variation of $4,013 at 30 percent and $6,688 at 50 percent.

American Heart Association Vice President Sue Nelson said that essentially, the provision allows insurers to raise premiums across the board and then lower them selectively for workers who meet certain targets in wellness programs.

Yet medical experts say the causes of obesity, hypertension and other conditions are sometimes genetic and can't be controlled by individuals, or can be difficult for low-income people or working parents to control, Nelson said. Sicker workers also may be burdened with higher costs, making coverage less affordable and thwarting the intent of the overhaul, she said.

She said 67 percent of Americans are obese or overweight, 45 percent have high or borderline cholesterol, 32 percent have high blood pressure and 21 percent smoke, so many people could see their premiums rise if the provision becomes law.

Harald Schmidt, a Commonwealth Fund Harkness Fellow at the Harvard School of Public Health, said proponents of the wellness proposal argue that the initiatives implement a reasonable policy of personal responsibility. For example, in car insurance, the idea is that premiums paid by good drivers shouldn't support bad drivers, he said.

But it's different with health care. "People don't just choose to be unhealthy," he said. "Moreover . . . generally the poorer you are, the more likely you are to be unhealthy."

Schmidt co-wrote an article for the New England Journal of Medicine that provided some examples. A law school graduate from a wealthy family who owns a condo with a gym in the building is more likely to succeed in losing weight than a teen mother who works in a poor neighborhood with little access to healthy food or opportunities for exercise, the article said.

"Although alternative standards must be offered to employees for whom specific standards are medically inappropriate, disadvantaged people with multiple co-existing conditions may refrain from making such petitions, seeing them as degrading or humiliating," the article said. Advocates said workers forced to define their "medical conditions" by supplying personal medical records could suffer an invasion of privacy.

Senate health aides said the provision arose out of an attempt to promote employer wellness in a way that doesn't discriminate, and they are confident the final version of the bill will meet that goal. They noted the provision is separate from a wellness title championed by Senate Health, Education, Labor and Pensions Committee Chairman Tom Harkin, D-Iowa.

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