The Court of Appeals of the State of Oregon has ruled that a health risk assessment (HRA) does not violate the Americans with Disabilities Act (ADA). The ADA prohibits disability-related inquiries; however, the court ruled that these inquiries fell within a statutory safe harbor that permits certain inquiries related to voluntary wellness plans.
The case is Van Patten v. State of Oregon.
Plaintiffs are State employees who have health insurance administered by the Public Employees’ Benefit Board (PEBB). They brought this action against the State and the PEBB administrator, contending that the HRA requires them to disclose disabilities, and, in so doing, violates a provision of the ADA, and its Oregon analog. They also contended that the HRA amounts to an unconstitutional search and a violation of their constitutional right to the privacy of personal information. Defendants moved for summary judgment on the ground that the assessment does not contain disability inquiries; that, even if it does contain such inquiries, they fall within statutory safe harbor provisions that permit certain inquiries used by insurance providers; and that the assessment was neither a search nor an unlawful invasion of any constitutionally protected privacy interest. The trial court agreed with defendants and granted their motion for summary judgment. On appeal the Court of Appeals affirmed the summary judgment.
The legal questions revolved around one part of PEBB’s insurance program, a Health Engagement Model (HEM) that urges employees who want to obtain (or maintain) health insurance to fill out an online HRA. The HRAs contain questions that are highly personal and could indicate the presence of a disability—for example, whether the employee has cancer, hepatitis B, a sexually transmitted infection, depression, or a host of other conditions. Employees are informed, however, that they do not need to answer all of the questions, although they are urged to do so.
The HRA is filled out privately online and forwarded to one of two private, administrators, who aggregate the responses, securely store the individual HRAs until they are destroyed, and forward the aggregated data to PEBB. PEBB and State employers receive only a list of employees who have taken the HRA and a summary of the aggregated, de-identified data. Neither PEBB nor any State employer receives the results of an individual’s HRA, and the employee’s health care provider receives the information only if the employee affirmatively so authorizes. The two private administrators are subject to the elaborate security measures required by the Federal Health Insurance Portability and Accountability Act (HIPAA). PEBB uses the aggregated results to help in the design of future health plan offerings.
It also uses the program as a way to encourage employees to adopt beneficial health habits, thereby, presumably, reducing insurance costs. It does so by requiring each HRA taker to agree to undertake two health actions. The agreement is not policed. HRA takers are simply asked to report whether they took the health actions.
Although eligibility for State sponsored health insurance is not dependent on whether the employee has completed the HRA, those who do not complete it pay more for their insurance than those who do. The difference is $17.50 per month for individuals or $35 per month for couples. Nonparticipants also have a deductible that is $100 larger than participants. The parties agree that defendants’ use of private third-party administrators to convert individual responses into aggregated data does not insulate the state and PEBB from ultimate legal responsibility for the program.
The question before the court was whether defendants “make inquiries” regarding disabilities, despite the fact that neither PEBB nor any State employer ever sees or learns of any individual’s responses. In context, however, that fact does not necessarily compel the conclusion that the questions are “inquiries.” If the person or entity asking a question knows that it will not receive a response to that question, then it makes no sense to regard the questioner as seeking information or knowledge about anything. By analogy, a person requesting that a friend donate money to a charity cannot be said to be “seeking” that money, because the person has no expectation of receiving it.
The court noted that the ADA governs relationships between employers and employees, and plaintiffs’ interpretation, banning the flow of information between employees and third parties who are not employers, introduces a foreign and extraneous concept. For these reasons, the court concluded that the questions in PEBB’s risk assessment questionnaire are not prohibited disability inquiries.
The court also ruled that the HRAs did not violate Oregon law.