Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 29

a person or organization covered by
this chapter from establishing, sponsoring, observing, or administering the
terms of a bona fide benefit plan that
are based on underwriting risks, classifying risks, or administering such risks
that are based on or not inconsistent
with State law.61
The court acknowledged that this safe
harbor provision was enacted to protect
insurers from violating ADA when all they
were doing was examining claims for traditional benefit design.62 However, the court
went beyond this traditional interpretation
to apply the exemption to a wellness program.63 The court concluded that the wellness program was a “term” of the county’s
group health plan within the meaning of
the exemption because: 1) Coventry, the
insurer, paid for and administered the program under its healthcare contract with the
county; 2) only those enrolled in the county’s health plan may participate in the wellness program; and 3) an employee benefit handout informed employees that they
would be required to participate in the biometric screening and online health risk assessment.64
Ultimately the court decided that Broward County’s wellness program fell under
the safe harbor provision because it was
designed to develop and administer present and future benefits plans using accepted principles of risk assessment instead of a
wellness program’s commonly understood
role of keeping employees healthy and reducing long-term health care costs.65 The
court found that the program renders aggregate data to the county that it may analyze when developing future benefit plans
and that 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.66 The county is
thus determining what kind of coverage will
need to be provided.67 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.68 Since the goal of the wellness program was to maintain or lower the county’s
in