(a) In general. — A group health plan and a health insurer offering group health insurance coverage may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan or coverage based on any of the following health status-related factors in relation to the individual or a dependent of the individual:

(1) Health status.

(2) Medical condition (including both physical and mental illnesses).

(3) Claims experience.

(4) Receipt of health care.

(5) Medical history.

(6) Genetic information.

(7) Evidence of insurability (including conditions arising out of acts of domestic violence).

(8) Disability.

(9) Any other health status-related factor determined appropriate by the Commissioner.

(b) Programs of health promotion or disease prevention. — (1) General provisions. — a. General rule. — For purposes of paragraph (b)(2)b. of this section, a program of health promotion or disease prevention (referred to in this subsection as a “wellness program”) shall be a program offered by an employer that is designed to promote health or prevent disease that meets the applicable requirements of this subsection.

b. No conditions based on health status factor. — If none of the conditions for obtaining a premium discount or rebate or other reward for participation in a wellness program is based on an individual satisfying a standard that is related to a health status factor, such wellness program shall not violate this section if participation in the program is made available to all similarly situated individuals and the requirements of paragraph (b)(2) of this section are complied with.

c. Conditions based on health status factor. — If any of the conditions for obtaining a premium discount or rebate or other reward for participation in a wellness program is based on an individual satisfying a standard that is related to a health status factor, such wellness program shall not violate this section if the requirements of paragraph (b)(3) of this section are complied with.

(2) Wellness programs not subject to requirements. — If none of the conditions for obtaining a premium discount or rebate or other reward under a wellness program as described in paragraph (b)(1)b. of this section are based on an individual satisfying a standard that is related to a health status factor (or if such a wellness program does not provide such a reward), the wellness program shall not violate this section if participation in the program is made available to all similarly situated individuals. The following programs shall not have to comply with the requirements of paragraph (b)(3) of this section if participation in the program is made available to all similarly situated individuals:

a. A program that reimburses all or part of the cost for membership in a fitness center.

b. A diagnostic testing program that provides a reward for participation and does not base any part of the reward on outcomes.

c. A program that encourages preventive care related to a health condition through the waiver of the copayment or deductible requirement under a group health plan for the costs of certain items or services related to a health condition (such as prenatal care or well-baby visits).

d. A program that reimburses individuals for the costs of smoking cessation programs without regard to whether the individual quits smoking.

e. A program that provides a reward to individuals for attending a periodic health education seminar.

(3) Wellness programs subject to requirements. — If any of the conditions for obtaining a premium discount, rebate or reward under a wellness program as described in paragraph (b)(1)c. of this section is based on an individual satisfying a standard that is related to a health status factor, the wellness program shall not violate this section if the following requirements are complied with:

a. The reward for the wellness program, together with the reward for other wellness programs with respect to the plan that requires satisfaction of a standard related to a health status factor, shall not exceed 30% of the cost of employee-only coverage under the plan. If, in addition to employees or individuals, any class of dependents (such as spouses or spouses and dependent children) may participate fully in the wellness program, such reward shall not exceed 30% of the cost of the coverage in which an employee or individual and any dependents are enrolled. For purposes of this paragraph, the cost of coverage shall be determined based on the total amount of employer and employee contributions for the benefit package under which the employee is (or the employee and dependents are) receiving coverage. A reward may be in the form of a discount or rebate of a premium or contribution, a waiver of all or part of a cost-sharing mechanism (such as deductibles, copayments, or coinsurance), the absence of a surcharge, or the value of a benefit that would otherwise not be provided under the plan. The Commissioner may increase the reward available under this paragraph to up to 50% of the cost of coverage if the Commissioner determines that such an increase is appropriate.

b. The wellness program shall be reasonably designed to promote health or prevent disease. A program complies with the preceding sentence if the program has a reasonable chance of improving the health of, or preventing disease in, participating individuals and it is not overly burdensome, is not a subterfuge for discriminating based on a health status factor, and is not highly suspect in the method chosen to promote health or prevent disease.

c. The plan shall give individuals eligible for the program the opportunity to qualify for the reward under the program at least once each year.

d. The full reward under the wellness program shall be made available to all similarly situated individuals. For such purpose, among other things:

1. The reward is not available to all similarly situated individuals for a period unless the wellness program allows:

A. For a reasonable alternative standard (or waiver of the otherwise applicable standard) for obtaining the reward for any individual for whom, for that period, it is unreasonably difficult due to a medical condition to satisfy the otherwise applicable standard; and

B. For a reasonable alternative standard (or waiver of the otherwise applicable standard) for obtaining the reward for any individual for whom, for that period, it is medically inadvisable to attempt to satisfy the otherwise applicable standard.

2. If reasonable under the circumstances, the plan or health insurer may seek verification, such as a statement from an individual’s physician, that a health status factor makes it unreasonably difficult or medically inadvisable for the individual to satisfy or attempt to satisfy the otherwise applicable standard.

e. The plan or health insurer involved shall disclose in all plan materials describing the terms of the wellness program the availability of a reasonable alternative standard (or the possibility of waiver of the otherwise applicable standard) required under paragraph (b)(3)d. of this section. If plan materials disclose that such a program is available, without describing its terms, the disclosure under this paragraph shall not be required.

(4) Nothing in this section shall prohibit a program of health promotion or disease prevention that was established prior to July 15, 2013, and applied with all applicable regulations, and that is operating on such date, from continuing to be carried out for as long as such regulations remain in effect.

79 Del. Laws, c. 99, § ?8;