MAR 19, 2025
There has been a recent uptick in class action litigation filed against large group health plan sponsors alleging that the additional insurance premiums levied against tobacco users (“tobacco surcharges”) through their wellness programs violate HIPAA nondiscrimination rules.
The litigation reminds employers to carefully review their plan designs for compliance with these rules. Below you will find a summary of the arguments being put forth by the plaintiffs as well as some high-level considerations for employers when implementing tobacco related incentives.
The HIPAA nondiscrimination rules prohibit group health plans from discriminating against plan participants on the basis of a health status-related factor, including tobacco use. There is an exception that allows for the use of incentives or surcharges (“rewards”) through a wellness program.
A program that imposes premium surcharges on individuals who use tobacco is considered a health-contingent wellness program and must comply with the following five requirements:
While lawsuits challenging tobacco surcharges are not new, the number of suits being filed (and filed as potential class actions) is new. The lawsuits primarily target very large, self-insured health plans such as those sponsored by 7-Eleven; Walmart; XPO, Inc.; Target; Nike; Campbell Soup Company; and Tractor Supply Company. So far, no court has ruled on the merits and only one has been voluntarily dismissed—the plaintiff in Walmart filed a voluntary dismissal back on December 13, 2024. The Department of Labor has also focused on the surcharges, filing an action against Macy’s in September 2024.
The plaintiffs allege that plan sponsors are violating their fiduciary duties and violating HIPAA because the wellness program at issue discriminates against them on the health status-related factor of tobacco use. Allegations common within each lawsuit include the plan sponsors’ failure to:
While it is still early in the litigation process, it appears that most group health plans are fighting back in these cases. However, at least one plan offered by Bass Pro Groups LLC became the first to file a notice of class action settlement related to their tobacco surcharge lawsuit in the United States District Court for the Western District of Missouri.
It is still too soon to tell the expected outcome from the remaining lawsuits, as none of the other defendants have indicated an interest in settling to date.
These lawsuits do not mean that all tobacco surcharges violate the HIPAA nondiscrimination rules. As described earlier, there are five requirements for health contingent plans that must be met.
As reflected in the allegations contained in the lawsuits, employers may not understand or implement the requirements correctly. The following summarizes some common issues employers fail to address in their tobacco-surcharge programs.
Employers offering wellness programs with tobacco surcharges should monitor developments as these lawsuits progress. They should also review their program to ensure it meets the requirements under the HIPAA nondiscrimination rules.
This document is designed to highlight various employee benefit matters of general interest to our readers. It is not intended to interpret laws or regulations, or to address specific client situations. You should not act or rely
on any information contained herein without seeking the advice of an attorney or tax professional. © My Benefit Advisor. All Rights Reserved. CA Insurance License #0G33244
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