The Barton Firm is investigating health insurance plans that charge smokers a surcharge who use tobacco products. The smoker’s surcharge is an extra fee that can range from 10% to 50% of the premium.  The Affordable Care Act (ACA) and ERISA prohibit any health insurer or medical plan from discriminating against participants in providing coverage or charging premiums based on a “health-related factor,” including tobacco use. As a result, a plan “may not require any individual (as a condition of enrollment or continued enrollment under the plan) to pay a premium or contribution that is greater than such premium or contribution for a similarly situated individual enrolled in the plan based on any health-related factor in relation to the individual or to an individual enrolled under the plan as a dependent of the individual.” 29 U.S.C. § 1182(b)(1).

 ERISA offers a limited exception to its general rules by providing safe harbor for certain wellness programs. See 29 U.S.C. § 1182(b)(2)(B). This narrow exception means employers can offer incentives to plan participants, such as premium discounts, in exchange for their participation in these wellness programs but it must satisfy three criteria: (1) the program must have a realistic chance of improving health or preventing disease for participants, and cannot be excessively difficult, discriminatory based on health, or use questionable methods; (2) everyone in a similar situation must have a chance to earn the “full reward” — in other words, the program must offer a reasonable alternative or waiver for those who cannot meet the initial health standard; (3) the program must be disclosed “in all plan materials” describing the reward and explaining the availability of a reasonable alternative standard or waiver. 29 C.F.R. § 2590.702(f)(4). If the surcharge do not meet those criteria, they are likely not permissible.

 Joseph Barton has been quoted by news articles about potential discrimination against smokers by employers both about imposing these smoker/tobacco surcharges – for example https://www.tampabay.com/archive/2008/06/22/saving-cash-is-the-plan-behind-smoking-ban/ -- or about discrimination against hiring or firing smokers, which may be illegal –  for example, https://www.inquirer.com/philly/health/20120111_A_central_Pennsylvania_health_system_says_it_won_t_hire_smokers.html#loaded

• Refund of the tobacco surcharge paid, plus interest.

• Removal of the tobacco surcharge from future health insurance premiums, or a reduction of the surcharge to a reasonable amount.

• Requiring a reasonable alternative standard or wellness program that includes tobacco cessation services for free or at a low cost.

We will need you provide any documents that you have about the surcharge and may have you make a request for additional documents from the plan. This will include proof of payment of smoker’s surcharge, and relevant health insurance policies and contracts. If you don’t have access to copies of these documents or records, we can help you submit a request for them. There is no charge to you for us to evaluate your case.