Bravo webinar advice to employers: “Be afraid. Be very afraid.”
Bravo held a webinar today which was designed to reassure employers that they could still “pry, poke and prod” employees in the post-AARP v. EEOC world. And yet somehow, as is often the case when wellness vendors attempt to do something, they accomplished just the opposite. If I were an employer attending this webinar, I’d be running for the exits.
By way of background, I know I’ve been a little rough on Bravo in the past. Nothing major. Just pointing out that:
- They don’t know anything about wellness, which I attributed to a faulty internet connection;
- Their outcomes are fabricated;
- They brag about how much they save by penalizing employees.
But I have to give them credit this time. They were actually honest. Of course, honesty is what gets wellness vendors in trouble, such as when they accidentally admit 90% to 95% of programs fail, or that wellness loses money, and harms employees. This is no exception. They and their counsel did not sugarcoat the reality that it is almost time to panic. (“In-house counsel may have a risk profile” that is not conducive to continuing to harass employees starting in 2019. In other words, any in-house counsel that wants to keep their job would say that the benefits of fining employees who refuse to let Bravo play doctor with them don’t outweigh the potential for liability.)
Bravo also had claimed they were going to address “rumors” and “chatter” and “fiction” about the decision in AARP c. EEOC. I was sure they were referring to me, but perhaps my ego is too large. They didn’t attempt to rebut my argument at all. Instead, they found some other “rumors” to denounce quite accurately as “false.” Here is a f’rinstance:
First of all, “illegal” is not a word that I or any responsible attorney would use in that case. You wouldn’t go to jail if you offered a large inducement or threatened a fine. A better word or phrase would be “unallowable” or “not protected by a safe harbor.” Second, it’s not the case that wellness incentives of any amount would be unallowable or illegal or anything else. Everyone would agree that small incentives, like gift cards, can be offered as part of a voluntary program. No one knows where the line will be drawn. And then finally, it’s not all “wellness incentives.” It’s specifically incentives for Bravo-type “pry, poke and prod” programs.
So their attorneys are right. Not just on this slide, but in general, I would have a hard time parsing the difference between what their high-priced lawyers said today and what I said in my webinar, other than Bravo’s attorneys didn’t explicitly state that Bravo-type programs are toast. They merely implied it.
Basically those attorneys and I are in total alignment. Bravo’s attorneys observed that Quizzify-like programs (not requiring medical exams) are the only kind that aren’t adversely affected by this ruling. Quite the contrary, of course, Quizzify is willing to indemnify employer customers who still want to do wellness programs, if they offer Quizzify as an option.
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At Schlumberger, Today is Take-Your-Stupid-Wellness-Vendor-to-Work Day.
Once again, having been snake-charmed by HeathyWage, Schlumberger is offering a crash-dieting contest, starting today, January 22.
Once again, they are ignoring every iota of research that says crash-dieting is a complete waste of time. It may also harm you. Once again, they are offering a whopping $10,000 prize to the winning team.
The relevant language from the Wellness Code of Conduct
Here is the relevant language from the Employee Health and Wellness Program Code of Conduct. The language that the group agreed upon — “may have negative effects on their health” — was intended to be as acceptable as possible to what has become an delightfully large Ethical Wellness group:
Research shows that the vast majority of people who participate in weight loss programs will eventually gain their weight back after the program ends. Many will also gain back more than they lose. The weight cycling that occurs with repeated participation in weight loss programs may have negative effects on their health.
It’s also slightly possible that offering a $10,000 prize (for a team of five) could exacerbate the harms of weight-cycling just a tiny bit by encouraging employees to binge, bloat, salt and constipate themselves before the first weigh-in. But no team would ever do that, right? After all, it’s not worth sacrificing your ethics or harming yourself in order to win a measly $2000/team member.
Haha, good one, Al.
The relevant language from Here’s How to Win a Corporate Biggest Loser Contest
On the weigh-in day, avoid the bathroom before weigh-in if you can, and minimize your activity, another big glass of whole milk with your breakfast that contains some salty options will help you retain more water. If you are also going to get your waist measured, drink about half a can of root beer. Sounds gross, but the carbonation and salt will give you are really good belly bloat…If they are measuring your waist, wear some pants that are snug around the waist, or add a tight belt that hits below your belly button, this will create some fluid buildup in your belly area. At this point you should be a big bloated sloshing mess that needs to go to the bathroom really bad. This is the perfect time to get weighed and measured. If you are getting measured, poor posture can get you another inch and a half, so go for it.
To their credit, even the group that gives this advice has a more adult sense of responsibility than Schlumberger and HealthyWage, as they preface a few pages of advice with:
It’s getting to be New Year’s resolution time and many companies will try and “encourage” weight loss with a “Biggest Loser” type contest. Frankly, this is really a bad idea, as it can create all kinds of bad habits and damaging activities by the participants, as they starve, dehydrate and supplement themselves in an effort to win.
The relevant language from Schlumberger’s vendor, HealthyWage
Let’s look at the marketing pitch from HealthyWage, the outfit that runs this contest and epitomizes everything that makes the wellness industry what it is today:
That equates to over 50 pounds per person, in their 12-week contests — more than 4 pounds a week.* This means one of five things:
- Employees are indeed binging, bloating, salting and constipating themselves before the contest to maximize their odds of winning, since losing 50 pounds in 12 weeks would be a Herculean task without a bunch of extra weight that will be as easy to take off as it was to put on, thanks in part to websites that show you how to gain weight rapidly in preparation for corporate crash-dieting contests;
- Healthywage is unfamiliar with the CDC guidelines that recommend steady weight loss at 1-2 pounds per week;
- Healthywage is betting that employers don’t know that the odds of keeping weight off are 1 in 200 for males and 1 in 100 for females;
- Heathywage is counting repeat contestants more than once, meaning that the same employees binge, crash-diet, regain the weight and then do it all over again;
- Heathywage is lying.
Of course, this being the wellness industry, it may be all five.
*How does a 50-pound weight loss compare to other companies? Pfizer won a Koop Award because its participating employees were able to lose — get ready — four ounces. Six if you measure against the two ounces gained by non-participants. In all fairness, Pfizer’s program was not exactly intensive. “Participate” was defined as “open an email with a message in it.” The good news is that opening an email isn’t going to harm anyone.
Plus you never know what a message will contain. Open this link to see an example.
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Quiz: Which industry has the worst Net Promoter Score? (SPOILER ALERT: It’s wellness.)
We often talk about wellness vendors competing against one another in a race to the bottom, with the very stable geniuses at Wellsteps, Interactive Health, Total Wellness, and Star Wellness in the lead. Of course, the equally stable geniuses at Wellness Corporate Solutions, Healthywage and Bravo can’t be counted out. There could be other candidates too. Keep in mind that wellness is a crowded industry, with many very stable vendors constantly trying to outgenius one another. (There are, of course, some excellent vendors out there too. Simply put the name of your vendor in the “search” box and see what pops up.)
However, we never talk about the wellness industry as a whole competing against other industries in a race to the bottom. Why not? Because it turns out that the wellness industry has already won that race. How do we know this? Simple. By looking at Net Promoter Scores. Net Promoter Scores are the most widely used, and considered the most valid, measure of user satisfaction. Let’s see how wellness compares to a benchmark of other industries.
The Benchmark: Where are other industries on the Net Promoter Score scale?
Here is a a screenshot of the Net Promoter Scores for the 20 largest US industries serving consumers. (Source: The Temkin Group, which sells comprehensive reports based upon the NPS.)
The worst performer of any industry is, not surprisingly, TV and internet services. The average for that industry is +2. Even so, we have Comcast and I love it. If you want to watch a show — say, Billions — you just literally say “Billions” and <presto> the show appears on your screen. Plus Comcast’s picture quality is now so sharp that every time Paul Giamatti realizes that Damian Lewis has outsmarted him again, you can almost see the steam coming out of his ears.
Nonetheless, the cable TV and internet services industry at least earns a positive score. It’s not that bad.
Where is the wellness industry on the Net Promoter Score scale?
On the other hand, the wellness industry is that bad, according to the data.
Wellness isn’t on the Temkin chart because, thankfully for America’s employees, it is not one of the 20 largest B-to-C industries. It is off the charts both literally, and also figuratively, because the wellness industry Net Promoter Score averages a minus-52 in the US. That’s 54 points lower than the next-lowest industry. (This does not include Quizzify, which is very highly regarded by employees. So much so that one of employees’ biggest complaints is, not enough quizzes.)
This isn’t us or one of the many other wellness skeptics doing the Net Promoter Score measurement. It’s the highly respected consulting firm WillisTowersWatson, whose comprehensive report covers all aspects of the industry.
This rating shouldn’t come as any surprise to people who read this blog, or for that matter people who read at all. Just last week we related a typical employee wellness story, and last year we reposted a few of the comments to the Slate article: “Workplace Wellness Programs Are a Sham,” My favorite, of course, is “I’d like to punch them in the face.”
And also just last week, yet another person — who used their full name — commented on a previous blog, complaining about their “untethered from reality HRA and biometric screen.”
Speaking of untethered from reality, here’s what a wellness vendor — VirginPulse — believes to be the case on their planet:
And there is Bravo, saying punitive wellness programs are:
“very popular and well received by the vast majority of employers and employees alike…”
My question to VirginPulse and Bravo is, where is this “87%,” and/or this “vast majority of employees” who love wellness, and insist on being pried, poked and prodded? We’ve looked in a number of places — here, here, here, here, here, here, here, here, and here — and can’t find anyone.
Oh, wait–yoo-hoo, over here — I found him!
Why this matters
We have a saying: “Wellness will make employees happy whether they like it or not.” In the real world, a minus-52 Net Promoter Score indicates that morale takes a big hit if you do wellness to employees instead of for them. (The Health Enhancement Research Organization concurs with us only on a few issues — the deleterious impact of wellness programs on morale is one of them. )
More importantly, employers, except for Quizzify’s customers and partners, are losing their “Safe Harbor” as of January for tying clinical wellness programs to large financial forfeitures. Aggrieved employees will have much greater recourse in the federal courts than they have today. As the Net Promoter Scores show, there is no shortage of aggrieved employees, and likely no shortage of attorneys willing to “assist” them in collecting a financial settlement.
There is also no shortage of expert witnesses here at They Said What? to support them. And we’ve never lost.
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Will the Maryland state employee wellness program be the most epic fail ever?
It’s not just that Maryland is setting the record for most epic financial fail ever recorded in wellness. We are also bringing you an eyewitness account from the Belly of the Beast, an employee willing to give out her name in order to help spare other state employees and taxpayers the pain of this program.
The Most Epic Fail Ever?
Maryland is on track to miss its savings goals by 18 decimal places. To put that in perspective, the total economic output of the world sums to only 14 decimal places.
Here’s how the math works. The state is claiming that avoiding wellness-sensitive medical events will save $4 billion dollars — a number with 10 decimals. Thanks in part to Maryland’s lowest-in-country hospital rates of about $20,000/heart attack, the state would have to avoid 20,000 heart attacks a year to do this. No easy feat when the entire insured Maryland population — all private- and public-sector employees and their families combined — only suffer about 2700 heart attacks/year.
Plus, in the history of wellness, it appears that not a single heart attack, or for that matter, diabetes event, has ever been avoided. (More likely, a few have been avoided, but a few also have been caused by employees taking bad wellness vendor advice.)
Put yet another way, that’s $4000/family/year in savings. Achieving that outcome that would require wiping out all hospitalizations on all state employees and dependents, along with some of their closest friends.
Taxpayers, this is on you
Meanwhile, Maryland state taxpayers are paying Optum on the magnitude of $70,000,000 (8 decimal places) over this period, plus the cost of hundreds of thousands of useless and possibly counterproductive coerced checkups.
The best-case scenario? It’s a very safe bet–one I am willing to make to the tune of $3-million and give out 10-to-1 odds– that they will save nothing. That’s 10 decimals in missed savings targets and 8 decimals in fees — a truly epic fail of 18 decimal places.
And yet even this is an optimistic assessment. Like both other public sector employers — Connecticut and Boise — which have reported outcomes, Maryland’s program will likely drive up spending and possibly harm their employees. And if you guessed that Optum’s contract calls for them to receive bonuses based on invalid measurement of non-existent savings, then update your resume. You are too smart to be in this field.
Further, Optum (through its representation on the board of the wellness trade association), has already publicly admitted wellness loses money. Their cabal tried to take that back by pretending they lied when they admitted it, but it turned out they lied when they said they lied. The data was real, meaning the admission was real.
It happens that I know two state employees. One bragged to me about how their entire quasi-public organization was able to dodge this program because everyone hated it so much. The other shared her “wellness” story, a typical one rather than the stories of great harms, or the experiences of employees who make constructive comments in the lay media, such as: “I’d like to punch them in the face.”
Instead, her story sounds like every other employee wellness story — with the notable exception that she is allowing me to use her name, since she no longer works for the state and is concerned about the stress and potential harms caused to employees, including her former colleagues. (Plus, as a taxpayer, she’d like her $50 back, representing her share of the total program expense.)
Her name is Alice, and here is her experience. (Anyone who would like her last name and contact info may contact me and I will pass that along to her. She is willing to talk, though not for attribution.)
As a state employee and with my entire family being on the state plan, my husband and I have had the joy of recently completing our wellness assessments. Here is my rant:
First, it’s a giant pain in the butt. Second, the questionnaire could not have been more ridiculous and third, my doctor didn’t really do anything with it. She just gets to bill an unnecessary office visit to the state, in order to sign a form.
On the first topic, the questionnaire took 45 min for each of us, plus the inconvenience of having to schedule and go to an appointment we didn’t need. And in my case, having just gone through 9 months of prenatal care, labor and delivery care and postpartum care on top of all the newborn appointments, the last thing I needed was another doctor’s appointment.
On the second point, the questions they asked were terrible for assessing my actual health. There was an obvious right answer in every case, and it seemed to want to judge my mental health/level of happiness more than actual health. “Think of yourself on a ladder in terms of xxx (happiness, social status, personal accomplishments). What rung on the ladder would you place yourself, 1 being the lowest and 10 the highest?” How does that assess my health? It’s a personal fulfillment questionnaire that also asks if you exercise. At the end they ask for all these lab values which I don’t have and my doctor didn’t think she was supposed to request so they aren’t filled out at all.
And on the last point, my doctor never looked at the 30 page final assessment that I had to print and she just asked me if I think I’m healthy and I said yes. She was fine with that. The only thing she told me was that I could lose a few pounds to get my BMI in the right place – well OF COURSE! I just had a baby, which on a side note is not a part of the wellness assessment at all. There are all these questions about how much sleep I’m getting, am I stressed, etc… but no accounting for the natural things that happen in life like a newborn.
Shame, shame, shame on Alice!
Like every other Maryland employee, Alice needs to pull her weight, if she ever expects to account for her $40,000 share of the $4 billion in savings. Unfortunately, according to the actual arithmetic, she is already way behind in her quest. She hasn’t saved a nickel but has cost the state:
- 1 doctor bill
- 1 vendor fee
- 30 pages of paper from needlessly destroyed trees
- 45 minutes of lost productivity completing her kumbaya assessment, plus the time spent at the doctor
Fortunately, the doctor didn’t realize she was supposed to run (and charge for) a bunch of lab tests, so she saved the state some money there.
Where should the state go from here?
A quick plausibility test should determine that they didn’t save anything to speak of. Then Optum should be forced to give their money back, and issue an apology to Alice and others for wasting their time. The Attorney General should announce to overjoyed state employees that they are no longer required to do this — and that he just saved the taxpayers $70 million. Then he should run for governor. Alice could be his running mate.
Where will the state go from here? Like Connecticut and Boise, in exactly the opposite direction. The state HR people will claim they are heroes, using the classic combination of regression to the mean, ignoring dropouts, and participants-vs-non-participants study design, to pretend to show how much employees love the program and how much money it’s saving. When carefully read, of course, the data will show the opposite.
They will also find one state employee willing to claim he or she started eating more broccoli. As for the rest? For a more typical assessment of the Maryland program, I would recommend that the state, in the immortal words of those great philosophers Jefferson Airplane, go ask Alice.
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The Very Stable Geniuses at Interactive Health Introduce a “Smoking Recession Program”
Interactive Health has once again proven themselves worthy of the 2017 Wellness Industry Deplorables Award.
How do we know this? They recently announced the industry’s first “smoking recession program.”
I don’t smoke, but it would be worth taking up the habit just to see what is entailed in this Smoking Recession Program, because otherwise they are keeping the contents under wraps, presumably so that previous winners of the Deplorables Award don’t copy them.
One possibility, suggested by Alert Reader Jon Robison, is that a great way to quit smoking is to lose your job and no longer be able to afford the habit, creating your own personal recession.
Another possibility is that they wanted to select a name for their program which would pretty much guarantee not being sued for trademark infringement.
The most likely possibility, in our opinion, is that Interactive Health wants smokers to switch to Parliament, which offers a recessed filter.
Interactive Health’s idea behind the recessed filter is probably that because your lungs are farther away from the smoke, you live longer.
If you haven’t already done so, sign up for the webinar on AARP v. EEOC on January 18. You’ll be joined by thousands of other industry executives and HR professionals. We will be covering not only what happened, but how you can make lemonade out of it.
In the immortal words of the great philosopher Dizzy Dean, don’t fail to miss it.
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Five of the most striking observations on AARP v. EEOC
So as not to overburden WordPress with all the hits we’re getting here on TSW, I’ve posted on the five most striking observations on AARP v. EEOC on linkedin.
This article also has links to AARP’s blog, The Incidental Economist, and many other sources of information.
I would also strongly recommend signing up for the January 18 webinar on this topic.
PS If anyone gets any information from any vendor or the Health Enhancement Research Organization on how they plan to try to undermine this ruling or throw a monkey wrench into the EEOC rule-making process, please pass it along. HERO isn’t much for visibility any more. They tend to hatch their schemes in the shadows these days (due to the overwhelmingly negative responses they get), and based on some of the other schemes they and their cronies have hatched, like the proposed Fat Tax, the shadows should run away as fast as they can.
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AARP v. EEOC collateral damage: Watch a wellness vendor panic
Outcomes-based wellness vendors are panicking over AARP v. EEOC. The way you know that is, they are sending out emails telling their customers not to panic. The irony is that it isn’t the customers who need to panic. (They can contact Quizzify and literally solve the problem on the spot, guaranteed.) It’s vendors like Bravo, whose business model is built on harassing employees.
Since wellness vendors know better than to talk the record in a forum in which they can be fact-checked online, we count on Viewers Like You to forward us their propaganda sub rosa. The following are verbatim excerpts of a letter that Jim Pshock, CEO of Bravo Wellness, sent out to his customers and brokers.
“While some may surmise that this is a simple issue, it is actually rather complex. There are mountains of data that support both the argument for and against wellness programs, and the use of incentives.”
I consider it a personal triumph that even the most coercive wellness vendor admits that there are “mountains of data” against coercive wellness. (There is not even an anthill of data in support of excessive screening, that hasn’t already been shown to be invalidated, or in the case of the 3.27-to-1 ROI claim, walked back by the author.) Ongoing incentives (as opposed to a trial incentive, for a first-time use) likewise have zero supporting data. Quite the opposite, an extensive study in Health Affairs proved their uselessness in weight loss. In addition, Bravo is a major proponent of punitive penalties, not $25 gift card incentives.
“In my experience, the success or failure of the initiative is most often determined by the details of the wellness program design itself, including the reasonability of the goals, the level of support offered, the underlying corporate culture, the strength of the communications used and the quality of each program element.”
Or perhaps they achieve their 96% participation rate for the same reason Vladimir Putin gets 96% of the votes. If Bravo really thought that these feelgood elements drove a 96% participation rate, they wouldn’t need to force employees to do “wellness or else,” now, would they?
“Additionally, while the idea of offering a substantial premium discount to those who take a proactive role in their health by not smoking and managing risks like obesity, blood pressure, cholesterol and pre-diabetes is very popular and well received by the vast majority of employers and employees alike…”
It’s not a “substantial premium discount.” It’s a “substantial premium penalty for employees who don’t want to have anything to do with these people.” Where did they get the idea that employees like these programs? Oh, wait! I forgot that Bravo doesn’t have an internet connection. If they had one, they might have seen the most widely read article on workplace wellness ever, and then maybe read a few of the comments, which we have helpfully summarized here and here. Example of a comment on these “very popular and well-received” programs: “I’d like to punch them in the face.”
“What should you do now? Don’t panic.”
Translation: panic. Unless, that is, you are an honest vendor, or a company that wants to do right by its employees. In that case, Quizzify actually provides a “safe harbor” for vendors against any lawsuits brought under the new rules…even though the new rules haven’t been written yet. So any employer, any vendor can take AARP v. EEOC off their list of things to worry about simply by offering Quizzify as an alternative to their screens and/or HRAs.
Where we agree with Bravo
“[Wellness] plans should … not be a subterfuge for simply cost-shifting.”
“Subterfuge for simple cost-shifting” is nicely stated, Bravo! Good for you to call out unscrupulous vendors who provide corporate customers with options of fining employees in order to create immediate employer cost savings!
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Four scenarios could follow surprise court decision outlawing wellness incentives
If your reaction to this headline is “hunh?”, then here is some remedial reading. You are excused for not knowing about this decision — it just happened. The following will allow you to come up to speed quickly. And please do forward this posting — likely many others have not seen it either and they need to act quickly.
- Surprising and dramatic court decision announced
- Q&A on new court decision likely ending incentives
- Economists and pundits applaud ruling
Also, you can sign up for the webinar on January 18. There are some subtleties to be covered in the webinar not already covered on this site.
Scenario #1: Decision stands.
This is about a 40% likelihood. Although this is far from a done deal, there is no harm in simply reconfiguring your program to satisfy the as-yet-unwritten EEOC rules by the January 2019 deadline. Even though on its face, the decision would appear to spell the end of all (significant) incentives and penalties for “voluntary” programs, the decision applies only to programs that involve required medical exams or inquiries.
As we have already noted, the mere addition of a Quizzify option to your existing screenings/HRA requirement — meaning that you can require employees to submit to traditional screenings or become educated in healthcare via Quizzify — solves your problem. It also saves you money, makes your program more effective, and pleases employees.
Most importantly, Quizzify is guaranteeing that any customer or vendor offering it as an alternative is in a “Safe Harbor.”
So there is no reason not to prepare for this scenario when it takes only an hour or so and a modest down payment to take it off your list of things to worry about.
Or, you could simply contact It Starts with Me, Sterling Wellness, Switchbridge, or Sustainable Health Index to use their own programs, which jumped on this and already incorporate both Quizzify and the Safe Harbor guarantee.
Scenario 2: EEOC appeals and wins.
While this has been discussed, we give it about a 0% likelihood. The EEOC isn’t even fully staffed right now. They have bigger issues. Tilting at windmills would rank very low on their New Year’s Resolution list.
There are four reasons EEOC would lose on appeal:
- This is the DC circuit. Merrick Garland is Chief Justice. He is not going to sully any chance at a future Supreme Court seat by ruling that “voluntary” and “involuntary” are synonyms.
- The AARP has not yet unveiled the strongest argument, which is that the ACA, in addition to allowing for voluntary wellness programs, also contains a mandate to buy health insurance, through 2018. (The end of the mandate after this yar makes the argument stronger, since it implies that the noncompliance penalty was painfully high.) The penalty for noncompliance with the mandate is $695. “Mandatory” is the opposite of “voluntary.” How, AARP would ask, is it possible for a voluntary program to have a noncompliance penalty far in excess of that of a mandatory program in the same law, or at all?
- An appeal isn’t just asking another court for a different opinion. The burden of persuasion is much higher (finding error with the first decision that goes beyond a difference of opinion with the district court judge), and shifts to EEOC. Those guys have had years to define “voluntary” in a coherent way and, according to the district court judge, have failed miserably. If EEOC had a backup plan, they would have deployed it by now;
- I myself have already semi-prepared an amicus curiae brief, exposing much of the old-line wellness industry as a sham, which is easy enough to do simply by quoting these people verbatim.
Scenario 3: Congress moves forward with The Preserving Wellness Programs Act as is
Likelihood: 10%
This bill, HR1313, would moot the “voluntary” provisions in the Americans with Disabilities Act (and the Genetic Information Non-Disclosure Act), thus allowing employers to continue to force employees to submit to screenings.
It would also allow employers to collect DNA from employees and their families, including children, a provision that would make Big Brother blush.
You might ask: “What kind of misanthrope would propose something like this?” And the answer is: “A misanthrope who, due to her position as chair of the committee that reviews this type of legislation, receives a large amount of money from the American Benefits Council, which is championing this bill.”
Last year, Rep. Virginia Foxx (R-NC) believed she had a safe enough seat to ignore her constituents’ overwhelming distaste for this bill and instead kowtow to her corporate overlords. As a result, this bill has already been voted out of her committee on a party-line vote and awaits action by Ways and Means. If it passes Ways and Means, it goes to a full House vote. (Something similar is happening in the Senate, where Sen. Lamar Alexander is the major recipient of corporate largess because he chairs the relevant committee.)
However 2018 is not 2017 and GOP reps, even in somewhat “safe” seats, need to start thinking about their actual constituents. And, quite literally, HR1313 (also known colloquially as the Employee DNA Full Disclosure Act) may be the most unpopular bill ever voted out of committee. Ever. Google on it. Aside from the American Benefits Council (which has many health plan members for whom wellness is quite profitable, at the expense ironically of many of their other members), no one — zero people — support HR1313.
Further, unlike most legislation these days, which passes on party-line votes, the GOP likely contains enough true conservatives willing to champion individual rights at the expense of losing a little corporate largess that a party-line vote can’t be assured.
So the likelihood of HR1313 being passed — overriding AARP v. EEOC — is placed at 10%. It all depends on the GOP’s appetite for self-destruction.
Scenario 4: Preserving Employee Wellness Programs Act is stripped of its DNA provision…and passes
50% likelihood.
Not that I want to give these people any ideas, but stripping the DNA provision (presumably added as a sop to a few health plans who are both very active members of the ABC, and,which sell DNA testing to employers who for goodness knows what reason occasionally buy it) makes this bill arguably passable. Incredibly, a majority of our legislators would be perfectly OK trampling on individual rights by adding a regulation requiring employees to submit to these programs.
As with the best legal argument for appeal, the best legislative argument against HR1313 likewise hasn’t been made yet, and could presumably sway a few votes in an election year from legislators who might care about their constituents, or at least worry they might vote for someone else.
That argument is:
The wellness industry is unregulated, unlicensed and generally unsupervised. As a result, they often — as in Interactive Health, Wellsteps and a ridiculous number of other vendors I’ve tracked through the years — harm employees, according to their data. They do this by giving out bad advice, flouting guidelines, and generally being completely impervious to integrity. Do we really want our employees to be forced into receiving unwanted healthcare from these people?
And yet this could happen. Hence the 50% likelihood.
Where does this leave us? There is no harm in betting on the 40% chance that the rules just changed. You’d have a better program anyway, by adding Quizzify.
Update: I just learned that Scenario 4 requires 60 votes to pass the Senate. Very little chance of that.
They Said What? 