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. 

1. Surprising and dramatic court decision announced
2. Q&A on new court decision likely ending incentives
3. 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:

1. 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.
2. 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?
3. 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;
4. 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.