TheySaidWhat presents actual breaking news…
The AARP Foundation has just filed a lawsuit on behalf of unionized employees against Yale University, over a wellness program that puts $1300/year at stake for non-compliance. There is no link yet because this just happened this afternoon.
Here are three of the four things you should know about this:
- Yale’s is not technically an outcomes-based program. Many people had assumed that outcomes-based (“contingent”) programs put employers at much greater legal exposure than participation-based program. That is not the case here. It is more about heavy penalties for non-participation. (Heavy incentives for participation in a high-deductible plan could be viewed in the same light, according to the original judicial decree.)
- Aside from using one vendor with a rather sketchy history, Yale’s is one of the best conventional programs I’ve ever seen. It is one of the few programs in the country actually compliant with the US Preventive Services Task Force recommendations. Their coaching company, Trestle Tree, is a good vendor. In other words, running a good program does not inoculate you against these lawsuits.
- The major risk to you from these lawsuits is not that your own employees will sue you, but rather that a precedent will be established that will cause you to have to reconfigure your own program in order to make it compliant, at least until new EEOC safe harbor rules are published. This will require possibly substantial changes to any penalties or employee ability to access your best healthcare offering. Changes could even be retrospective to the beginning of 2019, at considerable expense.
The fourth thing you should know: Yale’s was totally a self-inflicted wound. Simply offering Quizzify as an alternative to screening and coaching would have inoculated Yale’s entire wellness program against exactly this lawsuit. Don’t take our word for it. Here is our indemnification language:
All Yale would have had to do – all you need to do now to avoid the risk of a lawsuit – is give employees a choice of screening/HRAs or Quizzify. This one poster –one simple poster–would have done the trick.
The Quizzify EEOC indemnification program flyer is right here.
For more information, see:
- Wellness vendors foresee “Wild West of Litigation” in 2019
- Webinar on EEOC rule changes
- BenefitsPro tackles EEOC wellness rule changes
They Said What? 
You seem to be going much easier on the perps than usual.
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Well, while it is a “stop and frisk” program (as Matt Jeffs says), it is compliant with US Preventive Services Task Force. So we do have to give them some credit for that.
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I am surprised it took six months for a suit to be filed. It is also surprising to me that no one at Yale’s law school picked up the phone and called Yale University’s program administrator to say what you are doing is out of compliance with the DC District Court ruling. Surely there is someone at Yale law that specializes in healthcare law.
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Good points as always, Bill. On the first, it has been percolating for a while, if you read the compliant. You have to go through administrative resolution channels before filing. On the second, well, as we say in law, res ipsa loquitur — the thing speaks for itself.
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[…] Yale employees sued Yale, for example, due to the psychological and physical harms of their program. One Yale breast cancer survivor was almost forced into getting a mammogram, even though she had already undergone a double mastectomy. Had it not been for Yale’s union and the AARP’s support, she would have been fined $1250. […]
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