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Court-ordered 2021 EEOC wellness rules: an existential threat or huge opportunity?

Do you know whether heartburn pills are safe for long-term use?

The EEOC has published rules in draft form. They still need review by the Office of Managment and Budget, but that’s just a formality.

Incentives need to be cut back to “de minimis” for participation-based programs…but there is a way around the court ruling for those highly popular and effective (not!) outcomes-based programs.

Since the EEOC is basically pro-business these days, they have managed to circumvent the spirit of Judge Bates’ December 2017 decision, without violating the letter, and employers will be able to subject employees to fines of thousands of dollars starting in January.

However, it increasingly appears that outcomes-based programs, while arguably complying with the new rules regarding the Americans with Disabilities Act, violate the Affordable Care Act, because (with the well-documented, Validation Institute-validated exception of US Preventive Medicine), they fall short of the ACA’s standard of being “reasonably designed to reduce risk or prevent disease.” Just too many epic fails, all documented on this blog, including Koop award winners like Wellsteps, arguably the industry’s worst program now that Intereactive Health has gone bankrupt. (Ironically, it is also among the best-documented programs. Why they published their own self-immolation is anyone’s guess.)

Fortunately, there is a solution allowing you to maintain your existing incentive structure next year, and significantly reduce the cost while improving the performance of your program…and we will be covering it on Thursday at 1 PM ED. Register here.

PS Admit this is the first you are hearing of these new rules. And yet they are pretty close to a done deal in practice, even though the public can still comment soon.  Good luck with that.


In the immortal words of the great philosopher Pat Benatar, hit me with your best shot.

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