Within minutes of Quizzify’s blast email predicting that the EEOC’s rules released two weeks ago would be DOA, it is now a lock that they are toast. The White House made two announcements last week confirming this:

• They froze all non-emergency Notices of Proposed Rulemakings (not a misprint — two plurals)
• They rejiggered the EEOC, promoting the two pro-employee Commissioners to the Chairmanship and Vice Chairmanship.

This means the huge loophole in the announced rules, allowing most outcomes-based wellness programs, will be closed.

Is this an existential threat to the wellness industry? At first glance, it would seem to be. But you can join our webinar to learn so this existential lemon can be turned into existential lemonade.

Leading wellness attorney Barbara Zabawa and I are hosting a webinar on this topic on Monday, February 1st, 1:00 EST. You can register here (and get access to the recording and slides as well.)  Focus will be on how to ignore the new rules, and maintain your program as is. Yep, just like with surprise bills, we’ve figured out how to game the system.

The EEOC has just released their rules for clinically based wellness programs.This step is called the “Notice of Proposed Rulemaking,” or NPRM, to be published in the Federal Register’s mellifluously named Notices of Proposed Rulemakings for public comment. “Public comment” is code for “the perps with the most to lose will flood the thread with disinformation.” Expect the US Chamber of Commerce, the vendors and Ron Goetzel and his cronies to weigh in heavily, each more shamelessly than the next. They have a lot of (your) money at stake here.

When NPRMs are posted for public comments, you know who never makes public comments? The public. So it’s up to you and me to pick up the slack, and point out that these perps have no clothes. Feel free to grab posts from TSW to add to the comments.

And the envelope please…

Most importantly,  incentives for participation-based programs need to be cut back to “de minimis.” And, unlike when the rules were first floated (and true to the intent of the judge who found that forced wellness programs were not voluntary), de minimis has been defined. It looks like the IRS definition — water bottles, t-shirts, small-denomination gift cards.  I had thought perhaps $200 would be OK. That is clearly outside the realm of de minimis. That could change if the perps flood the comments.

My own opinion: it is perfectly ok, even desirable, for organizations to offer employees screening.  Just don’t make them do it. I myself voluntarily get my Hb a1c screened every year, to make sure I’m playing enough ultimate frisbee to offset my consumption of LA Burdick’s insanely good chocolate.

And it is perfectly OK to educate employees on why they should want to get screened (or, in the case of younger, healther employees, why they shouldn’t). Screening would then be truly voluntary.

However, many organizations want to maintain their current participation-based programs with their current incentives or penalties…and many vendors want to keep their revenues intact.

For these groups, Barbara and I are offering this webinar, to show how to do exactly that.

So far, so good, but…

That was all about participation-based programs. Health-contingent, or outcomes-based, programs are a different story altogether. The EEOC is basically pro-employer these days. So they have figured out how to circumvent the spirit of Judge Bates’ December 2017 decision vacating the old rules in which forced programs were defined as “voluntary,” without violating the letter of his decision. But this massive loopholecould circumvent the ruling only for outcomes-based programs, not participatory ones.

This loophole allows you to continue to be able to subject employees to fines of thousands of dollars in outcomes-based programs. Most employees hate being forced to submit to these programs (“I’d like to punch them in the face,” said one), and they invariably lose money. However, the losses in program fees and employee morale — all admitted by the wellness industry trade association — is more than offset by the “immediate employer cost savings,” as Bravo puts it, generated by collecting the penalties from employees who refuse to let unlicensed wellness vendors play doctor.

However, most outcomes-based programs, while arguably complying with these new rules under the Americans with Disabilities Act, violate the Affordable Care Act. With the well-documented, Validation Institute-validated exception of US Preventive Medicine, they invariably fall short of the ACA’s standard of being “reasonably designed to reduce risk or prevent disease.”  That hurdle was set low enough to allow even the worst outcomes-based wellness vendors to clear it, and yet they don’t. They violate guidelines with impunity, forcing employees to undergo tests that no doctor would ever order and that get D ratings from the US Preventive Services Task Force (USPSTF).

Just too many epic fails, all documented for the last five years on this blog and sometimes in the media, including Koop award winners like Wellsteps, arguably the industry’s worst program now that Interactive Health has gone bankrupt. Ironically, Wellsteps is also among the best-documented programs. Why they insisted on publishing their own self-immolation is anyone’s guess. No one can argue that programs violating the USPSTF guidelines and, as we’ll see, harming employees, could possibly be considered “reasonably designed to prevent disease.”

This is not just about the money.

Outcomes-based programs can and do harm employees. Sometimes wellness vendors — I’m looking at you, Wellsteps — even admit their harms.

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.

TSW has published many stories of harms, summarized here. Not to mention what happens when you fine your employees for not losing weight. Guess what — they respond in very predictable fashion, packing on the pounds before the weigh-in and then crash-dieting to take them off. And our #1 most-searched phrase?  “How to cheat in a corporate wellness program.” https://dismgmt.wordpress.com/2019/01/07/breaking-shocking-news-employees-cheat-in-wellness/

Still, if you insist on keeping an outcomes-based program, the “hack” we’ve figured out of the new regs applies to outcomes-based programs as well. Seriously.

So if you have a program (and very few people with outcomes-based programs read this blog, or else they would have already dropped them), you’ll want to attend the webinar to figure out how to preserve it. And if you don’t have a program, you’ll want to attend just to understand what the EEOC tried to do with this massive loophole and how we got the better of them.