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In December, Judge Bates’ ruling in AARP v. EEOC (all the background is here) required the first progress report on the drafting of new incentive/penalty rules to be issued in March. We predicted there wouldn’t be any progress to report, and we were right.
A more passive-aggressive response from EEOC, submitted an hour before the deadline no less, could scarcely be imagined:
[We do] not currently have plans to issue a notice of proposed rulemaking addressing incentives for participation in employee wellness programs by a particular date certain, but [we] also have not ruled out the possibility that [we] may issue such a notice in the future.
They also noted that the top two positions at the agency remain unfilled, with nominees awaiting Senate confirmation, which makes major policy-making difficult.
The EEOC also said, according to the article linked above, that they haven’t decided whether “to float a new rule or leave its regulations as they are.”
Imagine if you are Judge Bates and you’ve told the EEOC to deep-six their old regulations. Three months later the EEOC comes back and says: “Maybe we will and maybe we won’t.” Either the EEOC didn’t run this by an attorney before they sent it out, or they are deliberately trying to antagonize the judge. Either way, they aren’t doing themselves or the wellness industry any favors.
Meanwhile, the folks at Quizzify, having completed their celebration of the pending demise of punitive “wellness or else” programs, have moved onto drafting a new HRA that will be, uniquely, compatible with the new rules, but still be NCQA-accreditable. And most importantly actually not be full of nonsense, like most of the others.
An announcement should be forthcoming within a month. Ping them if you’d like the early bird price on this.
No sooner did I post Congressional Candidate Runs Hard Against Forced Wellness than I found another candidate doing exactly the same thing.
This candidate, Paul Kramschuster, is running for a school board in Kansas City. Here is his website. Teachers in that city’s Center School District have been harassed and forced into wellness, at considerable expense to their school district — which has nothing to show for it other than bills and annoyed employees. Neither Blue Cross of Kansas City nor Healthmine nor their broker, CBIZ, has been able to demonstrate any outcomes.
While a Republican won an election running against wellness in Pennsylvania and a Democrat is running against it in North Carolina, this Kansas City election is nonpartisan. No party affiliations involved. It appears that independents feel the same way about wellness as Democrats and Republicans.
Here are some tidbits from Mr. Kramschuster’s website:
Another argument made by the district’s insurance broker, which is accepted uncritically by the district, is the recommendation that the district purchase a $70,000 wellness program for the district. The main feature of this program is a blood test and questionnaire asking employees about their drinking habits, their history of disease and what medical tests they have had or plan to have. Most employees do not want this program and would prefer not to have it.
The broker, CBIZ, is collecting a nice fee from the district’s taxpayers, who might have otherwise assumed that their school taxes were being spent on educating their children:
In the early years of this program, employees did not participate, and so in order to induce more employees to participate (by giving up their medical privacy), so as to increase the broker’s profit, the broker recommended the district to pay each employee that gives up her medical privacy
Even the prospect of a bribe doesn’t excite the teachers…
The amount of the payment is $600. In order to receive this payment, many more employees do participate, but they are very unhappy about it. It feels mandatory/coercive, and it feels morally wrong.
…and of course the school board has been completely unaccountable:
No one on the board, or in central office, is asking the critically important question: “How does paying teachers to give up their medical privacy serve students?” The answer, of course, is that it doesn’t — the district is serving its broker, rather than expecting its broker to serve it.
The school board was given the option of swapping out this onerous program for Quizzify, which teachers love (and they would still earn their $600 by learning how to purchase healthcare more wisely) because of its Q&A format.
However, because it would have cost the District only about 1/7th of what the Healthmine program costs, the broker would have made much less money. It was turned down. Taxpayers are now on the hook for the full $70,000, plus the cost of potential lawsuits…
…I did do some checking: the CBIZ/Healthmine program is not validated by the Validation Institute, neither Healthmine nor CBIZ has signed the Ethical Wellness Code of Conduct, and no member of the school board seems the slightest bit aware that this is exactly the type of program that has been proven to be a complete waste of money.
Or that this is exactly the type of program which, on January 2nd, will be disallowed…and will open up the district and its taxpayers to lawsuits from these very same harassed and demoralized teachers.
In this hyperpartisan era, conservatives and liberals agree on only one thing: forcing employees into outcomes-based wellness programs is one of the worst ideas in the history of ideas. If you scroll down our feature In The News, you’ll see wellness gets equal treatment by right-wing publications like Newsmax and The Federalist as well as left-wing publications like Slate and Mother Jones.
Opposing forced wellness has already propelled one candidate into elective office: Matthew Woessner, whose leadership in Penn State’s faculty revolt against the punitive “pry, poke and prod” plan proposed by Highmark and Ron Goetzel, was elected President of the university’s faculty senate. Matthew is a self-described Republican libertarian.
In keeping with the bipartisan nature of wellness, it is fitting that the first Congressional candidate to take on the wellness industry is, conversely, a Democrat, Jenny Marshall. Jenny (as she likes to be called) is running against Virginia Foxx (R-NC5), who chairs the House Committee on Education and the Workforce. A powerful combination of this lucrative committee chairmanship, lack of ethics and a gerrymandered “safe” district (at least until voters find out about this bill), allows Foxx to “represent” the American Benefits Council rather than voters in her district. Indeed, I suspect she has nary a single constituent who supports employees being pried, poked and prodded into submission. It is not at all clear how this bill would benefit her district.
Any controversy over whether forced wellness saves a nickel or even improves health has long since been laid to rest. Hence, the American Benefits Council’s enthusiasm for forced wellness is all about making programs so onerous and unappealing that employees prefer to pay the $1000 fines rather than be subjected to the indignity and potential harms of being pried, poked and prodded by unlicensed, unregulated wellness vendors.
On the other hand, these programs can be very lucrative for employers, who can claw back large chunks of their insurance premiums forfeited by non-compliant employees. Vendors have already figured out how to offer “immediate savings” for employers through collecting these fines from employees.
Unless Foxx’s bill becomes law, this lucrative, misanthropic, anti-employee loophole will be closed December 31, thanks to the ruling in AARP v. EEOC, which will prevent employers from forcing employees into “voluntary” wellness programs.
Foxx’s HR1313, known colloquially as the Employee DNA Full Disclosure Act, would override this common-sense federal court decision. Worse, it would allow employers to force not only employees but their children into these programs. And not just prying, poking and prodding them, but collecting their DNA as well. Yep, your children’s DNA is fair game if this bill passes. It is so onerous that even much of the wellness industry opposes it, though they stand to benefit from it.
It is headed for a floor vote sometime this spring, having been voted out of her committee on — get ready — a straight party-line vote. (So much for the GOP standing for individual rights.)
Jenny Marshall fights back
Jenny has posted a summary of this bill right on her campaign website. Asked for a comment, she replied: “Foxx’s bill could very well be the worst proposed legislation in the history of Congress. Its intrusiveness would make Orwell blush. I can’t figure out why she would want to invade the privacy of her constituents like this, other than raking in big dollars from lobbyists. For too long now, Foxx has turned a deaf ear to the wants and needs of the people of our district, and for that betrayal should be voted out of her seat.”
If this bill passes, the very stable geniuses at “outcomes-based” wellness vendors like Bravo, Interactive Health, Wellsteps, Corporate Wellness Solutions, and Staywell will be able to trample employee rights to privacy, fine them and harm them — for no reason other than to enrich their own coffers, and those of their corporate overlords. Absent this legislation, millions will be thrilled to be freed from their anti-employee jihads on December 31 — and employers can find kinder, gentler conventional programs, a la Redbrick or unconventional ones like Limeade (and/or Quizzify, of course) instead.
The way to keep this bill from passing? Vote Foxx out of office. Shed no tears for her. She will get a lucrative job, possibly representing the American Benefits Council in their quest to collect fines from employees — just like she does now.
Only starting in 2019 her paycheck will come directly from them, as opposed to indirectly, as it does now.
OK, this time I’m not the one causing the kerfluffle in the wellness industry, though I will confess to being a force multiplier.
Not since 2014, when the very unstable morons at the Incidental Economist made fun of the very stable geniuses who give out the Koop Award and also unequivocally concluded wellness loses money — combined with continued fallout from the Penn State debacle and the Nebraska scandal — has the wellness industry had such a bad year. And it’s only February.
Let’s review what’s happened so far in 2018. First, a federal judge ruled that voluntary wellness programs need to be — get ready — voluntary. The EEOC’s responded with the legalese equivalent of: “Fine, be that way.”
Next, WillisTowersWatson did something that might get them in hot water with the very stable wellness industry leaders: they were honest. They published a study revealing that employees hate wellness even more — way more — than they hate waiting for the cable guy to show up.
Finally, the very unstable National Bureau of Economic Research conducted a controlled study finding basically no impact whatsoever of a wellness program. More importantly, they specifically invalidated the “pre-post” methodology. Even more importantly, they specifically invalidated 78% of the studies used in Kate Baicker’s “Harvard Study” meta-analysis.
Here is an interesting piece of trivia. The lead researcher is an assistant professor at the Harris School of Public Policy. Why is this interesting trivia? Because Katherine Baicker — the Typhoid Mary of Wellness, whose THC-infused 3.27-to-1 ROI is the basis for essentially every subsequent genius wellness outcomes claim — is now the dean of that very same Harris School. I’m just guessing here, but I’d say it’s gotta be a trifle embarrassing when your own subordinate publicly disproves your own study. I mean, it’s one thing for me, RAND, Bloomberg, and anyone else with five minutes, internet access and a calculator to do it, but…your very subordinate?
On the other hand, the researcher, Damon Jones, just demonstrated not just amazing competence, but amazing integrity as well. In other words, he has no future in wellness.
The Wellness Empire Strikes Back
How does the wellness industry respond to these smoking guns threatening their entire revenue stream? Apparently, there is little cause for concern on their planet.
Let’s start with America’s Health Insurance Plans (AHIP), the health insurance industry lobbying group. Here is AHIP’s oxymoronic Wellness Smartbrief (January 26), on the NBER research. Yes, it summarizes the same wellness-emasculating study as the one above, though you could never guess it from the headline:
Continuing, AHIP said:
Offering incentives for completing wellness activities might be more cost-effective than offering incentives for wellness screening, a recent study of a comprehensive program found.
Perhaps AHIP has been infiltrated by Russian trolls, because here’s what the NBER article actually said about “completing wellness activities”:
We…do not find any effect of treatment on the number of visits to campus gym facilities or on the probability of participating in a popular annual community running event, two health behaviors that are relatively simple for a motivated employee to change over the course of one year.
Wellness programs might attract mostly employees who are already fitness-conscious, but the potential to attract healthy employees whose medical spending is already low could nonetheless be a boon to employers, the researchers found.
And on the subject of “the potential to attract healthy employees” being a “boon to employers,” the authors actually said:
We further find that selection into wellness programs is associated with both lower average spending and healthier behaviors prior to the beginning of the study. Thus, one motivation for a firm to adopt a wellness program is its potential to screen for workers with low medical spending. Considering only health care costs, reducing the share of non-participating (high-spending) employees by just 4.5 percentage points would suffice to cover the costs of our wellness program intervention.
In other words, you can apply some workplace eugenics to your company by using wellness to weed out obese employees, employees with chronic or congenital diseases, and so on. Good for you!
Soon, if AHIP and others have their way, there will be no need for guesswork in eugenics: employer wellness programs will be able to screen these employees out based on their actual DNA.
AHIP’s take on AARP v. EEOC
And now, AHIP’s take on this landmark case, their ace reporters scooping everyone with this February 2 headline on the December 20th court ruling:
Here are more typical headlines on that court ruling, headlines that came out the same month that the court ruling came out. Perhaps AHIP used the interim six weeks to focus-group various verbs until they settled on…tweak???
AHIP: It’s not just the headlines
One prominent healthcare executive recently attended an AHIP conference and reports:
I just returned from one of the dumbest meetings I’ve ever attended in Washington. Report of a new “study” by AHIP. Turns out people don’t mind health costs all that much, they just want more benefits. And everything is hunky-dory with their health plans, people like them so much. They love wellness benefits and crave more. Prescription drug prices have been nicely controlled thanks to the competitive marketplace (no, I am not making this up or exaggerating for drama). For every $1 employers spend on benefits workers get $4 in value. Priorities for SHRM rep: Fitbits for all employees, solving the outrage that only 20% of her employees got an annual physical. 85 cents of every dollar spent on health care goes to chronic disease.
Over these same two hours, I’d estimate about a thousand employees were misinformed, harmed or harassed by wellness vendors, roughly equal numbers of employees got useless annual checkups, employers spent about $200-million on healthcare and 40 people died in hospitals from preventable errors. But I’m being such a Debbie Downer! I’m going home to read Why Nobody Believes the Numbers to remove myself from this alternative universe.
Enter the Health Enhancement Research Organization (HERO)
HERO’s Prevaricator-in-Chief, Paul Terry, is demonstrating his usual leadership abilities in this crisis, of course. After all, HERO is the wellness industry trade association and these three items — the NBER invalidating their product, employees hating their product, and a federal judge forbidding them to force employees to use their product — represent existential threats to his “pry, poke and prod” members.
Teddy Roosevelt said, “complaining about a problem without posing a solution is called whining.” It’s a quote that also reminds me why I’ve not thought of angry bloggers who target health promotion [vendors] as bullies. Though they relish trolling for bad apples, their scolding is toothless, more the stuff of chronic whiners.
I suspect he is talking about me here as the “chronic whiner” who is “scolding” them. Or perhaps he is referring to the “angry bloggers” at the Los Angeles Times, the New York Times, Slate, or STATNews, since those “toothless” publications seem to be scolding wellness vendors more than I ever have. For instance, I’ve never called wellness vendors’ offering a “scam” or a “sham.” I simply quote these very stable wellness geniuses verbatim, as above or below, or last week.
Being quoted verbatim, not angry bloggers, is their worst nightmare. (One thing I would concede, though, is that “Paul Terry and the Angry Bloggers” would be a great name for a rock band.)
Yep, looks like the implosion of his industry all my fault. Otherwise, I’m not quite sure who is the “angry blogger” he is referring to, other than to note that Mr. Terry himself seems to blog a tad angrily himself, both above, and here…
Why I choose to ignore the blogger critics: We’re fortunate to work in a profession with a scant number of vociferous critics. My take is that there is one thing these few angry loners [Editor’s note: the complete “scant list” of the 220 “few angry loners” who have been “vociferous critics” can be found here] want more desperately than attention: that’s to be taken seriously. What they fail to comprehend is that as they’ve gotten ever more farfetched and vitriolic in search of the former, they’ve cinched their inability to attain the latter.
Baiting people with misinformation and offensive insults (but just a tad under highly offensive) is a pesky ploy that trolls hope will eventually land a bite that confers credibility where there is none. Even reading such drivel is a form of taking the bait; responding is swallowing it whole. Some say dishonesty should not go unchallenged and I respect their view; nevertheless, I’m convinced responding to bloggers who show disdain for our field is an utter waste of time. I’ve rarely been persuaded to respond to bloggers, and each time I did it affirmed my worry that, more than a waste, it’s counter-productive.
…and especially here, a seemingly incongruous decision to “act out” by someone who claims to be “choosing to ignore the blogger critics.”
Having read years of my “drivel” alongside Mr. Terry’s posting explaining why you shouldn’t “swallow this bait,” perhaps readers might opine here: which of us, exactly, is the “chronic whiner”?
Coincidentally, when I run live health-and-wellness trivia contests, the first of our 3 rules is: No Whining. Seems to me that he would have just violated it. Indeed the only rule HERO hasn’t violated so far is #3 below. Not that I want to put ideas in their head.
Clear your calendars, call the kids, wake the neighbors. This will be a great AARP v. EEOC webinar. How do we know this? Simple: they are charging non-members money. $30, to be exact. That $30, and the extended, hour-long time allotment, assures all your submitted questions will be answered.
This one is free, and is also an hour. It will offer live Q&A as well. It is much more about the solution — how to make AARP v. EEOC a non-issue by getting your vendor to indemnify you — than the problem. So if you are already aware of the problem and want to solve it posthaste, this is the webinar for you.
Articles and other resources by vendors.
These have been surprisingly hard to come by, and the silence from vendor trade organizations is itself data. These people know there is really no good news for so-called “pry, poke and prod” vendors, other than that their customers can indemnify themselves through Quizzify.
- Bravo’s summary of the pending changes in the rules
- Same summary, but annotated with adjustments for accuracy. While we agree with their concerns, their solution falls short of the Quizzify solution, which is to have your vendor indemnify you. I’m not sure why they don’t offer a one-stop solution like that.
Articles by commentators other than me
Because Quizzify knew this decision was coming and designed the product to be a one-stop solution to achieve 100% compliance with whatever the new rules (if any), most of the interpretative “what does this all mean” articles are indeed by me. However, others have weighed in:
- A federal judge takes aim at “voluntary” company wellness programs that invade your privacy Pulitzer Prize-winning syndicated columnist Michael Hiltzik commentary in Los Angeles Times essay.
- Vacating an EEOC rule on wellness programs. The New York Times-affiliated The Incidental Economist provides a good historical perspective on how this decision came to be.
- Wellness Companies React to EEOC Rule Upheaval. Workforce’s Andie Burjek is following developments closely. This vendor-on-the-street reaction piece is one of several she will likely do.
- AARP wins victory for workers’ civil rights. This is AARP’s own blog on the subject.
- Wellness incentives are not dead yet. This is by Barbara Zabawa, who is our wellness attorney — and should be yours, to prevent employee lawsuits in 2019, unless you get the Quizzify indemnification. It’s a great summary, but it preceded the January 16th motion described below, in which the EEOC agreed that these programs should be “voluntary.” As a result of preceding that motion, her view of what constitutes acceptable incentives starting in 2019 is likely overly optimistic.
Articles by me
- Surprising court decision may disallow most wellness incentives. This Employee Benefit News article is largely a Q&A so it’s a good place to start.
- On the contrary, it is almost time to panic. This Shortlister piece should be read in conjunction with the more optimistic Zabawa piece. You can draw your own conclusions. (This opposing view had the advantage of publication after the EEOC’s January 16 motion, unopposed by AARP, asking if they were allowed to wash their hands of rule-making.)
- Five of the most striking observations on AARP v. EEOC. These are five things to keep in mind.
- Five big problems caused by AARP v. EEOC…and one huge solution. This Corporate Wellness issue covers the problems you may face, and the easy, one-step Quizzify solution for them.
- Don’t panic over AARP v. EEOC: Quizzify has your back. Quizzify’s unique AARP-v.-EEOC indemnification gives Quizzify customers and partners their own “safe harbor,” covering not just Quizzify but their entire wellness program provided Quizzify is an option. This article describes how Quizzify solves your problem, period.
Summaries of the Decision
These are all written as news articles rather than opinion, and pretty much all say the same thing:
- AARP v. EEOC: Motion to Vacate Granted
- EEOC’s Wellness Rule to be Thrown Out in January
- EEOC’s Wellness Rules to be Vacated
The follow-up January 16 motion by EEOC
Some people believe that the EEOC actually intends to publish rules by January 2, 2019. While we have no crystal ball, here are some articles describing EEOC’s most recent motion filed January 16, plus a quote from the Justice Department on behalf of EEOC. Draw your own conclusion as to whether this sounds like an agency that is prioritizing wellness rule-writing.
- Judge won’t set EEOC schedule on wellness program rules
- Government wins some freedom for any wellness plan re-do
- EEOC resists judge’s deadline to craft rules for employee wellness programs
Highlight of ruling: “It would also be permissible for the EEOC to decide never to issue such regulations, or for the EEOC to study the issue for several years before commencing a new rulemaking,” the U.S. Justice Department said on behalf of the EEOC.
The actual court decision and follow-up motion
Actual language on “Voluntariness”
There is some difference of opinion on what constitutes a program being “voluntary,” starting in January. It might be helpful to review what Judge Bates said…
A 30% penalty for refusing to provide protected information would double the cost of health insurance for most employees. … At around $1800 a year, this is the equivalent of several months’ worth of food for the average family, two months of child care in most states, and roughly two months’ rent.
…and what EEOC conceded…
Even after [the current rules are struck from the Code of Federal Regulations, for example, the ADA regulation will still require participation in wellness programs to be voluntary … the regulation will simply no longer provide a specific safe harbor for particular levels of incentives.
…before concluding that high incentives are going to be allowed in the future, as wellness vendors are wont to conclude.
Bravo just sent its webinar summary out. We are repeating the relevant sections here. Our comments are in boldface. Since their headings are also in boldface, I’ve slipped a line-break under each of ours. That’s one way of distinguishing our from theirs. Also ours are red, and are right.
Breaking news (at least relative to “breaking news” on other wellness websites”): If you have missed other webinars on this topic, try this one. We’ll have the full hour, AND your questions will be answered. (Oh, yeah, it’s also $30. Still, worth every penny.)
Hear the dialogue between Conduent HR Service’s Global Practice Leader Tami Simon, expert practice leader and Partner from Alston and Bird John Hickman and myself regarding the history of the regulations, potential next moves by the EEOC and practical steps employers and health plans may consider. Clearly nobody has a crystal ball and nothing is final but it’s always prudent to start thinking about your next move based on the most likely scenarios.
Yes, the most likely of which is that there will be no safe harbor as of January (other than indemnification offered by vendors such as Quizzify). Anybody care to take bets on this?
- AARP v EEOC – 2017
- The AARP took exception with the rules and sued the EEOC, arguing that the 30% limit could be a significant cost to employees (particularly for those with rich employee benefits). In response to the suit, the court asked EEOC to support the justification for selecting the 30% limit, but their response did not satisfy the judge. The limit was viewed as “arbitrary and capricious”.During the webinar, John Hickman raised the point that an employer or health plan business group could have just have easily argued that the 30% was arbitrary and capricious because it was too low (rather than too high).I think this is particularly true for those participating in the voluntary employer-sponsored health plan when the plan still meets all minimum coverage and affordability requirements regardless of a person’s choice to participate in the wellness program. (The AARP didn’t seem to have a problem with the rules impacting health plan participants for the 8 years prior to the EEOC regulations.)
- EEOC Regulations – 2018 / 2019
- At this point, the court has indicated that the 30% portion of the EEOC regulations (and only this portion) shall be vacated as of 1/1/2019. The EEOC has indicated that they may do one of the following:
- Issue new guidance or
- Take a wait-and-see approach, choosing to study the issue further or await the resolution of potential appellate proceedings.
- At this point, the court has indicated that the 30% portion of the EEOC regulations (and only this portion) shall be vacated as of 1/1/2019. The EEOC has indicated that they may do one of the following:
Reading the January 16th motion in which EEOC moved to be released from the timeline for new rules, it appears that the second item is by far the least likely, which would mean: no safe harbor. Employees can sue.
So, what does this mean?
First, it’s important to note that this does not impact all wellness programs nor all incentives. The potential risk applies only to incentives that require the completion of an exam and/or the response to disability-related health inquiries.
If your program does require the completion of an exam and/or a response to a disability-related health inquiry and currently complies with the regulations, you shouldn’t be concerned with enforcement action this year. You should, however, start thinking about the potential need to eventually offer all non-participants and individuals who did not receive all the incentives a chance to earn the amounts they missed by completing other activities that don’t require an exam or them answering the disability-related questions.
In other words, use Quizzify, which does exactly this.
While this will lessen the focus of the program on inspiring personal achievement and incenting individuals to work with their doctor on personal improvement….it might be the right course depending on the risk-tolerance of the employer.
Raise your hand if you think your employer’s “risk-tolerance” extends to being sued in order to continue to harass employees by flouting clinical guidelines, when it is now proven beyond doubt that there are no benefits to forcing employees to lose weight or achieve any other outcome, while losing money in the process.
Translation: in other words, if your risk tolerance is like every other employer’s, use Quizzify.
Let’s discuss for a bit what it even means that the 30% rule could be vacated.
- I am personally aware of several large insurers and business groups that feel vacating the 30% rule gives them greater flexibility and basically would backfire on the AARP. What’s the logic for that position?
- Three court cases (Seff, Orion, Flambeau) were asked to answer the question of “voluntariness” prior to the EEOC providing the 30% guidance. In two cases, the court ruled that the question was irrelevant because the ADA already included a safe-harbor for health plans to make health inquiries in an effort to predict and reduce future claims costs. In the third case (Orion) the court concluded that even 100% of plan premium as an incentive would be viewed as “voluntary” because an employer sponsored health plan itself is voluntary and even a hard choice is still a choice. Note: this argument wouldn’t be applicable for those offering cash incentives or penalties to individuals not enrolled in the health plan.
So their idea is that the judge just wrote an impassioned decision explaining why current “voluntary” incentives and penalties are way too high, but you should rely on old case law that gave a different answer, which is that “voluntary” incentives and penalties can be much higher still, up to 100%.
And speaking of “as many words,” as with most wellness vendors, Bravo’s words are its own worst enemy, and may come back to haunt them. “A hard choice is still a choice.” If you say: “Here is the health plan you are entitled to by law. But now you have to fork over your personal health information or we’ll take it away,” that’s a threat, not a voluntary offer.
A threat is an offer you would rather not receive. Threatening to take your healthcare away would seem to fit that category.
- Again, within the health plan, it’s difficult to argue that the authors of the ADA, while trying to protect the rights of disabled individuals, intended to prevent a health plan from offering a discount to people who proactively take part in recommended age/gender screenings or make steady improvements in their wellbeing. I certainly agree that protecting the rights of the disabled, keeping health records private, keeping health records completely separate from employment records and applying tight security requirements regarding health information are crucial elements that should be paramount. They already are (within the health plan) and therefore should be permitted regardless of the ADA.
Except that the judge quite wisely noted that switching employees to a high-deductible plan and them making them earn back the deductible by submitting to forced wellness is a threat coupled with a take-away, not an “offer of a discount.”
- Others believe that vacating the rules means that no incentive can be offered at all in conjunction with a health exam or disability related inquiry.
I don’t know of anyone who believes this. Probably a couple hundred dollars would be considered voluntary.
- While it’s difficult to predict the enforcement actions of particular EEOC offices, most experts close to the issue concur that the EEOC would be unlikely to bring enforcement action against an employer who stayed under the 30% level it had previously provided as a safe harbor. That said, even a highly winnable case brings expense, distraction and PR implications that many employers may simply choose to avoid.
Bravo might recall the immortal words of the great philosophers at eSurance:
While the EEOC is, of course, unlikely to bring an enforcement action itself, that’s not how this works. Here is some news for Bravo: the EEOC can’t keep employees from suing. Employees can and likely will sue, if WillisTowersWatson’s employee survey is any indication. We ourselves have already been contacted by two who have excellent cases…and it’s only February.
- Incentives for Health Screenings: Although some employers may choose to eliminate incentives for health screenings, far too many of our employer-group clients have seen tremendous results through the early detection of serious issues.
“Tremendous results” like these, where it turned out that Graco employees being screened by Bravo had worse trends than their children who did not even have access to the screens? (Bravo took this case study off their website and now only offers a “summary” that leaves out the part where they lost money, not unlike Interactive Health did after we pointed out that none of their numbers added up.)
- They have created a positive cultural movement by rewarding even modest improvement as individuals take meaningful actions.So to me, this is simple. Either you believe that identifying and reducing health risks is important or you don’t. Like most things, if you don’t measure it, people don’t really think you value it. The key for being compliant, if you want to eliminate virtually all risk from an ADA standpoint, is to make sure you are also offering alternate ways that employees (who prefer to not participate in the screening) can still earn the full incentive being offered. Bravo already offers many of these alternative options (including online health courses, group challenges etc.) and we still typically see the vast majority of employees choose the screening instead of those alternatives.
Given the choice between having the stuffing screened out of them and “alternate way,” he is saying “the vast majority of employees” would prefer screening. Perhaps that says more about their “alternate ways” than it says about the screening.
Care to make it interesting, Mr. Pshock? If Quizzify is the “alternate way,” I’ll give you odds that you’d see the opposite in any employer setting, just like Quizzify does.
- Bravo has long advocated that these are great “and” programs not “or” programs. Saying you only need to focus on your culture, health education or stress reduction instead of physical health risks is like saying you don’t need a hat and coat for the cold weather, you only need boots. Yes, you need boots…. but it’s an “and” not an “or’.
Um, could it be that Bravo has “long advocated” screens because they sell screens? And is there any entity that does NOT sell annual screens that recommends annual them? USPSTF? No. Consumer Reports? No. Choosing Wisely? Nope. New England Journal of Medicine? Haha, good one, Al.
- Share your story! There are plenty of critics and articles with examples of poorly designed wellness programs that didn’t produce the results someone thought they should have. I’ve never seen one example that I was surprised by. Typically, the incentives are too low and they are tied to a very simple activity that may or may not motivate someone to actually change behaviors. Conversely, we’ve seen many examples where a meaningful reward, associated with realistic and achievable improvement goals determined by a person’s own physician and combined with tools, resources and programs for total wellbeing that help people succeed result in high engagement, positive morale, measurable health improvement and cost reduction that meets or exceeds program goals.There are thousands of intelligent wellness plans in the market today, the challenge is we don’t focus on sharing them publicly. Consider sharing your story! We’d be happy to support your application for recognition and/or your efforts to educate law makers and regulators regarding the success you’re experiencing. Share your story here.
Or perhaps here is another possible explanation for the “challenge” of why you “don’t focus on sharing them publicly” any more. It’s because all the outcomes are made up and generally self-invalidate (like Bravo’s in the since-removed study), and vendors don’t want to be embarrassed. That’s why the number of Koop Award applicants fell from 21 to 3. (Ron Goetzel said that decline was due to the application being “stricter,” but the application has been identical for 20 years.)
- Fight for your employees.
Isn’t that what AARP just did?
- I applaud the AARP’s efforts to protect older workers from coercive tactics an employer may use to gather sensitive health or genetic information about them. This can easily be accomplished by limiting the use of incentives to cost-sharing adjustments within a health plan that already has:
- affordability requirements
- minimum coverage requirements and
- strict privacy and security requirements
- The vast majority of employees earning rewards for things like being tobacco free, controlling blood pressure, managing glucose and A1c levels and avoiding metabolic syndrome should be rewarded for their achievements! How is the elimination of their rewards (which will simply serve to raise the cost and lower the take-home pay for the majority of program participants) a good thing? It is not safe to assume that tying employer hands on incentives will mean that everyone who previously failed will now just get free money. In many cases, the only place that money will come from will be the pockets of the employees who had been earning large incentives. I’m not sure the AARP has really thought this through.
No one is advocating taking money from employees. And on paper all those outcomes are all great, but “outcomes-based wellness” has failed to achieve them in spectacular fashion, according to not just the National Bureau of Economic Research but also even according to an honest wellness company.
Why not simply make the very same awards available for either screening or else doing things that work, like Quizzify does, in equally spectacular fashion according to the employees themselves? It seems like you would agree this is a great solution. Plus the indemnification means no one has to be concerned at all with employee lawsuits.
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.