They Said What?

Home » AARP v. EEOC

Category Archives: AARP v. EEOC

Wellness vendors foresee “Wild West of Litigation” in 2019

Four of the most stable genius vendors in the wellness industry have penned a letter to Montana’s junior senator, in which their usual wellness savings propaganda — contrary to all evidence, of course — ends with a plea to confirm EEOC appointees who they hope will institute new rules by January designed to allow them to continue to harass employees in order to enhance their own revenue streams.

Being wellness vendors, naturally they got the facts wrong. Even if a new chairperson were appointed, the EEOC has already said it won’t issue rules by January. Besides, the idea of just adding a staff member and then immediately issuing rules is ludicrous. Anyone with any insight into how the rulemaking process works knows that’s not how the rulemaking process works.

Facts and insights are two of the many things wellness vendors have trouble comprehending, along with data, integrity, math, and — as we’ll see below — irony. (And, also, as we’ll see below, wellness.)

Their specific language:

Without clear guidance from the EEOC, we fear a Wild West of litigation could re-emerge as did it prior to the EEOC guidelines…jeopardizing programs that are improving the health of America’s workforce.

For months, we have been urging companies to take an obvious and painless step — requiring no government regulation or intervention or plaintive pleas to seemingly random junior senators from seemingly random states — to insulate themselves from this pending “Wild West” litigation.

Specifically, by offering alternative vendors such as Quizzify to indemnify themselves from this possibility, employees save money immediately and educate employees at the same time they avoid liability.

Having to offer Quizzify would be these vendors’ worst nightmare (since most employees would much rather learn something useful than be screened and told to eat more broccoli), and yet the letter’s four signatories are probably the four vendors most likely to be sued by employees if they don’t offer Quizzify as an alternative. Let’s look at each in turn.


Bravo Wellness

Bravo is the only vendor in the wellness industry to publicly brag about how much “immediate employer cost savings” can be obtained by fining employees who decline to have the stuffing screened out of them in violation of all US Preventive Services Task Force guidelines. Of course, Bravo’s program itself saves no money according to its own findings. There is also a question about their financial solvency, since they apparently can’t afford an internet connection.


Health Fitness Corporation

Health Fitness Corporation (HFC) bragged incessantly about its “life-saving, cost-saving catches” of 514 Nebraska state employees who had cancer. This was fairly easy to accomplish because it turned out, as HFC later admitted that they didn’t have cancer in the first place. (Ron Goetzel kindly forged a portion of a letter from Nebraska’s Governor to replace the old braggadocio with the new admission. I have to give him credit for loyalty here. He was willing to risk a felony charge in order to support his friends.)

Bragging about how many sick employees they hyperdiagnose is a pillar of the wellness industry.  In this case, HFC found all these false positives likely because they “waived” screening guidelines so that anyone of any age could get a colonoscopy, and sent out solicitations featuring a model way too young to be indicated for one.

“Waiving” screening guidelines is the wellness industry equivalent of “waiving” the minimum age requirement for a driver’s license. Fortunately for the very stable geniuses in the wellness industry, there is no regulation requiring wellness vendors to understand what they are doing, and they take full advantage of that loophole.

age related colon cancer screenings

HFC also saved 20% on a wellness program with Eastman Chemical. This was also quite easy to accomplish because it turned out they didn’t even actually have to implement the program. Simply splitting the group into participants and non-participants did the trick. As you can see from their Koop Award application below, the program already “saved” about 20% between 2004 and 2006 during the baseline period, before they started giving employees the aptly named “treatment.”

The Incidental Economist was very impressed with this study design. (Not!)  But I’ll tell you who really was impressed: Ron Goetzel. He gave HFC Koop Awards for both studies. For those who are not familiar with the it, the Koop Award recognizes the most stable geniuses in the wellness industry who are also sponsors of the Koop Award.


Wellness Corporate Solutions

Along with whining about how “shrill” I am (examples being…?), Wellness Corporate Solutions is worth “siting” (add English to the list of things wellness vendors don’t understand) for its crash-dieting contests, in which employees binge and then starve themselves to win prizes. Lately they’ve added a new twist: water-drinking contests. Obviously the first is bad for you. Overhydration turns out to be a bad idea. It doesn’t exactly enhance your productivity, if you catch my drift. Oh, yeah, and you also have to make sure you don’t die.


Viverae

Viverae may or may not harm employees. Obviously it fabricates its savings (claiming a $739/employee savings on a health score improvement of 2.4% creates an industry-leading Wishful Thinking Multiplier of 307), but catching a vendor lying is dog-bites-man in this industry. The more amusing thing is their “savings guarantee” which, this being the wellness industry, doesn’t guarantee savings for many reasons, not the least of which is there are none. You also have to “require” employees to submit to screens. No wonder they are worried about being sued.

Here is a guarantee of my own: I guarantee (and will put all consulting fees at risk) that I can prove that if Viverae says you saved anything, you didn’t.


Here’s another guarantee: while hiring these wellness vendors may very well get you sued, this one flyer (plus the Quizzify indemnification) will prevent that from happening.

 

 

BenefitsPro urges employers to take action now on 2019 wellness rule change

In the immortal words of the great philosopher Yogi Berra, it’s tough to make predictions, especially about the future.

Image result for yogi berra

However, in this case the future is pretty easy to predict: The EEOC “Safe Harbor” for clinical wellness programs ends in less than 6 months, period. Time is running out in the race to put non-clinical options in place in 2018 (to drive the 2019 premium differential)…and yet many employers, thanks to the obfuscation of their “pry, poke and prod” vendors, don’t even realize the race is on.


Problem is, too many employers listen to their wellness vendors, who largely seem to be missing the gravity of this situation altogether. Mind you, these are the same very stable geniuses who also managed to miss the rehabilitation of eggs, fats, and dietary cholesterol, the entire opioids epidemic, and the part of fifth grade where the teacher explained that a number can’t go up and down at the same time. So naturally they are on track to miss the biggest wellness event since the passage of the Affordable Care Act.

By contrast, the most recent BenefitsPro just devoted its lead article to this impending event. Main takeaways:

  1. Employers are “not likely” (that’s an understatement) to see EEOC rules allowing a safe harbor to be put in place for 2019, and therefore they are “in limbo.”
  2. “Should employers continue with current programs, considering the risk of EEOC enforcement or private legal action, or should affected employers come up with a plan B?”
  3. Plan B should include “indemnification options” by vendors such as…hmmm…let’s take a looksee at who they recommend…ah! Quizzify.
  4. Screening doesn’t work anyway, so why do it when it could just create liability absent that indemnification?

There is, they added, some further urgency because “it’s unclear whether safe harbor protection will be removed from 2019 premium differentials based on 2018 screenings, or only based on 2019 screenings and health reimbursement accounts.” In other words, you need to get your screening-alternative plan in place now, or else you may lose the entire premium differential in 2019. (Meaning an employee can obtain the best health plan option even if he/she refuses to be screened in 2018 and you didn’t offer Quizzify as an alternative, to render the screening voluntary.)

Of course, as in every other article about the EEOC rules, it is de rigueur to quote a screening vendor urging employers to keep their heads firmly anchored in the sand. In this case, the quoted vendor is urging employers to “continue to be compliant with the existing regulatory environment and monitor developments.”  (At least this is better than Bravo, which accused us of spreading “rumors, chatter and fiction” about the 2018 sunsetting. Our crime? The same as usual in wellness: we were honest and accurate, two adjectives that could never be applied to most wellness vendors.)

The problem with this quoted vendor’s sentiment?  There are no “developments” left to “monitor.” The EEOC has already said what it intends to do to preserve the employer safe harbor in 2019 (nothing), leaving employers who want a safe harbor no alternative other than to seek indemnification, such as Quizzify’s.

Therefore, regardless of what screening vendors want you to do (which is more screening, surprisingly), learn what is certain to happen in 2019. Otherwise you’re flying blind. And in the immortal words once again of Yogi Berra, if you don’t know where you’re going, you’ll end up someplace else.

These three minutes will make you an expert on the new EEOC rules

Rarely can you become an expert in something in 3 minutes but then again rarely is there a wellness vendor as cool as Wellable.  Their 3-minute “Whiteboard Wednesday Wellness Minute” will show you how to make lemonade out of this EEOC lemon.

And you’ll see why it is so easy for Quizzify to indemnify the whole ball of EEOC wax

 

Warning: Workplace Wellness Can Be Hazardous to Your Health

Sometimes we bring up the many ways in which conventional outcomes-based “pry, poke and prod” wellness programs harm employees. For the first time, we are putting all those harms in one place, a hand clip-and-save guide for journalists, regulators, and legislators.

This series now includes three. First is The Outcomes, Economics and Ethics of the Workplace Wellness Industry. The good news about this one is its exhaustive comprehensiveness in covering the industry’s misdeeds, garnished with 400 linkable footnotes. The bad news is it was published more than 9 months ago, too soon to capture the most recent swarm of misdeeds. For example, it predated Interactive Health’s scorched-earth screening program, designed to leave no employee undiagnosed. (This is literal — according to their own data roughly a quarter of employees discover “new conditions” every year. So in 4 years, every employee, on average, gets one new condition.)

The next was an expose of the economics of wellness, a compelling, fully sourced and linked proof that the whole pry, poke and prod endeavor served no economic purpose beyond enriching pry, poke, and prod vendors. (Screening according to guidelines, should a vendor ever choose to do it even though it would require sacrificing two-thirds of revenues in the name of integrity, would be exempted from this conclusion.)  That’s because there is no chance that vendors “playing doctor” at work saves money.


Confucius observed that an mistake that remains uncorrected after being pointed out becomes a lie. Using that definition, two-thirds of the wellness industry –– including the Koop Award Committee and the Health Enhancement Research Organization — is lying, as they are fully aware that their very stable economic genius fantasies are nothing more than the stuff dreams are made of. That also explains why the $3 million reward for showing wellness is not an epic fail remains unclaimed.


The Hazards of Workplace Wellness

This whole thing would be hilarious were it not for all the harms and hazards of workplace wellness visited on employees who are forced to choose between, as Judge Bates noted in his epic decision in AARP v. EEOC, paying two months’ rent or forfeiting that sum by submitting to needles wielded by unlicensed, unregulated and unsupervised wellness vendors. Employees should never be forced into clearly unhealthy situations at work, at least without the hazards being disclosed, and yet, today’s American Journal of Managed Care posting covers six hazards employees face as they navigate the shoals of workplace wellness:

  1. Actual, well-documented, harms to an exposed population
  2. First-person case studies and reports
  3. Crash-dieting-for-money risks
  4. Flouting of established clinical guidelines
  5. “Hyperdiagnosis” leading to unneeded medical care
  6. Incorrect or potentially harmful advice that employees are told to take

 



All of this is covered in one place this month — and is totally worth the read.

Not if you don’t have a license, aren’t required to understand what you are doing, and can force employees to harm themselves or lose money

 

 

 

 

 

 

It’s official: No EEOC Wellness Rules Will Be in Place by January

It’s official: No new EEOC rules in place by January.

Prior to a few days ago, there were competing visions about whether the EEOC would publish new rules by January, preserving the “safe harbor” to prevent employee lawsuits, or whether they were going to miss the deadline or pass altogether. As is invariably the case when we say the opposite of what a wellness vendor says, our vision won the competition. We predicted this would happen, while Bravo Wellness, taking the lead in attempting to protect the forced-wellness revenue stream, accused us of spreading “rumors, chatter and fiction,” by accurately predicting this would happen.

The EEOC are a smart and committed group. Knowing what they know now about the outcomes and harms of wellness, there is no way they would rush into writing rules forcing employees to submit to unregulated programs run by unlicensed vendors on unwilling subjects, given the tremendous failure rate of these programs, especially following the expose of deceptive and harmful industry practices.

The implications will be covered in Quizzify’s webinar Wednesday May 16: The Pending EEOC Wellness Rule Changes: How Quizzify turns Lemons into Lemonade 

To cut to the chase, the only — and it looks like we do mean only — safe harbor available come January will be Quizzify’s. Otherwise, if you have a “pry, poke and prod” program with high penalties or incentives, you will be open to employee lawsuits because there will be no new rules by then.

The only thing the EEOC will have by January is the Notice of Proposed Rulemaking.  It will then take a while after that before the rules are actually proposed, and then commented upon, and then implemented.


Or, you could solve everything, right now, by offering Quizzify’s employee health education curriculum side by side with your existing wellness program. You’ve taken health risk assessments. Now play some Quizzify questions right on the home page. How can an employee learn more from the former than the latter? (Plus as noted, advice on HRAs is often if not usually wrong.)

Register at the link above for more information.

AARP v. EEOC update: March 30 “progress report” issued by EEOC

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.

 

 

 

 

In Kansas City, yet another candidate runs against forced wellness

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.

%d bloggers like this: