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Unless you follow the EEOC very closely, you are likely unaware that the Biden Administration is putting the kibosh on conventional “pry, poke and prod” wellness programs.
Here are six things about this kibosh that will be covered in today’s webinar at 1:00 EST.
- Your Safe Harbor is kaput. If your program has a strong clinical component, you are out of compliance, period.
- The AARP v. Yale decision, likely within the next 8 weeks, will arouse the plaintiff bar, and we can expect more lawsuits.
- At the very least, that decision will spur many more EEOC administrative hearings/sanctions. While financial exposure there is very limited, the career-limiting embarrassment of being caught out of compliance for two years is not.
- How sure are we that the court will rule against Yale’s program? Quizzify is offering to double our contract lengths free to anyone who signs up before that happens, if we are wrong.
- There will be no “grace period” or “transition period.” In the 2017 AARP v. EEOC case, the judge stayed compliance until January 2019. The grace period train has left the station.
- If you don’t attend, you’ll be one of the few people who aren’t. 800+ people are already signed up.
This webinar will show you how you can easily comply within days…and immediately make your program more effective and more engaging. All with no changes to incentives, penalties, clinical components, or even your budget.
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:
Breaking: EEOC wellness rule change now officially set…and Trump nominee withdraws, meaning no new rules coming in 2019
For the wellness industry’s “pry, poke and prod” vendors — Interactive Health, Wellsteps, Bravo, Wellness Corporate Solutions etc. — the Grinch has got nothing on the EEOC. For the second year in a row, the EEOC is spoiling their Christmas.
But wait…there’s more
And it looks like the EEOC might also miss their latest self-imposed deadline for proposing new rules, which is June 2019. (The interval from proposing rules to implementing them is measured in months, if not years.) The reason for this? The EEOC still hasn’t filled its open positions and may not have a quorum for rule-making in time to do this. Not to mention they have other fish to fry once they do.
Today, President Trump’s nominee, who would have created the quota, pulled his name from consideration. That makes the likelihood of a quorum for rule-making all the more remote.
So, as Bravo aptly put it in their letter begging Senators to allow them to continue to harass employees with forced screenings, any employer not using Quizzify’s elegantly designed indemnification or other solution faces the “Wild West of litigation” in 2019. And to these vendors I say: Happy Festivus.
The very stable geniuses at Interactive Health once again put their very good brains on public display
Interactive Health is well on its way to disproving the law of averages.
I’ve never, ever, seen them get the facts straight. This is a very hard feat to accomplish. Just randomly — or by hiring someone who might know a friend smart enough to do searches on the internet — you’d think they could stumble into an accurate statement every so often. In the immortal words of the great philosopher Rick Perry, even a stopped clock is right once a day. But we’re talking about an outfit that can’t tell the difference between a chair and a cigarette, and, speaking of cigarettes, ran a “smoking recession program.”
They also recently wrote that employers should run batteries of medical tests on their youngest and healthiest employees. Due to the likely harms of overdiagnosis and overtreatment, this “protocol” is directly contrary to what the US Preventive Services Task Force, Society of General Internal Medicine, Choosing Wisely and most recently Consumer Reports advise. But what do all those organizations know? Have they ever diagnosed an 80-pound adult as having weight in a “healthy range”? No, but someone at Interactive Health was able to figure that out without even needing to consult any outside experts.
Can Interactive Health spell EEOC?
On Tuesday (12/11), I conducted a very successful and extremely well-attended webinar for the Pittsburgh Business Group on Health, on the upcoming EEOC wellness rule change, and how to make lemonade out of that lemon, which turns out to be spectacularly easy.
An attendee wrote to me to note that a vendor had said exactly the opposite of what I said about the EEOC rule change — that it was no big deal and that employers need only be “compliant with existing regulations.” I replied that, with everything that has been published by me and others explaining the decision in lay terms, no vendor could possibly be that stupid. But after the person disclosed that the vendor in question was Interactive Health, I immediately apologized and asked for the link, which he sent:
Here is a line-by-line deconstruction of their misinformation:
“The EEOC could…reissue the same regulations but provide more appropriate justification for why a 30% incentive is reasonable and voluntary…”
The judge said the opposite: “AARP vs. EEOC’s decision means that the Equal Employment Opportunity Commission must rewrite its definition of “voluntary” to achieve consistency with the dictionary definition.” He was quite clear that forcing employees to choose between (1) suffering a 30% financial forfeiture and (2) having the stuffing screened inappropriately screened out of them by an unlicensed wellness vendor isn’t the slightest bit “reasonable or voluntary.”
Further, if anyone at Interactive Health could find someone smart enough to actually read the EEOC’s January motion, that person could explain to Interactive Health that the EEOC eventually acknowledged that the judge was right. (“The ADA regulation will still require that participation in wellness programs to be voluntary.”)
Even if they hadn’t agreed, it wouldn’t matter. If the judge says you can’t write rules allowing 30% penalties, it’s not OK to then write rules allowing 30% penalties. That’s why we have a judicial system. To determine what is OK and what’s not OK. A simple concept, covered in eighth-grade civics. Surely someone at Interactive Health has a friend somewhere who is smart enough to find someone who can explain that concept to them.
Interactive’s very stable genius is most on display with this advice:
Generally, employees must be offered choices for earning financial incentives. This includes the opportunity to pursue a reasonable alternative if the individual can establish with their personal physician or an allied health professional that the choices offered by the program are not reasonable for the employee due to a health condition.
They say in the stock market, no one is as valuable as the person who is always right except the person who is always wrong, and indeed Interactive Health has inadvertently created a teachable moment.
Here goes. The “reasonable alternative standard” is an Affordable Care Act construct. It has nothing whatsoever to do with the decision in AARP v. EEOC, which defined “voluntary” as written in the Americans with Disabilities Act (and the Genetic Information Non-Discrimination Act). If you did exactly what Interactive Health is suggesting to “comply” with this ruling, you shouldn’t even bother showing up at the trial if you get sued. Just send a check to the plaintiff.
The reason? The decision in AARP v. EEOC — and the ADA and GINA themselves– address specifically involuntary clinical wellness programs. According to those statutes, any “clinical exam or inquiry” must be voluntary. Large fines (or withheld incentives) are anything but voluntary. In their language above, Interactive Health is proposing replacing one involuntary clinical exam (by them) with another involuntary clinical exam (by a doctor) to determine that the first involuntary clinical exam would not be appropriate, and therefore the employee needs to be presented with yet another type of involuntary clinical exam as an alternative. Wrong, wrong, wrong and wrong.
To summarize, someone at Interactive Health needs to find someone smart enough to explain to the company’s employees that replacing one inappropriate test with another will not suffice to comply with a court order that says you can’t perform inappropriate tests.
Someone needs to step up. The good news is, we know there’s at least one adult in the room — that big, strapping 80-pounder.
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 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.
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 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.
In the immortal words of the great philosopher Yogi Berra, it’s tough to make predictions, especially about the future.
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:
- 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.”
- “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?”
- Plan B should include “indemnification options” by vendors such as…hmmm…let’s take a looksee at who they recommend…ah! Quizzify.
- 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.
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.
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:
- Actual, well-documented, harms to an exposed population
- First-person case studies and reports
- Crash-dieting-for-money risks
- Flouting of established clinical guidelines
- “Hyperdiagnosis” leading to unneeded medical care
- Incorrect or potentially harmful advice that employees are told to take
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
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.)
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.