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:
    • Nothing.
    • Issue new guidance or
    • Take a wait-and-see approach, choosing to study the issue further or await the resolution of potential appellate proceedings.

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.