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Within minutes of Quizzify’s blast email predicting that the EEOC’s rules released two weeks ago would be DOA, it is now a lock that they are toast. The White House made two announcements last week confirming this:
- They froze all non-emergency Notices of Proposed Rulemakings (not a misprint — two plurals)
- They rejiggered the EEOC, promoting the two pro-employee Commissioners to the Chairmanship and Vice Chairmanship.
This means the huge loophole in the announced rules, allowing most outcomes-based wellness programs, will be closed.
Is this an existential threat to the wellness industry? At first glance, it would seem to be. But you can join our webinar to learn so this existential lemon can be turned into existential lemonade.
Leading wellness attorney Barbara Zabawa and I are hosting a webinar on this topic on Monday, February 1st, 1:00 EST. You can register here (and get access to the recording and slides as well.) Focus will be on how to ignore the new rules, and maintain your program as is. Yep, just like with surprise bills, we’ve figured out how to game the system.
The EEOC has just released their rules for clinically based wellness programs.This step is called the “Notice of Proposed Rulemaking,” or NPRM, to be published in the Federal Register’s mellifluously named Notices of Proposed Rulemakings for public comment. “Public comment” is code for “the perps with the most to lose will flood the thread with disinformation.” Expect the US Chamber of Commerce, the vendors and Ron Goetzel and his cronies to weigh in heavily, each more shamelessly than the next. They have a lot of (your) money at stake here.
When NPRMs are posted for public comments, you know who never makes public comments? The public. So it’s up to you and me to pick up the slack, and point out that these perps have no clothes. Feel free to grab posts from TSW to add to the comments.
And the envelope please…
Most importantly, incentives for participation-based programs need to be cut back to “de minimis.” And, unlike when the rules were first floated (and true to the intent of the judge who found that forced wellness programs were not voluntary), de minimis has been defined. It looks like the IRS definition — water bottles, t-shirts, small-denomination gift cards. I had thought perhaps $200 would be OK. That is clearly outside the realm of de minimis. That could change if the perps flood the comments.
My own opinion: it is perfectly ok, even desirable, for organizations to offer employees screening. Just don’t make them do it. I myself voluntarily get my Hb a1c screened every year, to make sure I’m playing enough ultimate frisbee to offset my consumption of LA Burdick’s insanely good chocolate.
And it is perfectly OK to educate employees on why they should want to get screened (or, in the case of younger, healther employees, why they shouldn’t). Screening would then be truly voluntary.
However, many organizations want to maintain their current participation-based programs with their current incentives or penalties…and many vendors want to keep their revenues intact.
So far, so good, but…
That was all about participation-based programs. Health-contingent, or outcomes-based, programs are a different story altogether. The EEOC is basically pro-employer these days. So they have figured out how to circumvent the spirit of Judge Bates’ December 2017 decision vacating the old rules in which forced programs were defined as “voluntary,” without violating the letter of his decision. But this massive loopholecould circumvent the ruling only for outcomes-based programs, not participatory ones.
This loophole allows you to continue to be able to subject employees to fines of thousands of dollars in outcomes-based programs. Most employees hate being forced to submit to these programs (“I’d like to punch them in the face,” said one), and they invariably lose money. However, the losses in program fees and employee morale — all admitted by the wellness industry trade association — is more than offset by the “immediate employer cost savings,” as Bravo puts it, generated by collecting the penalties from employees who refuse to let unlicensed wellness vendors play doctor.
However, most outcomes-based programs, while arguably complying with these new rules under the Americans with Disabilities Act, violate the Affordable Care Act. With the well-documented, Validation Institute-validated exception of US Preventive Medicine, they invariably fall short of the ACA’s standard of being “reasonably designed to reduce risk or prevent disease.” That hurdle was set low enough to allow even the worst outcomes-based wellness vendors to clear it, and yet they don’t. They violate guidelines with impunity, forcing employees to undergo tests that no doctor would ever order and that get D ratings from the US Preventive Services Task Force (USPSTF).
Just too many epic fails, all documented for the last five years on this blog and sometimes in the media, including Koop award winners like Wellsteps, arguably the industry’s worst program now that Interactive Health has gone bankrupt. Ironically, Wellsteps is also among the best-documented programs. Why they insisted on publishing their own self-immolation is anyone’s guess. No one can argue that programs violating the USPSTF guidelines and, as we’ll see, harming employees, could possibly be considered “reasonably designed to prevent disease.”
This is not just about the money.
Outcomes-based programs can and do harm employees. Sometimes wellness vendors — I’m looking at you, Wellsteps — even admit their harms.
Yale employees sued Yale, for example, due to the psychological and physical harms of their program. One Yale breast cancer survivor was almost forced into getting a mammogram, even though she had already undergone a double mastectomy. Had it not been for Yale’s union and the AARP’s support, she would have been fined $1250.
TSW has published many stories of harms, summarized here. Not to mention what happens when you fine your employees for not losing weight. Guess what — they respond in very predictable fashion, packing on the pounds before the weigh-in and then crash-dieting to take them off. And our #1 most-searched phrase? “How to cheat in a corporate wellness program.” https://dismgmt.wordpress.com/2019/01/07/breaking-shocking-news-employees-cheat-in-wellness/
Still, if you insist on keeping an outcomes-based program, the “hack” we’ve figured out of the new regs applies to outcomes-based programs as well. Seriously.
So if you have a program (and very few people with outcomes-based programs read this blog, or else they would have already dropped them), you’ll want to attend the webinar to figure out how to preserve it. And if you don’t have a program, you’ll want to attend just to understand what the EEOC tried to do with this massive loophole and how we got the better of them.
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.
On-demand webinar for credit
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.
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.
Outcomes-based wellness vendors are panicking over AARP v. EEOC. The way you know that is, they are sending out emails telling their customers not to panic. The irony is that it isn’t the customers who need to panic. (They can contact Quizzify and literally solve the problem on the spot, guaranteed.) It’s vendors like Bravo, whose business model is built on harassing employees.
Since wellness vendors know better than to talk the record in a forum in which they can be fact-checked online, we count on Viewers Like You to forward us their propaganda sub rosa. The following are verbatim excerpts of a letter that Jim Pshock, CEO of Bravo Wellness, sent out to his customers and brokers.
“While some may surmise that this is a simple issue, it is actually rather complex. There are mountains of data that support both the argument for and against wellness programs, and the use of incentives.”
I consider it a personal triumph that even the most coercive wellness vendor admits that there are “mountains of data” against coercive wellness. (There is not even an anthill of data in support of excessive screening, that hasn’t already been shown to be invalidated, or in the case of the 3.27-to-1 ROI claim, walked back by the author.) Ongoing incentives (as opposed to a trial incentive, for a first-time use) likewise have zero supporting data. Quite the opposite, an extensive study in Health Affairs proved their uselessness in weight loss. In addition, Bravo is a major proponent of punitive penalties, not $25 gift card incentives.
“In my experience, the success or failure of the initiative is most often determined by the details of the wellness program design itself, including the reasonability of the goals, the level of support offered, the underlying corporate culture, the strength of the communications used and the quality of each program element.”
Or perhaps they achieve their 96% participation rate for the same reason Vladimir Putin gets 96% of the votes. If Bravo really thought that these feelgood elements drove a 96% participation rate, they wouldn’t need to force employees to do “wellness or else,” now, would they?
“Additionally, while the idea of offering a substantial premium discount to those who take a proactive role in their health by not smoking and managing risks like obesity, blood pressure, cholesterol and pre-diabetes is very popular and well received by the vast majority of employers and employees alike…”
It’s not a “substantial premium discount.” It’s a “substantial premium penalty for employees who don’t want to have anything to do with these people.” Where did they get the idea that employees like these programs? Oh, wait! I forgot that Bravo doesn’t have an internet connection. If they had one, they might have seen the most widely read article on workplace wellness ever, and then maybe read a few of the comments, which we have helpfully summarized here and here. Example of a comment on these “very popular and well-received” programs: “I’d like to punch them in the face.”
“What should you do now? Don’t panic.”
Translation: panic. Unless, that is, you are an honest vendor, or a company that wants to do right by its employees. In that case, Quizzify actually provides a “safe harbor” for vendors against any lawsuits brought under the new rules…even though the new rules haven’t been written yet. So any employer, any vendor can take AARP v. EEOC off their list of things to worry about simply by offering Quizzify as an alternative to their screens and/or HRAs.
Where we agree with Bravo
“[Wellness] plans should … not be a subterfuge for simply cost-shifting.”
“Subterfuge for simple cost-shifting” is nicely stated, Bravo! Good for you to call out unscrupulous vendors who provide corporate customers with options of fining employees in order to create immediate employer cost savings!
If your reaction to this headline is “hunh?”, then here is some remedial reading. You are excused for not knowing about this decision — it just happened. The following will allow you to come up to speed quickly. And please do forward this posting — likely many others have not seen it either and they need to act quickly.
- Surprising and dramatic court decision announced
- Q&A on new court decision likely ending incentives
- Economists and pundits applaud ruling
Also, you can sign up for the webinar on January 18. There are some subtleties to be covered in the webinar not already covered on this site.
Scenario #1: Decision stands.
This is about a 40% likelihood. Although this is far from a done deal, there is no harm in simply reconfiguring your program to satisfy the as-yet-unwritten EEOC rules by the January 2019 deadline. Even though on its face, the decision would appear to spell the end of all (significant) incentives and penalties for “voluntary” programs, the decision applies only to programs that involve required medical exams or inquiries.
As we have already noted, the mere addition of a Quizzify option to your existing screenings/HRA requirement — meaning that you can require employees to submit to traditional screenings or become educated in healthcare via Quizzify — solves your problem. It also saves you money, makes your program more effective, and pleases employees.
Most importantly, Quizzify is guaranteeing that any customer or vendor offering it as an alternative is in a “Safe Harbor.”
So there is no reason not to prepare for this scenario when it takes only an hour or so and a modest down payment to take it off your list of things to worry about.
Or, you could simply contact It Starts with Me, Sterling Wellness, Switchbridge, or Sustainable Health Index to use their own programs, which jumped on this and already incorporate both Quizzify and the Safe Harbor guarantee.
Scenario 2: EEOC appeals and wins.
While this has been discussed, we give it about a 0% likelihood. The EEOC isn’t even fully staffed right now. They have bigger issues. Tilting at windmills would rank very low on their New Year’s Resolution list.
There are four reasons EEOC would lose on appeal:
- This is the DC circuit. Merrick Garland is Chief Justice. He is not going to sully any chance at a future Supreme Court seat by ruling that “voluntary” and “involuntary” are synonyms.
- The AARP has not yet unveiled the strongest argument, which is that the ACA, in addition to allowing for voluntary wellness programs, also contains a mandate to buy health insurance, through 2018. (The end of the mandate after this yar makes the argument stronger, since it implies that the noncompliance penalty was painfully high.) The penalty for noncompliance with the mandate is $695. “Mandatory” is the opposite of “voluntary.” How, AARP would ask, is it possible for a voluntary program to have a noncompliance penalty far in excess of that of a mandatory program in the same law, or at all?
- An appeal isn’t just asking another court for a different opinion. The burden of persuasion is much higher (finding error with the first decision that goes beyond a difference of opinion with the district court judge), and shifts to EEOC. Those guys have had years to define “voluntary” in a coherent way and, according to the district court judge, have failed miserably. If EEOC had a backup plan, they would have deployed it by now;
- I myself have already semi-prepared an amicus curiae brief, exposing much of the old-line wellness industry as a sham, which is easy enough to do simply by quoting these people verbatim.
Scenario 3: Congress moves forward with The Preserving Wellness Programs Act as is
This bill, HR1313, would moot the “voluntary” provisions in the Americans with Disabilities Act (and the Genetic Information Non-Disclosure Act), thus allowing employers to continue to force employees to submit to screenings.
It would also allow employers to collect DNA from employees and their families, including children, a provision that would make Big Brother blush.
You might ask: “What kind of misanthrope would propose something like this?” And the answer is: “A misanthrope who, due to her position as chair of the committee that reviews this type of legislation, receives a large amount of money from the American Benefits Council, which is championing this bill.”
Last year, Rep. Virginia Foxx (R-NC) believed she had a safe enough seat to ignore her constituents’ overwhelming distaste for this bill and instead kowtow to her corporate overlords. As a result, this bill has already been voted out of her committee on a party-line vote and awaits action by Ways and Means. If it passes Ways and Means, it goes to a full House vote. (Something similar is happening in the Senate, where Sen. Lamar Alexander is the major recipient of corporate largess because he chairs the relevant committee.)
However 2018 is not 2017 and GOP reps, even in somewhat “safe” seats, need to start thinking about their actual constituents. And, quite literally, HR1313 (also known colloquially as the Employee DNA Full Disclosure Act) may be the most unpopular bill ever voted out of committee. Ever. Google on it. Aside from the American Benefits Council (which has many health plan members for whom wellness is quite profitable, at the expense ironically of many of their other members), no one — zero people — support HR1313.
Further, unlike most legislation these days, which passes on party-line votes, the GOP likely contains enough true conservatives willing to champion individual rights at the expense of losing a little corporate largess that a party-line vote can’t be assured.
So the likelihood of HR1313 being passed — overriding AARP v. EEOC — is placed at 10%. It all depends on the GOP’s appetite for self-destruction.
Scenario 4: Preserving Employee Wellness Programs Act is stripped of its DNA provision…and passes
Not that I want to give these people any ideas, but stripping the DNA provision (presumably added as a sop to a few health plans who are both very active members of the ABC, and,which sell DNA testing to employers who for goodness knows what reason occasionally buy it) makes this bill arguably passable. Incredibly, a majority of our legislators would be perfectly OK trampling on individual rights by adding a regulation requiring employees to submit to these programs.
As with the best legal argument for appeal, the best legislative argument against HR1313 likewise hasn’t been made yet, and could presumably sway a few votes in an election year from legislators who might care about their constituents, or at least worry they might vote for someone else.
That argument is:
The wellness industry is unregulated, unlicensed and generally unsupervised. As a result, they often — as in Interactive Health, Wellsteps and a ridiculous number of other vendors I’ve tracked through the years — harm employees, according to their data. They do this by giving out bad advice, flouting guidelines, and generally being completely impervious to integrity. Do we really want our employees to be forced into receiving unwanted healthcare from these people?
And yet this could happen. Hence the 50% likelihood.
Where does this leave us? There is no harm in betting on the 40% chance that the rules just changed. You’d have a better program anyway, by adding Quizzify.
Update: I just learned that Scenario 4 requires 60 votes to pass the Senate. Very little chance of that.
NY Times’ economists and Pulitzer Prizewinning LA Times columnist skewer “voluntary” wellness incentives
In the immortal words of the great philosopher Dizzy Dean, don’t fail to miss it.
Ever since Ron Goetzel’s Penn State debacle, the news cycle has been the Health Enhancement Research Organization’s (HERO) kryptonite.
To be sure, they have other enemies too — transparency, integrity, math, data, facts, employees, smart people — but those bullets just bounce off them. How do we know this? We think we’re making an impact with our exposes and whistleblowing — and yet forced, incompetent and sometimes harmful prying, poking and prodding continues unabated. When we prove that none of the wellness numbers add up and back that proof with a monster reward for disproving us, they retreat rather than fight — but then they pop up again, whack-a-mole style with yet another claim: “Oh, well, numbers don’t have to add up. It’s all about the value.” Yada yada yada.
That’s why they never respond to anything we ever write, or for that matter anything anyone else ever writes. STATNews, for example, wanted to host a point-counterpoint, but couldn’t find anybody to oppose me. Health News Review posted a podcast with no opposing views.
The one wellness executive who failed to understand the news-cycle-as-kryptonite dynamic was Wellsteps’ Steve Aldana, not exactly a rocket scientist even by the standards of the wellness industry. In an attempt to get his name in the paper, he accidentally admitted that all of Boise’s Koop Award-winning numbers were fabricated. Yes, he humiliated himself, yes, he admitted he lied, yes, he could easily have been charged with defrauding the city…and yet Boise is still Wellsteps’ account.
If they had any lingering doubt, that lesson taught the rest of these people to stay out of the media even if it means taking a few punches.
That brings us to today. I’ve been scouring Google to find someone — anyone — to take the side of the EEOC in what is likely to become an extended news cycle over the definition of “voluntary” for wellness programs. So far, no one has stepped forward to support the EEOC’s and HERO’s argument that “voluntary” can mean “we’ll fine you up to $2000 if you don’t.” Instead, both The Incidental Economist (the NY Times‘ economics bloggers) and the LA Times‘ Pulitzer Prize-winning business columnist, Michael Hiltzik, come down strongly on the side of AARP, Merriam-Webster, Funk & Wagnalls and Dictionary.com.
- In 2015, the EEOC proposed a rule treating wellness programs as “voluntary” if they involved premium differences of no more than 30% of the full cost of a health plan. Worker advocates were aghast — 30% of a full-price premium could amount to thousands of dollars, and since the workers’ share of their health plan premiums often was only 30% or so, the penalty could double their annual costs. For many families, that made voluntary programs effectively mandatory.
- [The judge] observed that the 30% incentive “is the equivalent of several months’ food for the average family, two months of child care in most states, and roughly two months’ rent.” He recognized that a fee of that magnitude could be especially coercive to lower-income employees
- The biggest problem with wellness programs is there’s no evidence that they work. The most frequently cited statistic in their favor came from Safeway, whose claim to have saved on per capita healthcare costs after implementing a wellness program prompted drafters of the Affordable Care Act to liberalize the incentive rules. But Safeway’s story was soon debunked. Other supposed success stories came from wellness program promoters themselves, who were engaged in selling their wares to big employers.
- The rule allowed employers to impose huge penalties on employees who refused to participate in wellness programs, even though the Americans with Disabilities Act says those programs must be “voluntary.”
- In the court’s view, the EEOC had basically ignored the problem in its rulemaking, asserting without explanation that wellness programs backed by enormous penalties were somehow voluntary. I applauded the decision: I’ve been railing against the EEOC for two years now for blessing mandatory wellness programs over the ADA’s express prohibition.
Once again, I’d urge everyone to sign up for the January 18 webinar. There will be more clarity, you can ask questions, and you’ll hear questions from others too. What you won’t hear is a peep out of HERO. Not because we censor or blacklist adversaries (that’s their signature move, not ours — one person reports that HERO took him off the program because he admitted to respecting my work) but because they know better than to, in the immortal words of the great philosopher John Cusack, say anything.
This is a follow-up to the announcement and “back story” of the December 21 wellness decision in AARP vs. EEOC, a decision which could severely curtail incentives and penalties…and which could, to paraphrase the most memorable G-rated words ever spoken by Bill Clinton, end wellness as we know it.
That’s the bad news. The good news is that as you’ll see later, this decision may actually be a windfall for employers with heavily incentivized wellness programs.
Q: What just happened?
AARP just won a very favorable district court ruling against the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA). The full decision is here.
Q: How is this different from the previous ruling in AARP v. EEOC?
The original ruling, though in favor of AARP, gave EEOC more than three years to amend its rules to redefine “voluntary” to match the dictionary definition. The new ruling gives one year both for the EEOC to write the rules and for employers to implement the rules, and makes clear what is expected of them. Here is the key to why this decision should stick:
The government can’t define “voluntary” to include fines of $2000 or more for non-compliance if it also requires a “mandate” — the opposite of a voluntary option — that carries only a $695 penalty for non-compliance. A voluntary option can’t include remotely as high a penalty for non-compliance as a mandatory requirement, especially in the very same law.
Q: What will remain as of January 2019 that employers can require subject to forfeitures?
It is still OK to offer medical screenings and HRAs (collectively, “medical exams”) OR dangle incentives or fines (collectively “forfeitures”), just as it is today. The difference is that the programs involving required forfeitures can’t also require medical exams, which both the ADA and GINA say can only be “voluntary.” The court ruled that you can’t force employees to undergo “voluntary” exams by dangling or threatening to withhold large sums of money.
So you can still require employee forfeitures up to 30% (50% for smokers), and you can still offer medical exams. You just can’t combine the two. That’s because in order for a wellness program to fall under ADA and GINA in the first place, medical exams must be involved. So, for example, requiring employees to either do screening or do Quizzify is still allowed.
Q: Isn’t this already the “reasonable alternative” language for employees to avoid screening?
No, for two totally distinct reasons. First, those “reasonable alternatives” nonetheless involved medical exams. Second, an employee had to petition. An employee couldn’t just say: “I don’t want to be screened. Give me something else.”
Q: Does this cover screenings only, or are programs combining annual physicals and forfeitures also affected?
A: If the results of the latter are not shared with the employer, it appears that they may still be require-able. A better question is why an employer would want to require them. First, they lose money. Second, they don’t appear to benefit employees either. The New England Journal of Medicine, The Journal of the American Medical Association, Choosing Wisely and Consumer Reports (and also Slate) have all looked at the data and concluded that for most people annual physicals confer no net health benefit, meaning even if they were free they would be worthless. (People who have ongoing health issues should of course see their doctor regularly. Those would not be considered checkups under this definition.)
Logically and intuitively, this conclusion would appear to be especially true when employees submit to those physicals under duress. Quizzify — and this question, like most Quizzify questions, carries the Harvard Medical School (HMS) shield — recommends two checkups in one’s twenties, three in one’s thirties, four in one’s forties, five in one’s fifties and for most people annually after that. However, this is also Quizzify’s most edited-out Q&A, as some employers nonetheless want even healthy employees to get physicals every year, and Quizzify respects that choice (though a customized question advocating it could not carry the HMS shield).
Q: These Q&A’s seem very Quizzify-centric.
A: That’s not a question but I’ll answer it anyway. There are two reasons for that:
- We know of no other vendor that solves the problem and guarantees the solution, with EEOC indemnification. Quizzify was both conceived and architected in anticipation that this court decision would happen someday. (I just didn’t expect it to happen four days before Christmas, which meant a lot of my cousins got gift cards instead of ugly sweaters.) All my exposes on the wellness industry led me to conclude that conventional “wellness or else” (as Jon Robison calls it) could never survive a court challenge…and I designed a product specifically to allow employers to address that challenge immediately and completely.
- Those of you familiar with my work know I have only three talents in life: wellness outcomes measurement, employee health literacy/consumerism education, and self-promotion.
Your vendor, Quizzify or not, should offer something like this right on their website. If they do, you’re safe:
Q: What other analyses should we be looking at?
The best is The Incidental Economist. AARP hasn’t released a formal statement but their informal back story can be found at the bottom of this posting.
Q: So what should we do about it?
Simply add the option of taking Quizzify quizzes to the option of HRAs/screenings. That one-step fix is guaranteed and indemnified to solve your legal issues. It will also save money both up front (a year of Quizzify costs much less than a single screening) and down the road, because wiser employees make healthier decisions…and healthier decisions save money. Employees also like playing trivia more than they like being browbeaten into promising to eat more broccoli.
If your vendor refuses to add Quizzify via a “single sign on” and you don’t want to add it separately, you can fire the vendor (we can help you do that — if they show a positive ROI it means their outcomes are fabricated, which we can easily demonstrate) and replace them with one that will, of which there are quite literally more to choose from every week.
Q: What happens next?
A: The EEOC needs to rewrite the rules to comply with this decision by making new rules — and needs to do it in 2018 so that they can be adopted and implemented by employers by January 2019. The definition of “voluntary” will be a line-drawing exercise. Likely gift cards and small incentives will be considered “voluntary.” If your incentive falls within whatever cap they decide upon already, you’re fine, with or without Quizzify.
Q: Is this is last word?
A: No. First, the final rules have yet to be written, as noted above. The rules then have to be approved by the district court.
Along with that uncertainty are two others. The EEOC could appeal, since these days it tends to oppose employee rights, rather than support them. However, the DC Appellate Circuit, led by Merrick Garland, would likely not be favorably disposed towards arguments that require, for example, defining “involuntary” as “voluntary,” especially when the Court will know that even award-winning vendors harm employees, vendors flout guidelines and screen the stuffing out of employees and give incorrect advice, creating further harms, and that the industry itself is rife with corruption, starting at the top. (I published my last paper in a medical-legal journal rather than a clinical journal specifically in anticipation that it might be the basis for an amicus curiae brief specifically in a situation like this.)
In an unregulated, employee emptor, environment like this, voluntary fines collected by shareholders from employees wanting to protect themselves from the harms above should not exceed fines set as penalties for a mandate, and paid into a pool to create an insurance product. (That the mandate is going away is not relevant — it’s the fact the government has two words with opposite meanings that have inverse fines.)
Alternatively, an Act of Congress could gut GINA. The American Benefits Council could try to convince the legislators their colleagues contribute heavily to, like Virginia Foxx (R-NC5), to push HR1313, for example. HR1313 is arguably the worst bill of any type ever to clear a Congressional Committee, in that nobody benefits from it (other than DNA collection vendors, for whom it would be a windfall), but the ABC has already demonstrated their disregard for the best interest of its own members by browbeating Rep. Foxx into proposing that bill in the first place. The ABC is down, but not out…and as this video shows, being down but not out can cloud one’s judgment.
However, since quite literally none of her constituents are helped by this bill and most of them in both parties detest it, Foxx may decide to disappoint her corporate overlords on this one, especially because it’s an election year.
Q: How is HR1313 (or a bill like it) that ABC might propose on behalf of its members (large employers) not in “the best interest of its own members” as noted above?
A: Many employers have finally figured out that even their own vendors know wellness loses money, and that incentives generally don’t change behavior because employees revert to their old behaviors once the incentive ends. (Incentives do work for Quizzify-type programs, because as you’ll see for yourself if you take the quiz, once you pay an employee to know things, they can’t un-know them. Pay an employee to learn that CT scans are full of radiation once, and they will stop demanding unnecessary CT scans forever.)
However, employers are stuck with these huge incentives now, which some employees expect annually. This rewrite of the “voluntary” rules, likely capping incentives in the low three figures, will allow employers to spend much less on incentives…and blame the government. (Obviously we hope they maintain the incentives and instead just offer the Quizzify alternative. This will also save money due to Quizzify’s low price and a much-reduced number of employees having to follow up on false positives.)
If ABC were to be successful in gutting GINA and allowing financially coercive wellness programs to continue unabated, employers would still have to fork over large incentives.