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So many fallacies in Bravo’s recent webinar, so little space on the internet…
- Misunderstanding of the meaning of the word “voluntary”
- Confusion around the research on incentives and health behavior change
- Misinterpretation of the meaning of “successful” weight loss
- “Stuckness” to a mean-spirited, 20th century approach to employee wellness
Recently we noted that Ron Goetzel seems to forget everything he says as soon as soon as it becomes expedient to say the opposite. He is not alone. The wellness industry is full of people who forget things. Wellsteps famously forgot they had claimed costs decreased before admitting they increased. McKesson got a nice write-up in Employee Benefit News after they forgot that they had already admitted employers gained weight when they claimed employees lost weight. Vitality is offering its weight loss services to employers, forgetting that they couldn’t get their own employees to lose weight.
Apparently Bravo is equally forgetful. In their online webinar on the forthcoming change to the EEOC regulations (in which their self-proclaimed “aha moment” that screenings will be a risky business starting in January lagged our identical aha moment by about 9 months), they made two observations towards the end that seem to contradict what they said near the beginning.
Near the beginning, they said — quite correctly — that you can’t hide alternatives to screening from employees. Alternatives “must be clearly communicated.”
And yet at Minute 38:00, they say:
Just tell employees the alternatives are available upon request… You can just say ‘contact us and we’ll give you one.’ Or ‘There’s other ways to earn the full incentive. Contact Bravo.’
Why would an employee voluntarily want to contact an outfit that brags about how much they fine employees? Maybe this is just me, but it seems like making employees contact a wellness vendor to beg for an alternative would seem to directly contradict the rule that alternatives be clearly communicated.
At Minute 29, they declare that biometric screenings need very hefty incentives because:
You aren’t going to get behavior change for $200. The incentive has to be meaningful. Anything under $400, you’re giving people money for something they would have done anyway.
But later in the presentation, they presented their EEOC-compliant menu of wellness options. The proposed incentive for biometric screens? That very same $200.
They also forgot that “coaching” is not an EEOC-compliant activity. You can’t coach someone without asking them all sorts of personal health questions. Otherwise you’re left with the fallback advice: take more steps, buckle your seat belts, and eat more broccoli.
They called a comprehensive, well-designed study “industry noise,” forgetting that it was conducted by the National Bureau of Economic Research, a group which knows slightly more about economics (and, apparently, wellness) than Bravo does:
Most importantly, when they claimed (Minute 31) “a poorly designed program is absolutely something you should avoid,” they forgot their own program may be one of them. Perhaps they might explain how the following three observations are incorrect?
- the literature is unanimous in saying there is no chance that checkups prevent cancer and yet they want employees to get annual checkups in order to have “fewer cases of cancer“
- the US Preventive Services Task Force recommends against doing many of the tests they do (creatinine and thyroid levels being two examples)
- their own results show no impact of their own program.
To the third point, here is a case study on their own website. They compared the usual active motivated incentivized participant group to a passive control group of employees that preferred to pay a large fine than have anything to do with these Bravo people. By Year 7, claims in the two groups were identical (the white line of the control group intersected the yellow line of the participants) despite the obvious study design bias favoring participants, a bias proven by the NBER.
Lest anyone think that study was an outlier, Graco’s published study showed the same thing. The green line (children, no exposure at all to wellness) trended better than the participants in blue. (For some reason spouses’ costs soared but they didn’t seem to express any concern about that.)
And when claiming that wellness generated a large increase in sales, they forgot that most of Graco’s sales growth was generated by an acquisition When they decided to call the baseline 2009, in order to show the biggest possible impact of wellness, they forgot the program actually started in 2008.
In the past, I’ve recommended that Bravo have their results reviewed by a smart person before publishing them. Let’s qualify that: it should be a smart person with a good memory.
The most comprehensive expose of the “pry, poke and prod” industry is likely to have broken the 1000-download threshold by the time you read this.
Published by the leading law-medicine journal, it is their second-most-popular paper of all time. Curiously, while this is the oldest law-medicine journal in the country and has covered a multitude of topics over many decades, the most popular paper of all time is also a smackdown of pry, poke and prod programs.
Because TSW doesn’t lie (that’s part of the reason we are so unpopular amongst the HERO crowd and its sycophants), I would acknowledge that the methodology they use to measure popularity favors more recently published articles, and ours is “only” a year old. Even so it is quite a feat because, while we are close on the feels of #1, there is a big gap between us and the #3 article.
In the structured world of law, as opposed to the “Wild West” of wellness, there are rules. That’s why I chose the leading law-medicine venue for this expose.
One rule of evidence is that some of the best evidence — one of the few exceptions to the hearsay exclusion — is what’s known as an “admission against interest.” An admission against interest is “a statement by a party that, when uttered, is against the party’s pecuniary, proprietary, or penal interest.” It’s even more compelling if it is captured electronically, as on a live mic, or in print.
The best example is Robert Durst accidentally admitting that he killed his wife during a bathroom break while being interviewed for a documentary, when he was still miked. You’d have to be, as Larry David might say, pretty pretty pretty pretty stupid to make admissions against interest when you are miked or in print.
One would think.
And yet the wellness industry’s entire modus operandi is to do exactly that. All that remains is for someone like me to point these things out, take a screen shot (the equivalent of Durst being miked), and then sit back, make some popcorn, and watch them react. Reacting is also a form of evidence. Reacting the way a guilty person would react is prima facie evidence of guilt. (To use the examples from the TSW landing page, think OJ and the white Bronco or Lance Armstrong and just about anything he said or did after being accused.)
Needless to say, the wellness industry’s very stable geniuses never step out of character when it comes to guilty reactions. This runs the gamut. Sometimes, as with Bravo, they pull down the incriminating screenshot immediately after being outed. Or, as with Interactive Health, they simply excise the incriminating data from their “research report” and call it a “research summary.” (And also they try to bribe me not to talk about them any more. I’m just sayin’…)
Or, as with Wellsteps, they act out with unsupported and creatively spelled recriminations.
Or sometimes simply trying to erase history. This is the specialty of Ron “The Pretzel” Goetzel, twisting and turning his words to do exactly that, not realizing that we keep screenshots. Here is the “before” and “after” picture of him erasing the smoking-gun evidence that a program’s “impact” was due entirely to separation into participants-vs-non-participants rather than pry, poke and prod. Note that from 2004 to 2006, separation between participants and non-participants increased almost 20% — before there was even a program to participate in.
Before (what really happened):
In order to maintain the fiction that participants-vs-non-participants is a valid study design, Ron simply removed the labels from the x-axis:
Lest anyone domiciled in a state where marijuana is now legal think the first one was a mistake and was corrected as soon as they noticed, they actually repeatedly reprinted and reused the original in many forums, like this one:
Sometimes, and this was my favorite of Ron “The Pretzel” Goetzel’s twists and turns, he literally rewrote history, in the form of forging a letter from the Governor of Nebraska, once he admitted the initial claim of saving the lives of 514 cancer victims was exposed as a fraud:
Here is your assignment: pass this along to everyone you know and ask them to read the article. Then hopefully it will be time to write the history of wellness the way it should be written. And keep a screenshot in case Goetzel tries to rewrite it.
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.
Note that this blog post is my personal posting and does not necessarily represent the views of any organization with which I am affiliated, other than the one with which I am most closely associated, and of which I am one of the founders. I am referring, as everybody knows, to the Needham Frisbee Club. People who play Ultimate 3 times a week don’t need no stinkin’ checkups.
Why Wellness Vendors Hate Information: A New Theory
I have no clue why wellness vendors hate information so much. Perhaps they are repressing childhood memories of being bitten by a librarian.
A far-fetched theory, perhaps, but there is simply no other explanation for half the things half these very stable geniuses insist upon doing. In many cases, reams of information demonstrating the futility, fallacies and even harms of what they do is right there — begging to be googled — and yet no one in the wellness industry (or at least the wellness companies “profiled” on this site — there are plenty of exceptions listed at www.ethicalwellness.org) does.
Before we get into the checkups, consider some other information gaps, like the eight-glasses-of-water urban legend. Anyone with an internet connection can easily learn that you do not have to drink eight glasses of water a day, and the whole meme was completely made up. 70 years ago someone estimated that humans require that much water a day — but also that basically everyone with access to water already gets that much without having to force themselves to drink when they aren’t thirsty.
Yet try telling that to a wellness vendor (excluding the ones who have signed the Code of Conduct, of course). One vendor, Provant, even provides an infographic in case the employees they are harassing can’t count to eight:
Wellness Corporate Solutions — no stranger to these pages — has gone one step farther. Along with their crash-dieting contests, they offer what they call “healthy competitions” to see who can drink the most water:
Water-drinking “healthy competitions” may or may not make employees “more aware of their health status,” but they certainly make employees “more aware that this meeting better end really soon.”
Maybe WCS should combine those two competitions — along with their massive overscreening campaigns — to create a competition to reward employees for doing the most stupid things to themselves.
Failure to understand that thirst is your brain’s signal that you need a drink of water is not an isolated oversight. Wellness vendors take great pride in their ignorance of wellness generally. Consider their propensity to screen the stuffing out of employees. There are clinical guidelines for optimal screening frequencies and lists of biometrics that should be screened for, that most wellness vendors (It Starts with Me and Limeade being two huge exceptions) have apparently never laid eyes on. If it helps, here they are:
There are a few subtleties beyond these words. “People at risk for diabetes” (under “Diabetes test”) would include people with high blood pressure or family history (which wellness vendors can’t ask about). It would also include people who are overweight or obese. Additionally, “members of certain ethnic/racial groups may be at increased risk at a lower body mass or a younger age.” Otherwise, it’s quite clear that cardio screenings should begin at 35 for males and 45 for females, and take place “at least once every five years” after that.
Some people should get that frequency, others a higher one. But like most other things in healthcare, the answer is not the same for every employee of every age and every health status, and you do not just screen people because you make money on each screen, so the more you screen, the more you make. Otherwise you end up like Interactive Health, one of the most expensive vendors, positively hyperventilating about all the false positives they’ve found:
Finally, let’s once again review the aforementioned crash-dieting contests, a staple of many wellness programs besides Wellness Corporate Solutions. Schlumberger, for example, pays out thousands of dollars to the team which does the best job packing on the pounds in December and then taking them off in January. “Just plain fun,” is how their ironically named vendor, HealthyWages, describes it. None of these vendors have apparently seen the CDC’s advisory memo warning that crash-dieting is futile, likely counter-productive, and possibly harmful.
What about annual checkups?
Let’s cut to the chase: there is not one shred of evidence that annual checkups are a good idea for asymptomatic working-age employees. There are many good reasons to go to the doctor — you notice a change in some aspect of your body, you want to develop a plan to improve your health, you need help managing a chronic disease, or even that you’re sick — but here’s what’s not among them: the earth completing a revolution of the sun.
New England Journal of Medicine says that while the major benefit is “less patient worry,” checkups “may actually be harmful.”
“Less worry” is not necessarily a good thing. An employee (name on request after an NDA — not a made-up person) had a checkup in order to collect a wellness incentive…and as a result of being told not to worry, ignored heart attack symptoms about a week later.
The Journal of the American Medical Association says offers of health checks did not reduce any kind of mortality, but “may be associated with more diagnoses and drug treatments.”
Choosing Wisely says: “Annual checkups usually don’t make you healthier,” and “tests and screenings can cause problems.”
None of this takes into account the cost of annual checkups — which often lead to more unneeded and expensive tests and prescriptions, as JAMA notes — but we have definitely observed that wellness vendors and even some HR departments don’t really care about costs. It’s not their money. Here is Reuters on the high and unneeded cost of prevention.
Meanwhile, I’ve yet to find a wellness program that does not either pay employees to get checkups or fine them if they don’t — or shunt them into a worse health plan unless they submit to an annual physical.
I would also note that, however useless annual checkups are to begin with, they are likely even more useless if someone is visiting the doctor because their benefits department is forcing them to do so, against their will.
Finally, there isn’t exactly a surplus of primary care doctors. Why are we paying healthy employees to take up clinician time that unhealthy employees might actually need?
What is the argument in favor of checkups?
If checkups don’t actually prevent anything, why make employees undergo them? Two reasons have been proposed. One is that employees can “build a relationship” with their PCP. This of course assumes that neither the employee nor the PCP ever retires, moves or changes jobs. It also assumes that somehow the things that affect employees can be prevented by having a “relationship” with a PCP. However, if you look at the list of the most frequent reasons for hospitalization among the working-age population, it’s kinda hard to find anything that fits that description.
Can you think of any disease in your own life that would be cured by a relationship with a PCP? I can’t think of only one problem — chronic heartburn — that my PCP could have prevented. But she didn’t. The PCP was perfectly happy to keep me on Prevacid, which, as Quizzify teaches (right on the home page quiz!), is likely harmful in long-term use. Fortunately, I happened to run into a yogurt salesman one day, who told me about active-culture yogurt. Within days my heartburn was gone, never to return.
The second argument in favor of checkups, proposed by the CEO of Bravo Wellness, Jim Pshock, is as follows:
The hope is that the [Bravo] program will get people to proactively see their physicians to manage their health risks. Yes, this will, hopefully, mean more prescription drug utilization and office visits, but fewer heart attacks and cancers and strokes.
It isn’t his money, so he is perfectly fine with employees “hopefully” spending more on drugs and office visits. On the other hand, there is no information supporting his claim that all this spending and all these checkups will prevent all these diseases. Quite the contrary, 100% of available information reaches the opposite conclusion — especially JAMA, which specifically measured mortality due to heart attacks, cancers and strokes and found no improvement. You’ll fine zero information suggesting the contrary finding, no matter how hard you search.
Perhaps when he was a toddler, Mr. Pshock’s parents threw him into an entire cage of librarians.
What is the best frequency for checkups?
The literature is quite adamant: not at all. That seems a bit extreme and I would bet the people who write these articles do occasionally get a checkup. For the most reasonable compromise I would turn to Quizzify, the leading health literacy vendor. They recommend a simple mnemonic: get two checkups in your 20s, 3 in your 30s, 4 in your 40s, 5 in your 50s, and annually after that. Quizzify’s advisory colleagues, doctors at Harvard Medical School, approved this recommendation too. As with most other questions, this one carries the HMS “shield.” (Quizzify also reports that this question is the one most likely to be removed by its customers, which is an option for all questions in their database before they get seen by employees.)
So what’s the solution?
In three parts, it’s:
- Screen according to guidelines
- Send employees to the doctor at age-appropriate and health-appropriate intervals
- Pay the fines on overdue books.
In this hyperpartisan era, conservatives and liberals agree on only one thing: forcing employees into outcomes-based wellness programs is one of the worst ideas in the history of ideas. If you scroll down our feature In The News, you’ll see wellness gets equal treatment by right-wing publications like Newsmax and The Federalist as well as left-wing publications like Slate and Mother Jones.
Opposing forced wellness has already propelled one candidate into elective office: Matthew Woessner, whose leadership in Penn State’s faculty revolt against the punitive “pry, poke and prod” plan proposed by Highmark and Ron Goetzel, was elected President of the university’s faculty senate. Matthew is a self-described Republican libertarian.
In keeping with the bipartisan nature of wellness, it is fitting that the first Congressional candidate to take on the wellness industry is, conversely, a Democrat, Jenny Marshall. Jenny (as she likes to be called) is running against Virginia Foxx (R-NC5), who chairs the House Committee on Education and the Workforce. A powerful combination of this lucrative committee chairmanship, lack of ethics and a gerrymandered “safe” district (at least until voters find out about this bill), allows Foxx to “represent” the American Benefits Council rather than voters in her district. Indeed, I suspect she has nary a single constituent who supports employees being pried, poked and prodded into submission. It is not at all clear how this bill would benefit her district.
Any controversy over whether forced wellness saves a nickel or even improves health has long since been laid to rest. Hence, the American Benefits Council’s enthusiasm for forced wellness is all about making programs so onerous and unappealing that employees prefer to pay the $1000 fines rather than be subjected to the indignity and potential harms of being pried, poked and prodded by unlicensed, unregulated wellness vendors.
On the other hand, these programs can be very lucrative for employers, who can claw back large chunks of their insurance premiums forfeited by non-compliant employees. Vendors have already figured out how to offer “immediate savings” for employers through collecting these fines from employees.
Unless Foxx’s bill becomes law, this lucrative, misanthropic, anti-employee loophole will be closed December 31, thanks to the ruling in AARP v. EEOC, which will prevent employers from forcing employees into “voluntary” wellness programs.
Foxx’s HR1313, known colloquially as the Employee DNA Full Disclosure Act, would override this common-sense federal court decision. Worse, it would allow employers to force not only employees but their children into these programs. And not just prying, poking and prodding them, but collecting their DNA as well. Yep, your children’s DNA is fair game if this bill passes. It is so onerous that even much of the wellness industry opposes it, though they stand to benefit from it.
It is headed for a floor vote sometime this spring, having been voted out of her committee on — get ready — a straight party-line vote. (So much for the GOP standing for individual rights.)
Jenny Marshall fights back
Jenny has posted a summary of this bill right on her campaign website. Asked for a comment, she replied: “Foxx’s bill could very well be the worst proposed legislation in the history of Congress. Its intrusiveness would make Orwell blush. I can’t figure out why she would want to invade the privacy of her constituents like this, other than raking in big dollars from lobbyists. For too long now, Foxx has turned a deaf ear to the wants and needs of the people of our district, and for that betrayal should be voted out of her seat.”
If this bill passes, the very stable geniuses at “outcomes-based” wellness vendors like Bravo, Interactive Health, Wellsteps, Corporate Wellness Solutions, and Staywell will be able to trample employee rights to privacy, fine them and harm them — for no reason other than to enrich their own coffers, and those of their corporate overlords. Absent this legislation, millions will be thrilled to be freed from their anti-employee jihads on December 31 — and employers can find kinder, gentler conventional programs, a la Redbrick or unconventional ones like Limeade (and/or Quizzify, of course) instead.
The way to keep this bill from passing? Vote Foxx out of office. Shed no tears for her. She will get a lucrative job, possibly representing the American Benefits Council in their quest to collect fines from employees — just like she does now.
Only starting in 2019 her paycheck will come directly from them, as opposed to indirectly, as it does now.
Bravo just sent its webinar summary out. We are repeating the relevant sections here. Our comments are in boldface. Since their headings are also in boldface, I’ve slipped a line-break under each of ours. That’s one way of distinguishing our from theirs. Also ours are red, and are right.
Breaking news (at least relative to “breaking news” on other wellness websites”): If you have missed other webinars on this topic, try this one. We’ll have the full hour, AND your questions will be answered. (Oh, yeah, it’s also $30. Still, worth every penny.)
Hear the dialogue between Conduent HR Service’s Global Practice Leader Tami Simon, expert practice leader and Partner from Alston and Bird John Hickman and myself regarding the history of the regulations, potential next moves by the EEOC and practical steps employers and health plans may consider. Clearly nobody has a crystal ball and nothing is final but it’s always prudent to start thinking about your next move based on the most likely scenarios.
Yes, the most likely of which is that there will be no safe harbor as of January (other than indemnification offered by vendors such as Quizzify). Anybody care to take bets on this?
- AARP v EEOC – 2017
- The AARP took exception with the rules and sued the EEOC, arguing that the 30% limit could be a significant cost to employees (particularly for those with rich employee benefits). In response to the suit, the court asked EEOC to support the justification for selecting the 30% limit, but their response did not satisfy the judge. The limit was viewed as “arbitrary and capricious”.During the webinar, John Hickman raised the point that an employer or health plan business group could have just have easily argued that the 30% was arbitrary and capricious because it was too low (rather than too high).I think this is particularly true for those participating in the voluntary employer-sponsored health plan when the plan still meets all minimum coverage and affordability requirements regardless of a person’s choice to participate in the wellness program. (The AARP didn’t seem to have a problem with the rules impacting health plan participants for the 8 years prior to the EEOC regulations.)
- EEOC Regulations – 2018 / 2019
- At this point, the court has indicated that the 30% portion of the EEOC regulations (and only this portion) shall be vacated as of 1/1/2019. The EEOC has indicated that they may do one of the following:
- Issue new guidance or
- Take a wait-and-see approach, choosing to study the issue further or await the resolution of potential appellate proceedings.
- At this point, the court has indicated that the 30% portion of the EEOC regulations (and only this portion) shall be vacated as of 1/1/2019. The EEOC has indicated that they may do one of the following:
Reading the January 16th motion in which EEOC moved to be released from the timeline for new rules, it appears that the second item is by far the least likely, which would mean: no safe harbor. Employees can sue.
So, what does this mean?
First, it’s important to note that this does not impact all wellness programs nor all incentives. The potential risk applies only to incentives that require the completion of an exam and/or the response to disability-related health inquiries.
If your program does require the completion of an exam and/or a response to a disability-related health inquiry and currently complies with the regulations, you shouldn’t be concerned with enforcement action this year. You should, however, start thinking about the potential need to eventually offer all non-participants and individuals who did not receive all the incentives a chance to earn the amounts they missed by completing other activities that don’t require an exam or them answering the disability-related questions.
In other words, use Quizzify, which does exactly this.
While this will lessen the focus of the program on inspiring personal achievement and incenting individuals to work with their doctor on personal improvement….it might be the right course depending on the risk-tolerance of the employer.
Raise your hand if you think your employer’s “risk-tolerance” extends to being sued in order to continue to harass employees by flouting clinical guidelines, when it is now proven beyond doubt that there are no benefits to forcing employees to lose weight or achieve any other outcome, while losing money in the process.
Translation: in other words, if your risk tolerance is like every other employer’s, use Quizzify.
Let’s discuss for a bit what it even means that the 30% rule could be vacated.
- I am personally aware of several large insurers and business groups that feel vacating the 30% rule gives them greater flexibility and basically would backfire on the AARP. What’s the logic for that position?
- Three court cases (Seff, Orion, Flambeau) were asked to answer the question of “voluntariness” prior to the EEOC providing the 30% guidance. In two cases, the court ruled that the question was irrelevant because the ADA already included a safe-harbor for health plans to make health inquiries in an effort to predict and reduce future claims costs. In the third case (Orion) the court concluded that even 100% of plan premium as an incentive would be viewed as “voluntary” because an employer sponsored health plan itself is voluntary and even a hard choice is still a choice. Note: this argument wouldn’t be applicable for those offering cash incentives or penalties to individuals not enrolled in the health plan.
So their idea is that the judge just wrote an impassioned decision explaining why current “voluntary” incentives and penalties are way too high, but you should rely on old case law that gave a different answer, which is that “voluntary” incentives and penalties can be much higher still, up to 100%.
And speaking of “as many words,” as with most wellness vendors, Bravo’s words are its own worst enemy, and may come back to haunt them. “A hard choice is still a choice.” If you say: “Here is the health plan you are entitled to by law. But now you have to fork over your personal health information or we’ll take it away,” that’s a threat, not a voluntary offer.
A threat is an offer you would rather not receive. Threatening to take your healthcare away would seem to fit that category.
- Again, within the health plan, it’s difficult to argue that the authors of the ADA, while trying to protect the rights of disabled individuals, intended to prevent a health plan from offering a discount to people who proactively take part in recommended age/gender screenings or make steady improvements in their wellbeing. I certainly agree that protecting the rights of the disabled, keeping health records private, keeping health records completely separate from employment records and applying tight security requirements regarding health information are crucial elements that should be paramount. They already are (within the health plan) and therefore should be permitted regardless of the ADA.
Except that the judge quite wisely noted that switching employees to a high-deductible plan and them making them earn back the deductible by submitting to forced wellness is a threat coupled with a take-away, not an “offer of a discount.”
- Others believe that vacating the rules means that no incentive can be offered at all in conjunction with a health exam or disability related inquiry.
I don’t know of anyone who believes this. Probably a couple hundred dollars would be considered voluntary.
- While it’s difficult to predict the enforcement actions of particular EEOC offices, most experts close to the issue concur that the EEOC would be unlikely to bring enforcement action against an employer who stayed under the 30% level it had previously provided as a safe harbor. That said, even a highly winnable case brings expense, distraction and PR implications that many employers may simply choose to avoid.
Bravo might recall the immortal words of the great philosophers at eSurance:
While the EEOC is, of course, unlikely to bring an enforcement action itself, that’s not how this works. Here is some news for Bravo: the EEOC can’t keep employees from suing. Employees can and likely will sue, if WillisTowersWatson’s employee survey is any indication. We ourselves have already been contacted by two who have excellent cases…and it’s only February.
- Incentives for Health Screenings: Although some employers may choose to eliminate incentives for health screenings, far too many of our employer-group clients have seen tremendous results through the early detection of serious issues.
“Tremendous results” like these, where it turned out that Graco employees being screened by Bravo had worse trends than their children who did not even have access to the screens? (Bravo took this case study off their website and now only offers a “summary” that leaves out the part where they lost money, not unlike Interactive Health did after we pointed out that none of their numbers added up.)
- They have created a positive cultural movement by rewarding even modest improvement as individuals take meaningful actions.So to me, this is simple. Either you believe that identifying and reducing health risks is important or you don’t. Like most things, if you don’t measure it, people don’t really think you value it. The key for being compliant, if you want to eliminate virtually all risk from an ADA standpoint, is to make sure you are also offering alternate ways that employees (who prefer to not participate in the screening) can still earn the full incentive being offered. Bravo already offers many of these alternative options (including online health courses, group challenges etc.) and we still typically see the vast majority of employees choose the screening instead of those alternatives.
Given the choice between having the stuffing screened out of them and “alternate way,” he is saying “the vast majority of employees” would prefer screening. Perhaps that says more about their “alternate ways” than it says about the screening.
Care to make it interesting, Mr. Pshock? If Quizzify is the “alternate way,” I’ll give you odds that you’d see the opposite in any employer setting, just like Quizzify does.
- Bravo has long advocated that these are great “and” programs not “or” programs. Saying you only need to focus on your culture, health education or stress reduction instead of physical health risks is like saying you don’t need a hat and coat for the cold weather, you only need boots. Yes, you need boots…. but it’s an “and” not an “or’.
Um, could it be that Bravo has “long advocated” screens because they sell screens? And is there any entity that does NOT sell annual screens that recommends annual them? USPSTF? No. Consumer Reports? No. Choosing Wisely? Nope. New England Journal of Medicine? Haha, good one, Al.
- Share your story! There are plenty of critics and articles with examples of poorly designed wellness programs that didn’t produce the results someone thought they should have. I’ve never seen one example that I was surprised by. Typically, the incentives are too low and they are tied to a very simple activity that may or may not motivate someone to actually change behaviors. Conversely, we’ve seen many examples where a meaningful reward, associated with realistic and achievable improvement goals determined by a person’s own physician and combined with tools, resources and programs for total wellbeing that help people succeed result in high engagement, positive morale, measurable health improvement and cost reduction that meets or exceeds program goals.There are thousands of intelligent wellness plans in the market today, the challenge is we don’t focus on sharing them publicly. Consider sharing your story! We’d be happy to support your application for recognition and/or your efforts to educate law makers and regulators regarding the success you’re experiencing. Share your story here.
Or perhaps here is another possible explanation for the “challenge” of why you “don’t focus on sharing them publicly” any more. It’s because all the outcomes are made up and generally self-invalidate (like Bravo’s in the since-removed study), and vendors don’t want to be embarrassed. That’s why the number of Koop Award applicants fell from 21 to 3. (Ron Goetzel said that decline was due to the application being “stricter,” but the application has been identical for 20 years.)
- Fight for your employees.
Isn’t that what AARP just did?
- I applaud the AARP’s efforts to protect older workers from coercive tactics an employer may use to gather sensitive health or genetic information about them. This can easily be accomplished by limiting the use of incentives to cost-sharing adjustments within a health plan that already has:
- affordability requirements
- minimum coverage requirements and
- strict privacy and security requirements
- The vast majority of employees earning rewards for things like being tobacco free, controlling blood pressure, managing glucose and A1c levels and avoiding metabolic syndrome should be rewarded for their achievements! How is the elimination of their rewards (which will simply serve to raise the cost and lower the take-home pay for the majority of program participants) a good thing? It is not safe to assume that tying employer hands on incentives will mean that everyone who previously failed will now just get free money. In many cases, the only place that money will come from will be the pockets of the employees who had been earning large incentives. I’m not sure the AARP has really thought this through.
No one is advocating taking money from employees. And on paper all those outcomes are all great, but “outcomes-based wellness” has failed to achieve them in spectacular fashion, according to not just the National Bureau of Economic Research but also even according to an honest wellness company.
Why not simply make the very same awards available for either screening or else doing things that work, like Quizzify does, in equally spectacular fashion according to the employees themselves? It seems like you would agree this is a great solution. Plus the indemnification means no one has to be concerned at all with employee lawsuits.
Bravo held a webinar today which was designed to reassure employers that they could still “pry, poke and prod” employees in the post-AARP v. EEOC world. And yet somehow, as is often the case when wellness vendors attempt to do something, they accomplished just the opposite. If I were an employer attending this webinar, I’d be running for the exits.
By way of background, I know I’ve been a little rough on Bravo in the past. Nothing major. Just pointing out that:
- They don’t know anything about wellness, which I attributed to a faulty internet connection;
- Their outcomes are fabricated;
- They brag about how much they save by penalizing employees.
But I have to give them credit this time. They were actually honest. Of course, honesty is what gets wellness vendors in trouble, such as when they accidentally admit 90% to 95% of programs fail, or that wellness loses money, and harms employees. This is no exception. They and their counsel did not sugarcoat the reality that it is almost time to panic. (“In-house counsel may have a risk profile” that is not conducive to continuing to harass employees starting in 2019. In other words, any in-house counsel that wants to keep their job would say that the benefits of fining employees who refuse to let Bravo play doctor with them don’t outweigh the potential for liability.)
Bravo also had claimed they were going to address “rumors” and “chatter” and “fiction” about the decision in AARP c. EEOC. I was sure they were referring to me, but perhaps my ego is too large. They didn’t attempt to rebut my argument at all. Instead, they found some other “rumors” to denounce quite accurately as “false.” Here is a f’rinstance:
First of all, “illegal” is not a word that I or any responsible attorney would use in that case. You wouldn’t go to jail if you offered a large inducement or threatened a fine. A better word or phrase would be “unallowable” or “not protected by a safe harbor.” Second, it’s not the case that wellness incentives of any amount would be unallowable or illegal or anything else. Everyone would agree that small incentives, like gift cards, can be offered as part of a voluntary program. No one knows where the line will be drawn. And then finally, it’s not all “wellness incentives.” It’s specifically incentives for Bravo-type “pry, poke and prod” programs.
So their attorneys are right. Not just on this slide, but in general, I would have a hard time parsing the difference between what their high-priced lawyers said today and what I said in my webinar, other than Bravo’s attorneys didn’t explicitly state that Bravo-type programs are toast. They merely implied it.
Basically those attorneys and I are in total alignment. Bravo’s attorneys observed that Quizzify-like programs (not requiring medical exams) are the only kind that aren’t adversely affected by this ruling. Quite the contrary, of course, Quizzify is willing to indemnify employer customers who still want to do wellness programs, if they offer Quizzify as an option.