Inoculating Your Wellness Program Against EEOC Attack

flying cadeuciiTwo months ago Al wrote a column titled: Are Obamacare Wellness Programs Soon to be Outlawed?   Truthfully that headline was picked for its sky-is-falling value, in an attempt to generalize one Equal Employment Opportunity Commission (EEOC) lawsuit against one wacky wellness program to an EEOC risk for wellness programs everywhere.

As luck would have it, the sky has now fallen — right on the head of Honeywell…and the EEOC is indicating more lawsuits are to come.   The scary part here:  Unlike the wacky wellness program above, Honeywell was in compliance with the Affordable Care Act (ACA), but compliance with the ACA doesn’t seem to get you a free pass on the EEOC’s own “business necessity” requirement, plucked from the Americans with Disabilities Act (ADA), which they enforce.

 Essentially the Honeywell lawsuit means no company doing invasive biometric screenings and mandating doctor visits or measuring health outcomes on individuals, and that has a significant financial forfeiture attached to it, is immune to prosecution, even if they are in compliance with ACA.

  (Whether an incentive is considered a penalty in disguise is not known; that is why we use the word “forfeiture.”)

The even scarier part is that the EEOC is correct:  as we have expounded for almost two years now, wellness programs mandating overscreening and annual checkups have no business necessity.  To begin with, these “employer playing doctor” programs can harm employees:

  • A workplace screen can find heart attacks…at the cost of a million dollars apiece when emotionally draining false positives and potentially hazardous overtreatment are taken into account;

  • The Journal of the American Medical Association recommends against mandatory checkups

  • Finally, an upcoming, embargoed, peer-reviewed article in a major journal concludes that the costs and unintended health hazards of weight control programs generally overwhelm the benefits.

But provided alternatives are offered, companies could still claim business necessity if, indeed, these programs saved money despite the harms to employees.  (The latter might create some OSHA problems, but those are hypothetical whereas EEOC is the elephant in the room.)  A few of you might ask:  “Didn’t Ron Goetzel of Truven and others just write a journal article and show a webinar saying:  ‘The overwhelming majority of published studies show positive results’?”

Unfortunately, those “positive results” – as should be well-known to the presenters, who have access to the internet – fail any sniff test.   This material continues to cite Professor Katherine Baicker even though she has stepped back from her old (2009) ROI conclusion three times.  More recently, she has, with great justification, blamed overzealous readers for selectively interpreting her findings.   Ron Goetzel also continues to cite the state of Nebraska, which his committee gave an award to, as a “best practice” despite the revelations that the state’s vendor, Health Fitness Corporation, lied about saving the lives of cancer victims, and that the vendor also paid his award committee through a sponsorship.   Likewise, their misinterpretation of the RAND study has drawn a rebuke from the author of the RAND study, in an upcoming letter to the editor.

Clearly, the EEOC is onto something about a lack of business necessity, when even the alleged best-and-brightest wellness defenders are forced to rely on Nebraska and RAND to support their arguments.  Not to mention selective omissions — the presentation’s extensive section on “critics” had no mention of either of us, despite a recent cover story citing Al as the field’s leading critic, because both these two presenters know our math is irrefutable.  These industry defenders also have spotty memories, as when they claim that it is valid to compare the performance of active willing participants against a control group of unmotivated non-participants and dropouts — forgetting that they gave out a Koop Award to one of their sponsors who showed exactly the reverse – a substantial separation of would-be participant and would-be non-participant cost trends even without a program to participate in.

Inoculating Credible Wellness Programs

The Honeywell experience can be avoided.  Taking three steps — the first two of which are free —essentially guarantees that no employer  will end up on the hot seat with Honeywell.

First, sign and adhere to the Workplace Wellness Code of Conduct.  This allows employers to focus  on avoiding employee harm and creating a framework for business necessity.  This document is provided gratis for any employer, from the authors.

Second, employers who sign this need to get at least one vendor/carrier to sign and implement its counterpart, the Workplace Wellness Vendor Code of Conduct, also available gratis.

Third, we personally will do an in-depth figurative and literal walkthrough to see if indeed the wellness program is compliant with United States Preventive Services Task Force guidelines and Americans with Disabilities Act (ADA) requirements.   If not, we will provide a list of next steps to get into compliance.

The inoculation?   A six-figure guarantee that you, the employer,  will not be the subject of a successful EEOC lawsuit.  Besides providing some protection on its own, this level of financial commitment may create a self-fulfilling prophecy, being a pretty convincing piece of evidence that business necessity and employee health are the goals, as measured by an objective and qualified third party, and meeting ADA standards.

It’s not just us.  This isn’t “here is the problem and we are the only people with the answer” posting.  Any consulting firm should be willing to do this, as we are, if they are giving good advice.  Unfortunately, every screening vendor, every alleged wellness expert, and most of the “professionals”  in  benefits consulting firms have done just the opposite:  proposed massive, highly financially incentivized or penalized programs that get companies into fine messes like Honeywell’s…and then profess shock that this happens and have no clue how to get them out.

Al Lewis and Vik Khanna are co-authors of THCB’s first e-book, Surviving Workplace Wellness With Your Dignity, Finances, and Major Organs Intact.

12 replies »

  1. When it comes to containing the increasing cost of medical care, the government is counting on the 3 Ws:

    Waste: Every new administration has promised to eliminate the waste in Medicare and Medicaid because the last one did not. This promise has been made, fought, and lost since the start of the programs.

    Wellness: If everyone just practiced wellness, ate right, exercised, and just took care of each other, we could save immense amounts of money, like 2-7%, maybe (results are not guaranteed). Of course, the food program is under the Dept. of Agriculture, and I think this week the CDC is responsible for exercise, so intragovernmental agency coordination will require a new task farce to coordinate the inaction.

    Whatever: Don’t bother the goverment with evidence-based medicine regarding wellness since their response is “Whatever…” as they have too many experts invested in the wellness idea. Also, when you mention that laws like the ADA, FMLA, PPACA and HIPAA do not coordinate, their answer is again “Whatever — see you in court.”

  2. The problem here is not the details, it is the government interference in healthcare. This pathetic thuggery reminds me of the cynical phrase “what is not required is forbidden”. Or at more length, as Rand put it more than 50 years ago:
    The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.

    As in thermonuclear war, the only winning move is not to play the game.

  3. Yes, I remember reading this in the book!

    The frame doesn’t work forever. I think early success of penalty vs. incentives will quickly dissipate.

    I hope he is still eating the vegetables!

  4. Once I was feeding my then-2-year-old when my mother was visiting. I said: “Paul, if you eat your vegetables you can have dessert.” My mother said I shouldn’t bribe him like that. I observed she used to do exactly the same thing with us.

    “No, I didn’t,” she replied. “I used to say, ‘If you don’t eat your vegetables you can’t have dessert,’ “

  5. EEOC would be fine with this. It would not fall under their jurisdiction because no money would be involved. Likewise, not that anyone cares but I would be fine with it too.

  6. Exactly my point. The power of the frame. Kahnemann & Tversky destroyed Homo Economicus a long time ago.

  7. It makes a difference to most people. No one is going to get angry about bonuses but everyone gets mad about penalties. And if you want to really change behavior you give people s bonus and then threaten to take it away if they fail to achieve a goal.

  8. Great post, and let’s hope the Honeywell lawsuit is just the first of many.

    If a sales guy said “Sales are important! You naysayers need to get on board!” the appropriate response would be:

    “No, actually I want to see a program where what we spend to generate sales is LESS than the sales increase the program generates. I am not a naysayer, just someone who took (and passed) fifth grade math.”

    I mean really. I’ve been a line executive for most of my career, and if I tried to use the kind of logic common in the wellness industry defenses in my line-executive roles I’d have had a VERY short career.

  9. This is analogous to the financial penalties imposed by HHS/CMS on docs who refuse to purchase and meaningfully use EHRs.

    Gee, I wonder if there is some obscure language in the Medicare charter and rules that would result in these new CMS edicts being declared null and void.

  10. Vik
    How would biometric screening play solely if used for patient education?

    For instance, contractor takes the BMI, tells patient their value exceeds normal range, and if they voluntarily choose, counselor would then assist tin assembling plan to improve?

    No monetary incentives for outcomes—negative or positive, and measure used only as basis to intervene in constructive manner?

    OK by you?mk


  11. Let’s see.
    The wellness discount can be up to 30 percent and the tobacco-free discount is 20%.
    How many insurers are willing to provide 50% discounts for these programs?
    Yes, they are available, but are there any takers?
    Don Levit

  12. “Whether an incentive is considered a penalty in disguise is not known; that is why we use the word “forfeiture.”)”

    The beauty of the frame!

    Incentive vs penalty? It’s a distinction without a difference.