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August 21, 2014

Are Obamacare Wellness Programs Soon to Be Outlawed?

Summary:

The EEOC filed a suit that could end workplace programs and expose brokers and vendors to similar lawsuits.

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The Equal Employment Opportunity Commission (EEOC) filed suit Aug. 20 against a Wisconsin company, Orion Energy Systems, which severely penalized and then fired an employee who refused to participate in the type of wellness program now encouraged by the Affordable Care Act. The EEOC is arguing that there was “no business necessity” for this program and that the exam and other intrusive screening were “not job-related.”

If the EEOC were to prove that the standards it cites (part of the Americans with Disabilities Act) apply to wellness programs, this has strong implications for the Insurance Thought Leadership community. This could spell the end of workplace wellness generally, and specifically could expose your clients with penalty-based or mandatory medical wellness programs to similar lawsuits.

Although the White House is probably hoping the EEOC loses, winning this suit should be a layup. It can easily be shown that medical wellness programs are not job-related and have no business necessity. Quite the contrary, the three most basic provisions of “medicalizing” the workplace with wellness — health risk assessments (HRAs), biometric screens and enforced doctor visits — are more likely to harm employees than benefit them.

HRAs makes employees disclose things like whether they routinely examine their testicles (which men are not supposed to do) or whether women intend to become pregnant. These HRAs then also give feedback with no basis in medicine, such as recommending a prostate cancer test that the federal government strongly advises against and perpetuating the myth that all women under 50 should get regular mammograms.

Biometric screens pose an even greater risk to health than HRAs. Although medical societies are urging fewer screenings to avoid overdiagnosis and overtreatment, employer human resource departments can’t get enough of them, thanks to incentives created by Obamacare. The inevitable consequence: More people identified for “early intervention” to treat clinically insignificant conditions. For instance, an overzealous Nebraska colonoscopy screen caused the state’s vendor to trumpet that it saved the lives of 514 state employees who never had cancer in the first place. Yet instead of calling for an investigation, the state promoted this and other equally fallacious results successfully enough to win their program  the C. Everett Koop wellness award.

Biometric screens usually include weigh-ins and penalties for refusing to participate (or, sometimes, for not losing weight). Shaming people into losing weight is unhealthy and unproductive, and body image issues reinforced by workplace “biggest loser contests” affect 20 million women and can be fatal.  Meanwhile, weight has only a slight effect on health spending during the working years, and, if economic incentives could generate sustained weight loss, Oprah Winfrey would have kept her weight off instead of giving up her lucrative Optifast endorsement contract. Medical science has no clue what causes obesity. Some novel theories are being proposed, but, whatever the cause, Obamacare-inspired fines are not the cure.

Forcing employees to go to the doctor when they aren’t sick is perhaps the most curious and expensive wellness requirement. The clinical literature is quite clear about the futility of this custom, which may do more harm than good. Obviously checkups can’t save money if all they do is increase diagnoses and treatments with no offsetting benefit to actual health. Perhaps employee checkups are job-related in a few fields – public safety, airlines, sports, adventure travel – but otherwise it’s hard to see how worthless checkups improve an employee’s ability to answer the phone or do most other typical job-related tasks.

The ADA standard is “business necessity,” meaning these hazards and punishment might be acceptable if money was being saved or morale was being improved, but – as the book Surviving Workplace Wellness shows, quite the opposite is true. No wellness vendor has ever shown savings that weren’t obviously made up, and most won’t defend their own claims. Even Nebraska somehow “found” huge savings despite all these unnecessary cancer treatments and no meaningful change in employee health, savings claims that their vendor now refuses to defend. Further, the wellness industry’s own recently published analysis shows no savings.

Likewise, morale impacts are so negative that CVS and Penn State employees rose up in revolt against them. Increasing employee resistance also explains why employers have needed to almost triple fines since 2009 (now averaging $594) against employees who refuse to allow their companies to pry, poke and prod them.

Perhaps Orion Energy’s defense could be that trying to control employee health behaviors and fining employees who eat too many Twinkies is a “business necessity” because it shows employees who’s the boss. There is, after all, no provision in employment law that requires employers to be nice.

That defense might win the suit but also generate some headlines worthy of late-night talk shows.  Still it’s hard to imagine any other defense succeeding.

Insurance brokers and consultants need to follow developments closely. If the suit succeeds, you’ll need to caution your clients to scale back on “playing doctor” with employees, and certainly on penalties for non-compliance. Orion’s penalty was draconian – a few hundred dollars in fines is probably still OK. Focusing wellness efforts on less sexy issues like serving healthy food and getting employees to exercise more should also keep your clients out of trouble.

The worst development would be a flood of these lawsuits, but we at ITL will follow up with what you can do to avoid being one of the targets.

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About the Author

Al Lewis, widely credited with having invented disease management, is co-founder and CEO of Quizzify, the leading employee health literacy vendor. He was founding president of the Care Continuum Alliance and is president of the Disease Management Purchasing Consortium.

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