We urge all honest and competent vendors to follow our lead and incorporate this pledge into the fabric of their operations and contractual obligations.
The Employee Health Program Code of Conduct: Programs Should Do No Harm
Our organization resolves that its program should do no harm to employee health, corporate integrity or employee/employer finances. Instead, we will endeavor to support employee well-being for our customers, their employees and all program constituents.
Employee Benefits and Harm Avoidance
Our organization will recommend doing programs with/for employees rather than to them, and will focus on promoting well-being and avoiding bad health outcomes. Our choices and frequencies of screenings are consistent with U.S. Preventive Services Task Force (USPSTF), CDC guidelines and Choosing Wisely.
Our relevant staff will understand USPSTF guidelines, employee harm avoidance, wellness-sensitive medical event measurement and outcomes analysis.
Employees will not be singled out, fined or embarrassed for their health status.
Respect for Corporate Integrity and Employee Privacy
We will not share employee-identifiable data with employers and will ensure that all protected health information (PHI) adheres to HIPAA regulations and any other applicable laws.
Our contractual language and outcomes reporting will be transparent and plausible. All research limitations (e.g., “participants vs. non-participants” or the “natural flow of risk” or ignoring dropouts) and methodology will be fully disclosed, sourced and readily available.
Wellness is back in the news these days. The National Bureau of Economic Research’s controlled trial invalidating a Harvard study that has been used to claim major benefits from wellness programs and the surprise decision in the AARP v. EEOC case disallowing large financial inducements for “voluntary” programs both received national attention. Further, WillisTowersWatson’s quiet revelation that most employees really dislike wellness programs marks the first time anyone in the industry has ever acknowledged that, absent bribes and fines, few employees would submit to their HR people playing doctor.
By way of background, all these recent “findings” – the lack of savings from wellness programs, need for inducements, and the employee resentment – were quite clear to me in my roles at British Petroleum, Burger King and Walmart over three decades.
Along with Al Lewis, I brought this experience (and many others, such as the much more positive and increasingly popular domestic medical travel program) to public view in our book “Cracking Health Costs,” which continues to sell – and, more importantly, continues to resonate — five years after publication.
Largely because of the news hooks above, there have lately been a flurry of references to a comprehensive, scholarly article by that very same Al Lewis. Al, of course, is well-known for poking the wellness beast with humor, screenshots and eloquence on www.theysaidwhat.com. This article is different. Not as much fun perhaps, but “The Outcomes, Economics and Ethics of the Workplace Wellness Industry” captures all my doubts and criticisms, and much more besides.
Al often says that the wellness industry’s worst nightmare is being quoted verbatim. In this article, he has collected a mountain of self-incriminating verbatim quotes and claims, sourced with roughly 400 linked footnotes, all leading to the inexorable conclusion that, to be blunt, the wellness empire has no clothes. Al presents convincing evidence that what he calls “pry, poke and prod” programs really can actually harm employees. Further, the way wellness vendors typically calculate costs and benefits results in false ROI numbers.
This exposé, though generally dry and straight, is not without flashes of Al’s understated humor, albeit delivered in the context of the leading law-medicine journal. In one passage, Ron Goetzel is forced to spin the gaffe that his wellness advocacy group, HERO, accidentally published a chapter in their Outcomes Guide showing that wellness loses money. Ron is sourced as saying:
HERO’s board claims that, in creating the guide, they “fabricated” these numbers for the purpose of providing an example. Publicly, Goetzel, a member of HERO’s board, stated that “[t]hose numbers are wildly off . . . every number in that chapter has nothing to do with reality.”
Al’s next paragraph:
The chapter’s author, however, disputes the HERO board’s and Goetzel’s claim that the numbers were fabricated. He argues that, quite the contrary, his data is real and several board members, including Goetzel, reviewed it prior to publication. Reconciling the example’s data with the HCUP database, which shows almost total consistency between the HERO sample and the population, provides further evidence for the author’s claim that the data is not “wildly off” but rather real, and a representative sample of the privately insured American workforce.
Al challenges the credibility of HERO’s board simply by quoting both a board member and the chapter author. After all, when your go-to defense is pretending to have fabricated your own numbers, you lose. And when Al Lewis is on the other end, you lose big.
This article, though not a quick read, is a necessary one for all policymakers, pundits and especially employers as they decide how to react both to the new findings by NBER and Willis – which turn out not to be new at all –and how to prepare for 2019.
Perhaps the best preparation is to do something completely different – as my book says, perhaps try doing wellness for employees instead of to them. “Pry, poke and prod” programs, especially the coercive ones, may finally meet the demise that I’ve been predicting for about 15 years now.
Published in the Case Western Reserve Health Matrix: Journal Law Medicine
That’s the bad news. The good news is that this decision may actually be a windfall for employers with wellness programs that use heavy incentives.
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 $2,000 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: Does this cover screenings only, or are programs that combine 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 continuing 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&As 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 designed 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:
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 the vendor shows 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 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. The rules then have to be approved by the district court.
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 its 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, because 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”?
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, she can’t un-know them. Pay an employee to learn that CT scans are full of radiation once, and he 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.
It’s time for the 2017 Deplorables Awards, lovingly bestowed on those vendors who do the best job making other vendors look good.
The good news is that you don’t have to actually win the Deplorables Award to sue me. Runners-up are eligible, too. Here is my address for hand-service delivery most of the year:
890 Winter Street #208, Waltham MA 02451
In case you decide to sue me between June 22 and Aug. 8, use:
8 Paddock Circle, Chilmark, MA 02535
And don’t leave out my attorney:
Josh Gardner, GARDNER & ROSENBERG P.C., 33 Mount Vernon St., Boston, MA 02108
I don’t know how much more I can do for you, other than lick the envelope. So go for it. Don’t make me beg.
But, remember, unlike with your usual business model, in court you are required to actually tell the truth (I would be happy to explain to you how that works), meaning there is no chance of your winning — or likely even avoiding summary judgment, because none of the evidence is in dispute. It’s all your own writings. Oh, and I do my own cross, which means you won’t be able to find an expert witness. Anyone who knows enough about wellness to be an expert witness also knows enough about wellness to know that attempting to defend you would be a humiliating, on-the-record experience.
And there is always the chance that some annoying jerk might blog about it…
The 2017 Runners-Up
Springbuk and Fitbit
As many of you recall, earlier in the year we analyzed the study done by Springbuk that was secretly financed by Fitbit. Or maybe I need new glasses, because I just couldn’t find the disclosure in the Springbuk report that this paean to Fitbit was financed by Fitbit, much as Nero used to have the judges award him Olympic medals.
Coincidentally, the study showed Fitbit saving gobs of money because employees taking more than 100 steps a day spend less money than those taking fewer. However, a simple tally of one’s own footsteps shows that it is impossible not to take 100 steps a day unless you are both:
in a hospital bed; and also
This 100 steps-a-day threshold was repeated many times in the study, with no explanation of how that number came to be. However, it turns out we owe these two outfits an apology. Fitbit and Springbuk have told a number of people privately (not publicly, to avoid an embarrassing news cycle) that they didn’t reallymean to say that 100 steps a day constituted activity. They meant to say that taking 100 steps a day implied you had your Fitbit on. My apologies for failing to read their minds that their conclusions were based on reading people’s minds to determine whether they wore the Fitbit deliberately, or simply forgot/remembered/cared to put their Fitbit on.
“The materials in this document represent the opinion of the authors and not representative of the views of Springbuk, Inc. Springbuk does not certify the information, nor does it guarantee the accuracy and completeness of such information.”
“This demonstration of impact achieved by integrating Fitbit technology into an employee wellness program reinforces our belief in the power of health data and measurement in demonstrating ROI,” said Rod Reasen, co-founder and CEO of Springbuk.
HERO, of course, also earns a runner-up award. 2017 will be remembered as the year they finally came to grips with the realization that a business model based on fabricating outcomes requires that perpetrators possess that critical third IQ digit. Without that extra “1”, an organization trafficking in math that can at best be considered fuzzy is going to be outed.
This year’s set of lies? By way of background, their 2016 poison-pen letter insisted they had fabricated that data set showing that wellness loses money without disclosing that it was fabricated — and also never reviewed their fabricated data before publication. Early in the year, I had the insight that, wow, this “fabricated” chapter in their guidebook is so much better than the other chapters that something is amiss. No one at HERO can analyze data competently…and yet, here it was, a competent data analysis.
I did something I had never thought to do before, which was look up the actual author of that chapter. It was Iver Juster, MD. He was a great analyst even before he read all my books, took all my courses and achieved all my certifications in Critical Outcomes Report Analysis.
Whereas Paul Terry and Ron Goetzel had insisted that Iver fabricated the data, Iver said that, of course he didn’t — whatever made me think that? (“If it wasn’t real, I would have disclosed that,” he observed. Of course, he would have. Iver has tremendous integrity.)
The board discussed and reviewed his chapter at length and made helpful suggestions, for which he was quite grateful. This review process required “countless hours,” just as the HERO document says:
Perhaps as an encore, WCS, Dr. Oz and the National Business Group on Health could team up to offer a chocolate-eating contest.
I looked into this outfit to see where they get their ideas. The CEO previously ran something called the Washington Document Service. That qualifies her to run a wellness company. As Star Wellness says, to run a wellness company successfully, your background needs to be in sales, or “municipality administration.” After all, what is more central to administering a municipality than documents?
So if your kids ever want you to teach them how to ride a bike, say: “It’s not really about riding a bike. It’s about helping you apply the secrets of people who have ridden bikes.”
And what secrets are we talking about? What person who has lost weight doesn’t brag to everyone or even write a book? If there is a secret to weight loss, like eating chocolate, Wellsteps owes it to the country to tell them. Don’t make us beg.
Sounds like in 2018 the logical winners would be Philip Morris, or maybe the Asbestos Corporation of America.
Veering briefly into the public sector, kudos to Rep. Virginia Foxx, (R-NC5) for introducing the Required Employee DNA Disclosure Act. Even HERO thought it was a dumb idea…and their threshold for thinking something that increases wellness industry revenue is a dumb idea is quite high, having all rallied behind the Johnson & Johnson fat tax, in which companies would be required to disclose the weight of their employees.
Intuitively, stents make sense. If you’ve got occasional chest pain due to reduced blood flow to your heart, having a stent—a thin mesh tube inserted into a coronary artery to hold it open—is a seemingly logical solution. Half a million of these procedures, called angioplasties, are performed every year, at a cost of roughly $20,000 apiece.
Alas, sometimes hard data trumps intuition.
Recently, a landmark “sham surgery” study showed these procedures don’t make a difference in people with stable angina and a single narrow coronary artery. Stents are inserted using a catheter. In this study, 200 people with chest pain who had single vessel disease had the catheter inserted. Half of them got a stent, and half did not (that’s the sham arm of the study).
And the envelope please…
Six weeks after the procedure, there was no real difference in the patients, either in chest pain or performance on treadmill tests. In other words, the placebo surgery did just as well as the real thing.
While these results were described as “unbelievable” by some cardiologists, they are not much of a stretch from what we already knew about stenting. Even five years ago, the New York Times reported on research that found No Extra Benefits Are Seen in Stents for Coronary Artery Disease in patients with stable angina. That article also reported there was an “insignificant difference” between people who have had stents inserted and those who didn’t. A cardiologist and professor of medicine at Yale told the New York Times, “When people are making decisions, it’s important to disclose to them that this procedure [stenting]—outside of an emergency—is not known to be life-saving or to prevent heart attacks,” adding, “the vast majority of people who have this procedure have the expectation that it will help them live longer. That belief is out of alignment with the evidence.”
The good news is that we know that there are more conservative measures that can slow or reverse heart disease, include quitting smoking, exercising more, improving your diet and losing weight if possible. There are a range of safe and effective drugs that can help reduce chest pain as well as your risk of a heart attack.
Although rare, there are some serious risks with angioplasty, such as bleeding from the site of the incision used to insert the catheter, damage to the blood vessel itself, irregular heartbeats and damage to the kidneys caused by the dye used. The risks of complications are low, but why would you take any risk, endure an uncomfortable recovery and pay a substantial co-pay or deductible, if there is no evidence of benefit?
Like many medical procedures, the amount of unneeded and unnecessary stenting is a byproduct of the healthcare system’s financial structure that rewards doing more procedures, when doing less is often wiser and certainly cheaper.