Tag Archives: americans with disabilities act

Dissecting Landmark Decision on Wellness

This is a follow-up to the announcement and “back story” of the Dec. 21 wellness decision in AARP vs. EEOC, a decision that could severely curtail incentives and penalties…and that 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 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.

See also: A Wellness Program Everyone Can Love  

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:

  1. 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.
  2. 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 its 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 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.

Along with that uncertainty are two others. The EEOC could appeal, because 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 toward 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.)

See also: Should Wellness Carry a Warning Label?  

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.

New Approach to Mental Health

In recent years, thought leaders in business, government and risk management have developed a sophisticated understanding of the bottom-line impacts of untreated mental illness in the workplace. For example, mental health and brain science dominated the agenda at the Davos World Economic Forum in 2015. And the National Business Group on Health held its first CEO Mental Health Summit in October 2015. Among the costs highlighted in these forums: worker productivity loss, high healthcare utilization rates, skyrocketing disability outlays and employment litigation.

To further advance mental wellness in the workplace, it’s essential for legal and human resources to be part of this collective effort. Here, we explore this disparity in approaches, and discuss why it is so harmful to the interests of all – employers, insurers, employees and their families.

See also: Language and Mental Health

What most thought leaders know about workplace mental health, in a nutshell, is this:

  1. Mental illness is common and treatable, with a 25% incidence rate and an 80% recovery rate, akin to chronic physical illnesses;
  2. Early detection and treatment are the most effective and inexpensive means of helping employees get well and return to full productivity quickly; and
  3. If an employee takes a leave of absence, the longer the absence, the less likely the employee is to return to work.

Thus, the organizational strategic imperative is to create workplace conditions designed to enhance early detection and treatment, restoring the status quo as efficiently as possible.

In stark contrast to this organizational imperative, legal and human resources professionals often advise supervisors, managers and EAP professionals to treat potential emotional and mental health issues exclusively as a performance matter. This advice is usually driven by a desire to “avoid an ADA claim.” However, this approach usually postpones the inevitable and makes a claim under the Americans with Disabilities Act more, not less, likely.

The result is often this pattern: a continuing decline in the employee’s condition and work performance, a severing of trust between employee and supervisor and isolation from others at work. Once a disciplinary action or performance improvement plan is imposed, both parties cut ties, and the result is a toxic cycle of leave of absence, disability claim, a request for accommodation, a failed interactive process, separation of employment and either litigation or a pay package. This is an expensive, disruptive and painful process that can often be avoided.

Employers would do well to consider this as an alternative approach:

Design a mental health policy that will unify executive leadership, legal counsel and human resources around the organization’s strategic approach to overall wellness.

  • This policy defines the vision, and the business case, for improving the mental health of the workforce and using the ADA interactive process as an effective means of achieving early detection and treatment of these impairments.
  • Training for supervisors, managers, legal counsel, HR, EAP staff and healthcare providers will highlight: A timely and collaborative exchange of information and interactive process maximizes success; the ADA does not require a fundamental alteration of any job; work teams and supervisors need to partner with HR on making accommodations work.
  • The policy will establish a confidential process for employees to obtain affordable, accessible treatment (either through existing vendors or through curated referrals).
  • Developing and implementing the mental health policy can stimulate and engage your organization in a discussion of the high incidence of emotional and mental health impairments and how these common, treatable conditions can be accommodated.
  • Mental Health 101 Training should be integrated into total wellness programs, including how to mitigate and address stressors in the workplace, how to respond to a colleague or supervisee who may be struggling and how to seek help confidentially.
  • Mental health champions should be designated, trained and made available as confidential resources to anyone at any point in the chain of command dealing with a mental health issue.

When executive leadership, legal counsel and human resources unify behind a strategic, business-savvy approach grounded in total wellness and ADA compliance, everybody wins.

See also: Why Mental Health Matters in Work Comp  

Insurance Thought Leadership’s continuing series of articles focused on suicide prevention is written by the Workplace Task Force of the National Action Alliance for Suicide Prevention, the public-private partnership championing suicide prevention as a national priority.

ACA: Complication for Websites

On May 18, 2016, the Department of Health and Human Services (“HHS”) issued a final rule implementing Section 1557 of the Patient Protection and Affordable Care Act (ACA), which prohibits discrimination on the grounds of race, color, national origin, sex, age or disability in certain health programs and activities. Effective July 18, 2016, the final rule, “Nondiscrimination in Health Programs and Activities,” required entities covered by the rule to comply with certain accessibility requirements applicable to their use of technology in the provision of services.

See also: AI: The Next Stage in Healthcare  

The rule applies to: (i) to every health program or activity, any part of which receives federal financial assistance provided or made available by HHS; (ii) health insurance plans and marketplaces; and (iii) HHS itself. The rule defines “HHS financial assistance” broadly, to include almost all types of financial benefit transfers, among them grants, loans, credits, subsidies or transfers of real or personal property (but excludes Medicare Part B payments). Key points of the rule include the following:

First, the rule requires entities covered by it to make all programs and activities provided through electronic and information technology (e.g., a website) accessible for individuals with disabilities, unless doing so would impose undue financial or administrative burden. In addition, such entities must provide appropriate auxiliary aids and services when necessary to ensure an equal opportunity for persons with disabilities to participate in and benefit from the entity’s health programs or activities. Auxiliary aids and services include qualified sign language interpreters, captioning, large print materials, screen reader software, text telephones and video remote interpreting services. In short, entities covered by the rule must take appropriate steps to ensure that communications with individual with disabilities are as effective as communications with others, in accordance with Title II of the Americans with Disabilities Act of 1990 and related regulations.

Second, entities covered by the rule must take reasonable steps to provide meaningful access to individuals with limited English proficiency eligible to be served or likely to be encountered in their health programs and activities. This includes providing language assistance services, such as oral language assistance or written translation, free of charge and in a timely manner.

Third, entities covered by the rule must comply with certain procedural requirements. Specifically, the rule requires applicable entities with 15 or more employees to have a grievance procedure, to identify at least one individual accountable for coordinating the regulated entity’s compliance and to have a written process in place for handling grievances.

In addition, entities covered by the rule that operate websites must post on the website notices of nondiscrimination and taglines that alert individuals with limited English proficiency to the availability of language assistance services. Such taglines must be posted in at least the top 15 non-English languages spoken in the state in which the entity is located or does business.

See also: Digital Insurance, Anyone?  

For healthcare providers operating in the digital health industry as well as for software and other technology vendors working with health care providers, the rule may create a number of challenges. Website accessibility has likewise been the focus of increasing litigation, and a number of high-profile settlements have emphasized the potential risks entities may face by failing to address technology-based accessibility issues. Providers would be well advised to review their websites and other customer-facing technology with counsel to determine the applicability of the rule to their activities, as well as any broader accessibility considerations and exposure.

This article is from Jones Day Digital Health Law Update.  For more like this see: http://www.jonesday.com/digital-health-law-update-vol-ii-issue-4-08-08-2016/.

Will Your Website Get You Sued?

Plaintiffs’ attorneys have discovered a new, rich litigation vein to exploit, potentially yielding a treasure of targets to sue. Using Title III of the Americans with Disabilities Act (ADA) and applying it to a modern societal institution (the internet) that was not in existence or contemplated when that law was enacted, lawyers may have hit pay dirt again by claiming that websites are not accessible to the disabled.

Title III of the ADA requires places that are open to the public to not discriminate against individuals due to their disability or otherwise deny them “the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” These rules apply to any company that permits “entry” by the public. Although traditionally Title III of the ADA has been applied to physical structures, recent cases have raised issues as to whether these rules may apply to websites, as well.

To date, the case law addressing these issues is very limited and has been mixed. Case law from the Seventh Circuit has applied the ADA to websites, and the First, Second and Eleventh Circuits have applied the ADA beyond physical structures, providing ground for plaintiffs to argue that the ADA can extend to a virtual space such as websites. Meanwhile, the Third, Fifth and Ninth Circuits have applied the ADA provisions to physical locations only.

See also: Broad Array of Roles for Disability Coverage  

The Department of Justice, which is responsible for interpreting and enforcing Title III of the ADA, says that Title III does apply to websites. However, in typical government fashion, the DOJ has delayed releasing its “accessibility” guidelines for webpages, with an anticipated release date in 2018.

While the regulations and laws on website accessibility may be unclear, a few law firms are nonetheless sending out demand letters targeting specific industry sectors nationwide (for example, private universities and real estate brokerage firms) and demanding compliance with onerous website standards. The letters ask the recipient to hire the plaintiff’s law firm (or their preferred vendor) to help reach an “acceptable level” of compliance. In addition, several national retailers, including Patagonia, Ace Hardware, Aeropostale and Bed Bath & Beyond have been named in lawsuits regarding accessibility to their sites. According to Bloomberg’s BNA reports, 45 of these type of lawsuits were launched in 2015. That number is expected to increase substantially in 2016.

With the law so unclear on this topic, how should businesses navigate these murky waters? First, if you receive one of these demand letters, you should consider contacting an attorney and should avoid engaging in discussions with the plaintiff or their law firm without representation. Then, along with your attorney and an IT representative (in-house or a vendor), develop a strategy to bring your webpage into accessibility compliance. Although there is no “one-size fits all” approach to move toward compliance, depending on what is on your website, businesses can consider providing audible text on each webpage and providing audible captions for pictures. Ultimately, to play it safe you may want to take all reasonable steps to improve navigation and access on your website.

See also: New Products and Combined Approaches

Takeaway

Lawsuits related to website accessibility could likely be next cash cow for plaintiffs’ attorneys. As the early case law on this issue is so mixed, there is little guidance as to who has to be compliant and what exactly compliance would look like. Until the DOJ gets around to issuing guidelines (assuming they provide much guidance), businesses should consider reviewing their websites and documenting reasonable efforts to make the sites accessible to the disabled. Further, companies should consider purchasing a robust employment practices liability (EPL) policy with broad third-party coverage that can potentially pick up the defense of claims related to website access claims.

This article was co-written by Marty Heller.

How Advocates Can Reengage Workers

A historical challenge in workers’ compensation has been creating the best possible approach to communication: consistently reinforcing transparency, putting the injured employees’ needs first and reassuring them that their claims team is working in their best interests.

Employers today, more than ever before, are engaged in the workers’ compensation process and, in partnership with Sedgwick, have developed efficient healthcare and treatment solutions that provide the highest quality of care. They have also developed return-to-work programs that not only accommodate potential injury-related restrictions and ensure compliance with state and federal employment laws (e.g. Americans with Disabilities Act) but that also encourage employees to come back to work as quickly as possible. This approach ultimately results in an improved experience and outcome for all parties. The responsibilities of claims and managed care professionals encompass many activities that already assist with this process, but there is an emerging need to take employee care above and beyond the standard claims management efforts.

This expanded approach involves being an advocate for the employee by listening, communicating, providing information and proper medical care, explaining how this complicated process works—and being there to assist them at every turn. From the time an injury occurs to the moment the claim is closed, the examiners, the nurses and the colleagues who assist the employee all serve important roles that can have an impact on the outcome of the claim. It’s through their experiences that our industry can see the value of employee advocacy and the advantages it can bring for all parties involved.

Exploring the Shift in Philosophy 

There seems to be a change in the philosophy of employers as it relates to workers’ compensation injuries. Today, businesses are more interested in making sure their injured employees get everything they need to recover, and they are willing to spend the money and do all the right things as a part of their responsibilities as an employer. Instead of questioning claims, they are more focused on restoring the health of their employees. To do this successfully, employers must work closely with claims administrators to develop and implement a process around employee advocacy. This may include assigning a trained, knowledgeable member of the claims team to guide employees through the process or connecting them with a nurse who can assist with their medical concerns. There are different options based on the individual employer’s needs, but each one is designed around the same objective: improving injured employees’ health and well-being.

Surrounding the Employee With Support

The employee advocate typically performs an outreach to the employee after receipt of the first report of injury. The advocate is someone who asks how the employee is doing and offers a sympathetic ear. The advocate is also someone who has information on their claim and is connected to all of the resources available to assist the employee. This initial call can offer several advantages, including:

  • Reassuring the employee that the employer cares and that the employee is not going to lose his job for filing a workers’ compensation claim;
  • Providing guidance to the injured employee that could prevent a minor claim from becoming something major;
  • Answering initial questions to resolve possible issues that could lead to litigation—if the employee needs additional information, the advocate can get what she needs and call back; and
  • Keeping everyone calm at the outset of the injury and having a positive impact on the employee’s attitude.

In this role, the advocate becomes the employee’s key contact and will make sure the employee does not feel alone in this process. The topics for the advocate’s outbound calls may include explaining workers’ compensation; setting expectations related to claim investigation, medical bills, prescriptions, benefit payments and return to work; or explaining the roles of the adjuster or nurse case manager assigned to the employee’s claim.

Providing Specialized Clinical Advocacy

Clinical resources may be needed for an employee based on his injury. This type of advocacy includes a phone call from a registered nurse who will ask the employee how she is doing, answer her medical questions and direct her to the best provider for her injury. At this time, the nurse may also identify any psychosocial issues or other concerns that may affect the employee’s ability to recover or return to work, and the nurse may then direct the employee to behavioral health or return-to-work specialists.

Benefits and Proven Results

When employees are injured at work, this can be an unsettling time for them—filled with many questions. Providing upfront communication and a healthcare team focused on their well-being can make the process better for everyone. Employer benefits include reductions in litigation, medical costs and lost time. With the average cost of litigated workers’ compensation claims about 65% more expensive than non-litigated claims, reassuring employees and keeping them as happy as possible throughout the claims process can have immeasurable value.

We have experience working with several employers that have implemented successful advocacy programs. One is a retail company that has an advocate who contacts every employee on the first day of an injury to see how they are doing. This company’s goal was to reduce litigation, and it has accomplished that through this process. The company feels having someone reach out gives each employee a sense of security, as well as the reassurance that he won’t lose his job due to filing a claim and the feeling that he is part of a system that protects him.

Focusing on the Employee

Examiners, nurses, assigned advocates and other members of the claims and managed care teams all work together to ensure the injured employee has the best possible outcomes. Having a team to surround the employee with care and recovery solutions provides significant dividends related to the continuation of productivity and employee morale—and it can positively influence the overall view of their employer.