AOL Chief Outs Employees’ Health Information

February 11th, 2014 No comments »

Tim Armstrong

Recently, Tim Armstrong, CEO  of AOL publicly revealed sensitive health information on two of AOL’s employees. He was using the example in a justification for changing AOL’s 401(k) plan for employees. After setting the Twitter universe on fire, Armstrong apologized and reversed the change in the 401(k) plan.  AOL won’t say how it got the information but observers assume it came from the group health plan which administers AOL’s self-insured health care benefits. If so, the disclosure may violate the plan’s procedures. It is not clear that the specific employees have any recourse.

It is worth noting that the federal Health Insurance Portability and Accountability Act (HIPAA) does not cover information asked by employers and provided by employees, such as the ubiquitous Health Risk Assessments. HIPAA only covers disclosure of health information by health care personnel, according the Department of Health and Human Service’s website.


Fall-out from Penn State Wellness Debacle

September 25th, 2013 No comments »

New York Times’ Natasha Singer reports today that Rep. Louise M. Slaughter (D-NY) has asked the Equal Employment Opportunity Commission to investigate employer wellness programs that seek intimate health information, like Penn State’s program, and to issue guidelines preventing employers from using such programs to discriminate against workers.  The EEOC held a hearing on employer wellness programs in May, 2013.


Fat-Bashing Prof Censured

August 22nd, 2013 No comments »

Psychology Professor Geoffrey Miller has been formally censured by the University of New Mexico for a tweet he published in June telling Ph.D. candidates who are obese not to apply to his program.

At first, Miller claimed his tweet was part of a research project but the Institutional Review Board at New York University, where he was a visiting professor, and the IRB at UNM concluded that was not correct.

As part of the censure, Miller cannot serve on any admission committee for the duration of this time as a faculty member, must work with co-advisors to develop a sensitivity training program as it relates to obesity, be assigned a faculty mentor for three years with whom he will meet on a regular basis to discuss potential problems, have his work monitored by the chair of the Psychology Department and apologize to the department and colleagues for his behavior.

The investigation by UNM found no evidence Miller had discriminated against people who are overweight. In light of the concerns raised by his tweet, the university is bringing an obesity stigma expert to UNM to help educate the community on obesity stigma. Miller can appeal the decision.

NYU is allowing Miller to complete his contract until August 31.

A study in the May issue of Obesity found that applicants to graduate school in psychology who were obese fared worse when they had face-to-face interviews than when they had telephone interviews. This relationship was stronger for females than males. Higher BMI was related to more positive adjectives in letters of recommendation.


The Wage Penalty and Obesity

February 7th, 2013 No comments »

Workers who are obese receive lower wages than their non-obese peers, especially white women working in firms which provide health insurance for their employees.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) prohibits employers from varying employee contributions based on health related factors. The current HIPAA provisions provide an exception which allows employers to vary contributions if they participate in employee wellness programs. The proposed regulation under the ACA expands the amount of the penalty/incentive to up to 30% of the cost of the employee’s health insurance premium for those meeting specified biometric targets, including Body Mass Index (BMI) or related weight metric.

Since this provision broadens the exception to the non-discrimination provisions, it is important to consider the extent, insofar as it can be determined of existing discrimination against persons because of their body weight. An expansion of the HIPAA provision should then be read in context of increasing the penalty paid by some employees for their excess body weight.

The justification for the ACA provision was that employees with poor lifestyle behaviors, especially smoking and obesity, should bear more of the employer-paid health insurance costs or demonstrate their efforts in making lifestyle changes in voluntary or mandatory wellness programs. Current research indicates that this premise is not accurate.

So who are most affected by these programs?

The biometrics used in such programs, include obesity, elevated triglycerides and blood pressure, are part of what is known as the metabolic syndrome. Approximately 34% of adults meet the National Cholesterol Education Program’s criteria for the metabolic syndrome. Older males and females from 40-59 years of age are about 3 times as likely as those 20-39 to meet the criteria for the metabolic syndrome. Males and females over 60 were more than 4 and 6 times respectively to meet the criteria. Overweight and obese males were 6 and 32 times as likely as normal weight males to the meet the criteria and overweight and obese females were 5 and 17 times as likely to meet the criteria. (See, Ervin RB, Prevalence of metabolic syndrome among adults 20 years of age and over, by sex, age, race and ethnicity, and body mass index: United States, 2003-2006. National Health Statistics Reports; No. 13. National Health Statistics metabolic syndrome – PubMed Results )

The prevalence of obesity and hypertension has significantly increased in non-Hispanic Whites and non-Hispanic Blacks in both men and women. Non-Hispanic Blacks have the highest prevalence of obesity and hypertension. Diabetes is increasing overall with Mexican-Americans showing the higher rates. Smoking is declining in all groups. Romero CX, et al, Changing Trends in the Prevalence and Disparities of Obesity and Other Cardiovascular Disease Risk Factors in Three Racial/Ethnic Groups of USA Adults. Adv Prev Med. 2012:172423.

It has been long recognized that workers who are obese face discrimination in the workplace in terms of hiring and promotion. Giel KE, et al. Weight bias in work settings – a qualitative review. Obes Facts 2010 Feb;3(1):33-40.

It has also been known for some time that white female workers are paid less than their normal weight peers for the same work. This is known as the wage penalty. See Lempert D, Women’s Increasing Wage Penalties from being overweight and Obese, Department of Labor, Bureau of Labor Statistics Working Paper 414, 2007, December.

The study by Jay Bhattacharya and M. Kate Bundorf of the Stanford University School of Medicine looked at the issue: Who pays the healthcare costs associated with obesity? Using data from the National Longitudinal Survey of Youth and the Medical Expenditures Panel Survey, they made some startling findings:

  1. Workers who are obese and who receive health insurance through their employers earn lower wages than their non-obese peers.

  2. Workers who are obese and at firms not providing health insurance earn about the same as their thinner colleagues.

  3. A substantial part of these wage penalties at firms offering insurance can be explained by the difference between obese and non-obese in expected medical care costs.

  4. The obese with employer-sponsored health coverage bear the full cost of the incremental medical care associated with obesity, approximately $732.

Thus, their study finds that while it is nominally employers who pay for health insurance premiums, it is really employees who bear the cost of employer-sponsored insurance.  Further, the wages of obese workers are lower than those of their normal weight peers, and in the case of white women, the relationship appears to be causal.  It is obese white women who bear the burden of lower wages due in part to the higher costs of insuring these workers. In firms providing employer based health insurance, obese women experience a wage penalty of $2.64 per hour. The penalty comes out to $5,784, above the average individual health insurance premium or 1/3 of a family premium.   In firms which do not provide health insurance, there is no significant wage penalty.

Not surprisingly, men and women with obesity report a higher percentage of common medical conditions, including diabetes, asthma, hypertension, non-specific joint pain and arthritis. Women with obesity are nearly 10% more likely to have arthritis than their non-obese peers, while for men with obesity, the differential is only 6%. It is only for arthritis that obese individuals spend more than thin individuals. They state, “For female workers with arthritis, the medical expenditure difference between obese and thin individuals is $1,956; for male workers with arthritis, the difference is $1,224. Clearly, differences between men and women are an important part of the reason why obese female workers spend so much more on medical care than thin female workers, while obese male workers spend about the same as thin male workers.” The authors calculate the yearly wage penalty on obese women employed in firms providing health insurance is $5,784. Bhattacharya J, Bundorf, MK, The incidence of the healthcare costs of obesity, Journal of Health Economics 2009 May;28(3):649-58.

Two points from this study are critical. First, women with obesity already pay their health insurance premium through a reduction in wages. Thus, a mandatory health contingent program in which the employee is penalized for not attaining an employer determined health metric, such as BMI, actually has the worker paying up to 130% of the health insurance premium. It is this figure which is the true impact of the proposed rule.

Second, the medical conditions of men and women with obesity such as asthma, arthritis, hypertension, etc. can make physical activity difficult or impossible, due to both the physical limitations of such conditions as well as the time and out-of-pocket costs of managing these conditions.

The wage penalty may actually be higher, especially for both men and women at the upper end of the BMI spectrum. In a paper published in 2011, Lisa Powell and colleagues found that a one-unit increase in BMI is directly associated with 1.83% lower hourly wages for women. Late-teen obesity is indirectly associated with 3.5% lower hourly wage for both men and women. Therefore, the wage penalty is significantly larger than previous studies indicated. Han E, Norton EC, Powell LM, Direct and indirect effects of body weight on adult wages. Economics & Human Biology 2011 Dec;4(11):381-392.

The wage penalty may explain the greater perception of employment discrimination among persons with obesity. In one study, results indicate that women are over 16 times more likely than men to perceive employment related discrimination and identify weight as the basis for their discriminatory experience. In addition, overweight respondents were 12 times more likely than normal weight respondents to report weight-related employment discrimination, obese respondents 37 times more likely, and severely obese respondents more than 100 times more likely. Roehling M, Roehling P, Pichler S, The relationship between body weight and perceived weight-related employment discrimination: the role of sex and race. Journal of Vocational Behavior, 71; 2 (Oct 2007);300-318.


US Chamber of Commerce Decries “Coddling” of Employees In Wellness Regs

February 7th, 2013 No comments »

There were three particularly noteworthy comments on the proposed regulations on employer wellness plans.

The U.S. Chamber of Commerce challenged the proposed regulations statement, “A health-contingent wellness program is not “reasonably designed” unless it makes available to all individuals (who do not meet the standards based on the measurement, test, or screening) a different reasonable means of qualifying for the reward.” The Chamber says that this is contrary to the Affordable Care Act provisions. They state, “Wellness programs should not be required to coddle apathetic participants as the Proposed Rule’s pursuit of an “everybody wins” approach will thwart the very motivation that a rewards based program is designed to create.” The Chamber urged that the penalties be raised to 50% for all programs, not just smoking cessation. They also called for “stacking” whereby the penalties would be additive: 50% for not meeting the smoking standard plus 30% for not meeting the other health-contingent plan biometrics or up to 80% of the cost of the worker’s health insurance premium.

Other comments were less harsh. Gloria Sorensen and Deborah McLellan of the Harvard School of Public Health, Center for Work, Health and Well-being, wrote that the wellness programs need to encompass the worksite itself, “Risk factors for cardiovascular disease that may occur at work include exposure to chemicals in tobacco smoke; organizational factors such as work schedules (e.g., long hours and shift work); and psychosocial factors such as high demand-low control work, high efforts on the job combined with low rewards, and organizational injustice,” they wrote.

They note, “Additionally, many traditional wellness efforts have had low participation rates by populations at highest risk for unhealthy eating, smoking, and physical inactivity… such as those in working-class occupations. Such workers may lack the time and energy to engage in these programs, either because the programs are often held during the day when workers cannot attend, or after work when employees many need to leave for another job or family responsibilities. Notably, these populations are also frequently at high risk for exposures to workplace hazards.”

Ted Kyle, writing for the Obesity Society, the Obesity Action Coalition, the American Society for Metabolic and Bariatric Surgery, the Yale Rudd Center for Food Policy and Obesity, the American Institute for Cancer Research, the Academy of Nutrition and Dietetics and Mental Health America, notes that, “there is little evidence supporting the effectiveness of employer BMI and other biometric-based incentives on actually producing sustainable weight loss or lowering healthcare costs…There are many individuals who are not overweight e.g., with a BMI in the ‘normal weight range) who have chronic health conditions such as hypertension, hyperlipidemia, diabetes, or engage in other health risk behaviors. Conversely, there are people who are overweight who are in good health, have healthy nutrition and activity habits, and whose blood pressure and cholesterol are in the healthy range.” The Kyle letter rightly points out that these programs penalize  pre-existing conditions.” The letter recommends employers not use BMI or body size only metrics without consideration of additional health indices and that the employers insurance programs cover evidence-based obesity treatments.

All comments on the proposed regulations can be viewed at


Proposed employer wellness regs. have multiple problems

January 25th, 2013 1 comment »


I just filed comments on the proposed regulations under the Affordable Care Act for employer wellness plans. Hint: I think they are terrible! Here is the summary.   Click here for the full 27 page comments: MorganDowney_Wellness Program Comments

Can Congress require you to buy broccoli? Evidently yes if Congress incentivizes employers to require it of their employees. Can Congress mandate  exercise program? Evidently yes if they incentivize your employer to require you to spend your free time in physical activity. Can Congress regulate the diet and physical activity of many if not most of its citizens indirectly through employers when it would be unconstitutional for them to do so directly? These are only some of the unanswered questions raised in the proposed regulations.

On November 20, 2012, the Department of the Treasury, Department of Labor and Department of Health and Human Services (hereinafter the “Departments”) proposed regulations, “Incentives for Nondiscriminatory Wellness Programs in Group Health Plans.”

The proposed regulations:

  1. are probably unconstitutional,
  2. undermine three explicit promises made by President Obama in relationship to the Affordable Care Act,
    1. that those in current plans will not be affected
    2. that no one will be charged more for a pre-existing condition, and,
    3. that life sciences research will be supported,
  3. impose unjustified additional costs on millions of middle class American workers without commensurate benefit, especially on working women with obesity in firms providing health insurance who already pay a “wage penalty.”
  4. ignore evidence employer weight management wellness plans produce marginal, if any, benefit,
  5. promote a model of an employer weight management program that conflicts with the Americans with Disabilities Act
  6. inadequately identify when a wellness program is a subterfuge for cost-shifting
  7. recognize that employer wellness programs are human experiments but do not minimum protections for animals, much less human subjects
  8. undermine federal, state and local law enforcement efforts to police weight loss frauds and scams including those of the Federal Trade Commission,
  9. have inadequate provisions for reasonable alternatives,

The regulations should be withdrawn until these major issues can be resolved.

The proposed regulations address wellness programs in group health coverage under the Affordable Care Act (ACA). The regulations provide the maximum reward permissible under a health-contingent wellness program offered in connection with a group plan, raising the maximum from 20% to 30% of the cost of health insurance coverage. (A 50% maximum would be available for programs designed to reduce tobacco use.)  The regulations clarify the definition of a “reasonable design of health-contingent wellness programs” and the reasonable alternatives that must be provided in order to avoid prohibited discrimination. These clarifications are problematic.

Prior to the enactment of the Affordable Care Act (ACA), federal law (i.e. the Health Insurance Portability Accessibility Act or HIPAA) prohibited group health plans and group health insurance issuers from discriminating against individual participants and beneficiaries in eligibility, benefits or premiums based on a health factor.  Employers are banned from varying health insurance premiums on the basis of health status. HIPPA provides an exception for premium discounts, rebates, etc. in return for participation in health promotion and disease prevention programs.

Regulations implementing HIPPA provided for two types of programs. The first are called “participatory wellness programs” in which participation is voluntary and either provides no rewards or does not provide criteria for receiving an award. The second type of program is quite different. It is called a “health-contingent wellness program” which requires an employee to attain or maintain a certain health outcome in order to obtain a reward, such as meeting a specific weight or Body Mass Index (BMI), a blood pressure measure, or other physiological metric. While the regulations avoid using the term “mandates” or “mandatory,”  that is what they are and that is what the regulatory scheme assumes. Such programs are mandatory for all employees, although the proposed regulations provide for person-by-person or a group of employees exemptions and for alternatives. Mandatory health-contingent wellness programs were not described in the original HIPAA legislation. These mandatory health-contingent wellness programs must be of “reasonable design” and a “reasonable alternative” ways to avoid the penalty.

The ACA amended federal law to raise the maximum penalty from 20% to 30% (and 50% for tobacco use cessation programs) of the total health insurance premium for the employee.  The following comments are directed primarily at the mandatory health-contingent wellness program provisions.


Maternal Employment and Childhood Obesity

August 24th, 2012 No comments »

Of the putative causes of obesity, one of the strongest and most consistent is maternal obesity. But maternal employment has also been implicated in a number of studies over the last few years. While not proving causation, the dramatic increase in childhood obesity since the 1970’s, coincides with an equally dramatic rise in female participation in the workforce who had children under the age of 18. This rate rose from 47.4% to 71.2%.

Are these two phenomenon related? It’s a good question. Putting two graphs next to each other doesn’t prove one affected the other. Recent studies have shows an increased likelihood that children of working mothers are more likely to be overweight than those of non-working mothers. A systemic review of OECD countries found evidence indicating the working mothers were somewhat more likely to have overweight children. PubMed: Maternal Employment Childhood Health Effects in OECD countries. A large study in the United Kingdom found that any maternal employment after birth contributed to the likelihood the child would be overweight. PubMed: Maternal Employment and early childhood obesity UK Millenium Study.

Moms are not likely to be surprised that the evidence shows that Dad’s employment or hours worked do not correlate to a child overweight, presumably because they spend less time in cooking, food preparation, and child care to begin with.

But the question still remained, does maternal employment result in less time spent in activities directly related to a child’s diet and physical activity or a reduction in other activities. So John Cawly and Feng Liu undertook to research this question, utilizing an extensive database, the American Time Use Study (ATUS).

They found that, on average, working mothers spent 277 minutes a day with children; 410 minutes for non-working mothers. Working mothers were less likely to spend any time grocery shopping, cooking, eating with children, child care and supervising children. Among women who spent any time in these activities, the average number of minutes spent was consistently lower for working than for-non-working mothers. According to the authors, “The one exception to this general pattern is that working mothers are significantly more likely to report spending any time purchasing prepared food.” Roughly 20% of both working and non-working women with children spend 0 minutes with children a day.

More specifically, 8 hours of employment is associated with women spending 7 fewer minutes grocery shopping, 23 fewer minutes cooking, 18 fewer minutes eating with children, 14 minutes fewer minutes playing with children, 51 fewer minutes caring for children, and, 5 fewer minutes supervising children. The time deficits are roughly twice as large for women with a husband or partner than for single mothers. There was no significant difference in the time spent with children by husbands whose spouse worked or did not work. Overall, fathers appear to offset less than 15% of the decrease in time that working mothers spend with their children. Even non-working men pick up only about 1/3 of the slack.

Other research in this field indicate that children of working mothers have fewer formal  meals, more food consumed grazing, more prepared foods, more time spent watching television, and more time unsupervised.

Moms are not having a picnic either. The Cawley study found that, compared to non-working mothers, working mothers spent 48 fewer minutes per day watching TV, 31 fewer minutes sleeping, 17 fewer minutes at leisure and 16 fewer minutes socializing.

As I write this, the airwaves have political ads calling for tougher restrictions on welfare payments (which go to mothers with children), specifically more rigorous work requirements. This study may indicate that there are long term consequences for such policies in terms of maternal and child health. Other policies, including those affecting food labeling and school physical activity should be re-evaluated.

Back in the 1970s, there was a lot of debate over whether mothers should work at all. This was seen as some discretionary. We are a long way away from that time. For the vast majority of working mothers, have the additional income is essential to the whole family survival.

Just a word about the American Time Use Study: This database, maintained by the Department of Labor, Bureau of Labor Statistics ( is, in my opinion, underutilized in obesity. Predictably, we hear recommendations that people should just change their lifestyle, spend more time, like 30-60 minutes a day in physical activity, more time buying fresh foods, cooking wholesome foods, turning off the TV to do some activity, etc….Well, the ATUS provides some average time usage by adults. For weekdays: Personal care activity 9.24 hours, eating and drinking 1.19 hours, household activities 1.63 hours,  purchasing goods and services, .69 hours, caring for household members .54, comparing for non-household members .20 hours, working and work related activities 4.49 hours, educational activities .60 hours, organizational, civic and religious activities 0.25 hours, leisure and sports 4.73, telephone calls, email, .16 hours. The point is, when asking people to make changes in their diets and physical activity, we have to ask “where is this time going to come from?” It has come from other activities? Taking care of Grandma? Volunteering at church? What? Just giving ‘good advice’ is not enough when so many Americans are living such stressful lives when free time is in short supply, especially for working moms.

Read Cawley and Liu’s research at PubMed:Maternal Employment and Childhood Obesity

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What is it with physicians and obese people?

May 1st, 2012 No comments »

The British newspaper, The Guardian, has reported that a majority of physicians in the National Health Service (NHS) (54%) believe persons with obesity and smokers should not be treated except in emergency situations. This would include in-vitro fertilization and liver transplants. Already, in some parts of England, smokers and patients with obesity are being denied breast reconstructions and knee and hip replacements. A spokesman for the National Obesity Forum said doctors who support such “lifestyle rationing” are “totally out of order.” The Royal College of Physicians, the British Medical Association and the Department of Health expressed opposition to such bans. Guardian: Brit MDs approve denying treatment to obese

Nevertheless, we will probably hear more of this type of thing. Already we see Toby Cosgrove M.D, head of the Cleveland Clinic, wish he could refuse to hire obese workers, the American Medical Association support denying disability payments to persons with obesity and Dr. David Ludwig support taking obese children away from their parents. A hospital in Texas recently tried to ban hiring employees with obesity. victoria-hospital-wont-hire-very-obese-workers

Under pressure from the Obesity Action Coalition, they backed off. Texas Medical Center Backs Off