Repealing Obamacare: read the fine print

January 10th, 2017 No comments »

Washington is preparing a re-start of the 8 year battle over Obamacare, formally the Affordable Care Act (ACA). With Republicans in control of both Congress and the White House, it is widely expected that they will have to live up to their promise to repeal the law. But repeal is not as easy as it sounds. The ACA is a large and complicated law embedded not only in the health care system but more widely in American life.

Many aspects of the repeal effort will be hotly debated in the near future. Behind the headlines will be the details, where, as we know, the devils reside. Take two important issues: coverage of persons with pre-existing conditions and employer wellness programs. President-elect Trump and many Republicans have promised to continue the ACA’s provision that pre-existing conditions cannot be used as a basis for denial of insurance coverage. But the ACA’s provision has a second element: insurers cannot charge more for covering persons with pre-existing conditions. (Obesity and related conditions are considered “pre-existing” conditions.) However, a proposed repeal bill developed by the House of Representative Republican Study group would provide coverage for pre-existing through state high-risk insurance pools. Premiums could go up to 200% of the average premium charged in a state. Clearly, such premiums would make policies unaffordable by many with chronic health conditions, especially without subsidies for low-income Americans as provided for in the ACA.

If one took repealing the ACA literally, we could assume that its provisions relating to employer wellness programs would be eliminated. If repealed, the maximum reward/penalty would revert from 30% of the total employer-employee to the previous level of 20% established by ERISA. Wrong.  Under the Republican Study Group, the maximum would actually increase to 50% from 30%.  The Republican Study Group may be one of the more conservative proposals we will see but it provides an important lesson: read the fine print.

The Biggest Loser study shows persistence of slower metabolism after 6 years

May 2nd, 2016 No comments »

Gina Kolata of The New York Times has a front-page story on May 2, 2016, covering a study of winners of the TV ‘reality’ show, The Biggest Loser. The study published in the journal Obesity shows that not only is most the lost weight regained, but that the slower metabolic rate, which occurs during active weight loss, persists for up to 6 years in the subjects. This is the process of adaptive thermogenesis which we have discussed on several occasions. What the article does not mention is that most of the weight loss programs used in employer wellness programs are based on The Biggest Loser. In other words, thanks to Obamacare, employees can be penalized for failing at a weight loss program where failure is all but assured.

Employers Promote Fat-Shaming: New Post

December 11th, 2015 No comments »

Fellow blogger Al Lewis has an excellent post on Huff  Post Business on the promotion of fat-shaming in “employer wellness” programs. He points out that (a) these programs do not cause weight loss, (b) they are  often structured to embarrass and harass overweight employees by their colleagues, (c) the penalties for failure to reach an employer goal of a specific BMI or weight loss amount are outrageous. What he might add is that millions  of American workers are affected by these programs,   them the largest human experiments in history. No doubt  the numbers of affected employees dwarfs those in medical or surgical treatment programs. What he does not explain is the absence of outrage in the scientific and medical community over these  scams.

EEOC Issues Proposed Rule on Employer Wellness Programs Under Genetic Nondiscrimination La2

November 2nd, 2015 No comments »

The EEOC has (at last) issued proposed regulations on employer wellness regulations under the Genetic Information Nondiscrimination Act (GINA). The EEOC issued proposed regulations in April for employer wellness programs under the Americans with Disabilities Act.

In this proposal, the EEOC requests comments on seven specific issues. They are:

  1. “Whether employers that offer inducements to encourage the spouses of employees to disclose information about current or past health information must also offer similar inducements to persons who choose not to disclose such information, but who instead provide certification from a medical professional stating that the spouse is under the care of a physician and that any medical risks identified by that physician are under active treatment.

  2. Should the proposed authorization requirement apply only to wellness programs that offer more than de minimis rewards or penalties to employees whose spouses provide information about current or past health status as part of a (sic) HRA (ED: health risk assessment)? If so, how should the Commission define “de minimis”?

  3. Which best practices or procedural safeguards ensure that employer-sponsored wellness programs are designed to promote health or prevent disease and do not operate to shift costs to employees with spouses who have health impairments or stigmatized conditions?

  4. Given that, in contrast to the status quo when the ADA (Americans with Disabilities Act) was enacted, most employers today store personnel information electronically, and in light of increasingly frequent breaches to electronically stored employment records, should the rule include more specific guidance to employers regarding how to implement the requirements of 29 CFR 1635.9(a) for electronically stored records? If so, what procedures are needed to achieve GINA’s goal of ensuring the confidentiality of genetic information with respect to electronic records stored by employers?

  5. In addition to any suggestions offered in response to the previous question, are there best practices or procedural safeguards to ensure that information about spouses’ current health status is protected from disclosure?

  6. Given concerns about


    of genetic information, should the regulation restrict the collection of any genetic information by a workplace wellness program to only the minimum necessary to directly support the specific wellness activities, interventions and advice provided through the


    information collected through the program’s HRA (health risk assessment) and biometric screening? Should programs be prohibited from accessing genetic information from other sources, such as patient claims data and medical records data?

  7. Whether  employers offer (or are likely to offer in the future) wellness programs outside of a group health plan or group health insurance coverage that use inducements to encourage employee’s spouses to provide information about current or past health or past health status as part of a (sic) HRA (health risk assessment), and the extent to which the GINA regulations should  allow inducements provided as part of such programs.

The deadline for comments is December 29, 2015.


How Can the EEOC Guarantee Personal Data Will Stay Confidential

June 29th, 2015 No comments »

As I have mentioned before, the Equal Employment Opportunity Commission (EEOC) has bought the platitude that personal data acquired via a health risk assessment or during an employer wellness program will be protected from disclosure that could be adverse to the employee.  Seemingly blissfully ignorant about the pervasive disclosure of personal data, whether from the government itself or the private sector, the EEOC cannot guarantee that personal data can be protected from unauthorized disclosure. Today, an article in the New York Times reveals that websites and mobile phone apps most frequently used have ‘privacy’ policies which allow for the sale of personal data during mergers, bankruptcy, asset sale or other commercial transaction. The articles states, “Sites, apps, data brokers and marketing analytics firms are gathering more and more details about people’s personal lives – from their social connections and health concerns to the ways they toggle between their devices…Such data can also be used to make inferences about people’s financial status, addictions, politics or religion in ways they may not want or like.” One dating service tried to sell its database of 43 million members revealing their names, birth dates, sexual orientation, race, religion, criminal convictions, photos, videos and contact information.  It would be simple for a data broker to combine such data with health risk assessment answers and data from a ‘wellness’ program, including wearable devices.


EEOC is Clueless or Misleading about Protecting Individual Privacy

June 24th, 2015 No comments »

Perhaps the most dangerous assumption made by the EEOC is that personal information disclosed in employer wellness programs can be protected. Such security is an illusion.

The proposed regulation provides that a wellness program that is part of a group health plan will likely satisfy the ADA confidentiality requirements by complying with the HIPAA and subject to the HIPAA privacy, security and breach notification rules. Employers and wellness programs must take steps to protect the confidentiality of employee medical information that is received in connection with an employee health program. However, it is questionable whether HIPAA covers third-party vendors which are not health plans.

The EEOC is either oblivious to the realities of modern computer security problems or misleading in its assumption that personal medical and behavioral records will be safe. Namely, there is no possible way to assure anyone that their privacy is protected. Recently, we have seen major security breaches at the National Security Agency, the Internal Revenue Service, the Department of Health and Human Services and the federal Office of Personnel Management (OPM).

The OPM breach includes the records of between 4 to 14 million current and former federal workers, friends and family members. A second breach of OPM computers was reported involving not only federal employees but also their friends, family members and associates that could number millions more, according to a report in the New York Times, June 13, 2015. “Data includes a form for national security positions which can include medical data, including information on treatment or hospitalization for “an emotional or mental health condition,” according to the story. A story in Wired indicates that the information could include polygraph information in which employees are asked about law breaking and sexual history.

Breaches of health data are pervasive and include the Centers for Medicare and Medicaid services, and the federal health care exchange, Premera Blue Cross. Premera Blue Cross, in Seattle Washington, reported a cyberattack that exposed personal information of 11 million customers. A breach at Anthem Insurance involved the records of 80 million customers. Other private sector breaches have included Sony Pictures, Home Depot, Target, Ebacy, and JP Morgan Chase.

A report in Bloomberg News, notes that the recent hack of Sony Corporation included health information on more than three dozen employees. It quotes Geoff Hancock, chief executive officer at Advanced Cybersecurity Group “who works with employers to protect their health data and other sensitive information from hackers. He was speaking about the industry in general. “Now, it’s zeros and ones. So many more people have access and can take it and make money off it or manipulate it or use it to find out who you are and what you are about. It is one of the biggest hoples in the cybersecurity infrastructure.” And, “Since 2009, there have been 1,187 incidents where health information protected by HIPAA was hacked, improperly disclosing, lost or stolen involving more than 41 million individuals, according to reports to the US Department of Health and Human Services. Those cases only include instances where more than 500 records were involved. Matters involving fewer records don’t have to be reported.” “Hackers can get $50 for a medical chart on the black market, compare with just a few dollars for other pieces of personal information, said Hancock of Advanced Cybersecurity. He said he’s refused to share his health information with wellness programs at past employers because he isn’t convinced the data are safe.” “Despite the popularity of wellness programs among employers and assurances about their security and confidentiality, more than half of works said they are hesitant about sharing their health information, and a quarter said they wouldn’t share their data under any circumstances, according to a survey by the Economist Intelligence Unit. More than one-quarter of employees said they were concerned their personal information wouldn’t remain condifential. Companies, like Honeywell, take blood samples to test for nicotine, high cholesterol and irregular blood sugar, height and weight. CVS asked their employees whether they drink, and are sexually active. Johnson & Johnson’s wellness program ask about the employees mode, stress at work and home, eating and exercising habits. Some ask for the information from spouses, as well. “Sexually Active? How much do you drink? Your Workplace Health Records May Not be as Private as You Think by Shannon Pettypiece, Bloomberg News, Dec. 16, 2014

A Washington Post article, “Hackers increasingly target health records,” noted that, “Health care data seems to be increasingly targeted, accounting for 43% of major data breaches reported in 2013, according to the Identity Theft Resource Center.”

The EEOC must assume that privacy of personal records cannot be assured.


EEOC Issues: Impact of the 30% penalty, worksites and persons with obesity, intrusiveness and wearables

June 24th, 2015 No comments »

Additional problems with the proposed EEOC regulation include how severe the impact of the penalty provisions can be, the hostility of workplaces to persons with obesity, including the wage penalty. Additional concerns include the use of wearable monitoring technology in employer wellness programs and deficiencies in the Notice requirements.

Impact of a 30% Penalty

The price of this program to workers is worth considering. The 30% penalty involves both the share of the health insurance premium paid by the employer and the share paid by the employee. In effect, the employer is clawing-back what the employee has already paid as their share plus a 30% surtax. This scheme may continue in the law indefinitely and the employee would pay every year. But how much of a difference does it make?

Federal Reserve Board published Report on the Economic Well-being of U.S. Households in 2013 in July 2014. The report found that 47% of respondents say that they either could not cover an emergency expense costing $400 or would cover it by selling something or borrowing the money. 31% of respondents report going without some form of medical care in the 12 months before the survey because they could not afford it. 43% of respondents with a household income under $40,000 report they would have to sell some asset or borrow money to meet a $400 emergency expense. The EEOC propose threshold is over 400% greater and will increase over time, further reducing the available household income for emergencies, health care, housing, retirement and education purposes.

Employees are also reeling from employers only offering high-deductible plans which require employees to cover out-of-pocket expenses of $6,450 for a single plan to $12,900 for family coverage before the insurance plan will cover any expenses (Bernard TS, High Health Plan Deductibles Weigh Down More Employees, New York Times,Sept. 2, 20014)

These increases come amid a bleak economic picture for millions of Americans since the Great Recession. According to an article in the New York Times, the economic picture is even more bleak now for the poor and low-income workers than it was in 2007. The poverty rate is above pre-recession levels. The number of people receiving food stamps soared from 26.3 million in 2007 to 47.6 million in 2013. Median household income is some $4,500 lower now than before the recession. (Dewan S, Schwartz ND, Parlapiano A, How the Recession Reshaped the Economy, New York Times, June 15, 2014, p,6-7)

So it is not surprising that more Americans are finding meeting basic medical care is a hardship (up to 46% from 36% in 2013), out of pocket expenses have gone up a lot (33%) (Rosenthal E, How the High Cost of Medical Care is Affecting Americans, New York Times, Dec. 12, 2014, p.30)

The result is that many have gone without medical treatment or have not filled a prescription. (CBS News, Do Americans think their health care costs are affordable? Dec. 18, 2014)

The Workplace is Generally Hostile to Overweight, Obese Americans

Multiple studies in the United States and Europe show a negative and statistically significant effect of obesity on earnings and employment. Aberett SL, Obesity and labor market outcomes, IZA World of Labor, 2014:32)

An obesity “wage penalty” has been described affecting young men. (Lundborg P, Nystedt R, Rooth DO, Body Size, skills and income: evidence from 150,000 teenage siblings, Demography 2014 Oct;51)5:1573-96) and, particularly, overweight and obese white women (Han E, Norton EC, Stearns SC, Weight and wages: fat versus lean paychecks, Health Econ 2009 May; 18(5):535-48. See also, Downey, M, The wage penalty and obesity, Downey Obesity Report, Feb. 7, 2013.

The EEOC Proposed regulation’s Notice requirements are flawed.

The EEOC proposed regulation proposes that employers must clearly explain the information to be obtained from a health risk assessment, how such information will be used, who will receive the information, restrictions on disclosure and methods used to prevent improper disclosure of medical information.

However, the EEOC proposed regulation omits from the notice requirement the most important elements of the joint HHS, Labor and Treasury regulations requiring access to reasonable alternatives to the wellness program, leaving the final decision in the hands of the employee’s physician. (See Downey Obesity Report, May 30, 2013.)

According to the Department of Labor, the employee’s physician who proposes non-mandatory weight reduction program, the employer must provide it, (FAQ, January 9, 2014).


Obesity, disability, science and voluntariness

June 23rd, 2015 No comments »

As previously indicated, this is a longer version of the comments submitted to the EEOC.

Many ‘wellness’ programs include a component addressing employee’s body weight. Many employees who are overweight or obese already suffer from the ‘wage penalty’ whereby they receive lower compensation than their non-obese peers. In this regulation, the EEOC eleminates a crucial protection for these Americans, penalizes them an additional 30% of the cost of health insurance premium (including the share they pay) and provides them with weight loss programs which are not effective and unlikely to ever be effective. These programs are highly intrusive. The privacy of the most sensitive personal records is an illusion. The EEOC’s notice provisions are terribly flawed, as well.

The proposed regulations by the EEOC represent an Orwellian distortion of the English language in a transparent and crass political deal by the Obama Administration to buy the political support of Corporate America at the expense of millions of poor and middle class workers for decades into the future. See Reuters, Begley S, Exclusive: U.S. CEOs threaten to pull tacit Obamacare support over ‘wellness’ spat, Nov. 29, 20144). While the benefits of corporate wellness programs have yet to be established, the penalty provisions are in effect immediately and permanently. This regulation, allowing employers to claw-back funds from employees provides insurance for employers at great and burdensome expense to millions of employees.

A majority of US large employers have instituted ‘wellness programs’ which require employees to answer detailed questions about their own and family medical histories and to give blood samples and submit to examinations for cholesterol, glucose levels, blood pressure and body weight. Penalties for non-compliance can reach $4,000 a year for workers who elect not to participate.

According to one study, “the most common change employers will make to healthcare plans in 2015 is adding wellness rewards or penalties (26.3%), followed by requiring spouses to get coverage through their own employer (7.9%), instituting spousal surcharge (6.7%), and create tiered networks (3.6%). “

While ‘wellness’ programs are promoted as a way for empathic employers to improve health and wellbeing of employees, increase productivity, reduce risk of chronic diseases, improve control of chronic conditions, in fact they are massive cost-shifting techniques to provide insurance for employers against future increases in health insurance costs. The world’s best medical experts cannot change the course of most chronic diseases. Why would we think that the folks in HR can do better than these experts? (See the story about the largest and most comprehensive clinical trial of behavioral weight loss approach and why it was stopped…for futility, here.)

Obesity Disability and Discrimination

Many persons with disabilities are overweight or obese. Many psychotropic drugs cause weight gain and severe metabolic disturbances, such as abdominal weight accumulation, abnormal lipid and glucose levels, insulin resistance and overt type 2 diabetes. Almost all antipsychotics cause weight gain. Anxiety, stress and depression are more common in patients with obesity and mental disturbance. Obesity is recognized as a disease by the American Medical Association, the American Academy of Clinical Endocrinologists, the Centers for Medicare and Medicaid, the Social Security Administration, and the Internal Revenue Service, inter alia.

Weight gain is associated with the following medications amitriptyline, mirtazapine, olanzapine, quetiapine, risperidone, gabapentin, tolbutamide, pioglitazone, glimepiride, gliclazide, glyburide, glipizide, sitagliptin and nateglinde. Weight gain ran from 0.3kg for nateglinide to 2.8kg for  tolbutamide. Domecq JP, Prutsky G, Leppin A, Drugs Commonly Associated with Weight Change: A Systematic Review and Meta-analysis, J Clin Endocrinol Metab 2015 Feb; 100(2):363-70)

Insulin and other oral anti-diabetic medications also cause weight gain. Jeon WS, Park CY, Antiobesity pharmacotherapy for patients with type 2 diabetes: focus on long-term management, Endocrinol Metab 2014 Dec 29;29(4):410-7, here.)

Many persons with obesity, especially severe or Class III obesity, are disabled. Ferraro et al found in a 20 year study of adults age 25 to 77 that obesity increased the likelihood of a self-reported upper and lower body functional limitation. (Ferraro KF, Ya-Ping Su, Gretebeck RJ, Body Mass Index and Disability in Adulthood: A 20-Year Panel Study, Amer J Public Health 92(5):834-40, here)  See also,  Alley DE, Chang VW The Changing Relationship of Obesity and Disability, JAMA 2007 298(17):2020-27, here, and Hergenroeder AL, Brach JS et al, The Influence of Body Mass Index on Self-Report and Performance-Based Measures of Physical Function in Adult Women, Cardiopulmonary Physical Therapy Journal 22(3):11-20, here)

Misunderstanding Obesity

Up to 70% of our weight is determined by hundreds of genes. Body weight regulation is greatly genetically controlled. One recent study showed that weight loss varies according to whether one has inherited the “thrifty gene” or the “spendthrift” gene phenotype. (Reinhardt, M, Thearle MS, Ibrahim M, et al. A Human Thrifty Phenotype Associated with Less Weight Loss During Caloric Restriction, Diabetes published on-line May 11, 2015)

Pre- and post-natal exposure to over-rich nutrient environment has been demonstrated to increase obesity and other metabolic disorders in offspring. (Li L, Xue J, Ding J, Over-nutrient environment during both prenatal and post natal development increases severity of islet injury, hyperglycemia, and metabolic disorders in the offspring, J Physiol Biochem 2015, June 6, epub ahead of print.)

Employer ‘wellness’ programs which address control of body weight are largely unaware of reasons why weight loss is so hard to achieve and why weight regain is so common. (This is probably due to the lack of formal and uniform educational and training programs for the people running such programs.) The biological facts are that adaptions in the human body are designed to prevent starvation and these undermine long-term weight loss. These adaptions include developing adipocyte proliferation (creating greater fat storage capacity) and habituation to dopamine signaling stimulation in the brain. According to a recent Comment in The Lancet, “Importantly, these latter adaptions are not typically observed in individuals who are overweight but occur only after obesity has been maintained for some time. Thus, improved lifestyle choices might be sufficient for lasting reductions in bodyweight prior to sustained obesity. Once obesity is established, however, bodyweight seems to become biologically stamped in and defended…Evidence suggests that these biological adaptions often persist indefinitely, even when a person re-attains a health BMI (Body Mass Index) via a behaviorally induced weight loss.” (Ochner, CN, Tsai AG, Kushner RF, Treating obesity seriously: when recommendations for lifestyle change confront biological adaptions. The Lancet, April 2015 Ap;3(4):232-4)

One of most powerful adaptions is called adaptive thermogenesis. This term refers to the well-documented process that, with weight loss, the body turns down its metabolism to preserve body weight. Hence, to continue to lose weight, one must progressively eat less and less. If one person were to lose 50 pounds and weight 150 lbs, their body is not similar, in terms of caloric demand, to a 150 lbs person who was never obese. The person who lost weight would have to consume roughly 30% fewer calories per day than the person at the same weight who never lost weight. (See Downey Obesity Report, Jan 17, 2014) Adaptive thermogenesis produces a point at which no further weight loss appears possible. (See also, TremblayA, Royer NN, Chaput JP, Doucet E, Adaptive Thermogensis can make a difference in the ability of obese individuals to lose body weight. Int J Obes 2013 Jun;37(6):759-64, here.) Yet no wellness program provider of weight management services appears to offer anything to employees after a period of initial weight loss.

Definition of “Voluntary”

The proposed EEOC regulation provide that “employee health programs” that include disability-related inquiries or medical examinations must be voluntary and must have a reasonable chance of improving the health of, or preventing disease, in participating employees in order not to violate provisions of the Americans with Disabilities Act generally banning such inquiries and examinations. Proposed rules provide that, for a program to be “voluntary”, the employer may not require employee participation and may not deny coverage as a result of non-participation.

However, the EEOC, in a twist of the English language that would make Orwell swoon, says a program is “voluntary” if the penalty for not participating is no more that 30% of the cost of single employee health care insurance cost, including the share already paid by the employee. This provision can run, today, around $2,000 on average. Of course, many health plans would have much higher premiums.

Another Reuters article, (Begley, S. Obama Administration to remove hurdles to ‘wellness’ penalties, April 16, 2015) quotes a business lawyer as stating that wellness programs with hefty penalties are voluntary “because employees can elect to participate or pay the penalty.” Of course, this is like the robber threatening “Your money or your life!” It strains credulity to believe that the EEOC would undertake such a distortion of plain meaning. Black’s Law Dictionary defines “voluntary” as “not impelled by outside influence” and “without valuable consideration”. Merriam Webster Dictionary “unconstrained by interference” and “without valuable consideration.” It is commonly used to mean an act undertaken by one’s free will. In law, for waiving of Miranda warnings or making a confession, the acts must be truly voluntary and not subject to some coercion, such as the EEOC support here.