company's health insurance plan they had to complete a wellness plan and included a blood draw and answer a health risk assessment form which asked questions about their medical status and family history we specifically argued that this violated the statute because  not voluntary the district court whoever never reach will review it as a critical issue in this case which is whether the wellness plan was voluntary instead the district court ruled that a separate section of the a p a under title five of the act the so called believe that you would have jurisdiction to decide because plan goes never conceded that its plan was to go ahead has never conceded that its plan was not lawful so it's still a question for this court about whether he might have had damages from the time that he was without both land was not voluntary under either our old definition of what voluntary means or under a more specific definition in the regulation and prior to the regulation we had defined voluntary which is a term from the statute to mean that participation is not required and there is no penalty that was in our compliance manual interpretive guidance or regulation gets more specific and says a voluntary means you can't require participation you cannot cut off somebodies access to health insurance plan if they refuse to deal wellness plan and you can't retaliate friend coerce or intimidate an employee there is one provision of our new regulation that we're not relying on here because it's not effective yet and that concerns the incentive monetary incentives the employer can offer which gets pretty complicated but then sent or the penalty that's permissible is thirty percent of the cost of a self insured plan but that part becomes effective january twenty seven thousand and we explain that in a reply brief but we do think the central question  is that why we're here yes then i'll say it is my we're here and well i'm seriously look an awful lot of effort has gone into this lawsuit by both parties by friends of the court who tried to turn this into a big issue but the this is all about mr arnold's distress without any out of pocket damages for several months i understand it's real nobody wants to be without health insurance i gather he had health issues at that time but this looks like much ado about ancient history particularly now that your new regulation is in place although i think that the compensatory damages and there would be still something for this court to decide and i understand your reluctance to wade into a complicated issue but as you say there are many parties that are very interested in this case and the outcome from this court because while those plans are such an all based and i totally agree with all those questions that also the regulation one of the make this brief point out to why ego see we're not built in human services labor for i'm wondering well our interest in wallace plans comes from subchapter one of the americans with disabilities act which says that employee medical exams in crisis are lawful and less job related or they are voluntary exams and voluntary not sure that you have to reach so much because of chapter one uses voluntary and wellness plans were charged with implementing that part of the americans with disabilities act so we have to inform employers about what voluntary means  and which is why we enacted our regulation from the summer because employers really wanted more detail and employees about what voluntary needs and so we try to harmonize our lane of traffic to interpret wellness plans with what other parts of and some groups are not very happy that we allowed even up to thirty percent i don't think that this case raises if you get there whether that thirty percent woman is permissible or not permissible because as well as planned plunks the voluntary test even  disability related inquiries and we think the legislative history is very compelling in this case there's only one part of the history in the house report where they talk about wellness plans and they acknowledge that many employers use well those plans now back in that's been our longstanding i think we've expressed it fairly clearly interpretive guidance for now it's absolutely crystal clear and sixteen thirty point fourteen d six a regulation that was inactive this summer but that is a violation so we know this court disagrees with us about the it's like a building of insurance a partner in general we think that we should win through the application of the insurance safe harbor again that's going to voluntary we think that we should win here because we don't believe the flambeau is engaging underwriting risk classifying risk how do we determine that they are not about genuinely trying to improve the health conditions for the reasons that are allowable under the safety and well to determine whether they're underwriting classifying or talks about under right it's a process of looking at risk factors when there's an application for insurance in making coverage determinations so was flambeau actually using individual risk factors or group risk factors for a premium range to determine who to cover to determine what benefits individuals were getting and the answer here is no they have the burden here and i think they failed to meet their burden of showing that their their witness real and apparently didn't help them on that always very clear but there's just two things i'd like to point out even about her affidavit because one of limbaugh's arguments is we used her recommendation to purchase stop loss insurance but the decision to purchase stopwatch insurance recommendation was based on data from the fall and ten when the plan was not mandatory or not challenging that another recommendation they made was to charge members a higher premium rate but as we pointed out in our brief that recommendation and you can get this from reading paragraph seventy eight of her affidavit year but it's pretty unclear the other things that the district court thought constituted underwriting because the district court adopt an incredibly broad definition of underwriting and said it has anything to do with the process of developing an insurance plan respectfully that's not the language and then sure it's a fire for the other side smokers stop loss insurance the court said well they also use the day where is the recommendation to charge less for preventive medications and to cover all preventive health no this is not a term of our health insurance plan so it's a little bit hard to understand that decision and also eleventh circuit said well the plaintiff didn't cite any authority saying that the term to help the well as had to be part of the health insurance plan description but there's no authority either way that was a research for example didn't apply there when they would apply here that's true your honor we could talk more about the difference between c two and c three which case it's you seem to know was litigated under c to d three is the part of insurance  so if there's any question i'm well equipped to answer today it's the one that was raised about jurisdiction because my client has asked me many many times why is this case being pushed why is it being pushed it is a program that as was pointed out was suspended a couple of years back for reasons wholly unrelated to this case the company just decided to put some their health care wellness plan dollars into a different program i took  arnold step position and i was equally bill filed as to why this case was the one chosen to be pushed because when i asked him about emotional distress at his deposition that there was no evidence no testimony supporting emotional distress as far as out of pocket it was nominal are there some damages here is that enough to confer jurisdiction they they were extremely nominal my recollection is less than a thousand dollars and he did get back on the program once he was back on the program he continued with the company for want to say about a year and a half and then decided to retire his employment when he was reinstated was the reason was the insurance reinstated retroactively to cover those out of pocket expenses the insurance was reinstated that he had to pay back previous history had he back premiums and that insurance should have covered the less than thousand dollars that was that he incurred during that two and a half month period you feel sure is collecting the back premiums and presumably exactly that's exactly right so you know my client has said to me over and over you know why is this case getting pushed why was it pushed in the lower court and then we got the decision from judge crap we presumed or told i guess that that would be the end of it again given the facts and circumstances but the e e o c certainly has the right to push it into this court and here we are today but i do think jurisdiction is a significant issue here as i was sitting at counsel table listening to the questions in the e e o c as responses there's a phrase that just sticks with me in this case and it's a phrase that we hear regularly in the presidential election right now words matter words do matter and the a d a s a very important lawsuit in fact when flambeau set up its wellness program with the testing requirements and the h r a completion they did so purposely in a way to honor the way they did not set it up in a way that they would get any individual information on medical or h r information from the employees the safe harbor here is all about risks and although the e e o c is try to write out the underwriting part of the statute and and sort of ignore the classifying in a minister in part of the of the safe harbor they exist words matter and for the e e o c to basically make the argument that the safe harbor doesn't apply to the wellness program that is going against the plain meaning of the statute well we've just been told that the data that  the information from the testing that was conducted and i believe it was two thousand and eleven was not used for two thousand and twelve but he will on to say that  the it's sort of a question of timing actually there is testimony that some of the information that was used or was gathered excuse me was use to set a future premium it wasn't used for that year but it was used in future years is this aggregate that to talk about is is that what it was is trying to get some sort of measure the gist of the cross section people that's exactly right judge result i don't recall anything from the record of individuals specifically asking to see it but could they have seen it absolutely one of the reasons that playing ball up this wellness program base viewed it as a win win to be to be perfectly frank your honor they view it as it would provide the employees with information confidential information that the company would never have access to up about their wellness and whether it was hype what pressure will be citi whatever was found through the blood testing and so forth that was for the employees to use which is it which is a positive i mean now was it a win for the company as well absolutely it was went for the company as well because the company could then take that information and use it to and  use it by the way to address premiums stop loss and not just stop loss in a certain year which is what he'll see attorney just argue but also whether to continue stop loss in future years so they use that information in an effort to try to address and limit their health insurance risks it is a self insure program here and right where is that information kept as you just it's not kept at flamel at all and if you stopped with third party administrator hayes there were two third letter to a third party administrators of the company worked with one in formulating the plan and one in actually collecting the data and holding it that's wh was help that third party ministry or haste with then send an aggregate report to flammable and inflammable actually use that information in and minister to risk again under the safe harbor that's one of the three and how do they  minister risk they took information for example that a certain percentage a high percentage of the workforce was obese and they began weight loss clinics they changed the selections in the band vending machine  in physical or not physicians assistant medical coaches to help the employees so and also keep in mind that the tobacco information was gathered during this process ok whether or not somebody used to back up was specifically gather and that was directly used in the underwriting of rose because if somebody was a tobacco user their premiums went up that's as direct as you can get in regard to an insurance setting under the safe harbor so in regard to the tobacco watch which tobacco use which was part of this program it was used to underwrite risk they classified risk and also administered risks the safe harbor is met on all three problems in them bernard can we talk about another crowing of the both safe harbors i gather the safe harbors here were something of an afterthought they were not part of the company's response to the original the provision that requires plans to provide a procedure for amending such plans and for identifying persons who have authority to amend the plan i didn't don't see any indication in our record here that any amendment was adopted to the plan era's a problem didn't arise in seth before the eleventh circuit all right so i'm very troubled by the notion that an employer can and at least the evidence here looks like a few powerpoint slides and presentations to amendments in informal ways are based on a stop will when it's the employee asserting there's been an amendment i'm very troubled by the notion that this would qualify as a kind of improvised plan amendment without going through the formalities on that issue one determination that the district court made i think is very valuable to that point c is basically arguing here that the participation in the wellness program or the testing in the h r eight risk was mandatory it was mandatory if that position which the e e o c is said numerous times is accurate then as the district court noted that's helling argument that it has to be a term of the plant so that that's one issue second issue is the s p d the summer plan description and the collective bargaining there was no collective bargaining agreement here but the s want to ask about that in a moment ok moment but ok got it but the s p d well it doesn't specifically reference wellness programs there is some language in the s p d and i was trying to find and i can't but my recollection is it's something along the lines of that employees must participate in the plan and measures that the company basically requires and because that is in the s p d it's you know it's a catchall i will give you that it's pretty vague and this is a big deal i understand it's a big term if you're going to subject people to a blood draw where presumably you know you can get an awful lot and i totally agree but at the same time there were brochures there were some information sessions in which the employees were specifically told that this is a mandatory part to participate in the plan and if it's court noted that would make it a term plan who made the change arista requires you identify people individuals who have the authority to make that change and given the way you framed your summary judgment motion there's no when the company decided to implement a wellness program they recognized that there was protections that employees are due under the a t f and because of that they purposely structured it as most wellness programs are structured in this country it wasn't anything unique to flambeau to make sure that they were insulated from the individual information i understand that ok good reasons for that my question is is that under your legal theory a requirement for the plan to be lawful or is it something the company just did because it's the right thing to do maybe because that makes a difference for the way we deal with these issues i definitely think the latter is true they did it because the company thought it was the right thing to do there's no doubt in my mind about that and i think within the context of the facts and circumstances here of how carefully they went into  establishing the wellness program that that is consistent with my client's conduct from a legal analysis standpoint is that a requirement i would think that it's a requirement based on based on in part maybe the subterfuge part of this and what i mean by that is the safe harbor has the subterfuge aspect which basically says you can have the safe harbor at some point to have a safe harbor but the subterfuge  is a check on that and from a legal perspective i would not want my clients who have access or any company for that matter to have access to individual information because i think it's susceptible to you know the come the man in high level management might have every indication and intends to honor the confidentiality that and not use it but if it's open to others in the company maybe a lower level management maybe somebody uses it improperly so i think from a legal standpoint as well it is it is required when there was a mine and here the question is where can a person charge influence confined to that correct and that where i assume no one can get to it except the individual person that is absolutely correct but it's one hundred percent correct i also want to address because there are some questions about question about that some chapters to is the attorney general subchapter three i believe is the department of transportation for recall correctly subchapter for one thing that is clear is that the e e o c does not have r with insurance and wellness programs which leads to is probably under the affordable care act it's clear that there are three agencies federally consumers that can probably be regulations h h s the department of treasury and three of department for that matter have more knowledge about insurance i would think that one of them one of those agencies would be the ones that could probably be regulations in this area and one other issue is in regard to the deference that this court posed to the e e o c if any our argument is that you don't owe any deference to the e e o c interpretation of the statute and the primary reason for that is again words matter going back to that phrase words do ma but the fact is the safe harbor explicitly provides that it applies to title one of the eighty gig safe harbors absolutely undisputed we clear on that and then section twelve one one two is clearly contained within title one of the so again i go back to the plain meaning of the statute and given the plain meaning of the statute and also the questionable regulation regulatory authority here i do not believe and plan was position is that this court any deference to that you know say in regard to the safe harbor i can see them all i'm almost out of time i would be happy to answer any other question just one very many points are raised and if you have questions i can answer them or i can go on to respond to two or three different points in my opposing counsel me now one is about eligibility versus enrollment flambeau i tried to argue that the summary plan description even though it question of fact on this record whether is even then even a term of enrollment because the company told mr arnold that he couldn't roll on the health insurance plan without doing the wellness plan if you want to pay one hundred percent of the premiums and that respect your honor i thought this case i believe this case likes case where they had to pay a surcharge but they could still be part of the health insurance plan without doing the wellness now as far rule making authority under title five of the americans with disabilities act and we continue to believe that we have the authority to interpret and that's because the insurance safe harbor explicitly refers to a sub chapter one which we do have the authority to interpret the e e o c has also interpreted other parts of the eighty following under title five including the couldn't but potentially perhaps if they could review that every year but they're not making decisions about they're not refusing to cover smokers they're only charging them a higher premium rate in that's not underwriting administering risk or  and my last question is would this court like us to submit a brief or a letter about