UPDATE: There is a Q&A informational webinar on the new wellness ruling, hosted by BusinessSolver, January 18 at 10 AM EST.

In the immortal words of the great philosopher Dizzy Dean, don’t fail to miss it.

Ever since Ron Goetzel’s Penn State debacle, the news cycle has been the Health Enhancement Research Organization’s (HERO) kryptonite.

To be sure, they have other enemies too — transparency, integrity, math, data, facts, employees, smart people — but those bullets just bounce off them.  How do we know this? We think we’re making an impact with our exposes and whistleblowing — and yet forced, incompetent and sometimes harmful prying, poking and prodding continues unabated. When we prove that none of the wellness numbers add up and back that proof with a monster reward for disproving us, they retreat rather than fight — but then they pop up again, whack-a-mole style with yet another claim: “Oh, well, numbers don’t have to add up. It’s all about the value.” Yada yada yada.

That’s why they never respond to anything we ever write, or for that matter anything anyone else ever writes. STATNews, for example, wanted to host a point-counterpoint, but couldn’t find anybody to oppose me. Health News Review posted a podcast with no opposing views.

The one wellness executive who failed to understand the news-cycle-as-kryptonite dynamic was Wellsteps’ Steve Aldana, not exactly a rocket scientist even by the standards of the wellness industry.  In an attempt to get his name in the paper, he accidentally admitted that all of Boise’s Koop Award-winning numbers were fabricated. Yes, he humiliated himself, yes, he admitted he lied, yes, he could easily have been charged with defrauding the city…and yet Boise is still Wellsteps’ account.

If they had any lingering doubt, that lesson taught the rest of these people to stay out of the media even if it means taking a few punches.

That brings us to today. I’ve been scouring Google to find someone — anyone — to take the side of the EEOC in what is likely to become an extended news cycle over the definition of “voluntary” for wellness programs. So far, no one has stepped forward to support the EEOC’s and HERO’s argument that “voluntary” can mean “we’ll fine you up to $2000 if you don’t.” Instead, both The Incidental Economist (the NY Times‘ economics bloggers) and the LA Times‘ Pulitzer Prize-winning business columnist, Michael Hiltzik, come down strongly on the side of AARP, Merriam-Webster, Funk & Wagnalls and Dictionary.com.

Los Angeles Times, Michael Hiltzik

Highlights:

• In 2015, the EEOC proposed a rule treating wellness programs as “voluntary” if they involved premium differences of no more than 30% of the full cost of a health plan. Worker advocates were aghast — 30% of a full-price premium could amount to thousands of dollars, and since the workers’ share of their health plan premiums often was only 30% or so, the penalty could double their annual costs. For many families, that made voluntary programs effectively mandatory.
• [The judge] observed that the 30% incentive “is the equivalent of several months’ food for the average family, two months of child care in most states, and roughly two months’ rent.” He recognized that a fee of that magnitude could be especially coercive to lower-income employees 
• The biggest problem with wellness programs is there’s no evidence that they work. The most frequently cited statistic in their favor came from Safeway, whose claim to have saved on per capita healthcare costs after implementing a wellness program prompted drafters of the Affordable Care Act to liberalize the incentive rules. But Safeway’s story was soon debunked. Other supposed success stories came from wellness program promoters themselves, who were engaged in selling their wares to big employers.

The Incidental Economist

Highlights:

• The rule allowed employers to impose huge penalties on employees who refused to participate in wellness programs, even though the Americans with Disabilities Act says those programs must be “voluntary.”
• In the court’s view, the EEOC had basically ignored the problem in its rulemaking, asserting without explanation that wellness programs backed by enormous penalties were somehow voluntary. I applauded the decision: I’ve been railing against the EEOC for two years now for blessing mandatory wellness programs over the ADA’s express prohibition.

Once again, I’d urge everyone to sign up for the January 18 webinar. There will be more clarity, you can ask questions, and you’ll hear questions from others too. What you won’t hear is a peep out of HERO. Not because we censor or blacklist adversaries (that’s their signature move, not ours — one person reports that HERO took him off the program because he admitted to respecting my work) but because they know better than to, in the immortal words of the great philosopher John Cusack, say anything.