EEOC punts on Employer Wellness Regulation

April 17th, 2015 No comments »

The Equal Employment Opportunity Commission (EEOC) has finally issued proposed amendments to the Americans with Disability Act (ADA) regarding employer wellness programs.

The proposed regulations are very disappointing. They re-define “voluntary” participation in a wellness program to mean being penalized 1/3 of an employee’s health insurance premium cost. The average cost of single coverage is $5,615, with employees paying $951 out of pocket. More and more of the cost is being shifted to employees. Many employees, especially white women, suffer a wage penalty because of their weight. And most employees’ health insurance plans do not cover the costs of FDA approved medicines for weight loss, bariatric surgery or intensive behavioral interventions.

In particular, the proposed regulations do not require employers to tell employees of the availability of alternative avenues to receive the reward or avoid the penalty. They do not require employers to leave the final word on alternative avenues with the employee’s physician, which is required in the DOL/HHS regulations. There is no obvious penalty if the employee’s personal health data is not adequately protected by the employer and personal health data is used to an employee’s detriment. On the other hand, one useful provision limits the penalty/reward to 30% of the premium cost of a single person. Obviously, this is lower than the cost of family coverage. Industry is sure to fight this limitation, as they want to increase the size of the penalty/reward.

Comments are open until June 19,2015.

See EEOC press release here. See proposed regulations here. For additional information, see Ted Kyle’s blog here, and Tim Jost’s blog in Health Affairs here.

In the meantime, the federal government’s Office of Personnel Management (OPM) has told federal agencies to promote workplace wellness programs.


Opportunity to Expand Coverage of Bariatric Surgery and Anti-obesity Drugs

January 6th, 2015 No comments »

Kaiser Health News reports today on the poor coverage of drugs for obesity by Medicare and private insurance plans. Health plans which are part of the health exchanges established by the Affordable Care Act also have poor coverage. However, there is a strategy to deal with the health exchange ( or marketplace) plans.

As reported here in a paper (see p.8)  Christopher Still and I wrote on the Affordable Care Act’s impact on persons with obesity, the law has a unique provision allowing for review of plans for ‘discriminatory benefit design.’ Robert Pear of the New York Times reports that the Center for Medicare and Medicaid Services is looking at plans to see if their benefit are structured to discriminate against persons with H.I.V./AIDs, autism, diabetes, bipolar, schizophrenia and other diseases. The article reports that the Obama Administration has said it would challenge restrictions on benefits if they were “not based on clinically indicated, reasonable medical management practices.”

This is a huge opportunity for the obesity community to persuade CMS to look at the lack of coverage of anti-obesity drugs and bariatric surgery in plans on the health marketplaces. It is also an opportunity to have CMS look at whether health plans are adequately including behavioral counseling for adult obesity as they are required to do.


Update on State Medicaid Expansion Under Obamacare

February 8th, 2014 No comments »

State ReforUM tracks state-level health care reforms. Check out their updated map of what states are doing in expanding Medicaid, pursuant to the Affordable Care Act (ACA). See the story on what South Carolina is up to.


The Affordable Care Act’s Impact on Persons with Obesity: The Full Report

October 4th, 2013 No comments »

The Affordable Care Act’s major impact on persons with obesity is historic. Assuming that 34% of the 170 million adults with employer-based health insurance are obese,  57.8 million adults with obesity will be protected from losing coverage due to pre-existing conditions, have no annual or lifetime caps, a right to external, independent review of denied claims, rights in employer wellness programs and a new benefit, intensive behavioral counseling for obesity. An estimated five million persons with a BMI >30 may enroll in Medicaid and be eligible for intensive behavioral counseling for obesity, if all those eligible enrolled. The same is true for an estimated 3.8 million American adults under the age of 65 with obesity eligible to enroll in the state exchanges. In state exchanges, a strong non-discrimination provision based on “benefit-design” appears to provide the legal foundation to expand coverage of drugs for the treatment of obesity and bariatric surgery. In short, an estimated 66.6 million Americans with obesity will have new protections, rights and benefits on January 1, 2014.

See details on changes in current private insurance plans, Medicaid, state exchanges, prevention, research and restructuring of the health care system.

Christopher Still and I have written up the full details in this new 15 page report: The Affordable Care Act.

Obamacare Premiums Lower Than Expected

September 25th, 2013 No comments »

The Department of Health and Human Services has released data on the premiums for health plans in the state marketplaces/exchanges which come online in two weeks. The plans go into effect January 1, 2014. Premiums nationwide are around 16% lower than expected. About 95% of eligible uninsured live in states with lower than expected premiums. Click here for the full report.


Obesity and Obamacare: A Practical Guide

September 15th, 2013 No comments »


By our estimates, some 65 million Americans with obesity will be impacted by Obamacare. Many provisions of the Affordable Care Act, known as ‘Obamacare’are already in place. But October 1, 2013 will be a milestone as millions of uninsured Americans can start enrolling in health marketplaces (formerly called ‘exchanges”) for coverage starting next year. The law is complex and it’s no wonder most Americans don’t understand it. We’ve tried here to distill the basic information for consumers, especially those with obesity, who had problems getting or keeping insurance or getting reimbursement for obesity treatments.

Here’s where Obamacare will make a major impact:

56 Million Americans with group or individual insurance now have new security against exclusions for pre-existing conditions, rescissions of their contracts, rights to independent review of denied claims and new protections for employer wellness program abuses. They will also be eligible for intensive counseling for adult obesity.

5 Million Americans with obesity would come into the Medicaid program under Obamacare if all the states adopted it.

3.7 Million Americans with obesity are likely to enroll in health marketplace (exchanges) where they will be entitled to intensive behavioral counseling of obesity, and at least one prescription drug for obesity treatment.2

Here some FAQs to help navigate Obamacare:

Q. Does Obamacare affect me?

A.  Effective January 1, 1014, everyone must have health insurance or else be subject to a tax. For specific information, see this IRS page.

Q. Are there exemptions?

A. Yes. See the IRS page above. In addition, if you live in a state which has not elected to expand their Medicaid program you will be exempted from the individual mandate. Federal regulations treat this situation as a ‘hardship exemption from the individual mandate.


Q. Does Obamacare change Medicare?

No. No one on Medicare needs to buy anything or answer any questions from callers. Because of the confusion around the law, scammers are calling folks asking for personal financial information on the basis that they are asking if they are qualifying for health insurance. Don’t believe them.

If you have Medicare the only change Obamacare makes is to shrink the prescription drug ‘donut hole.’ Supplemental insurance programs will not change.

Group or Individual Plans

Q. I have health insurance at work through a group plan. I’ve been told there will be no changes. Is that right?

A. Not really.  In the private insurance market, both group and individual plans, exclusions for pre-existing conditions will be banned, as will annual and lifetime caps on reimbursement.  All private insurance plans starting in 2014 must cover intensive behavioral counseling for obesity in adults. (That’s about 56 million people with obesity.) There are new rules giving you the right to appeal denials of claims to independent outside reviews. New rules on employer wellness plans gives employees rights to alternative avenues to benefits and puts your individual physician in charge of what is right for you. Other changes, as with the tax deduction for medical expenses and a future ‘Cadillac’ tax on expensive health plans are less positive for affected persons.

Q. I have health insurance at work through a group plan and we have been told the rates we pay for it will go through the roof because of Obamacare. Is that true?

A.  Health insurance premiums are going to vary by age, your state and what kind of plan you purchase and whether you qualify for federal subsidies. And they will vary by what strategies your firm takes. For example, some employers are moving full time workers to part time status; others are reducing family or dependent coverage. Recently, premiums have been fairly flat. A RAND study predicts small firms with under 100 employees will see a 6% reduction in 2016 health insurance premiums.

The Kaiser Family Foundation published a study of premium changes in 17 states and the District of Columbia, with and without the tax subsidies. Check it out here.

Q. What about rates if you buy individual health insurance?

A. A RAND study found little likelihood of big increases in premiums in the individual market but there are government subsidies for almost half the polulation. Forbes has published this map and information on what they project.  The Forbes’s site also has a calculator to see if you might be eligible for federal subsidy. Kaiser Health News has estimated that about 48% of adults already purchasing coverage for themselves will be eligible for subsidies next year and those subsidies will average $5,548 per family.

Kaiser Health News has provided detailed information on how the subsidies will work.


Q. I’m uninsured because it costs too much. What does Obamacare do to help?

A. If you make 133% of the federal poverty level or less,  you may qualify for Medicaid. If your income is 4 times the federal poverty level or less, you qualify for federal subsidies to make purchasing a private plan affordable. When you apply on a health marketplace (exchange) the system will automatically determine if you qualify for Medicaid in your state.

Q. My state won’t expand Medicaid so I won’t be eligible? Can I still get insurance through ObamaCare?

A. There seems to be a way but it’s a little tricky.

Q. When can I enroll in ObamaCare?

We’ll assume by ‘Obamacare’ you mean the state health marketplaces. You can start the paperwork now. October 1, 2013 the open enrollment starts. Sign up here.

Q. Am I eligible?

A. Nearly everyone is eligible. Go to this site.

Q. I need health insurance but don’t make much money. I am very healthy and active. Can’t I just wait until I’m sick and then get insurance from a health exchange?

A. That’s a risk. You can only enroll during open enrollment periods. If you need health insurance after one period closes, you will have to wait until the next open enrollment period to enroll. Any costs you incur then will be your responsibility. In addition, there is a (modest) tax for not having health insurance.

Q. What kind of health plans will be available?

A. There will four types of plans: bronze, silver, gold and platinum. Basically, with bronze, the premiums will be the least expensive but your out-of-pocket costs will be the highest. With platinum, it’s reversed: they will be the most expensive but your out-of-pocket costs are the lowest. They all have to provide “essential health benefits” but who provides and where will vary. More information is available here.

Q. What will be the premiums in the health marketplaces (exchanges)?

A. The Kaiser Family Foundation published a study of premium changes in 17 states and the District of Columbia, with and without the tax subsidies. Check it out here.  A similar analysis is available from Avalere Health here.

This site compares premiums inside and outside the marketplaces (exchanges),

Q. What are ‘essential health benefits’?

A. ‘Essential Health Benefits’ are specific types of health care services. Preventive services are one of the ten types and include intensive behavioral counseling for adult obesity. Plans will also have to have at least one drug from every therapeutic category. So one of the current FDA approved drugs for obesity should be available. Bariatric surgery may vary. However, the law contains very strong language that plans cannot discriminate in “benefit design” Read the federal regulations. This language should provide the legal justification for coverage of bariatric surgery.

Q. I’m still confused. Is there anyone in my state to help me?

A. For information on consumer assistance, see Families USA;

A State-by-State Map of consumer assistance resources is also available.

Q. I have family member who is not just obese but has some mental and other physical problems as well. She finds it hard to find services in her area and needs care across her problems. Any help?

A. One change to Medicaid in the ACA may be especially useful to persons in her situation. It creates an optional Medicaid benefit (Social Security Act §1945) for states to establish “Health Homes” to coordinate care for people with Medicaid who have chronic conditions. Health Homes are for people on Medicaid who have 2 or more chronic conditions, have one chronic condition and are at risk for a second, have one serious and persistent mental health condition. Chronic conditions include mental health, substance abuse, asthma, diabetes, heart disease and being overweight (BMI >25). Health Homes are intended to integrate and coordinate all primary, acute, behavioral health and long-term services in support of the whole person. More.

There is more information on these two government sites and CMS.


1. Decker, SL, Kostova D, Kenney GM, Long SK, Health Status, Risk Factors, and Medical Conditions Among Persons Enrolled in Medicaid vs Uninsured Low-Income Adults Potentially Eligible for Medicaid under the Affordable Care Act. JAMA, 2013; 309(24):2579-2586., accessed Sept. 13, 2013.

2. The Urban Institute, Health Status of Exchange Enrolees: Putting Rate Shock in Perspective




ObamaCare Starts Now

August 22nd, 2013 No comments »

While the ‘exchanges’ will not be operational until October 1, individuals in 34 can now start the enrollment process by going to this site.


Reflections on the AMA Disease Decision – Part 1

July 3rd, 2013 No comments »

I think I have been responding to questions about whether or not obesity should be defined as a disease since the American Obesity Association’s (AOA) first Obesity and Public Policy Forum in 1999. It came up again with the petition filed by AOA with the Social Security Administration to have persons with severe obesity continued eligibility (with other criteria) for Social Security Disability in 2000.

At AOA, we drew attention to the policy of the Centers for Medicare and Medicaid Services (then called the Health Care Financing Administration) stating that obesity was not a disease in testimony March, 2000.

But it was really AOA’s effort to have obesity treatments treated as eligible for the medical deduction on income taxes under the Internal Revenue Code which brought national attention to the issue, including an interview on the Today Show with Katie Couric on November 11, 2003. After that, there were a host of call-in radio shows and interviews. “Obesity as a Disease” was a kind of Rorschach Test of Americans’ views about obesity. So, let me give you my take on the most common objections to the AMA decision.

Calling obesity a disease will increase stigma.” I got this several times in the early 2000s and recently on the HuffPost Live interview. Not to be too glib, but how much worse can it get? The fact is stigma has been attached to obesity since ancient times. Today, we know it begins at very young ages. ( See Latner and Stunkard, 2003, “Getting Worse: The Stigmatization of Obese Children.)Those who stigmatize persons with obesity don’t need to read about the AMA’s decision to get their prejudice. Nor will calling it a disease be likely to change their attitude. Where stigmatization may change, and for the better, is inside the health care community where stigmatization is widespread and largely unrecognized. This decision by the AMA is, hopefully, going to spur the medical community to reconsider its prejudice and bias. See statement of ASMBS. AMA House of Delegates Member for the American Society of Bariatric Physicians Ethan Lazarus said, “Classifying obesity as a disease will reduce weight bias. It means that medical students and residents will receive training in what obesity is and in the best treatment approaches. It means that the medical community will have incentive to research and develop new and better prevention and treatment strategies. But most importantly, it communicates to individuals affected by obesity that this is a chronic disease, not a problem of personal responsibility.”

For an account of what a medical student with obesity goes through, read this short but painful essay from Dr. Madjan, Memoirs of an Obese Physician.

Abigail C. Saguy does caution in TIME that classifying children with obesity as diseased, may result in their parents being accused of neglect or abuse, a la David Ludwig’s argument but that was taking place before the AMA’s resolution.

“Obese People will drop Personal Responsibility. They won’t try to lose weight, saying, ‘I have a disease.’” Well, this deserves some parsing. If persons with obesity give up trying to lose weight, it isn’t for lack of trying. Surveys indicate that about half of all adult Americans are trying to lose weight every year. Overweight and obese Americans try harder. Most are trying to eat less and exercise more. Most fail. This comes as no surprise to researchers and clinicians who see an abundance of poor advice to consumers. In my opinion, in discussions about obesity, “personal responsibility” is the end of the conversation. In other diseases (or conditions, if you like) it is part of the conversation. In obesity, it is the conversation stopper.

If your dentist tells you ‘you have periodontal disease’, do you stop brushing your teeth or flossing? If you are told ‘you have a sexually transmitted disease’, do you go out on the town without protection? If you have been told ‘you have dangerously high cholesterol’, do you rush to the steak house? Well, maybe some do. But by and large, we have to assume that most patients are reasonable people and when told that they have a serious condition, they respond, well, like a reasonable person. After a heart attack, Bill Clinton goes on the Dean Ornish diet. Concerned about his weight (and maybe his Presidential prospects) Chris Christie has lap-band surgery. So, why do many people assume persons with obesity will act irrationally? Well, the short answer is bias. They assume persons with obesity are irrational and out of control. In other words, most of the objections based on the loss of ‘personal responsibility’ disguise stigmatization. They assume that persons with obesity will act irrationally and selfishly, even if they are talking about 1/3 of the adult population.

The AMA and physicians are declaring obesity a disease for the money. There are these new drugs out there and they can’t wait to write the prescriptions.” The AMA has had their chance with fen-phen, Meridia, Xenical, Alli, etc. Fact is, as documented on this site, most primary care physicians have a woeful record in understanding and treating their patients with obesity. They are not trained in obesity, they don’t understand the basic human physiology of weight regulation and they do not know how to counsel their patients. They have sat on the sidelines of this epidemic and have been comfortable being there. (To be fair, a lot of their patients do not raise their weight issues with their physicians either.) As one young physician told me years ago, “I didn’t go to medical school to treat fat people.”

Further, they have seen many of their colleagues wrapped up in the fen-phen litigation and want no part of that. The current drugs (and, I believe, future obesity drugs approved by the FDA) are not allowed to be dispensed out of physician offices. So they can’t make money out of direct dispensing. This is what fueled the phen-fen mills of the late 1990s. Physician counseling of patients will probably be billed as under “E&M” or “Evaluation and Management” codes which typically are reimbursed a lesser amount than procedures.  If physicians make any money on it (and it won’t be much) they will have earned it. The Pay-for-Performance trend in health insurance reimbursement may also cool physician interest in getting involved in obesity counseling.

“The AMA decision is ok but it’s not about (fill in the blank)!” This usually comes from folks not in clinical care of actual patients, i.e. they are concerned about community prevention efforts, the built environment, blaming the food industry, Western culture, etc. They feel left out of the discussion. They begrudge the focus on treating individuals and try to shift the conversation to where the spotlight shines on their area of concern. Know what? It’s a big world. Don’t begrudge the people who are trying to help individuals with their personal issues.

“The AMA overruled the finding of their expert committee that obesity is not a disease.” The report of the Committee on Science and Public Health was deeply flawed. First, it found that it could not define “disease”.  (See report (scroll down to page 19). The TOS Obesity is a Disease Writing Group actually got into this discussion in our evidence paper. Can you imagine what kind of criticism the AMA would have received if they said they could define ‘disease’?  Second, CSPH said it could not define “obesity” because the most common measurement too, the Body Mass Index, is flawed. Readers of this site will know that argument.  But the definition of obesity is “excess adipose tissue.” The BMI is only one of several measurement tools. Others include DEXA, bioimpedance, skinfold thickness test, waist-hip ratio, etc. Unfortunately, the Food and Drug Administration has made it into a clinical tool, not an epidemiological tool, as it was intended. There is a great deal of research underway to improve the BMI or create a better clinical instrument, such as the Edmonton Obesity Staging System or the Body Adiposity Index.

But many diseases have weak measurements. What about autism spectrum disorders? Alzheimer’s disease can only be diagnosed on autopsy. Most neurological, mental or substance disorders are very subjective but that does not stop us from classifying them as diseases.

“Obesity can’t be a disease since it can easily be prevented.” What we have here is a very common leap from the question, “Is obesity a disease?” to prevention or treatment issues.   The fact is that, no matter how weak the definitions of “disease” are, obesity meets all of them. (See my article in American Heart Journal). While I respect the arguments about the ambiguity of the definition of “disease,” I have to observe that it seems that no one gets very concerned about it until the subject of obesity comes up. Only then, do the Defenders of the Purity of the Definition of Disease arise to declare obesity “INELIGIBLE!”  In any event, if one stays just with the extant, secular definitions of disease, as commonly used, I think one has to admit that obesity meets commonly used terminology.

To address this specific objection, there are a number of diseases which are preventable. Not all diseases are caused by infections or toxins.  Probably the most prominent are sexually transmitted diseases, including HIV/AIDs. Others include, for example, scurvy, beriberi, rickets, pellagra are diseases caused by vitamins deficiencies. Does this mean that they are not diseases? If polio, smallpox and tuberculosis are eradicated, do they lose the ‘disease’ designation? Melanoma (skin cancer) can be prevented by relatively simple measures, e.g. sun screen, wearing hats, long sleeve shirts, etc. But we don’t stop calling melanoma a disease.

If obesity is a major risk factor for type 2 diabetes and cardiovascular disease, and obesity is not a disease because it can be prevented, does it not follow that obesity-induced type 2 diabetes and cardiovascular disease are not diseases either?

Most the comments taking this approach assume that obesity is easily preventable. Is it? A recent review by AHRQ shows that current prevention strategies have little or no evidence of effectiveness. A 2011 AHRQ review found that behavioral intervention for weight loss averaged loss of about 3 kg or 6.6 pounds, far below the excess weight most adult Americans are carrying.

Insurance companies roll over and start paying for obesity treatments?” Well, maybe. Insurers still exclude certain diseases and treatments. They will certainly be looking for evidence of safety and effectiveness, particularly for the newer drugs, in broader distribution. There is certainly some momentum for greater coverage. However, obesity treatments are not considered “essential health benefits” under the Affordable Care Act. So greater insurance coverage here may be limited

Realistically, the AMA decision is not the parting of the Red Sea. For all the years that the evidence of the scope and virulence of the obesity epidemic has been developing, the AMA has largely sat on the sidelines. Don’t forget, they have not changed their policy that persons with severe obesity who cannot work should not be eligible for disability support. The AMA has mumbled about obesity as a lifestyle factor, condition, or risk factor. Now, it has put down a marker for the medical community: ‘Obesity is a disease. These are our patients. Get to work.’ With this decision, the House of Medicine, aka “the Mothership”, has moved obesity from the back door to the front window. Good for them. Good for us.