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 If repealed, the maximum reward/penalty would revert from 30% of the total employer-employee to the previous level of 20% established by ERISA.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.

Fat and Fashion in Presidential Politics

November 21st, 2015 No comments »

What goes around comes around. After Donald Trump dumped on an overweight protestor, WaPo’s Robin Givhan took the opening to comment on his sensitivity about his own weight and appearance. Here is her article.

 

Why Conservatives Seem to Favor Dietary Supplements

November 8th, 2015 No comments »

Do conservatives favor dietary supplements? That’s pretty much the point of David Weigel’s article in the Washington Post. He picks up on Republican Presidential candidate Ben Carson’s relationship with the dietary supplement maker, Mannatech Inc. (Mannatech’s products including those promising weight loss.) His article points to a deep relationship of conservatives and dietary supplement manufacturers, based on common rejection of expertise in favor of personal liberty and antipathy to big government, in this case the Food and Drug Administration.

Readers may remember that it was a relationship with a supplement manufacturer which led to the criminal convictions of former Virginia Governor Robert McDonnell and his wife. But liberals, like former British Prime Minister Tony Blair, are not immune.

 

Did White House Spin CDC study to show progress in childhood obesity?

October 20th, 2015 No comments »

The Daily Caller reports receiving emails under the Freedom of Information Act purporting to show White House influence to spin CDC prevalence figures to support Michelle Obama’s Let’s Move initiative. This does not come as a big surprise. We have been reporting here on the over-optimistic predictions of the end of the obesity epidemic. See here, here, here, herehere and here.

 

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.

 

EEOC Comments on Employer Wellness Programs

June 23rd, 2015 No comments »

Below are comments I filed last week with the EEOC concerning their employer wellness program proposed regulations. Because of space limitations, I had to shorten my original draft. However, I will be posting sections of the long version in the near future.

 

These comments are primarily addressed to employer health-contingent, or outcomes based, wellness programs which include weight management programs.

In this regulation, the Equal Employment Opportunity Commission (hereinafter “EEOC”) eliminates 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 ineffective. These programs are highly intrusive. The privacy of the most sensitive personal records is an illusion. The EEOC’s notice provisions are terribly flawed.

The proposed regulations 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). This regulation, allowing employers to claw-back compensation from employees. It provides employers with protection against future health premium increases at a great and burdensome expense to millions of employees.

Successful, long-term weight loss occurs in only about 10% of persons who voluntarily join the best and most rigorous weight loss programs for motivated consumers. There is no data, to the best of my knowledge, regarding weight loss in mandatory health outcome programs. A RAND study found weight loss in voluntary ‘wellness’ programs at about an insignificant 1 kg a year. (Downeyobesityreport, June 13, 2013)

The EEOC, in a perversion 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, and the amount will only increase over time.

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”. Merriam Webster Dictionary defines it as “unconstrained by interference” and “without valuable consideration.” It is commonly used to mean an act undertaken by one’s free will. In law, waiving Miranda warnings or the making a confession, must be truly voluntary and not subject to the type of coercion, such as the EEOC here supports.

The proposed 30% penalty is a major penalty, comparable to that of fines for commission of felonies. 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.

The result is that many have gone without medical treatment or have not filled a prescription.

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.)

Regarding the privacy of health records, many vendors of employer ‘wellness’ programs are not health plans and, as such, not covered by HIPAA regulations. If the federal government, i.e. the National Security Agency, the Internal Revenue Service, the Office of Personnel Management, the Department of Health and Human Services and private companies such as Sony, Target, Premera Blue Cross, and Anthem Insurance cannot protect their data, why does the EEOC assume that small vendors of wellness programs can? The EEOC cannot credibly assume that these records will be protected against breaches. Indeed, the EEOC should assume that such data will not be kept confidential and will end up in the hands of employers.

Many programs are highly intrusive. Some 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 asks about the employee’s mood, stress at work and home, eating and exercising habits. Some ask for the information from spouses, as well.

The proposed EEOC regulation provides no guidance on what is considered an intrusive wellness program. In addition to intrusive questions on health risk assessments, the expanded use of wearable technologies is under way. These devices track employees’ movements and behavior not only at work but off the job and in the privacy of their home.

The Affordable Care Act did not repeal or modify Americans with Disabilities Act, as noted in final wellness regulations of DOL, HHS and Treasury. In fact, Congress and sister agencies have assumed continuation of the protections afforded by the Americans With Disabilities Act.

The only value provided by ‘wellness’ programs is for corporations to shift costs to employees, which was distinctly not the intent of the ACA.

I urge the EEOC to reconsider this proposed regulation.

 

 

 

What Improvement? US Youth Fitness Drops 10 Points

May 29th, 2014 No comments »

Michelle Obama is launching a passionate defense of improvements to the National School Lunch Program. She is fighting House Republican proposals to provide waivers of the new requirements for some schools. The arguments against such waivers might be stronger had waivers not been so liberally used in the implementation of the Affordable Care Act. Nevertheless, the First Lady is making much of improvements in children’s health since launching her Let’s Move campaign. Unfortunately, the facts are not very supportive. The National Center for Health Statistics has issued a new report on cardiorespiratory fitness among U.S. youth aged 12-15. Short answer: it has gotten worse. The Report states, “The percentage of youth aged 12-15 who had adequate levels of cardiorespiratory fitness decreased from 52.4% in 1999-2000 to 42.2% in 2012.”

Politicians Beware of Dietary Supplement Businessmen

January 23rd, 2014 No comments »

Source: Politico.com

Virginia Governor Robert F. McDonnell and his wife for accepting gifts from a dietary supplement businessman. McDonnell had state health officials meet with Star Scientific Inc. representatives who wanted its supplement, Anatabloc, included in the basic health plan for state employees. The Governor and his wife openly endorsed Anatabloc.

Jonnie R. Williams, head of Star Scientific Inc., gave over $100,000 in corporate jet travel to the governor and personal gifts to the McDonnell’s over $145,000. Williams had run afoul of the Securities and Exchange Commission, which forced him to pay back nearly $300,000 for using research with false claims to promote a medical business. Star Scientific has three shareholder lawsuits against it alleging the company made false or misleading statements to boost Anatabloc.

Like all other dietary supplements, approval by the Food and Drug Administration before sale is not required. The company claims that Anatabloc helps “reduce inflammation and support a health metabolism.” However, as reported by the Richmond (VA) Times Dispatch, the company has put out at least 15 press releases on scientific studies it commissioned implying Anatabloc might mitigate the underlying causes of Alzheimer’s disease, multiple sclerosis, thyroiditis and traumatic brain injuries. It’s advertising also promotes Anatabloc for joint pain and inflammation, even though the active ingredient has only been tested in pre-clinical, animal studies. In December 2013, the FDA informed Star Scientific that it was improperly selling Anatabloc and the company needed FDA approval to sell it as a drug.

Somewhat ironically (or not) Governor McDonnell received a combined M.A./J.D. degree from Christian Broadcasting Network University (now called Regent University). Christian Broadcasting Network University was founded by Pat Robertson, conservative religious broadcaster and one time Presidential candidate. Robertson sold another dietary supplement, described as an “age defying shake” and was accused of using his tax-deductible contributions to the school  to promote a commercial product.  In one of his promotions, Robertson, then 76 years old, claimed that he could leg-press 1,000 pounds, more than the world record.

McDonnell should have seen in coming. In 2002, Tony Blair was Prime Minister of the United Kingdom. His wife, Cherie Blair, became involved with another dietary supplement businessman, Peter Foster. Foster was an Australian who had been convicted and jailed on three continents for offences involving weight loss products and property transactions. Foster became a financial advisor to Blair and assisted her with the purchase of two apartments. Cherie Blair denied the involvement but evidence came out to the contrary.

As long as the dietary supplement industry can operate without showing scientific basis for its products, it will remain an easy arena for scam artists who can pocket millions, often from weight loss products. The FDA and Federal Trade Commission can do a lot more enforcement of current laws but eventually Congress will have to bring the dietary supplement industry under tougher supervision.