Below are my comments  about the lack of inclusion of obesity treatments in the definition of essential health benefits under the Affordable Care Act.

Centers for Medicare and Medicaid Services

Department of Health and Human Services

Attention: CMS-9980-P

Baltimore, Maryland                                      Re: Standards Related to Essential Health Benefits (EHB)

Thank you for the opportunity to comment on CMS-9980-P, establishing standards related to essential health benefits.

The proposed regulation is a missed opportunity to effectively address one the nation’s major health crises- obesity. There is no need to repeat the well-covered statistics on the nation’s obesity prevalence nor on the extensive impact on personal health caused or made worse by obesity. Suffice it to say that obesity is recognized as a major driver of poor health care, of high utilization of healthcare services and of high, and growing, national health care expenditures.

The proposed regulation establishing standards for essential health benefits (EHB) will have an enormous reach. Non-grandfathered plans in the individual and small group markets, both inside and outside the exchanges, multi-state plans, Medicaid benchmark and bench-mark equivalent, and Basic Health Programs must cover EHB by January 1, 2014. However, the proposed regulation is deficient in its failures to address this national health epidemic.

The proposed regulation fails the test of comprehensiveness

The Affordable Care Act establishes ten categories of ‘essential health benefits’. One of these is “Preventive and wellness services and chronic disease management.” However, the proposed regulation do not define this category in general nor address obesity specifically. Traditionally, these areas have been either ignored or underserved by health insurance programs. Yet, the structure of the EHB regulation relies entirely on already established health insurance programs for its ‘benchmark’ plan.

According to the Obesity Action Coalition, only 22 states have chosen benchmark plans that cover bariatric surgery. Only 5 states have chosen benchmark plans that cover weight loss programs. 28 states have chosen benchmark plans that cover neither bariatric surgery nor weight loss programs. (Source: Obesity Action Coalition http://www.obesityaction.org/wp-content/uploads/1212-OCC-Summary-of-Obesity-Treatment-State-Benchmark-Plan-Coverage.pdf, accessed December 26, 2012)

Few governmental or private health plans provide coverage of Food and Drug Administration approved drugs for the treatment of obesity. Many health insurance plans have explicit exclusions for weight loss. Medicaid coverage is also poor. Eight state Medicaid programs appear to cover all recommended obesity treatment modalities for adults. Only 10 states reimburse for obesity-related treatment in children. In the small group market, 35 states expressly allow obesity to be used for rate adjustments while 10 states allow it in the individual market. Only 5 states provide coverage of one or more treatments in both the small-group and individual markets. (Lee JS, Sheer JL, Lopez N, Rosenbaum S, Coverage of obesity treatment: a state-by-state analysis of Medicaid and state insurance laws, Public Health Rep. 2010 July-August;125 (4): 596-604)

The Medicare program itself is a more positive model. In 2004, Medicare eliminated language in its coverage manual that obesity was not a disease. In February 2006, CMS significantly expanded its national coverage policies to cover more bariatric surgery procedures when performed in designated centers of excellence. In 2011, CMS added intensive behavioral counseling for adult obesity (A grade B recommendation of the U.S. Preventive Services Task Force). As yet, Medicare Part D does not cover drugs for the treatment of obesity.

It is a questionable health policy which covers counseling and surgery for American adults over age 65 when, by this regulation, the same coverage could be extended to younger Americans with obesity for whom the interventions are likely to be more effective in improving health outcomes and reducing the need for expensive treatments of related comorbid conditions. Perpetuating this scattered picture of health insurance coverage makes no sense, especially in the context of implementing the Affordable Care Act.

Further, a companion proposed regulation on employer wellness program would allow overweight or obese employees to be penalized up to 1/3 of the cost of their health insurance plan if they failed to meet employer-determined biometrics, such as weight or Body Mass Index. Yet, under this proposal, their employer’s health plan (or exchange or multi-state plan) would not be providing the employees with the treatments they need to obtain that goal. This is unlike the situation for high blood pressure, high cholesterol or type 2 diabetes where treatments are almost always covered in insurance plans.

Recommendation: The regulation should define EHB to include behavioral, pharmacological and surgical interventions based on the evidence‐based recommendations of the National Institute of Health/National Heart, Lung and Blood Institute. The guidelines for treatment of adult obesity were issued 1998, and are currently being updated, see http://www.nhlbi.nih.gov/guidelines/obesity/obesity2/index.htm Regarding children and adolescents, the American Academy of Pediatrics and 15 national medical societies have adopted guidelines which can be incorporated into the regulation.

The proposed regulation fails the test of non-discrimination

Section 156.125 provides, “An issuer does not provide EHB if its benefit design, or the implementation of its benefit design, discriminates based on an individual’s age, expected length of life, present or predicted disability, degree of medical dependency, quality of life, or other health conditions.”

While this is elegant language, it is doubtful that, given insurance practices, it is enough to overcome the inherent prejudice, stigma and discrimination directed at persons with obesity. The insurance industry’s current exclusion of obesity treatments is exactly because of expected length of life, present or predicted disability, degree of medical dependency, quality of life and other health conditions.

Keep in mind that overweight and obese employees already receive a wage penalty because of their weight. A recent study has confirmed that obese employees with employer-provided health insurance are paid less than their peers because of higher health care costs. Stanford University researchers analyzed data from the Bureau of Labor Statistics, the National Longitudinal Survey of Youth and the Medical Expenditure Panel survey. They found that, on average, obese employees with health insurance were paid $1.42 an hour less that non-obese workers. Women had a higher wage penalty than men. Women with obesity whose employers provided health insurance paid a wage penalty of $2.64. (Bhattacharya, J, Bundorf, MK, The incidence of the healthcare costs of obesity, Journal of Health Economics 2009: 28:649-658.)

Recommendation: Section 156.125 should make clear that a plan design which excludes bariatric surgery, FDA approved drugs to treat obesity, intensive behavioral counseling is, ipso facto, discriminating against persons with obesity.  Additionally, it is not enough to just have the states monitor and identify discriminatory designs. A federal office needs to be designated where complaints or inquiries can be addressed.

Health reform must address one of the root causes of mortality and morbidity in the country. Without fully including evidence‐based interventions for obesity, it is hard to foresee a net improvement in the health of Americans. The current situation of health insurance, in its avoidance of obesity prevention and treatment, perpetuates a focus on the conditions caused by obesity. Millions of dollars spent on heart disease or type 2 diabetes (not to mention the other ill effects) will only continue.