Essential Health Benefits Proposed Regulation Issued

December 7th, 2012 by MorganDowney Leave a reply »


The Obama Administration has issued several proposed regulations implementing the Affordable Care Act (ACA). One proposed rule defines “essential benefits” for the upcoming all but grandfathered health plans. (See DHHS press release, November 20,2012  Proposed rule Comments due: December 26, 2012

Because of other provisions, intensive behavioral counseling of adults for obesity will be covered.

Obesity drugs are not specifically covered in the proposed regulation. The health plan which each state selects as its benchmark may or may cover anti-obesity medications, or may limit the duration of the coverage.(Because of the historic pattern of low coverage, I believe HHS should require their coverage). Nevertheless, the proposed regulations may have a partial-saving-provision in Section 156.120(b), “A health plan providing essential health benefits must have procedures in place that allow an enrollee to request clinically appropriate drugs not covered by the health plan.”

Bariatric surgery coverage may depend on which plan a particular state chooses as its ‘benchmark’ plan. These are listed in the Appendix to the plan. If that plan covers bariatric surgery, then it should be covered as an essential health benefit. The picture gets more confusing if there is a state mandated benefit for bariatric surgery. A valuable reference is Chris Gallagher’s Summary of State Benchmark Plan of Obesity Treatment CGallagher_Summary-of-Obesity-Treatment-State-Benchmark-Plan-Coverage.pdf

Generally, individuals covered under non-grandfathered plans may have recourse to reimbursement for bariatric surgery or anti-obesity drugs under the proposed rule Prohibition on Discrimination. Section 156.125 (a) provides, “An issuer does not provide EHB (Essential Health Benefits) 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 or life or other health conditions;” To participate in the Health Exchanges, plans must also comply with 45 CFR 156.225 which states that Qualified Health Plans (QHPs) (those eligible to participate in Health Exchanges) “must (b) Not employ marketing practices or benefit designs that will have the effect of discouraging the enrollment of individuals with significant health needs in QHPs.” The language covering ‘expected length of life’, ‘present or predicted disability’, ‘quality of life’, ‘other health conditions’ or ‘significant health needs’ would cover persons with obesity.

The problem with these anti-discrimination provisions is that their enforcement is unclear and leaves the  burden on patients to file appeals and related claims.

Tim Jost’s excellent health law blog provides background on this complicated issue. Tim Jost and essential health benefits

For background on what the states are offering now, see this report from the Kaiser Family Foundation.


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