Posts Tagged ‘essential health benefits’

Obesity and Essential Health Benefits: The Final Rule

February 21st, 2013

The Department of Health and Human Services issued final regulations defining “Essential Health Benefits” which will have to be included in insurance programs listed on state exchanges and all non-grandfathered health insurance plans in the group and individual markets. The EHB covers 10 categories covering hospitalization, prescription drugs, etc. See Fact Sheet.

The regulation is generally close to the proposed regulation with the exception of expansion of mental health, habilitative care and pediatric dental and vision services.

Last July, interim final regulations were issued which require these plans to include under prevention and wellness, the US Preventive Services Task Force recommendations, which include Intensive Behavioral Counseling for Adult Obesity.

Unfortunately, it appears that HHS has no problem with allowing most state exchanges to use “benchmark” plans which exclude bariatric surgery, according to a report by the Obesity Care Continuum. Coverage of prescription medicines for obesity is murky. The EHB regulations state that plans must provide at least one drug in each category or class of the US Pharmacopeia. But it uses version 5.0 for Medicare. Under the Medicare statute, Part D, drugs to treat obesity are excluded so they don’t appear to be covered. However, this might be challenged under the EHB rules that the benefits must be designed in a manner which does discriminate based on age, disability, or expected length of life and must take in the needs of a diverse population.

The regulations limit deductibles to $2,000 for individual coverage and $4,000 for family coverage.

The STOP Obesity Alliance and my own comments, had argued for more clarity in the inclusion of obesity treatments.


Obesity and Essential Health Benefits

December 26th, 2012

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, 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 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.


Essential Health Benefits Proposed Regulation Issued

December 7th, 2012


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.