Posted 11/30/2015

Five Groups File Complaint with U.S. Health and Human Services Citing Non-Compliance and Discrimination in 27 States

GAINESVILLE, FL – Nov. 5, 2015 – The American Society for Metabolic and Bariatric Surgery (ASMBS) and groups including The Obesity Society (TOS) and Academy for Nutrition and Dietetics (AND), filed a complaint this month with U.S. Health and Human Services (HHS) claiming the 27 states that deny coverage for bariatric surgery are in non-compliance with the Affordable Care Act (ACA) and that their failure to comply is discriminatory against women and people with disabilities, and violates the ban against denying coverage based on health status or a pre-existing condition.

The ASMBS, TOS, and AND are joined in the complaint by the Obesity Medicine Association (OMA) and the Obesity Action Coalition (OAC), a patient advocacy group with more than 50,000 members. All five groups belong to the Obesity Care Continuum.

“Qualified health plans should not be able to discriminate against people with the disease of obesity and unfortunately this is happening in most states,” said John M. Morton, MD, MPH, President of the ASMBS and Chief, Bariatric and Minimally Invasive Surgery, Stanford University School of Medicine. “The time has come for equitable treatment for the millions of patients affected by obesity. There needs to be one America where treatment for obesity is an option for everyone.”

Dr. Morton noted that treatment for chronic diseases other than obesity are routinely covered. Obesity was classified as a disease by the American Medical Association in 2013.

“There’s a double standard when it comes to obesity,” Dr. Morton added. “Most insurers are covering the treatments for the complications and consequences of obesity, but are not covering the treatment of obesity itself.”

In the complaint, the groups say there is a significant disparity between the 27 ACA benchmark plans that deny or exclude coverage for bariatric surgery, and the major private and government health insurance plans that provide coverage. Medicare, 49 state Medicaid plans, the Federal Employees Health Plan, the majority of state health plans, and the majority of employer-based plans with 500 employees or more cover bariatric surgery.

The groups cite that a qualified health plan under ACA may “not employ marketing practices or benefit designs that have the effect of discouraging the enrollment of such plan by individuals with significant health needs.” They say this is being done to individuals who have obesity. In addition, the ACA prohibits the denial of health care benefits on the basis of disability. The groups say severe obesity falls under the American Disabilities Act, as currently defined. Finally, the groups argue that “empirical research consistently demonstrates that obesity has a proportionally disparate adverse impact on women” in comparison to men, when it comes to hiring and earnings, and those with severe obesity who joined ACA qualified health plans within the last two years did so with obesity as a pre-existing condition.

“We believe there should be a single, consistent obesity health benefit for the entire country, and as part of that benefit proven obesity treatments such as bariatric surgery would be covered for those who need it,” said Dr. Morton.

About Obesity and Metabolic and Bariatric Surgery According to the Centers of Disease Control and Prevention (CDC), more than 78 million adults were obese in 2011–2012.i The ASMBS estimates about 24 million people have severe or morbid obesity. Individuals with a BMI greater than 30 have a 50 to 100 percent increased risk of premature death compared to healthy weight individuals as well as an increased risk of developing more than 40 obesity-related diseases and conditions including Type 2 diabetes, heart disease and cancer.ii, iii

Metabolic/bariatric surgery has been shown to be the most effective and long lasting treatment for morbid obesity and many related conditions and results in significant weight loss. The Agency for Healthcare Research and Quality (AHRQ) reported significant improvements in the safety of metabolic/bariatric surgery due in large part to improved laparoscopic techniques.iv The risk of death is about 0.1 percentv and the overall likelihood of major complications is about 4 percent.vi

About the ASMBS The ASMBS is the largest organization for bariatric surgeons in the nation. It is a non-profit organization that works to advance the art and science of bariatric surgery and is committed to educating medical professionals and the lay public about bariatric surgery as an option for the treatment of morbid obesity, as well as the associated risks and benefits. It encourages its members to investigate and discover new advances in obesity, while maintaining a steady exchange of experiences and ideas that may lead to improved outcomes for morbidly obese patients. For more information, visit www.asmbs.org.


References

i. Prevalence of Obesity Among Adults: United States, 2011–2012. Center for Disease Control and Prevention. (October 2013). Access October 2013 from http://www.cdc.gov/nchs/data/databriefs/db131.htm

ii. Office of the Surgeon General – U.S. Department of Health and Human Services. Overweight and obesity: health consequences. Accessed March 2012 from http://www.surgeongeneral.gov/topics/obesity/calltoaction/fact_consequences.html

iii. Kaplan, L. M. (2003). Body weight regulation and obesity. Journal of Gastrointestinal Surgery. 7(4) pp. 443-51. Doi:10.1016/S1091-255X(03)00047-7.

iv. Poirier, P., Cornier, M. A., Mazzone, T., et al. (2011). Bariatric surgery and cardiovascular risk factors. Circulation: Journal of the American Heart Association. 123 pp. 1-19. Accessed March 2012 from http://circ.ahajournals.org/content/123/15/1683.full.pdf

v. Agency for Healthcare Research and Quality (AHRQ). Statistical Brief #23. Bariatric Surgery Utilization and Outcomes in 1998 and 2004. Jan 2007

vi. Flum, D. R. et al. (2009). Perioperative safety in the longitudinal assessment of bariatric surgery. New England Journal of Medicine. 361 pp.445-454. Accessed June 2012 from http://content.nejm.org/cgi/content/full/361/5/445