Posted 5/10/2015

Prepared by Christopher Gallagher, ASMBS Washington Representative

Treat and Reduce Obesity Act Update

Obesity Care Continuum (OCC) groups continued to prepare for the eventual reintroduction of the Treat and Reduce Obesity Act (TROA) during the 114th Congress. Both House and Senate sponsors of the bill have finally agreed on legislative language and are looking to reintroduce the bill in conjunction with the Campaign to End Obesity’s annual Breakfast of Champions event on May 13th. This is excellent timing as several OCC leaders will be in town on May 15th for the coalition’s monthly advocacy day.

IHEC Leaders Take to Capitol Hill

On April 24, 2015, leaders of the Integrated Health Executive Council (IHEC) of the American Society for Metabolic and Bariatric Surgery (ASMBS) descended on Capitol Hill to educate legislators and their staff about the ASMBS’s advocacy priorities at both the federal and state levels. Issues that were discussed included the obesity community’s support for the Treat and Reduce Obesity Act (TROA) and implementation of the Affordable Care Act’s essential health benefit (EHB) provisions at the state level.

IHEC leaders that participated in the April 24th Advocacy Day included: President Christine Bauer, MSN RN CBN; President-Elect Karen Flanders, MSN ARNP; Past President Karen Schulz, RN MSN CBN; Senior Past President Laura Boyer, RN CBN; and Member at Large Pamela Davis, RN, CBN, CCM. Council members visited 10 congressional offices across their individual home states of Louisiana, Maryland, Massachusetts, Ohio and Tennessee.

Visits on the House side focused on securing support for the Treat and Reduce Obesity Act – legislation that will expand obesity drug coverage and intensive behavioral counseling treatment options under the Medicare program. On the Senate side, IHEC leaders educated congressional staff about the TROA as well as continuing concerns that ASMBS and the obesity community have with state health exchange plans failure to include broad coverage of evidence-based obesity treatment services. For example, ASMBS highlighted how 28 state exchange plans currently exclude coverage for bariatric surgery and nearly all fail to cover weight loss programs or FDA-approved obesity drugs.

When asked what Congress could do to address the issues with state health exchange coverage, IHEC leaders urged Senate offices to press Health and Human Services Secretary Sylvia Burwell to issue guidance to state exchanges that would mirror the coverage policy recently adopted by the Office of Personnel Management for the Federal Employees Health Benefits (FEHB) Program, which precludes FEHB carriers from excluding coverage for obesity treatment services based on the health plan’s perception that obesity is a lifestyle condition or that treatment is cosmetic in nature. Numerous Senate offices were intrigued with this idea.

In addition to plying their new advocacy skills, IHEC leaders initiated a number of relationships with key congressional staff and look forward to serving as local resources for these individuals on obesity treatment issues back in their respective home states.

OAC Leaders Lobby California Legislature for Better Medi-Cal Coverage of Obesity Treatment

On April 28th, OAC leaders Amber Huett-Garcia and Dr. Jacqueline Jacques spent the day lobbying key state legislators to support California Assembly Bill (AB) 859 — legislation introduced by Assemblyman Jose Medina, Chair of the California Assembly Committee on Higher Education. This legislation would require the California Department of Health Care Services (DHCS) to create an Obesity Treatment Action Plan to diagnose, treat and reduce the incidence of adult obesity within the Medi-Cal program. If enacted, this legislation will provide for a thorough review of current coverage policies surrounding evidence-based obesity treatment avenues and highlight gaps in treatment avenues that should be addressed.

In addition, the bill would require DHCS to work closely with the leading scientific and clinical obesity organizations in the country to review evidence-based principles and treatment guidelines regarding obesity — in the hope that this evaluation will lead to more comprehensive coverage of obesity treatment services under the Medi-Cal program. The legislation specifically names ASBP, ASMBS, TOS, AND as well as AACE and the Endocrine Society.

Amber and Jacqueline capped off their lobby day by testifying before the Assembly Health Committee, which was considering passage of the bill that day. Because of their passionate testimony and advocacy efforts, the Health Committee passed the bill on a unanimous 19-0 vote! The bill will now move the Appropriations Committee where it will be analyzed for fiscal impact and heard sometime in May.

Special thanks to our industry partner Eisai and Cher Gonzalez in their state affairs department who helped secure testimony slots for both Amber and Jacqueline and also coordinated a day-long series of key legislator meetings that surely helped guide AB 859 through the Health Committee approval process.

ASMBS Spearheads Discrimination Argument to Secure Obesity Treatment Coverage.

OCC Groups are considering a new advocacy effort to highlight how state health exchange coverage policies are discriminatory based on both disability and gender. Recently ASMBS leaders have begun work with a law professor at Vanderbilt University Law School who specializes in obesity discrimination law.

The Draft letter that has been prepared for OCC Groups reads as follows:

May xx, 2015

Julie Mix McPeak
State Insurance Commissioner
Davy Crockett Tower, Twelfth Floor
500 James Robertson Parkway
Nashville, TN 37243-0565

Dear Commissioner McPeak,

On behalf of the Obesity Care Continuum (OCC), I would like to express our strong concerns regarding the discriminatory nature of the state health exchange’s coverage policy, which excludes coverage for evidence-based obesity treatment services for those affected by severe obesity. We believe the following legal analysis clearly demonstrates the disparate impact that the state’s coverage policy is having on these individuals – specifically women — given the interpretation of current U.S, law regarding sex discrimination. In addition, we believe the state is violating the disability protections afforded individuals with severe obesity under section 1557 of the Patient Protection and Affordable Care Act (hereinafter, the ACA).

The leading obesity advocate groups founded the Obesity Care Continuum in 2010 to better influence the healthcare reform debate and its impact on those affected by overweight and obesity. Currently, the OCC is composed of the Obesity Action Coalition (OAC), the Obesity Society (TOS), the Academy of Nutrition and Dietetics (AND), the American Society for Metabolic and Bariatric Surgery (ASMBS) and the American Society of Bariatric Physicians (ASBP). With a combined membership of more than 125,000 patient and healthcare professional advocates, the OCC covers the full scope of care from nutrition, exercise and weight management through pharmacotherapy to device and surgery.

In addition to promoting better patient access to, and coverage of, evidence-based obesity treatment services, the OCC also strives to address obesity bias and discrimination wherever and whenever it occurs. For these reasons, we are troubled by the state health exchange’s coverage policy regarding those affected by obesity. Currently, the state policy fails to provide coverage for bariatric surgery and FDA-approved drugs/devices for the treatment of obesity.

Section 1557 of the ACA prohibits the denial of health care benefits on the basis of disability. The ACA incorporates the same definition of disability used in Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. An individual is disabled for the purposes of these acts if he or she is substantially limited in a major life activity, is regarded as substantially limited, or has a record of a substantially limiting impairment. In 2008, Congress mandated that the term “disability” be construed “in favor of broad coverage of individuals…to the maximum extent permitted” in the Americans with Disabilities Act, in the Rehabilitation Act, and by incorporation, in the ACA. See 42 U.S.C. § 12102(4)(A). As a result, federal courts have consistently recognized since 2008 that severe obesity meets this definition of disability. See, e.g., E.E.O.C. v. Resources for Human Development, Inc., 827 F. Supp. 2d 688 (E.D. La. 2011); Whittaker v. America’s Car Mart, Inc., 2014 WL 1648816 (E.D. Mo. April 24, 2014); Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010). The Equal Employment Opportunity Commission (hereinafter, the EEOC) has also revised its guidelines since 2008 to reflect that “severe obesity…is clearly an impairment” for the purposes of these acts.

Both federal courts and the EEOC recognize that severe obesity regularly impacts the major life activities of sleeping, eating, and walking; moreover, severely obese individuals are frequently regarded by others as substantially limited, irrespective of their actual limitations. Thus, individuals affected by severe obesity are legally disabled according to the definition provided by the ACA. By failing to cover obesity treatments such as bariatric surgery or FDA-approved obesity drugs/devices for these legally disabled individuals, we believe that the state policy is in violation of Section 1557 of the ACA.

Section 1557 of the ACA further prohibits sex discrimination in the provision of health care benefits. Empirical research over the past two decades has consistently demonstrated that obesity has a disparate impact on women. Women affected by obesity encounter economic and social barriers not experienced by men with obesity. See, e.g., John Cawley, The Impact of Obesity on Wages, 39 J. Hum. Resources 451, 451-74 (2004) (demonstrating that obesity negatively impacts women’s earnings, but not men’s earnings); Pierre Andre-Chiappori et al., Fatter Attraction: Anthropometric and Socioeconomic Matching on the Marriage Market, 120 J. Pol. Econ. 659 (2012) (demonstrating that obese women marry spouses with lower education and lower earnings); Jennifer Bennett Shinall, Distaste or Disability? Evaluating the Legal Framework for Protecting Obese Workers, 37 Berkeley J. Emp. & Lab. L. ___ (forthcoming, 2016) (demonstrating that women with obesity, but not men with obesity, are excluded by employers from certain types of high-paying occupations).

As the above research demonstrates, obesity creates economic and social hardships that are unique to women. Because the state policy fails to cover evidence-based treatments for obesity such as bariatric surgery and FDA approved drugs/devices, many individuals with obesity are not able to afford these expensive treatments on their own. Failure to receive such treatments not only affects the health of women with obesity, but it also affects their earnings potential and ability to provide for their families. For this reason, we believe that state policy disparately impacts, and thus discriminates against, women under Section 1557 of the ACA.

In addition, Given that bariatric surgery is currently covered by the four major private insurers, Medicare, Medicaid, Federal Employees Health Plan, TRICARE and the overwhelmingly majority of state employee health plans, the exclusion of bariatric surgery in the state’s health exchange plan is inconsistent with the reality of today’s standard benefit plans. State essential health benefit plans should reflect that standard and not perpetuate outdated coverage policies that are in direct contrast to today’s standard of care for those affected by severe obesity.

In March 29th guidance provided to State Insurance Commissioners by the Center for Consumer Information and Insurance Oversight (CCIIO), the agency instructed states to submit, or update, their essential health benefit (EHB) benchmark plan for 2017 by June 1, 2015. We urge the state to take immediate action in the coming weeks to ensure that the EHB benchmark plan chosen by the state will provide coverage for evidence-based obesity treatment services – ensuring equal protection under the law for those affected by severe obesity.

Should you have any questions, please contact me either by telephone at 571-235-6475 or via email at chris@potomaccurrents.com.

Sincerely,
Christopher Gallagher
Washington Coordinator
Obesity Care Continuum