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Posted 12/1/2018

Prepared by Christopher Gallagher, OCC Washington Representative

2018 Election Results: Democrats To Control House

At the time of this report, virtually all of the results of the 2018 mid-term elections have been finalized. While the Republicans have increased their majority in the United States Senate by a margin of 53 to 47, Democrats won a majority of seats to take control of the House of Representatives for the 116th Congress that begins in January 2019. On the state level, Democrats took control of a number of state houses and legislatures. One casualty of the mid- terms was Representative Erik Paulsen (R-MN) who has been the lead Republican sponsor on the Treat and Reduce Obesity Act (TROA) throughout the last two Congresses.

OAC Gives Keynote Speech at NLGA Business Meeting

On November 29, 2018, Obesity Action Coalition (OAC) President Joe Nadglowski delivered the keynote address to roughly 30 current and incoming Lieutenant Governors during the annual Business Meeting of the National Lieutenant Governors Association (NLGA).

Mr. Nadglowski highlighted the mission of OAC and the need for federal and state policymakers to embrace support for both obesity prevention and treatment efforts. The major part of the keynote address centered on new data that were recently released by the STOP Obesity Alliance, entitled “Coverage for Obesity Prevention & Treatment Services: Analysis of Medicaid and State Employee Health Insurance Programs.”

His comments were well received and a number of NLGA members asked very thoughtful questions — including Lieutenant Governor Bethany Hall-Long (DE) who invited OAC to be an active participant during the 2019 NLGA Annual Meeting, which will be held in Delaware July 17-19th. OAC’s leadership was also recognized by Louisiana Lieutenant Governor Billy Nungesser who recounted his personal struggle with severe obesity and the profound positive impact that bariatric surgery has had on his life.

STOP Obesity Alliance Researchers Publish Updated Findings on Obesity Coverage in Medicaid and State Employee Plans

During ObesityWeek 2018, researchers at the STOP Obesity Alliance published in the journal Obesity the results of their study entitled, “Coverage for Obesity Prevention and Treatment Services: Analysis of Medicaid and State Employee Health Insurance Programs.” The study examined changes in coverage for adult obesity treatment services in Medicaid and state employee health insurance programs between 2009 and 2017.

The results of the study found that between 2009 and 2017, the proportion of state employee programs indicating coverage increased by 75 percent for nutritional counseling (from 24 to 42 states), 64 percent for pharmacotherapy (from 14 to 23 states), and 23 percent for bariatric surgery (from 35 to 43 states). The proportion of Medicaid programs indicating coverage increased by 133 percent for nutritional counseling (from 9 to 21 states) and 9 percent for bariatric surgery (from 45 to 49 states), with no net increase for pharmacotherapy (16 states in both plan years).

Member groups of the Obesity Care Advocacy Network (OCAN) are planning a broad advocacy effort to educate state policymakers and state congressional delegations about how their respective state matches up against others across the country. As mentioned above, OAC’s presentation before NLGA members was the first step in this effort. At the time of this report, OAC was also developing state-specific action alerts that patients and other obesity advocates can utilize for building a strong grassroots campaign to secure universal coverage for science-based treatments.

New Guidance Could Further Erode ACA Patient Protections

On October 22, 2018, the Centers for Medicare and Medicaid Services (CMS) issued guidance, which will allow states seeking federal waivers to run their insurance marketplaces with a great deal of more flexibility. The new guidance will allow states the ability to apply Affordable Care Act (ACA) subsidies to short-term and association health plans — two types of coverage the administration has expanded as a way of making cheaper plans available to those who want them. These plans don’t include coverage of certain “essential” benefits like mental-health services and prenatal care and can refuse to cover people with preexisting conditions.

On November 29, 2018, CMS released additional guidance announcing a change to the state innovation waiver under the Affordable Care Act, previously known as Section 1332. Renamed the “State Relief and Empowerment Waiver,” the new guidelines will provide a path for states to restructure the ACA’s subsidies in significant ways, which could have the effect of destabilizing state health exchange plans and potentially make it harder for people with pre-existing conditions to get affordable coverage.

The Obama administration made clear that CMS would evaluate waiver proposals based not only on how they would affect the total population, but also with respect to vulnerable subgroups, including people with low incomes or pre-existing conditions. Under the Trump Administration guidance, the most vulnerable residents could be disadvantaged as long as, in the aggregate, at least as many people have coverage. CMS has also reinterpreted what counts as affordable and what counts as comprehensive coverage. Instead of evaluating the affordability and comprehensiveness of coverage that people actually get under the waiver, the agency will evaluate whether comparably affordable and comprehensive coverage continues to be offered, even if fewer people sign up for it.

States could also redistribute the same pool of dollars to subsidize some non ACA-compliant plans, such as short-term health plans, which are roughly half the cost of ACA-compliant policies. Though more affordable, these plans offer much less protection and deny coverage to people with pre-existing conditions. At the time of this report, the Obesity Care Advocacy Network (OCAN) was developing formal comments in response to the October 22nd guidance, which are due December 24th.

Update on the Treat and Reduce Obesity Act

As mentioned above, TROA advocates will need to find a new Republican champion on the House side as lead GOP TROA sponsor Representative Erik Paulsen (R-MN) lost his reelection bid. At the time of this report, advocates are working with House Democratic champion Ron Kind (D-WI) to identify a new Republican sponsor for the 116th Congress. Support for TROA remains strong with 164 House members and 11 Senators.

CMS Delays Controversial Medicare Payment Changes

On November 1, 2018, CMS issued final regulations regarding “Medicare Program; Revisions to Payment Policies under the Physician Fee Schedule and Other Revisions to Part B for CY 2019; Medicare Shared Savings Program Requirements; Quality Payment Program; and Medicaid Promoting Interoperability Program.”

Under the final rule, CMS announced that the agency will delay implementation of controversial restructuring and payment reductions for key evaluation and management (E&M) reimbursement codes until 2021 — acknowledging the strong opposition to these proposed changes by OCAN members and hundreds of other medical and healthcare groups. In opposing these changes, OCAN argued that more time is needed to ensure they are thoroughly vetted to ensure they do not undermine patient access to care or patient safety for those with chronic and complex disease states.

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