Surgery for Obesity and Related Diseases 11 (2015) 715–720
Review article
States variations in the provision of bariatric surgery under affordable care act exchanges Y. Tony Yang, Sc.D., LL.M., M.P.H.a,*, Jennifer L. Pomeranz, J.D., M.P.H.b b
a Department of Health Administration and Policy, George Mason University, Fairfax, Virginia Department of Public Health and Center for Obesity Research and Education, Temple University, Philadelphia, Pennsylvania Received July 29, 2014; accepted September 17, 2014
Abstract
The Affordable Care Act (ACA) attempts to reduce healthcare costs while simultaneously providing the means for more Americans to obtain health insurance. Among other things, the ACA expands preventative care for obesity by mandating screening and counseling. However, it permits the states to determine whether to mandate treatments for inclusion in plans offered on the state-run exchanges. Bariatric surgery is a highly cost-effective treatment for obesity, yet states have taken varying stances on whether to mandate its inclusion. In light of the rising cost of obesity and resulting burden placed on the federal government and the economy, this article advocates a comparable mandatory inclusion of bariatric surgery in all plans offered on state and federally run exchanges. (Surg Obes Relat Dis 2015;11:715–720.) r 2015 American Society for Metabolic and Bariatric Surgery. All rights reserved.
Keywords:
Bariatric surgery; Health reform; Obesity; Insurance
Obesity is a significant public health problem in the United States. Currently, a staggering two thirds of adults in the nation are defined as overweight [1], and more than 35% of adults and 16% of children are classified as obese [2]. Assuming such trends continue, the obesity rate for adults could reach more than 40% by 2030 [3]. A number of factors contribute to this unprecedented health crisis, including an overall lack of physical activity and poor nutrition, as well as genetic and environmental factors [4]. Although a complete explanation of the precipitous change in weight nationally has yet to be agreed upon, it is clear that obesity is universally considered to be the greatest impending public health threat facing the United States [5]. Obesity poses a number of very serious public health and economic challenges. From a public health perspective, * Correspondence: Y. Tony Yang, Sc.D., LL.M., M.P.H., Department of Health Administration and Policy, George Mason University, MS: 1J3, 4400 University Drive, Fairfax, VA 22030. E-mail: [email protected]
obesity is associated with several chronic co-morbidities [4] and has also been implicated in a number of cancers [2,6]. These negative health outcomes combine to render obesity one of the leading causes of preventable death in the country [7]. In 2013, the American Medical Association formally recognized obesity as a disease, a change that could motivate health professionals to pay more attention to the condition. The health consequences of obesity create an alarming level of financial strain on the U.S. economy. Researchers estimate that obesity imposes costs on the U.S. healthcare system of more than $190 billion annually [8]. Obesity also negatively affects the broader economy; for instance, U.S. businesses lose productivity at a rate of $4.3 billion per year due to obesity-related absenteeism [9]. In the face of this impending crisis, a number of behavioral, dietary, and pharmaceutical treatments aimed at resolving obesity have been developed but few have been successful at realizing long-term success. Diet studies and therapies attempt to reduce caloric or total food intake [10]; however, most patients regain the weight within 1 to 2
http://dx.doi.org/10.1016/j.soard.2014.09.014 1550-7289/r 2015 American Society for Metabolic and Bariatric Surgery. All rights reserved.
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years. Pharmacologic treatments ranging from appetite suppressants to blockers of fat absorption have also had limited success [10] and have also resulted in serious side effects [11]. Bariatric surgery is a treatment method that seeks to resolve obesity through surgical intervention. Although bariatric surgery refers to many different types of weight loss surgery, all types combat obesity in 2 general ways: (1) restriction—limiting the amount of food the stomach can contain, thereby limiting calorie consumption, and (2) malabsorption—reducing or bypassing part of the small intestine, thereby reducing calorie absorption [12]. Postoperatively, patients experience nutritional, metabolic, and hormonal changes that have important clinical implications [12]. Though bariatric surgery is not a cure-all with respect to obesity, it is widely held to be the most effective means of treating the condition [13] while helping to resolve or lessen the negative effect of several of the most prevalent co-morbidities of obesity, such as sleep apnea, type 2 diabetes, and hypertension [14]. Moreover, bariatric surgery has been described as the only legitimate treatment for morbid obesity [15], with some citing a tenfold reduction in mortality [16]. Bariatric surgery for severe obesity is associated with long-term weight loss and decreased overall mortality [17]. Additionally, preliminary research suggests that bariatric surgery is also cost-effective relative to nonsurgical treatments [13]. Studies on the return on investment (ROI) for bariatric surgery show that downstream savings associated with bariatric surgery are estimated to offset the initial costs in 2 to 4 years [18,19], and covering weight loss surgery is worthy of support from payor, employer, and societal perspectives [20]. The Patient Protection and Affordable Care Act (ACA) addresses the obesity epidemic in a number of ways; for instance, all private insurers [21,22] and plans offered on state ACA exchanges must cover obesity screening and counseling for both adults and children [23]. However, the ACA left certain determinations purely up to the states; most notably, bariatric surgery is not federally mandated for private health insurers or as an exchange-offered benefit. Previous research analyzed state requirements for Medicaid and private insurers’ coverage of obesity treatments [24]. However, state requirements for exchange-offered plans have not been critically evaluated in the area of obesity treatment. The rest of this paper focuses on the ACA and related state law requirements for bariatric surgery under the state insurance exchanges. This review uses qualitative legal analysis. LexisNexis and PubMed searches were conducted. It finds that obese patients who enroll in ACA exchange-offered plans in certain states may be unable to avail themselves of the clinical and cost benefits of bariatric surgery. It concludes with suggestions for states and insurers to increase the affordability and availability of bariatric surgery for patients seeking insurance on exchanges.
The ACA, state law, and bariatric surgery It is important to first examine the nature of the ACA to understand the discrepancies in services among states. Section 1302 of the ACA directs the Department of Health and Human Services (HHS) to create a package of Essential Health Benefits (EHBs) that is “equal in scope to the benefits covered by a typical employer plan” and covers services in 10 general categories: ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services, prescription drugs, rehabilitative services, laboratory services, preventative care services, and comprehensive pediatric services [25]. This EHB package serves as a baseline for the insurance plans that states will offer in their respective ACA exchanges. State plans must cover services within the 10 EHBs, and any further services are simply optional within the context of the ACA. Thus, each state is required to select a “benchmark” plan that covers all EHBs and whatever other optional services the individual state might require to be covered [26]. This state benchmark plan is chosen from 1 of 4 sources: (1) the most popular plan in the state’s small group market, (2) one of the 3 largest employee health benefit plans, (3) one of the largest national federal employee benefit plans, or (4) the largest non-Medicaid Health Maintenance Organization in the state [26]. States were free to make this determination, although some (such as Maryland, for instance), were forced by preexisting state laws to pick a benchmark plan with certain covered benefits [27]. Indeed traditional healthcare laws in many states require that insurance plans within the state cover certain classes of people [28] States that did not choose a plan (most states) rely on the federally facilitated marketplace [29]. Other than the 10 required EHB categories, the ACA largely respected state authority in healthcare matters by granting states considerable leeway in deciding what further benefits must be included in exchangeoffered plans. The overall result of this federalist system of healthcare provision is that the benchmark plans from different states differ widely in the optional benefits they are required to provide to their residents. Because HHS did not include bariatric surgery within the EHBs—it is one such optional benefit—the actual provision of bariatric surgery on the ACA exchanges varies from state to state [30]. This creates 2 distinct groups of states: (1) states that mandate coverage of bariatric surgery and (2) states that do not. The following 22 states fall within the first category: AZ, CA, DE, HI, IA, IL, MA, MD, ME, MI, NC, ND, NH, NJ, NM, NV, NY, RI, SD, VT, WV, WY [31]. The following 25 states and the District of Columbia fall within the second category: AK, AL, AR, CO, CT, FL, ID, KS, KY, LA, MN, MO, MS, MT, NE, OH, OK, OR, PA, SC, TN, TX, UT, WA, WI [31]; an additional 3 states, with preexisting healthcare laws
Bariatric Surgery Under Health Reform / Surgery for Obesity and Related Diseases 11 (2015) 715–720
that mandate the provision of bariatric surgery to certain subsets of patients, can be included in the second category: GA, IN, and VA [27]. However, the plans that include coverage of bariatric surgery are priced differentially, so the cost of bariatric surgery is exorbitant relative to other treatments. This legal regime has significant implications depending on which state a person lives. First, patients seeking ACA exchange-offered insurance in the states in which bariatric surgery is not a mandated optional benefit will be unable to affordably realize the benefits of the treatment. Bariatric surgery is broadly viewed as the most effective treatment for weight loss in the severely obese, while producing longterm remission of type 2 diabetes [32] and reducing longterm total mortality, particularly deaths from diabetes, heart disease, and cancer [33]. Moreover, many of the states that have elected to forego mandating bariatric surgery on their ACA exchange-offered plans (e.g., Texas, Mississippi, Louisiana, Arkansas, and Alabama) have some of the highest obesity rates in the United States [32] (Fig. 1). Second, in Georgia, Indiana, and Virginia, in which bariatric surgery was not included in the benchmark plans, there is a massive disparity in price between the few ACA exchange-offered plans covering bariatric surgery and the plans that do not [27]. Plans offered on the exchanges that cover bariatric surgery in these states are sometimes approximately 6 times as expensive as plans not covering the benefit [27].
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Comparing states from each of the 2 categories is informative. For example, the state of Maine included bariatric surgery in its benchmark plan and thus requires insurance plans on the ACA exchanges to cover it [34]. Plans on the Maine Exchange for an unmarried 35-year-old making $30,000 per year range from $158 per month to $366 per month (the Anthem Gold Guided Access with Child Dental plan) [34]. Ohio is a category 2 state, meaning that bariatric surgery was not included in its benchmark plan and thus is not a required benefit on ACA exchangeoffered plans [35]. Plans on the Ohio Exchange for a similar individual range from $139 per month to $305 per month (the Market Classic 1000 Gold plan) [35]. Virginia’s preexisting state law requires some insurance plans to cover bariatric surgery [36]. The odd effect of this is that Virginia plans for an unmarried 35-year-old earning $30,000 per year range from $120 per month to a staggering $1,589 per month (the IH Classic 5000 Plan) [36]. This combination of preexisting state law and new federal law has brought about a sort of price discrimination against Virginia patients seeking health insurance on the state’s ACA exchange [27]. However, legal commentators believe that it is the state’s prerogative to select its own essential health benefits [27]. In comparison, most states do not require bariatric surgery to be included in private plans separate from the ACA exchanges [24]. In 41 states and the District of Columbia, insurers are permitted to use health status or
Fig. 1. Adult obesity prevalence and bariatric surgery coverage by state. Adult obesity (body mass index Z30) prevalence data are from 2012 Behavioral Risk Factor Surveillance System. Data for essential health benefit benchmark plan coverage of bariatric surgery are from the Center for Consumer Information and Insurance Oversight, June 2014.
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obesity as a factor when computing rates for beneficiaries. Moreover, in 45 states, no legislation has been implemented that would protect such beneficiaries from insurance that discriminated on the basis of obesity [24]. At least one commentator suggests that states have actually moved in the wrong direction on obesity coverage in recent years [37]. Thus, the states in category 2 above do not necessarily represent a departure from this standard. In some sense, then, with respect to bariatric surgery, the ACA has simply allowed this state-by-state fragmentation of obesity coverage to persist. Insurance companies offering plans on the ACA exchanges must cover obesity screening and counseling and may no longer collect copays, coinsurance, or apply deductible amounts from patients who use these obesity services via their primary care providers [37]. Such services vary from policy to policy, but as a practical matter, physician visits for the purpose of being screened for obesity, weight loss guidance for patients with a body mass index 430, and referral to a weight loss specialist are all required to be covered as EHBs [37]. However, because bariatric surgery is not among the EHBs, the law effectively precludes millions of Americans—based merely on their state of residence—from realizing the clinical advantages of bariatric surgery. States themselves—and the U.S. healthcare system writ large—will likewise fail to appreciate the many economic benefits conferred by bariatric surgery. This is particularly disturbing in light of the fact that in states like Maine, as mentioned above, the cost of including bariatric surgery as a required benefit is spread out amongst all ACA exchange policyholders in the state. On the margin, residents of these states can expect to pay a slightly higher premium to incorporate bariatric surgery, but given the broad threat imposed by the obesity epidemic in contemporary American society, it can readily be argued that this is a small price to pay. Current policy merely ensures that morbidly obese patients are foreclosed from perhaps the most effective treatment for both their obesity and their related co-morbidities. Moving toward inclusion One commentator argues that the federal government should provide a regulatory fix to the disparities among the states [37]; presumably this could be accomplished administratively, because HHS itself promulgated the final EHB rules that brought about the gap in coverage [38]. Preventative care and chronic disease management are within the 10 EHB categories mandated by Congress, and obesity could be defined neatly within that category. The American Society for Metabolic and Bariatric Surgery (ASMBS) has initiated a coordinated advocacy campaign for supporting coverage of evidence-based obesity treatment services in any federally designed EHB package [31]. However, this seems unrealistic at this point, because the law has already
launched and the benchmark plans have long been submitted. States, on the other hand, can alter the final manifestation of plans offered on the state exchanges. Therefore, statecentric advocacy could focus on persuading state legislatures to recognize both the clinical and cost-effectiveness of bariatric surgery; by doing this, legislatures might be convinced—as was done in Maryland before the ACA’s passage—to require that plans within the state cover bariatric surgery. This seems a more realistic solution, particularly because different states are much more heavily affected by obesity than others. Legislators in the states with high obesity rates—particularly within the deep south [39] —would do well to protect their states’ citizens by reversing existing law that forecloses the obese and morbidly obese from having their surgical treatment—and the only truly effective treatment for some—covered by ACA exchangeoffered plans. The federal government conceives of exchanges as creating more choice and fostering competition in the healthcare marketplace [40]. In a study of 5 states’ regulation of exchanges, the authors found that the studied states “made strong efforts to encourage insurers to participate in exchanges and develop competitive markets” [41]. Since the exchanges have launched, some states have indicated successful creation of competitive marketplaces [42]. If patients increasingly seek bariatric surgery, insurance carriers on the exchange market could see the value of competing to provide surgery at low costs regardless of federal and state requirements. Conclusion In light of the danger the rise in obesity poses to the nation’s citizenry and economy, it is crucial that the highly proven treatment for addressing obesity, bariatric surgery, is a financially viable option for all who could benefit from it. Bariatric surgery is a cost-savings measure not only because of the success rate it has in dealing with obesity, but also because of the preventative value it has in eliminating the many obesity-related diseases that lie ahead for those who cannot win the struggle and for whom the cost of treatment will ultimately fall on the government. The ACA recognized the value of prevention when it took the landmark step of mandating screening and counseling but it did not extend this understanding to include the preventive and cost-savings value of bariatric surgery, despite its prohibition on discrimination on the basis of health status. Moreover, for those who are already obese, bariatric surgery may be the only way to escape a lifetime of deteriorating health. For the benefits of bariatric surgery to be realized, both for the health of individuals and for the economy as a whole, the government should consider a comparable mandatory inclusion in all plans offered on state and federal exchanges to make bariatric surgery available to all who
Bariatric Surgery Under Health Reform / Surgery for Obesity and Related Diseases 11 (2015) 715–720
need it. Leaving it to the states has resulted in disparate coverage across the country which increases the financial burden of the increasing costs of healthcare for the morbidly obese without access to surgery. This undercuts an underlying goal of the ACA, which sought to reduce the growth of healthcare costs while promoting high-value, effective care [43]. Coverage for bariatric surgery would appreciably align with the ACA’s focus on prevention and costeffective care. Disclosures The authors have no commercial associations that might be a conflict of interest in relation to this article. References [1] New weight-loss drugs and the US obesity epidemic. Lancet 2012;380:308. [2] Nelson JK, Zeratsky K. What will it take to reverse the obesity epidemic? Mayo Clinic [serial on the Internet]. 2012 Oct 3 [cited 2014 July 22]. Available from: http://www.mayoclinic.org/healthy-liv ing/nutrition-and-healthy-eating/expert-blog/obesity-epidemic/bgp-20 056139. [3] Healthy Americans. F as in fat: How obesity threatens America’s future 2012 [cited 2014 July 22]. Available from: http://healthyamer icans.org/report/100/. [4] Ferguson CC, Downey M, Kornblet S, Lopez N, Muldoon A. Review of obesity related legislation and federal program. Washington, DC: GWU, School of Public Health and Health Services; June 1, 2009. Available from: http://www.stopobesityalliance.org/wp-content/ assets/2009/06/federal_cover.pdf. [5] Hellmich N. Panel: obesity is century’s greatest public health threat [homepage on the Internet]. Washington: USA Today [2010 June 15; cited 2014 July 22]. Available from: http://usatoday30.usatoday.com/ news/health/weightloss/2010-06-15-dietaryguidelines16_ST_N.htm. [6] National Cancer Institute. Obesity and cancer risk [cited 2014 July 22]. Available from: http://www.cancer.gov/cancertopics/factsheet/ Risk/obesity. [7] Danaei G, Ding EL, Mozaffarian D, et al. The preventable causes of death in the United States: comparative risk assessment of dietary, lifestyle, and metabolic risk factors. PLoS Med 2009;6: e1000058. [8] National Leagues of Cities. Economic costs of obesity [cited 2014 July 22]. Available from: http://www.healthycommunitieshealthyfu ture.org/learn-the-facts/economic-costs-of-obesity./. [9] Cawley J, Rizzo JA, Haas K. Occupation-specific absenteeism costs associated with obesity and morbid obesity. J Occup Env Med 2007;49:1317–24. [10] Clinical guidelines on the identification, evaluation and treatment of overweight and obesity in adults. Evidence Report. Bethesda, MD: NIH Publication No. 94-4083; September 1998. [11] Feeley J. Pfizer asks end to Fen-Phen suits linked to lung ailment. Bloomberg, August 23, 2012 [cited 2014 July 22]. Available from: http://www.bloomberg.com/news/2012-08-23/pfizer-asks-end-to-fenphen-suits-linked-to-lung-ailment.html. [12] Mayo Clinic. Guide to types of weight-loss surgery [cited 2014 July 22]. Available from: http://www.mayoclinic.org/tests-procedures/bar iatric-surgery/in-depth/weight-loss-surgery/art-20045334. [13] Picot J, Jones J, Colquitt JL, et al. The clinical effectiveness and costeffectiveness of bariatric (weight loss) surgery for obesity: a systematic review and economic evaluation. Health Technol Assess 2009;13:1–190.
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[14] Allen RE, Hughes TD, Nq JL, et al. Mechanisms behind the immediate effects of Roux-en-Y gastric bypass surgery on type 2 diabetes. Theor Biol Med Model 2013;10:45. [15] Choban PS, Jackson B, Poplawski S, Bistolarides P. Bariatric surgery for morbid obesity: why, who, when, how, where, and then what? Cleve Clin J Med 2002;69:897–903. [16] Morton J. Affordable Care Act and bariatric surgery. Surg Obes Relat Dis 2014;10:571–2. [17] Sjöström L, Narbro K, Sjöström CD, et al. Effects of bariatric surgery on mortality in Swedish obese subjects. Swedish Obese Subjects Study. N Engl J Med 2007;357:741–52. [18] Cremieux PY, Buchwald H, Shikora SA, Ghosh A, Yang HE, Buessing M. A study on the economic impact of bariatric surgery. Am J Manag Care 2008;14:589–96. [19] Finkelstein EA, Brown DS. Return on investment for bariatric surgery. Am J Manag Care 2008;14:561–2. [20] Perryman MR, Gleghorn V. Obesity-related costs and the economic impact of laparoscopic adjustable gastric banding procedures: benefits in the Texas Employees Retirement System. J Med Econ 2010;13:339–50. [21] The Patient Protection and Affordable Care Act. Pub L No. 111-148, Stat 1001. [22] US Prevention Service Task Force. USPSTF A and B Recommendations [cited 2014 July 22]. Available from: http://www.uspreventi veservicestaskforce.org/uspstf/uspsabrecs.htm. [23] Early S. Obesity treatment under Obamacare. Navix Blog August 30, 2013. [cited 2014 July 22]. Available from:http://navixmarketplace. com/blog/obesity-treatments-under-obamacare. [24] 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;125:596–604. [25] Essential health benefits requirements. Title 42 U.S. Code § 18022, 113–121. [26] American Academy of Pediatrics. State roles in defining essential health benefits (EHB) [cited 2014 July 22]. Available from: http:// www.ncsl.org/documents/fsl/aap-state-roles-in-defining-ehb.pdf. [27] Appleby J. Obesity surgery coverage balloons the cost of some health-care plans in Virginia. Washington: The Washington Post, October 11, 2012 [cited 2014 July 22]. Available from: http://www. washingtonpost.com/business/economy/obesity-surgery-coverage-bal loons-the-cost-of-some-health-care-plans-in-virginia/2013/10/11/bea01 b32-328c-11e3-9c68-1cf643210300_print.html. [28] National Conference of State Legislatures. State health insurance mandates and the ACA essential benefits provisions, June 2014 [cited 2014 July 22]. Available from: http://www.ncsl.org/research/health/ state-ins-mandates-and-aca-essential-benefits.aspx. [29] Kaiser Family Foundations. State decisions for creating health insurance marketplaces, 2014 [cited 2014 July 22]. Available from: http://kff.org/health-reform/state-indicator/health-insurance-ex changes/. [30] Varney S. Obamacare insurance won’t cover weight-loss surgery in many states. Kaiser Health News; May 27, 2013 [cited 2014 July 22]. Available from: http://www.kaiserhealthnews.org/stories/2013/may/ 27/bariatric-surgery-obesity-exchange-marketplace-mississippi.aspx. [31] American Society for Metabolic and Bariatric Surgery. EHB access toolkit: Obesity treatment needs coverage in all state health exchanges [cited 2014 July 22]. Available from: https://asmbs.org/resources/ ehb-access-toolkit. [32] Brethauer SA, Aminian A, Romero-Talamas H, et al. Can diabetes be surgically cured? Long term metabolic effects of bariatric surgery in obese patients with type 2 diabetes mellitus. Ann Surg 2013;258:628–36. [33] Adams TD, Gress RE, Smith SC, et al. Long-term mortality after gastric bypass surgery. N Engl J Med 2007;357:753–61. [34] HealthCare.gov. Maine health plans for one individual, age 35 [cited 2014 July 22]. Available from: https://www.healthcare.gov/find-pre mium-estimates/#results/&aud = indv&type = med&state =
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[37]
[38]
Y. T. Yang and J. L. Pomeranz / Surgery for Obesity and Related Diseases 11 (2015) 715–720 ME&county = Knox&age0 = 35&employerCoverage = no&householdSize = 1&income = 30%2 C000. HealthCare.gov. Ohio health plans for one individual, age 35 [cited 2014 July 22]. Available from: https://www.healthcare.gov/find-pre mium-estimates/#results/&aud = indv&type = med&state = OH&county = Knox&age0 = 35&employerCoverage = no&householdSize = 1&income = 30%2 C000. HealthCare.gov. Virginia health plans for one individual, age 35 [cited 2014 July 22]. Available from: https://www.healthcare.gov/ find-premium-estimates/#results/&aud = indv&type = med&state = VA&county = Arlington&age0 = 35&employerCoverage = no&householdSize = 1&income = 30000. Nardulli JA. The road to health is a battle hard fought: Support for requiring coverage of bariatric surgery for an expanded group of qualified individuals. J Legal Med 2012;33:399–415. Patient Protection and Affordable Care Act; Standards Related to Essentials Health Benefits, Actual Value, and Accreditation, 78 Fed Reg 12834.
[39] Centers for Disease Control and Prevention. Adult obesity facts [cited 2014 July 22]. Available from: http://www.cdc.gov/obesity/data/ adult.html. [40] The White House. Title I. Quality, affordable health care for all Americans [cited 2014 July 22]. Available from: http://www.white house.gov/health-care-meeting/proposal/titlei/exchange. [41] Holahan J, Peters R. Cross-cutting issues: insurer participation and competition in health insurance exchanges: early indications from selected states. RWJF, Urban Institute; July 2013. [cited 2014 July 22]. Available from: http://www.rwjf.org/content/dam/farm/reports/ issue_briefs/2013/rwjf406939. [42] Morgan D. Two Obamacare exchanges see more health insurer competition. Reuters, January 31, 2014 [cited 2014 July 22]. Available from: http://www.reuters.com/article/2014/02/01/us-usahealthcare-exchanges-idUSBREA0 U1 QS20140201. [43] US Department of Health and Human Services. Strategic goal 1: Strengthen health care, Objective D: Reduce the growth of health care costs while promoting high-value, effective care [cited 2014 July 22]. Available from: http://www.hhs.gov/strategic-plan/goal1.html#obj_b.
Review article
States variations in the provision of bariatric surgery under affordable care act exchanges Y. Tony Yang, Sc.D., LL.M., M.P.H.a,*, Jennifer L. Pomeranz, J.D., M.P.H.b b
a Department of Health Administration and Policy, George Mason University, Fairfax, Virginia Department of Public Health and Center for Obesity Research and Education, Temple University, Philadelphia, Pennsylvania Received July 29, 2014; accepted September 17, 2014
Abstract
The Affordable Care Act (ACA) attempts to reduce healthcare costs while simultaneously providing the means for more Americans to obtain health insurance. Among other things, the ACA expands preventative care for obesity by mandating screening and counseling. However, it permits the states to determine whether to mandate treatments for inclusion in plans offered on the state-run exchanges. Bariatric surgery is a highly cost-effective treatment for obesity, yet states have taken varying stances on whether to mandate its inclusion. In light of the rising cost of obesity and resulting burden placed on the federal government and the economy, this article advocates a comparable mandatory inclusion of bariatric surgery in all plans offered on state and federally run exchanges. (Surg Obes Relat Dis 2015;11:715–720.) r 2015 American Society for Metabolic and Bariatric Surgery. All rights reserved.
Keywords:
Bariatric surgery; Health reform; Obesity; Insurance
Obesity is a significant public health problem in the United States. Currently, a staggering two thirds of adults in the nation are defined as overweight [1], and more than 35% of adults and 16% of children are classified as obese [2]. Assuming such trends continue, the obesity rate for adults could reach more than 40% by 2030 [3]. A number of factors contribute to this unprecedented health crisis, including an overall lack of physical activity and poor nutrition, as well as genetic and environmental factors [4]. Although a complete explanation of the precipitous change in weight nationally has yet to be agreed upon, it is clear that obesity is universally considered to be the greatest impending public health threat facing the United States [5]. Obesity poses a number of very serious public health and economic challenges. From a public health perspective, * Correspondence: Y. Tony Yang, Sc.D., LL.M., M.P.H., Department of Health Administration and Policy, George Mason University, MS: 1J3, 4400 University Drive, Fairfax, VA 22030. E-mail: [email protected]
obesity is associated with several chronic co-morbidities [4] and has also been implicated in a number of cancers [2,6]. These negative health outcomes combine to render obesity one of the leading causes of preventable death in the country [7]. In 2013, the American Medical Association formally recognized obesity as a disease, a change that could motivate health professionals to pay more attention to the condition. The health consequences of obesity create an alarming level of financial strain on the U.S. economy. Researchers estimate that obesity imposes costs on the U.S. healthcare system of more than $190 billion annually [8]. Obesity also negatively affects the broader economy; for instance, U.S. businesses lose productivity at a rate of $4.3 billion per year due to obesity-related absenteeism [9]. In the face of this impending crisis, a number of behavioral, dietary, and pharmaceutical treatments aimed at resolving obesity have been developed but few have been successful at realizing long-term success. Diet studies and therapies attempt to reduce caloric or total food intake [10]; however, most patients regain the weight within 1 to 2
http://dx.doi.org/10.1016/j.soard.2014.09.014 1550-7289/r 2015 American Society for Metabolic and Bariatric Surgery. All rights reserved.
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years. Pharmacologic treatments ranging from appetite suppressants to blockers of fat absorption have also had limited success [10] and have also resulted in serious side effects [11]. Bariatric surgery is a treatment method that seeks to resolve obesity through surgical intervention. Although bariatric surgery refers to many different types of weight loss surgery, all types combat obesity in 2 general ways: (1) restriction—limiting the amount of food the stomach can contain, thereby limiting calorie consumption, and (2) malabsorption—reducing or bypassing part of the small intestine, thereby reducing calorie absorption [12]. Postoperatively, patients experience nutritional, metabolic, and hormonal changes that have important clinical implications [12]. Though bariatric surgery is not a cure-all with respect to obesity, it is widely held to be the most effective means of treating the condition [13] while helping to resolve or lessen the negative effect of several of the most prevalent co-morbidities of obesity, such as sleep apnea, type 2 diabetes, and hypertension [14]. Moreover, bariatric surgery has been described as the only legitimate treatment for morbid obesity [15], with some citing a tenfold reduction in mortality [16]. Bariatric surgery for severe obesity is associated with long-term weight loss and decreased overall mortality [17]. Additionally, preliminary research suggests that bariatric surgery is also cost-effective relative to nonsurgical treatments [13]. Studies on the return on investment (ROI) for bariatric surgery show that downstream savings associated with bariatric surgery are estimated to offset the initial costs in 2 to 4 years [18,19], and covering weight loss surgery is worthy of support from payor, employer, and societal perspectives [20]. The Patient Protection and Affordable Care Act (ACA) addresses the obesity epidemic in a number of ways; for instance, all private insurers [21,22] and plans offered on state ACA exchanges must cover obesity screening and counseling for both adults and children [23]. However, the ACA left certain determinations purely up to the states; most notably, bariatric surgery is not federally mandated for private health insurers or as an exchange-offered benefit. Previous research analyzed state requirements for Medicaid and private insurers’ coverage of obesity treatments [24]. However, state requirements for exchange-offered plans have not been critically evaluated in the area of obesity treatment. The rest of this paper focuses on the ACA and related state law requirements for bariatric surgery under the state insurance exchanges. This review uses qualitative legal analysis. LexisNexis and PubMed searches were conducted. It finds that obese patients who enroll in ACA exchange-offered plans in certain states may be unable to avail themselves of the clinical and cost benefits of bariatric surgery. It concludes with suggestions for states and insurers to increase the affordability and availability of bariatric surgery for patients seeking insurance on exchanges.
The ACA, state law, and bariatric surgery It is important to first examine the nature of the ACA to understand the discrepancies in services among states. Section 1302 of the ACA directs the Department of Health and Human Services (HHS) to create a package of Essential Health Benefits (EHBs) that is “equal in scope to the benefits covered by a typical employer plan” and covers services in 10 general categories: ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services, prescription drugs, rehabilitative services, laboratory services, preventative care services, and comprehensive pediatric services [25]. This EHB package serves as a baseline for the insurance plans that states will offer in their respective ACA exchanges. State plans must cover services within the 10 EHBs, and any further services are simply optional within the context of the ACA. Thus, each state is required to select a “benchmark” plan that covers all EHBs and whatever other optional services the individual state might require to be covered [26]. This state benchmark plan is chosen from 1 of 4 sources: (1) the most popular plan in the state’s small group market, (2) one of the 3 largest employee health benefit plans, (3) one of the largest national federal employee benefit plans, or (4) the largest non-Medicaid Health Maintenance Organization in the state [26]. States were free to make this determination, although some (such as Maryland, for instance), were forced by preexisting state laws to pick a benchmark plan with certain covered benefits [27]. Indeed traditional healthcare laws in many states require that insurance plans within the state cover certain classes of people [28] States that did not choose a plan (most states) rely on the federally facilitated marketplace [29]. Other than the 10 required EHB categories, the ACA largely respected state authority in healthcare matters by granting states considerable leeway in deciding what further benefits must be included in exchangeoffered plans. The overall result of this federalist system of healthcare provision is that the benchmark plans from different states differ widely in the optional benefits they are required to provide to their residents. Because HHS did not include bariatric surgery within the EHBs—it is one such optional benefit—the actual provision of bariatric surgery on the ACA exchanges varies from state to state [30]. This creates 2 distinct groups of states: (1) states that mandate coverage of bariatric surgery and (2) states that do not. The following 22 states fall within the first category: AZ, CA, DE, HI, IA, IL, MA, MD, ME, MI, NC, ND, NH, NJ, NM, NV, NY, RI, SD, VT, WV, WY [31]. The following 25 states and the District of Columbia fall within the second category: AK, AL, AR, CO, CT, FL, ID, KS, KY, LA, MN, MO, MS, MT, NE, OH, OK, OR, PA, SC, TN, TX, UT, WA, WI [31]; an additional 3 states, with preexisting healthcare laws
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that mandate the provision of bariatric surgery to certain subsets of patients, can be included in the second category: GA, IN, and VA [27]. However, the plans that include coverage of bariatric surgery are priced differentially, so the cost of bariatric surgery is exorbitant relative to other treatments. This legal regime has significant implications depending on which state a person lives. First, patients seeking ACA exchange-offered insurance in the states in which bariatric surgery is not a mandated optional benefit will be unable to affordably realize the benefits of the treatment. Bariatric surgery is broadly viewed as the most effective treatment for weight loss in the severely obese, while producing longterm remission of type 2 diabetes [32] and reducing longterm total mortality, particularly deaths from diabetes, heart disease, and cancer [33]. Moreover, many of the states that have elected to forego mandating bariatric surgery on their ACA exchange-offered plans (e.g., Texas, Mississippi, Louisiana, Arkansas, and Alabama) have some of the highest obesity rates in the United States [32] (Fig. 1). Second, in Georgia, Indiana, and Virginia, in which bariatric surgery was not included in the benchmark plans, there is a massive disparity in price between the few ACA exchange-offered plans covering bariatric surgery and the plans that do not [27]. Plans offered on the exchanges that cover bariatric surgery in these states are sometimes approximately 6 times as expensive as plans not covering the benefit [27].
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Comparing states from each of the 2 categories is informative. For example, the state of Maine included bariatric surgery in its benchmark plan and thus requires insurance plans on the ACA exchanges to cover it [34]. Plans on the Maine Exchange for an unmarried 35-year-old making $30,000 per year range from $158 per month to $366 per month (the Anthem Gold Guided Access with Child Dental plan) [34]. Ohio is a category 2 state, meaning that bariatric surgery was not included in its benchmark plan and thus is not a required benefit on ACA exchangeoffered plans [35]. Plans on the Ohio Exchange for a similar individual range from $139 per month to $305 per month (the Market Classic 1000 Gold plan) [35]. Virginia’s preexisting state law requires some insurance plans to cover bariatric surgery [36]. The odd effect of this is that Virginia plans for an unmarried 35-year-old earning $30,000 per year range from $120 per month to a staggering $1,589 per month (the IH Classic 5000 Plan) [36]. This combination of preexisting state law and new federal law has brought about a sort of price discrimination against Virginia patients seeking health insurance on the state’s ACA exchange [27]. However, legal commentators believe that it is the state’s prerogative to select its own essential health benefits [27]. In comparison, most states do not require bariatric surgery to be included in private plans separate from the ACA exchanges [24]. In 41 states and the District of Columbia, insurers are permitted to use health status or
Fig. 1. Adult obesity prevalence and bariatric surgery coverage by state. Adult obesity (body mass index Z30) prevalence data are from 2012 Behavioral Risk Factor Surveillance System. Data for essential health benefit benchmark plan coverage of bariatric surgery are from the Center for Consumer Information and Insurance Oversight, June 2014.
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obesity as a factor when computing rates for beneficiaries. Moreover, in 45 states, no legislation has been implemented that would protect such beneficiaries from insurance that discriminated on the basis of obesity [24]. At least one commentator suggests that states have actually moved in the wrong direction on obesity coverage in recent years [37]. Thus, the states in category 2 above do not necessarily represent a departure from this standard. In some sense, then, with respect to bariatric surgery, the ACA has simply allowed this state-by-state fragmentation of obesity coverage to persist. Insurance companies offering plans on the ACA exchanges must cover obesity screening and counseling and may no longer collect copays, coinsurance, or apply deductible amounts from patients who use these obesity services via their primary care providers [37]. Such services vary from policy to policy, but as a practical matter, physician visits for the purpose of being screened for obesity, weight loss guidance for patients with a body mass index 430, and referral to a weight loss specialist are all required to be covered as EHBs [37]. However, because bariatric surgery is not among the EHBs, the law effectively precludes millions of Americans—based merely on their state of residence—from realizing the clinical advantages of bariatric surgery. States themselves—and the U.S. healthcare system writ large—will likewise fail to appreciate the many economic benefits conferred by bariatric surgery. This is particularly disturbing in light of the fact that in states like Maine, as mentioned above, the cost of including bariatric surgery as a required benefit is spread out amongst all ACA exchange policyholders in the state. On the margin, residents of these states can expect to pay a slightly higher premium to incorporate bariatric surgery, but given the broad threat imposed by the obesity epidemic in contemporary American society, it can readily be argued that this is a small price to pay. Current policy merely ensures that morbidly obese patients are foreclosed from perhaps the most effective treatment for both their obesity and their related co-morbidities. Moving toward inclusion One commentator argues that the federal government should provide a regulatory fix to the disparities among the states [37]; presumably this could be accomplished administratively, because HHS itself promulgated the final EHB rules that brought about the gap in coverage [38]. Preventative care and chronic disease management are within the 10 EHB categories mandated by Congress, and obesity could be defined neatly within that category. The American Society for Metabolic and Bariatric Surgery (ASMBS) has initiated a coordinated advocacy campaign for supporting coverage of evidence-based obesity treatment services in any federally designed EHB package [31]. However, this seems unrealistic at this point, because the law has already
launched and the benchmark plans have long been submitted. States, on the other hand, can alter the final manifestation of plans offered on the state exchanges. Therefore, statecentric advocacy could focus on persuading state legislatures to recognize both the clinical and cost-effectiveness of bariatric surgery; by doing this, legislatures might be convinced—as was done in Maryland before the ACA’s passage—to require that plans within the state cover bariatric surgery. This seems a more realistic solution, particularly because different states are much more heavily affected by obesity than others. Legislators in the states with high obesity rates—particularly within the deep south [39] —would do well to protect their states’ citizens by reversing existing law that forecloses the obese and morbidly obese from having their surgical treatment—and the only truly effective treatment for some—covered by ACA exchangeoffered plans. The federal government conceives of exchanges as creating more choice and fostering competition in the healthcare marketplace [40]. In a study of 5 states’ regulation of exchanges, the authors found that the studied states “made strong efforts to encourage insurers to participate in exchanges and develop competitive markets” [41]. Since the exchanges have launched, some states have indicated successful creation of competitive marketplaces [42]. If patients increasingly seek bariatric surgery, insurance carriers on the exchange market could see the value of competing to provide surgery at low costs regardless of federal and state requirements. Conclusion In light of the danger the rise in obesity poses to the nation’s citizenry and economy, it is crucial that the highly proven treatment for addressing obesity, bariatric surgery, is a financially viable option for all who could benefit from it. Bariatric surgery is a cost-savings measure not only because of the success rate it has in dealing with obesity, but also because of the preventative value it has in eliminating the many obesity-related diseases that lie ahead for those who cannot win the struggle and for whom the cost of treatment will ultimately fall on the government. The ACA recognized the value of prevention when it took the landmark step of mandating screening and counseling but it did not extend this understanding to include the preventive and cost-savings value of bariatric surgery, despite its prohibition on discrimination on the basis of health status. Moreover, for those who are already obese, bariatric surgery may be the only way to escape a lifetime of deteriorating health. For the benefits of bariatric surgery to be realized, both for the health of individuals and for the economy as a whole, the government should consider a comparable mandatory inclusion in all plans offered on state and federal exchanges to make bariatric surgery available to all who
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need it. Leaving it to the states has resulted in disparate coverage across the country which increases the financial burden of the increasing costs of healthcare for the morbidly obese without access to surgery. This undercuts an underlying goal of the ACA, which sought to reduce the growth of healthcare costs while promoting high-value, effective care [43]. Coverage for bariatric surgery would appreciably align with the ACA’s focus on prevention and costeffective care. Disclosures The authors have no commercial associations that might be a conflict of interest in relation to this article. References [1] New weight-loss drugs and the US obesity epidemic. Lancet 2012;380:308. [2] Nelson JK, Zeratsky K. What will it take to reverse the obesity epidemic? Mayo Clinic [serial on the Internet]. 2012 Oct 3 [cited 2014 July 22]. Available from: http://www.mayoclinic.org/healthy-liv ing/nutrition-and-healthy-eating/expert-blog/obesity-epidemic/bgp-20 056139. [3] Healthy Americans. F as in fat: How obesity threatens America’s future 2012 [cited 2014 July 22]. Available from: http://healthyamer icans.org/report/100/. [4] Ferguson CC, Downey M, Kornblet S, Lopez N, Muldoon A. Review of obesity related legislation and federal program. Washington, DC: GWU, School of Public Health and Health Services; June 1, 2009. Available from: http://www.stopobesityalliance.org/wp-content/ assets/2009/06/federal_cover.pdf. [5] Hellmich N. Panel: obesity is century’s greatest public health threat [homepage on the Internet]. Washington: USA Today [2010 June 15; cited 2014 July 22]. Available from: http://usatoday30.usatoday.com/ news/health/weightloss/2010-06-15-dietaryguidelines16_ST_N.htm. [6] National Cancer Institute. Obesity and cancer risk [cited 2014 July 22]. Available from: http://www.cancer.gov/cancertopics/factsheet/ Risk/obesity. [7] Danaei G, Ding EL, Mozaffarian D, et al. The preventable causes of death in the United States: comparative risk assessment of dietary, lifestyle, and metabolic risk factors. PLoS Med 2009;6: e1000058. [8] National Leagues of Cities. Economic costs of obesity [cited 2014 July 22]. Available from: http://www.healthycommunitieshealthyfu ture.org/learn-the-facts/economic-costs-of-obesity./. [9] Cawley J, Rizzo JA, Haas K. Occupation-specific absenteeism costs associated with obesity and morbid obesity. J Occup Env Med 2007;49:1317–24. [10] Clinical guidelines on the identification, evaluation and treatment of overweight and obesity in adults. Evidence Report. Bethesda, MD: NIH Publication No. 94-4083; September 1998. [11] Feeley J. Pfizer asks end to Fen-Phen suits linked to lung ailment. Bloomberg, August 23, 2012 [cited 2014 July 22]. Available from: http://www.bloomberg.com/news/2012-08-23/pfizer-asks-end-to-fenphen-suits-linked-to-lung-ailment.html. [12] Mayo Clinic. Guide to types of weight-loss surgery [cited 2014 July 22]. Available from: http://www.mayoclinic.org/tests-procedures/bar iatric-surgery/in-depth/weight-loss-surgery/art-20045334. [13] Picot J, Jones J, Colquitt JL, et al. The clinical effectiveness and costeffectiveness of bariatric (weight loss) surgery for obesity: a systematic review and economic evaluation. Health Technol Assess 2009;13:1–190.
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