Shifting Ground:

Where the Fight for Patient Access
Has Moved and Where it’s Headed

Published in August 2014 Issue             


With the next open enrollment for the Affordable Care Act (ACA) set to begin in a just a few months, surgical, medical and patient advocacy groups are pressing federal and state officials to end what they see as discrimination and unnecessarily high barriers to care for patients with chronic health conditions.

Already, more than 300 patient advocacy groups, including the American Lung Association, National Kidney Foundation and Easter Seals, signed on to a letter to Health and Human Services Secretary (HHS) Sylvia Mathews Burwell claiming that some insurer practices “are highly discriminatory against patients with chronic health conditions and may, in fact, violate the ACA non-discrimination provisions.”

These so called discriminatory practices include benefit designs that limit access, such as restrictive formularies and inadequate provider networks; unreasonably high co-payments; and a lack of transparency and clarity that interferes with a consumer’s ability to make informed decisions about his or her health plan. The groups want better coverage for prescription drugs, particularly those for HIV, cancer and multiple sclerosis.

Discriminatory practices are not a new concern for bariatric surgeons, integrated health and other health professionals, when it comes to access to obesity treatments for their patients under ACA.

Almost since the health care reform act’s inception, the American Society for Metabolic and Bariatric Surgery (ASMBS) has been trying to get HHS to address major gaps in bariatric surgery coverage among the majority of state health exchanges. Currently, only 22 of 50 states list bariatric surgery as a covered benefit within ACA, and only five states provide coverage for weight loss programs.

Despite several meetings over the years and providing the agency with clear examples of discriminatory benefit design language, HHS has yet to provide guidance to the state health exchanges over what many perceive to be discriminatory practices.


John Morton, MD

John Morton, MD, MPH, ASMBS President-Elect and others have been sounding the alarm that the specific exclusion of obesity treatment is unusual and in conflict with the ACA’s own statute that state health exchanges may not exclude treatment on the basis of a health condition.

Insurers should not be able to discriminate against people with the disease of obesity, period,” said Dr. Morton. “We were hopeful that the passage of the Affordable Care Act would help bring down barriers to care. Instead, new barriers have been created that must come down.”

In late July, in an attempt to bring more attention to the issue, the ASMBS in conjunction with the Obesity Care Continuum (OCC), sponsored a full-page ad in Roll Call, a Capitol Hill newspaper widely read by legislators and administration officials.

In the ad, the groups take the state health care exchanges to task for excluding “treatments for the chronic disease of obesity, the number one public health issue facing Americans.”

The ASMBS, along with 14 other groups including the American Association of Clinical Endocrinologists, American College of Surgeons, The Obesity Society and Obesity Action Coalition (OAC), call for greater patient access “to the full continuum of care of evidence-based obesity treatment modalities such as behavioral, pharmaceutical, psychosocial, nutritional, and surgical interventions,” as outlined in recently adopted American Medical Association (AMA) official policy.


U.S. Rep.
Earl Blumenauer

The posting of the ad was timed to coincide with the release of a letter from U.S. Representatives Eddie Bernice Johnson
(D-TX) and Earl Blumenauer (D-OR). The letter, which is seeking signatures from other members of Congress, urges HHS to issue federal guidance encouraging plans participating in state and federal health marketplaces to provide full coverage of obesity treatments by 2016.

“We felt the ad could be a great catalyst for accelerating early support for the letter and subsequent action by HHS,” said Chris Gallagher, Director of the ASMBS Washington Office. “The more signatures we have, the better. Both the ad and the letter itself put a spotlight on unequal, and in some cases, discriminatory coverage standards for obesity compared to other disease states. In Washington, often the spotlight must shine before enforcement action occurs.”

Already, more than 20 House members have lent their signatures to the letter, with many more expected to sign on before the September 11, 2014 deadline.

Joe Nadglowski, OAC CEO and President, says it’s a combination of grassroots and professional advocacy at both the state and federal levels that provides the best chances for success inside and outside of Washington.

“We have definitely made significant progress over the years,” said Nadglowski, who has led the OAC for nearly a decade. “Obesity advocates can point to several successes including greater recognition of obesity as a disease rather than a lifestyle choice, greater acceptance of bariatric surgery as a highly safe and effective treatment for severe obesity and related diseases, and yes, greater coverage of bariatric surgery throughout the country. These are all positives, and our coalition is broadening and growing stronger.”

According to Nadglowski coverage does not necessarily guarantee access to treatment. He says while more plans “cover” bariatric surgery, barriers including high co-pays, lengthy mandatory and documented pre-operative weight loss requirements remain or have
been erected.

It is reported that for 2015, the Obama administration will identify plans that require unusually high patient cost-sharing in states where the federal government is running the exchange.

Nadglowski says it is a constant battle to protect, preserve or create obesity policy in the face of such barriers and a dynamic political and economic landscape with
competing agendas.

Most advocates agree that the ASMBS, OAC, or any single organization cannot do it alone. Support is needed from many organizations, as well as individuals, including bariatric surgeons, integrated health professionals, employers, public and private insurers, and patients themselves.

“Each one of us must make a commitment to our patients that we will do everything in our power to continue to make things better,” said Dr. Morton, who will become the ASMBS president next year. “This is a commitment that must extend beyond the operating room. Our voices must be heard. If we are silent or bystanders in the process, we become part of the problem, rather than the solution.”

Both the ASMBS and OAC offer individuals and organizations tools that can help in the fight for better access to obesity treatments.

The ASMBS has an advocacy tool kit with information and tools that can be customized for individual needs and the OAC has a newly created Legislative Action Center to help people access their elected officials on issues affecting the prevention and treatment of obesity. Here you can find information about encouraging your U.S. Representative about signing on to letter from House members Johnson and Blumenauer.