Cory Jorbin, Director of Compliance Consulting, National Employee Benefits, HUB International
Many employer-sponsored plans are debating whether to cover weight loss medications under their plans and, if so, what guardrails to put in place to help manage utilization and plan expenses.
Here are 3 key compliance considerations for obesity treatment drugs:
REGULATORY COMPLIANCE
The only obesity related coverage that is currently REQUIRED falls under the Affordable Care Act (“ACA”) which incorporates the US Preventive Services Task Force A and B recommendations. Non-grandfathered health plans must cover at 100% screening for obesity in adults, and intensive, multicomponent behavioral interventions for weight management for those with a BMI of 30 or higher. However, this does not require specific coverage for actual weight loss treatment or medications.
In other words, while there’s no law in place preventing an employer from covering weight loss treatment drugs, no laws require them to do so.
NONDISCRIMINATION AND INCLUSION
There are 3 bodies of law governing nondiscrimination and inclusion—the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and HIPAA.
ADA regulations include very specific language prohibiting plan designs – often called exclusions and limitations – from discriminating on the basis of an ADA-qualifying condition.
Some courts have determined severe obesity to be a physical impairment, while others have held it to be an impairment under the ADA ONLY if it’s the result of an underlying physiological disorder or condition. Because of this, we recommend consulting with counsel for specific legal advice on the ADA.
GINA protects employees from discrimination based on genetic information – which obesity may relate to.
For example, an employer could not reassign someone whom it learned had a family medical history of heart disease from a job it believed would be too stressful and might eventually lead to heart-related problems for the employee.
This means that a uniform and consistent exclusion for obesity drug coverage across a plan – as long as it’s not individually applied – MAY NOT run afoul of GINA.
HIPAA protects employees from discrimination on the basis of health factors. HIPAA states that any restrictions on benefits must apply uniformly to all similarly situated individuals and must not be directed at individual participants or based on the health factor of any one individual.
What all of this means for weight loss drugs is that any decision to exclude these medications must be applied uniformly across an organization.
A fourth area of law, the Mental Health Parity and Addiction Equity Act (“MHPAEA”) may also play a role in certain instances. MHPAEA requires plans to treat mental health/substance use disorder benefits in parity with medical/surgical benefits. While MHPAEA doesn’t require plans to cover weight loss medications, it may play a role if an individual is prescribed such a medication in connection with an eating disorder.
ACCESSIBILITY AND AFFORDABILITY
If a plan covers weight loss treatment drugs, participants will get the benefit of the negotiated rates. However, since these medications are newer and generics are not yet available, negotiated rates may still be costly, particularly in high deductible health plans.
Weight loss drugs are expensive—for employers and employees alike. Tools like Health Savings, Flexible Spending and Health Reimbursement Accounts may help manage costs, or at least provide some tax benefits in paying these costs.