Erin E. Patrick, Lose Weight or Lose Out: the Legality of State Medicaid Programs That Make Overweight Beneficiaries' Receipt of Funds Contingent Upon Health Lifestyle Choices

• Publication year: 2008

LOSE WEIGHT OR LOSE OUT: THE LEGALITY OF STATE MEDICAID PROGRAMS THAT MAKE OVERWEIGHT BENEFICIARIES' RECEIPT OF FUNDS CONTINGENT UPON HEALTHY LIFESTYLE CHOICES†

"Once your doctor's bill is no longer your own burden, your breakfast habits are no longer your own business."¹

INTRODUCTION

On July 1, 2006, West Virginia implemented the United States' first and only penalty-based wellness pilot program for Medicaid beneficiaries.²Aimed at reducing Medicaid costs attributed to unhealthy behavior, this program limits the benefits of certain beneficiaries who do not conform to healthy lifestyles.³Beneficiaries are required to sign a "Medicaid Member Agreement" on behalf of themselves and their children.⁴This agreement requires beneficiaries' "[a]dherence to health improvement programs as directed by their health care provider," including taking all medications and not missing appointments.⁵While these beneficiaries will not lose all coverage if they do not comply with the prescribed health programs, their Medicaid coverage will be reduced to the basic benefit package, which provides greatly restricted benefits as compared to the enhanced benefit package they would receive for compliance.⁶

One of West Virginia's primary motivations for this program is to reduce costs associated with overweight or obese Medicaid beneficiaries.⁷While the program's language does not specifically target obese beneficiaries,⁸the fact that the plan's history cites the reduction of waistlines as a principal goal,⁹ coupled with the ability of the state to compel obese beneficiaries to lose weight under the existing program,¹⁰indicates that obese beneficiaries are a primary target of West Virginia's wellness program. This means that obese parents and children must either comply with weight-loss or exercise programs deemed appropriate by healthcare providers, or face the potential loss of enhanced medical coverage.¹¹

While West Virginia's program is the first of its kind in the United States, it is consistent with the international trend with respect to obesity and healthcare: taxpayers do not want to pay for healthcare costs attributed to people's inability to control their eating habits.¹²For example, countries with publicly-funded universal healthcare, such as Britain and New Zealand, are beginning to express the belief that taxpayers should not finance poor eating choices.¹³To deal with obesity and other health concerns, Britain's Tory Party recently proposed a plan to deny National Health System treatments to citizens who continue to make unhealthy choices, stating, "It is inconsistent with the concept of the responsible citizen to imagine it is realistic for citizens, having paid their taxes, to expect that the state will underwrite the health implications of any lifestyle decision they choose to make."¹⁴New Zealand, another country with national healthcare, has gone one step further, denying residency to immigrants who are "too fat" because of their potential burden on the healthcare system.¹⁵Since Medicaid is one of the only publicly-funded healthcare programs in America,¹⁶states looking to reform how Medicaid programs deal with obese beneficiaries are consistent with these international policies.

While extreme measures, such as New Zealand's policy, have not been implemented in the United States, drastic annual obesity-related Medicaid costs-ranging from $23 million in Wyoming to $3.5 billion in New York¹⁷- could push more states to implement harsher consequences for obese beneficiaries. Indeed, states have been experimenting with varying forms of

Medicaid wellness programs for years to try to reduce obesity among beneficiaries.¹⁸However, until now, all state programs have been reward- based, offering incentives for maintaining healthy lifestyles; West Virginia marks the first state to punish Medicaid beneficiaries for failing to conform to mandated behavior.¹⁹

Such a shift in healthcare policy has substantial legal implications. Specifically, issues arise under two main principles: direct violations of the Federal Medicaid Act (FMA) and discrimination against obese beneficiaries by state Medicaid programs.²⁰The question remains: can states implement penalty-based wellness programs that punish beneficiaries for being too fat? This Comment argues that as long as penalty-based wellness programs continue to provide coverage for populations mandated by the FMA and are careful not to specifically target the obese in the programs' language, so as to avoid discrimination, states are generally able to circumvent federal requirements and bend the purpose of Medicaid to make receipt of funds contingent upon lifestyle choices. However, this Comment concludes that, due to scientific and economic policy reasons, the implementation of such programs is not justified.

Part I of this Comment provides general background on obesity and wellness programs. Part II examines whether lifestyle-contingent programs violate the Medicaid statute, first examining access to courts for violations of the FMA, and then examining potential claims under the Act. Part III explores the interaction of these programs and nondiscrimination laws, first examining laws against disability discrimination, and then examining repercussions under the Equal Protection Clause of the Constitution. Finally, Part IV of this Comment suggests various nonlegal reasons why lifestyle-contingent wellness programs aimed at obese beneficiaries should not be implemented, even if they are legally sound.

I. OVERVIEW OF OBESITY AND WELLNESS PROGRAMS

To comprehend the legal implications of obesity-related penalty-based wellness programs, it is necessary to understand relevant background information regarding obesity and wellness programs. This Part briefly examines these preliminary topics in turn.

A. Obesity

"Obese" and "overweight" are terms used to indicate when individuals weigh more than is generally considered healthy for their heights.²¹Body mass index (BMI)²²is commonly used to determine if an individual is overweight or obese:²³an adult with a BMI between 25 and 29.9 is considered overweight, while an adult with a BMI of 30 or greater is considered obese.²⁴

Obesity is typically caused by energy imbalance (consuming more calories than expended), but the cause of energy imbalance is a complex interaction of behavior, environment, and genetics.²⁵As a result of being obese, individuals are at an increased risk for a variety of diseases and health problems, including hypertension, type-two diabetes, stroke, and some cancers.²⁶There are multiple treatment options available for obese individuals, ranging from dietary therapy and physical activity to surgery.²⁷However, due to the complex nature of what causes obesity,²⁸the long-term effectiveness of treatment is tenuous.²⁹

There has been a dramatic increase in the number of overweight and obese individuals in recent years³⁰-a trend popularly coined "the obesity epidemic."³¹In response, politicians and researchers alike developed potential solutions, spurring considerable legislation as well as medical and social research.³²This active response to the obesity epidemic is due to the "link between obesity and increased health risks, which translates into increased medical care and disability costs."³³Expenditures associated with obesity have skyrocketed, totaling $75 billion annually for adults alone.³⁴Taxpayers fund roughly half of this amount, with $38 billion of these expenditures financed by Medicaid and Medicare.³⁵Businesses suffer as well, as healthcare costs incurred by employers to cover obese employees-totaling $12 billion³⁶- force businesses to face real financial dilemmas.³⁷

B. Wellness Programs: Reward-Based and Penalty-Based

To reduce these obesity-related costs, healthcare providers are beginning to focus on prevention in the form of wellness programs.³⁸Generally, these programs offer recipients incentives to make healthier lifestyle choices, which providers hope will translate into decreased weight, increased health, and ultimately decreased costs associated with obesity.³⁹

Because American employers serve as key healthcare providers to employees, and are therefore spending large sums on healthcare, employers have embraced wellness programs to improve their bottom lines.⁴⁰Such programs include worksite fitness plans, subsidized membership in local fitness clubs, educational and counseling programs, and financial incentives for employees who participate in weight-loss programs.⁴¹It appears that these wellness programs succeed in reducing employers' healthcare costs, as "[t]here are . . . whole literature reviews devoted to showing that, on average, worksite health promotion programs save employers money."⁴²

Since Medicaid programs fund healthcare for nearly 46 million Americans,⁴³states, following the lead of employers, have turned to wellness programs to help reduce the estimated $21 billion that obesity-related

Medicaid services are costing states annually.⁴⁴Medicaid wellness programs are primarily reward-based, using various forms of discounts or monetary reimbursements to incentivize use of preventive services and healthy lifestyle choices.⁴⁵For example, Florida's Enhanced Benefits program provides beneficiaries who participate in weight-loss programs with $15 to $25 credits that can be redeemed for health-related products at drug stores.⁴⁶California's Medi-Cal program offers gift certificates or movie tickets to parents who bring in their children for preventive visits, and to adolescents who make such visits themselves.⁴⁷

It is unclear whether these Medicaid wellness programs will achieve the same success as those implemented by employers.⁴⁸Available empirical data is scarce,⁴⁹and while the data generally indicates that rewards for preventive behaviors can be effective, studies fail to focus on Medicaid beneficiaries specifically, or to distinguish compounding factors.⁵⁰In 2004, there was a comprehensive review of the effect of...