By Marguerite Higgins
THE WASHINGTON TIMES
The federal government's decision to begin covering obesity treatment will help trial lawyers in their quest to blame the epidemic on the food and restaurant industries.
Trial lawyers and public-health advocates have targeted fast-food giant McDonald's Corp. and companies such as Kraft Foods Inc. in obesity-related lawsuits.
George Washington University law professor John Banzhaf III yesterday said the government all but declared obesity a chronic disease, a position that would help trial lawyers.
The Health and Human Services Department on Thursday announced that the department that runs Medicare, the federal health-insurance program for the elderly and disabled, would omit language in its coverage manual that prohibits coverage for treating obesity.
Medicare officials "opened the door almost as far as they can go. Everything now is a technicality," said Mr. Banzhaf, head of the obesity suit laywers.
The latest lawsuit was filed last week against McDonald's, saying the company did not follow through on its promise to cut "bad fat" in its french fries.
The Medicare policy change eliminated wording that said obesity was not an illness. However, government officials were careful not to classify obesity as either an illness or a disease.
Mr. Banzhaf said he expected obesity coverage to spread to Medicaid, the federal program for low-income families with children, and to private insurers.
Medicaid and Medicare both are handled by the Centers for Medicare and Medicaid Services.
A decision to cover obesity treatments under Medicaid could create a situation similar to tobacco litigation, in which state attorneys general sued tobacco companies to recoup costs for treating tobacco-related illnesses paid for by Medicaid, Mr. Banzhaf said.
Four major tobacco companies, barraged by the litigation, in 1998 reached a $246 billion settlement with state governments to cover the costs of smoking-related illnesses.
"The biggest threat could be the states' coming in to sue McDonald's for millions because of their role in the illness called obesity," he said. "Now that's far from a slam-dunk, and probably considered far-fetched. But that's exactly what everyone said about tobacco."
Other consumer advocates said the decision is a catalyst for other policy changes in federal and private health care.
Grover Norquist, president for the D.C. taxpayer coalition Americans for Tax Reform, said the move by the Bush administration sets up the chance for a loss of freedoms while raising taxes.
"When government pays for health consequences of the public's personal decisions, they will then impose how those decisions will be made. This could certainly also lead to higher government spending paid for by the taxpayers," Mr. Norquist said.
Medicare for 41.3 million beneficiaries cost $274 billion last year and is expected to rise with the pending prescription-drug plan, according to the Congressional Budget Office.
Medicare officials said it is too soon to estimate the costs from the move, adding that they do not know how many or what kind of requests they will get.
Thirty-one percent of Medicare participants are overweight, and 18 percent are obese.
Although the wording covering obesity coverage in the Medicare policy makes a difference in how much the federal program pays for treatment, Dr. Ronald Davis, a preventive-medicine physician in East Lansing, Mich., said it will have no impact in the medical world.
"We're going to treat obesity, whether it's called a disease, risk factor or condition because it causes illnesses and premature mortality," said Dr. Davis, a board trustee for the American Medical Association, which represents 280,000 physicians.
Medicare covers only medically necessary services for illness or injury. Prior to the change, participants could not be reimbursed for obesity treatments such as stomach stapling.
If obesity were classified as a disease, Medicare would have to pay for medical interventions. Instead, obesity treatments, such as surgeries or counseling, must be reviewed. The procedures must have scientific success to be covered.
Alan Muney, chief medical officer and executive vice president of Oxford Health Plans Inc., said "illness" and "disease" are interchangeable in the health-insurance industry as well.
However, designating obesity as a disease could hurt prevention efforts by the public, said Mr. Muney, whose Trumbull, Conn., managed care company has 1.4 million members.
"I think [the policy change] is admitting obesity is a definite public-health problem" without putting too much attention on treatment rather than prevention methods, he said.
White House spokesman Trent Duffy said covering obesity treatments with Medicare was an attempt to "give the government the ability to see what treatments might do as to the cost benefits for some treatments of obesity."
The decision was not a political directive, but "came up through the normal channels" in the Department of Health and Human Services, Mr. Duffy said.
A Republican official with close ties to the White House said President Bush's campaign doesn't see it "as a big political thing."
"Obesity is a crisis, and this is just an attempt to address it," the official said.
Capitol Hill aides tended to agree.
"To me, it's a practical move," said one Democratic aide, adding that the upcoming election probably had "nothing to do with" the new obesity policy. "This is a wise policy decision; it's not a political decision."
The change received positive reviews from some Democrats who have pushed the issue in the past.
"This is progress. Many health problems associated with obesity are life threatening. It's good that Medicare will begin the process of tackling the root cause of those problems, rather than just treating the effects of obesity," said Sen. Jeff Bingaman, a New Mexico Democrat who has co-sponsored legislation aimed-combating obesity in various ways, including funding community organizations to conduct activities that have demonstrated some benefit for curbing obesity.
The Democratic aide said some conservatives might attack the administration's decision and argue that it is not the government's responsibility to spend money helping people lose weight. But the aide said the government already is paying for it, in the form of diabetes and heart-disease treatments, and the new policy "could save money" in the long run.
� Amy Fagan and James Lakely contributed to this report.