Don’t Pass the Buck for the Obesity Epidemic

March 19th, 2010

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This piece was originally published on Huffington Post.

Despite the fact that Americans spend at least $30 billion a year on diet pills and weight-loss products, one-third of American adults are obese, while one third of children are obese or overweight. Obesity-related health problems account for $150 billion in medical spending a year–or nine percent of our nation’s total medical costs.

Among the many laudable provisions in the proposed health reform bill are a variety of measures intended to slim down America’s expanding collective waistline (along with its weight-related medical bills). These proposals include bigger discounts on insurance premiums for workers with healthy behaviors, mandatory nutrition labeling for chain restaurants and vending machines and incentives for small businesses to offer wellness programs to their workers.

Some in Congress are now proposing to open another front in this battle against the bulge, but it is one that would seriously undercut these efforts–a proposal to make food and beverage companies (among others) liable for the obesity epidemic.

In particular, this proposal would extend a provision in current law–the Medicare Secondary Payer (MSP) Act–to allow Medicare to recoup its costs for treating Medicare patients with diabetes or other obesity-related conditions through lawsuits brought by trial lawyers. Under current law, MSP allows Medicare to recover only the costs that private employers normally pay for their older workers.

First, passing the buck to junk food manufacturers by expanding MSP will not solve the obesity problem. The national struggle with obesity results from many factors, including poor consumer choices, a health system that fails to reward doctors for keeping people healthy, and the desk–and couch–bound lifestyle of modern American living.

And while there are any number of structural and institutional variables that make it tougher to stay slim–long commutes and suburban sprawl, cheap Big Macs versus pricey produce–what a person chooses to eat is perhaps the single most important factor.

This strong emphasis on personal responsibility is a major reason why the proposals now in the health reform package are so promising. Wellness incentives, for example, are fundamentally premised on the notion that people should be encouraged to take more and better control of their health. Allowing lawsuits against the maker of Twinkies would flatly contradict this philosophy.

Secondly, forcing food and beverage companies to foot the bill for Medicare would undercut another basic tenet of health reform–controlling health care costs through reforms in payment practices.

Currently, the system fails to rewards doctors for keeping people healthy. This is the consequence of a fee-for-service system in which doctors are paid à la carte for individual services, rather than for the outcomes they produce. For example, doctors can make more money amputating the legs of diabetic patients than checking up on them regularly. And if a patient contracts an infection because a doctor didn’t wash his or her hands, that doctor can bill the patient for the cost of treating the mistake.

The proposed health reform bill, however, would implement a variety of measures rewarding doctors for better quality care. For example, doctors would be allowed to receive bonuses for successfully controlling chronic conditions such as diabetes or obesity. They may also not be paid for treatment mistakes.

All told, such payment reforms could reduce health care spending by as much as 30 percent according to researchers at Dartmouth University. But realizing these cost savings will require a decade-long effort to develop clear lines of accountability among doctors for health outcomes. Blaming food product manufacturers for health costs would provide a convenient excuse to avoid the hard work of payment reform.

Finally, MSP expansion would undercut the President’s recent push to reform the current medical malpractice liability system by encouraging states to experiment with tort reform. For example, one such experiment would be the creation of “health courts”–or specialized courts similar to those that hear workers’ compensation claims. It would be odd, to say the least, to pursue one effort to reduce lawsuits in general while permitting a major expansion of lawsuits in another area of the law.

To ensure public approval of health care reform, President Obama has rightly urged Congress to strip the bill of extraneous or controversial provisions (the “Cornhusker kickback” being Exhibit A). As smart strategy, a “clean” bill free of last-minute additions stands the best chance of passing Congress and avoiding future headaches.

Congress should heed this advice and add to the list of unwanted legislative baggage the MSP expansion proposal.