An Obamacare Fine on Overweight Americans: Discriminatory and Ineffective

Amid the rancorous debates over the Affordable Care Act, one provision deserves to be getting serious discussion.

It’s a provision that allows employers to increase the amount that they may fine their employees for “lifestyle” conditions, such as being overweight or having high blood pressure or high cholesterol.

Almost 37% of Americans are overweight or obese. The supposed goal is to use financial penalties to reduce obesity, the health costs of which exceed $200 billion per year. But this idea, while well intended, will not help Americans suffering from obesity, a medically defined disease and disability. In fact, it will likely make their situation worse.

For years, the country’s “wellness” industry has offered health-enhancement and obesity-reduction programs to corporations, from gym memberships to dietary counseling. For obesity, this approach has not worked. Research on these programs shows that they have not significantly reduced weight or cholesterol levels, or improved any other health outcomes.

Even the most successful programs, such as Weight Watchers, achieve an average two-year weight loss of only about 3% for their members— and even that tiny weight loss often returns later.

The failure of such programs arises from the complexity of our obesity epidemic. For one thing, some people have a genetic predisposition to obesity. If you are unlucky enough to have certain genes, you are up to 12 times more likely to be clinically obese – something that will be difficult to correct, even with a good diet and exercise.

Much obesity starts in childhood, when environmental factors cause children to drink too much soda, consume high calorie foods, and watch too much TV.  By the time these kids become adults, they suffer from both obesity and diabetes – conditions that are almost impossible to reverse. In short, once you are obese it is extremely difficult to lose enough weight, even with financial penalties as an incentive.

These problems will only become worse under the Affordable Care Act. Under the Act, starting this year companies are  allowed to increase the surcharges to employees with medical conditions to 30 percent of their health insurance premiums for an average charge of about $1620 per year.

(Prior to 2014,  companies could assess a 20% surcharge.)

This is cause for serious concern. Not only does the change lend credence to a discredited approach to fighting obesity, but it in effect allows companies to punish their employees for pre-existing conditions, something that Obamacare was designed to avoid.

Worse that being simply ineffective, financial penalties for obesity have significant negative effects. They erode trust between employers and employees, prompting some workers to quit or suffer the genuine fear that the release of private health data will endanger their future employability.

These penalties also discriminate against the poor — many of whom live in neighborhoods with limited access to nutritional foods but plenty of cheap junk food available – and against people with mobility problems who are more likely to be obese. Large controlled studies show that increasing health care charges actually steers people away from essential medical care, exacerbating high blood pressure, worsening vision, and increasing mortality by 10% among low income people with chronic diseases.

Large increases in insurance premiums- up to $5000 for a family of four- also result in uninsurance or switches to cheap but stingy high deductible insurance plans (with very high up-front payments of up to $12,000 before medical care is covered). Our research shows that such plans have been linked to reductions in life-saving care, including colorectal cancer screening, ER visits, and diabetes medicines. The new surcharge will only make this worse.

There is no magic bullet for solving the costly epidemic of obesity, but fining those who suffer from the condition is unethical, disrespectful, and counterproductive. It is likely a violation of federal laws to discriminate against employees based on obesity (a disability) or genetic make-up.  Yet that is what this ill-conceived ACA penalty allows.

The Equal Employment Opportunity Commission (EEOC) and other legal advocates for those with pre-existing conditions should seek a reversal of these discriminatory penalties in the courts. In the meantime, the EEOC needs to issue guidelines with strong nondiscrimination protections for employees in “wellness programs”—as they have been called upon to do for some time now.

Rather than penalize individuals, we need to emphasize population-based obesity prevention, such as using financial incentives to increase healthy food access in low-income neighborhoods. We should increase budgets for physical education in schools, not reduce them; raise taxes on soda and other high calorie beverages, and institute proven programs that limit sedentary TV and screen time.

And among those who are already obese, offer respectful long-term behavioral programs that reduce a few realistic pounds at a time, rather than fining those who fail to achieve what are nearly impossible goals.

Stephen Soumerai is Professor of Population Medicine and Director of the Drug Policy Research Group at Harvard Medical School and Harvard Pilgrim Health Care Institute.

50 replies »

  1. I Agree with all that was said it was very sound and researched. Until you get to the part of restricting people and how they operate by raising prices on certain items and controlling television even more than it already is. Look life will always be life,untamed, wild and ever changing just like people. The way we go about life in our own way raises its balance and discourse naturally. Adding another government like situation penalizing the mass while helping the few is not what we need. Isn’t that exactly why you wrote this paper? And a question for you and the Government: If we stay the course or implement your plan sir when and where do we place in human choice melded with the thought of the human condition?

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  3. Brad – I started out my adult life at the height of 5′ 9″ and 175 lbs (well within the “normal” BMI). I got pregnant and gained 60 lbs. I got back down to my starting weight when I got hit by a car and spent two weeks in the hospital and 6 weeks in a nursing home (I had a fractured pelvis and broken leg, and couldn’t walk AT ALL for the first 6 weeks after the accident). I got pregnant again, and in spite of not being able to eat because of 8 months of morning sickness, my weight went up to 325 lbs. I managed to lose 80 lbs, but gained it back, dieted, lost, gained, dieted, lost, gained, and my weight ended up at 350 lbs. I stayed at that weight for 20 years, and then I had weight loss surgery (a vertical banded gastroplasty). I lost 80 lbs, and then, in spite of doing everything I was told to do by doctors/dietitians, I started gaining weight. My weight went from 270 to 400 lbs. My then-doctor advised me to get my surgery revised to a more severe form of gastric mutilation. Nope, they had their one chance to kill me, I wasn’t giving them another one (my best friend died after having the same surgery I had). I have no gallbladder, one of the consequences of yo-yo dieting, and the VBG has screwed up my digestive system seven ways to Sunday. I have IBS that’s triggered by any and everything I eat, without any rhyme or reason. What triggers the IBS one day will be fine to eat the next day. I’ve done everything I can to meet society’s idea of what my weight should be, and in spite of it, I still look like my mother, my grandmothers, my aunts, great-aunts, and great-grandmothers. I come from a long line of women who start out at “normal” size, get married, have kids, and get fat in spite of working hard and eating a healthy diet (they also all lived well into their 80s, which is quite an achievement for some of those women, who were born in the mid to late 1800s). Hell, my mother was born in 1934, was fat, and fought ovarian cancer for TEN years before she died at the age of 75.
    So all of those “lifestyle changes/diets” that everyone thinks fat people should follow did nothing but make me fatter and give me more complications than I would have had if I just had stayed fat, stayed active, and continued to eat a healthy diet, all of which I can no longer do because I dieted and messed up my metabolism, had WLS and messed up my digestive system. Oh, and that WLS also gave me chronic migraines, nerve damage in my hands and feet, IBS, fibromyalgia, worsening arthritis (spine, hips, knees, one hip is bone on bone), spinal stenosis, rotted teeth (from all the vomiting I did the first two years after my WLS) – and all of this contributes to worsening mobility issues because of the pain I’m in that doctors refuse to medicate with anything stronger than ibuprofen (I can take 2400 mg of that and it doesn’t even begin to touch the pain I have when I have to stand or walk for any amount of time). So most of the problems I have are not due to my weight, they’re due to all of the crap I did trying to lose weight (other than the arthritis, which, again, is a genetic predisposition – both of my parents had it, 3 of my grandparents had it, my dad’s brother had it). Oh, and in spite of all the complications I have from that WLS and years of dieting, I’m 60 years old and my blood pressure is still normal, as are my cholesterol and blood sugar. Go figure. I think it’s due to the fact that no one in my family, on either side, ever had problems with any of those things, in spite of the fact that most of them were fat.
    I’m not the only fat person with a life like this – there are plenty of us who have dieted our way from “normal”/”overweight” to “obese”/”morbidly obese”/OMGDEATHFATZ and more complications from that dieting/WLS merry-go-round.
    Until the medical community can come up with a way to SAFELY and PERMANENTLY turn fat people into thin people, all the ranting and raving about OMGOBESITY and its so-called “costs” to society are not going to change anything, and in fact, make things much worse. People don’t take care of things they hate, and encouraging fat people to hate their bodies in order to change them doesn’t work. If it did, there would be no fat people.
    What does help, is an emphasis on eating as healthily as you can, considering all your circumstances, and exercising in ways you like and will continue to do for a lifetime. Those are the things that make positive changes in health, not punitive measures like bullying/shaming, or punishments like higher insurance premiums JUST because of your weight.

  4. That website does not back up your claim. No where does it say that Type II diabetes is destined to manifest if you have it in your genetics, nor does it say that it isn’t preventable.

    Type II diabetes still primarily manifests itself from lifestyle habits. Yes, some people may live off of pepsi and never get it, others will. Genetics might have an influence on that. But you’re not destined to get it, nor can you ignore lifestyle in the progression of the disease.

  5. This is from the American Diabetes Association’s website: http://www.diabetes.org/diabetes-basics/myths/
    I think it clears up some of the common mythperceptions that a lot of people have about type 2 diabetes, who gets it, and why they get it.
    And yes, old age and higher weight are RISK factors, but there are more fat people WITHOUT t2d than who have it. And thin people get t2d as well. As for weight loss, even physicians are now saying that it’s unreasonable to expect obese and morbidly obese people to lose more than 5% of their body weight and be able to keep it off permanently – which rate is about par for every diet (lifestyle change, whatever you want to call it) that exists. So I say again, are you going to penalize EVERYONE who has a genetic predisposition for a disease? Because everyone has genetic predispositions for one disease or another. And once you eradicate all those diseases because you’ve prevented everyone who has genetic markers for those diseases, and only the perfect people are allowed to breed, are you also going to start saying only the people who meet certain standards of beauty will be allowed to breed? Who is going to determine that? Believe me, once you start saying only certain people are allowed to breed, it’s a slippery slope you’re going down and one whose results aren’t going to be what you thought they would be.

  6. Artificial sweeteners? Correlation does not prove causation. There is yet to be a causal link between the obesity and artificial sweeteners. A high correlation, but that might just be everyone that’s overweight making their healthy “choice of the day.”

    Artificial sweeteners when consumed in moderation are still recognized as an effective way to help cut calories when attempting to lose weight.

  7. Vesta, find me just one reputable article from the literature or one textbook supporting that statement and I will agree with you.

  8. I think this article is just another example of the growing entitlement views in our country. Though I think the tax incentive may at least cause more tax paying Americans to be aware of the problem, increasing premiums for the obese should be looked at primarily as an incentive program. That’s just something that may or may not come along with it. This idea is first and foremost about taking responsibility for one’s own actions. Obesity is indirectly a cause for so many healthh problemst hats it’s simply not fair to have others subsidize the cost of a lifestyle decision.

    Many of the comments here in defense of not raising premiums focus are trying to convince people that its hard to return to a healthy weight, that it follows a socioeconomic pattern, and that since many people became obese while young it’s not their fault. But these ideas really don’t hold when you look at smoking. Hard to quit? Oh yes. Follows a socioeconomic pattern? Yes. Many people start at a relatively young age? Yes.

    The difference in these two topics is that one is universally held as bad, even to the point of being seen as grossly immoral. It’s simply that with so many Americans being obese or overweight, and the HARD push for everyone to be of a healthy weight only starting in the 90s, that many people think not taking cf yourself is acceptable.

    Just like smoking, it will take awhile for these emotional viewpoints to change. Just like smoking, it will take a generation (or two) to really start seeing obesity fall. I personally don’t care how other people live their lives as long as they take responsibility. You want to smoke? Great, I truly believe you have the right to, so log as you pay your health bills and don’t subject me to the second hand smoke. I honestly wouldn’t think any less of you. But you want to drink a 6
    pack of 16oz Pepsi everyday and pass the bill later? Tough. That’s on you. I don’t care if you became addicted to it winkle growing up. If we expect smokers to change their lifestyle or pay for it, we can expect the obese and over weight to do the same.

  9. As opposed to the rest of ACA which punishes the many to benefit the few.

  10. Lawrence, define “abuse” and “eat too much”. Again, tell us your cultural consumption habits so we might judge your risk to US.

    “It’s people like you who think that they can do whatever they want, then leave the bill for other people to pay for the poor choices that they make.”

    And who am I, in the “people like you”?

  11. Make positive changes to these these factors and everyone wins (except for the medical industry and drug manufacturers)

    The billions saved on medical care for diseases and medical conditions caused by poor lifestyle choices, could be used to feed, house, and educate millions of Americans, and to build a stronger society.

    More than one-third of U.S. adults (34.9%) are obese. [Read abstract Journal of American Medicine (JAMA)]

    An estimated 42.1 million people, or 18.1% of all adults (aged 18 years or older), in the United States smoke cigarettes.1

    “Drug use is on the rise in this country and 23.5 million Americans are addicted to alcohol and drugs. That’s approximately one in every 10 Americans over the age of 12

  12. So Peter1, you consider your cheap swipe to be an insightful reply?
    Do you really think that people who abuse their health should have other people pay for the unnecessary medical costs that they cause?
    We wouldn’t have a healthcare crisis if people (perhaps, like you) didn’t choose to abuse alcohol and drugs, eat to much fattening food, or smoke.
    It’s people like you who think that they can do whatever they want, then leave the bill for other people to pay for the poor choices that they make.
    You don’t need to lead a “pristine”, or “Puritan” life, just be responsible enough to pay for the choices that you make, so that other people don’t have to pick-up your tab.

  13. Maybe Lawrence you should give us some insight to your pristine and puritan life and habits so we can better estimate your risk to society.

  14. smoking and taking drugs and driving recklessly are indeed choices and people do/should pay more for them.

    And I’ll agree with you that obesity is a “lifestyle choice” as soon as Oprah Winfrey, with her unlimited resources for a person trainer and private gym, can squeeze into a Size 8 for more than a month.

  15. After being lied to by the President of the United States about being able to keep our medial plans, why are people who live healthy and responsible lives having to pay as much for insurance as people who are obese, smoke, take drugs, have risky sex, or have a combination of any of these risk factors?

    All of the vices mentioned above are personal choices that create health problems, needlessly costing us billions of dollars every year to treat, but the only people being punished for them are the healthy people who must pay more to subsidize the medical costs created by irresponsible behaviors and lifestyles.

    Like smoking and taking drugs, driving recklessly is a choice, and if you have an accident, or get a ticket for reckless driving, you pay more for your auto insurance.

    Is charging people who are reckless drivers higher auto insurance rates, discriminatory? If not, why should people who have risky lifestyles get medical insurance at the same premium as healthy people do?

    Healthy people having to pay higher insurance premiums so that people with unhealthy lifestyles can get cheaper insurance is reverse discrimination.

  16. Whoa. 90%+ smokers start before they are 18 (i.e. when they are children). Smoking is highly addictive. Did they really make a “choice” in the sense of making an adult informed decision about smoking???

    IMHO, overweight individuals can choose to consume less food or burn more calories more easily than a smoker can choose to stop using nicotine. It’s just that the negative social and psychological impacts of being a smoker are so much greater thanks to a decades-long public service effort to properly demonize smoking.

    Not saying it is morally correct…but has anyone ever floated the idea of starting to paint obesity in the same way as smoking…public service announcements of obese individuals having heart attacks, dying young…this is what your heart looks like if you are fit, this is what it looks like if you are fat…etc…

  17. Stephen writes: “There is no magic bullet for solving the costly epidemic of obesity, but fining those who suffer from the condition is unethical, disrespectful, and counterproductive.”
    I agree with Stephen’s position on this issue. There are so many causal factors to this issue which go beyond what can be attributed to an individual to make punitive measures an effective, or warranted approach. There are systemic problems throughout the developed, and now developing, world that we collectively have contributed to the problem of obesity: improper food preparation and dietary choices, pervasive messaging through advertising, limited choices for transportation that compel people to drive motor vehicles. These are only a few. We all share in creating the problem and we should all share in contributing to the solution. Punishing a few is, as Stephen writes, “unethical, disrespectful, and counterproductive”.

  18. Except, of course, I the 7+ states who feel it would be discriminatory to charge smokers more. Heaven forbid we hold people responsible. Try harder.

  19. Smokers rightfully take in on the chin in ACA — that was a clear choice and they need to and do pay the price. Weight was not a choice. My wife and her best friend have almost exactly the same diet but there is a 40-pound difference in their weights.

  20. Wow, I had no idea I was such a victim until I read all these comments. Apparently I have no control over what food I eat or my weight. No one complained about smoking, substance abuse, or exercise so I hope we can agree that those lifestyle choices are important. Holding people accountable for decades of neglecting their bodies is hard, but is one of the few solutions we have to this crisis

  21. Glad to see the impact of these programs on the poor pointed out. The issue is NOT one of bad choices, laziness, sloth or immorality. A system with 70% overweight (which is a visible indicator of an underlying metabolic condition, not a health issue in and of itself) is a broken system; Americans did not all of a sudden lose their morals in the 1970’s. Big AG and Big Food make us sick, Big Pharma medicates us and Big Medicine manages the interface. We, taxpayers, pay for it when people get to Medicare/ And Pizza is a vegetable. Yikes………

  22. Agreed that this is impossible to attain. Greed that is sustaining it. But we can forget about controlling our diabetes/obesity crisis until we clean up our food supply.

  23. dear Dr. Quack,

    Agreed. These corporate obesity programs are really just the privatization of public health, punting problems to corporations so Big Food can say we are “doing something,” thus avoiding hard choices like a sugar tax and cleaning up some of the things you mentioned.

  24. Agreed Craig, “how about it” for sure, but it’s like saying, “How about world peace”. Almost impossible politically to attain.

  25. Rebecca, what are the “indicators” for Type 2 Diabetes? Are there no statistical lifestyle correlations for any acquired illness?

  26. How about we fix our poisoned food supply? The meat, antibiotics, hormones, and artificial sweeteners….

  27. Rebecca is quiet right. Furthermore, both fat people AND thin people get Type 2 diabetes, so assuming that fat is pathological does a disservice to both populations, by overdiagnosing fat people and UNDERdiagnosing thin people.

    No one knows how to make fat people thin in the long term; indeed, much damage has been done to the health of fat people in the pursuit of thinness. Wouldn’t it make more sense for the ACA to encourage employers to pursue measures that would improve health? For a list of such measures, see Kate Harding’s classic, “On Problems to be Solved” (http://kateharding.net/2008/07/08/on-problems-to-be-solved/).

  28. The saddest part about assuming that being overweight is a health indicator? It’s bad science. There are NO studies which establish casual links regarding body size & morphology and particular health conditions, whether one is fat, thin, or in between.

    Correlative studies point to the need for more research, not treatment plans. The assumption that being fat or thin is in the realm of “personal responsibility” is simply not defensible medically, no matter how much you may think it is.

  29. Type 2 diabetes is NOT preventable. It’s genetics that determine if you’re going to get it or not. If you have a family history of T2D, it’s quite likely that somewhere down the line, you’ll get it no matter how well you eat and how much you exercise. Not eating sugars and starches will NOT keep you from getting T2D if you have a genetic history of it. Eating well and exercising might delay the onset of it, and might enable you to control it with oral meds for quite a while instead of having to use insulin, but it won’t prevent you from getting the disease.
    So, do you plan on penalizing every person who carries the genetics for T2D getting married and having children, who may eventually end up with T2D? Because that’s what punitive measures like you advocate can lead to. What about people who have a genetic predisposition for CVD? Or those with a genetic predisposition for any disease? Are you going to tell them that they can’t have children because they’ll pas those predispositions on to their children? Or that if they do have children, they and their children are going to have to pay more for their health care insurance? I sure hope you don’t have any of the genetics for which you wish to penalize people.

  30. Hey to all you overweight Obamacare supporters, you were quite happy Nancy Pelosi told her pals not to read the legislation.

    And how many overweight congressmen won’t be affected by the legislation?

    Brings new meaning to the term “weight watchers”, eh?

  31. Both great comments. Another example is “preventable” hospital infections no longer paid for by CMS. There is a developing literature of lack of efficacy and unintended effects. A recent New Eng JMed article by Grace Lee et al documented a declining infection rate unaffected by the policy. This was followed up by a study by Michael Calderwood showing that physicians (nationally) reacted to the non-payment of preventable infection by changing their coding of such infections, not by improving outcomes. So much for the “remarkable” educational value of penalties. Best, S

  32. That CDC statistic is about as specious as their other shocking statistic that 7 out of 10 people die of chronic disease. (What would the CDC prefer we die of? Dying of chronic disease is the hallmark of civilization.)

    In point of fact, only about 7% of all hospitalizations in the insured working age population are wellness-sensitive medical events, and there is just about nothing an employer can do to significantly dent that figure.

  33. School goers don’t need physical education, they need physical activity; and it doesn’t need to be at school. In fact, a main reason physical activity is dwindling at schools is because someone’s feeling might get hurt and those hurt feelings can be expensive to feed and defend. Wellness ROI is in the category of man-made global warming. Plenty of folks using hockey sticks to sell their snake oil (and Al Gore carbon credits).

  34. Quad, while your point makes some sense it really is unworkable. Do you cover the health costs of those who cause car accidents and are injured? How about children subject to their parents lifestyle and eating culture?

    Health follows zip code. How much more do you think you can get from the poor?

  35. First off, about 37% of American adults are obese, 70% are overweight and obese.

    With up to 75% of all healthcare spending due to preventable, chronic disease (per the CDC), incentives matter. People who make good decisions around diet, exercise, and substance abuse should not be punished with higher premiums and taxes to subsidize those who don’t. We should absolutely be rewarding good lifestyle choices while holding bad ones accountable (and we already spend vast sums trying to get people to eat better, exercise more, quit smoking/substance abuse, etc).

    I am willing to subsidize the 25% of health care that is not preventable. But not Type II diabetes and other entirely preventable costs. Personal responsibility is important, both positive and negative, especially over the decades it takes to develop most of these chronic conditions.

  36. Yes. I don’t want government and corporations to mandate or allow unproven programs nationwide that are likely to harm more than help an already bad situation.

    Trust in God, but show me the data.

    We could save a lot of money that way because most things in health care don’t end up working when tested in well controlled studies (often after everyone has adopted them). S

  37. Tax unhealthy inputs – sugar, fat, salt, eliminate subsidy on corn and subsidize fresh fruits and vegetables. But just try to get that passed in, “block that bill” Washington.

    We have found the enemy and he is us.

  38. Arthur: Thanks for the checklist! Some very good points. But I don’t consider restoring physical education in many school districts to be insane increases in tax rates. They can be part of the solution. Further, the wellness-caused barriers to effective care that you agree may increase hypertension could save some serious bucks in avoidable hospitalization– both private and public costs.

  39. In short, nothing else has worked and I dont want you to try this either.


  40. I will admit, I can see how the ACA will decrease medical spending, no one will buy because they can’t afford it. The costs, however, will remain unabated.

  41. “Large increases in insurance premiums- up to $5000 for a family of four- also result in uninsurance or switches to cheap but stingy high deductible insurance plans (with very high up-front payments of up to $12,000 before medical care is covered). Our research shows that such plans have been linked to reductions in life-saving care”

    Sounds like a basic summary of obamacare exchanges:
    1) Large increases in premiums…check,
    2) Switch to high deductibles with high up-front payments…check,
    3) Reductions in life-saving care (IPAB)…check.

    You forgot the limiting access to providers through skinny networks.

    “These problems will only become worse under the Affordable Care Act.”

    So your suggested solution to the unworkable Act is increasing taxes further, increasing public school budgets further, sending further and more tax dollars to areas that already consume more resources than they generate and have for 50 years with no improvement, and institute more programs that further attempt to have the federal government regulate human behavior. Insanity.