Seyfarth Synopsis: As employers consider the rising costs of coverage of semaglutide drugs like Ozempic and Wegovy in their health plans, a recent class action complaint alleging obesity-related discriminationcould be a sign of things to come for more legal challenges. As the use of such drugs explodes in popularity across the country, insurers and health plans may face increasing pressure, in and out of the courts, to remove or justify any exclusions of coverage.
In Whittemore v. Cigna Health and Life Insurance Company, filed in the United States District Court for the District of Maine, Plaintiff Jamie Whittemore alleges Cigna has engaged in disability discrimination under the Affordable Care Act (ACA) by declining coverage for semaglutide drugs to treat obesity in the health plans it administers – including fully insured and self-insured plans it administers for employers. The Complaint's background facts are extensive and detail a societal shift in the perception and treatment of obesity. The Complaint alleges that while historically attributed to a lack of willpower and largely considered a mere risk factor for covered conditions, obesity has been increasingly perceived as a complex but treatable condition in and of itself. The Complaint notes that, in 2013, the American Medical Association described obesity as a "disease state" requiring "a range of interventions." Most recently, one such treatment is semaglutide, which operates by mimicking the body's natural appetite regulator, glucagon-like peptide-1 (GLP-1). The success of semaglutide drugs in double-blind trials has led to a flurry of research, prescriptions, and optimism for obesity treatment. In light of the high cost, however, not all health plans cover these drugs.
Whittemore was enrolled in a Cigna-administered health plan and sought coverage for medications for obesity treatment. Cigna declined coverage under the plan. Whittemore's allegations regarding Cigna's plan focus on what Whittemore deems the "Obesity Exclusion": the plan's exclusion of coverage for medications, specifically semaglutide drugs, when used to treat obesity. Whittemore claims Cigna's own internal policies consider these interventions "medically necessary to treat obesity" but that Cigna administers plans that exclude coverage for treatment of obesity. The health plan in which Whittemore participated allegedly includes Wegovy and Zepbound, two semaglutide drugs, on its covered prescription drug list, but excludes coverage when the drugs are utilized for obesity treatment in particular.
Whittemore alleges that because the drugs are excluded only if prescribed for obesity, but are covered when used for another condition (namely diabetes), the plan violates Section 1557 of the ACA by treating one disease or disability differently from another. Section 1557 of the ACA prohibits discrimination on the basis of disability in a health program or activity that receives federal financial assistance.. The Complaint alleges both disparate treatment and disparate impact discrimination on the basis of disability under Section 1557.
At this early stage of not only Whittemore's case but those like it, several questions remain unanswered. For instance, whether obesity will be considered a disability under Section 1557 is far from clear. Notably, under the Americans with Disabilities Act, the vast majority of federal courts, including the First Circuit which includes the District of Maine, do not consider obesity a physical impairment unless it is a symptom of an actual or perceived underlying physiological disorder or condition, such as diabetes. If obesity is not considered a disability for purposes of Section 1557, these discrimination allegations would not succeed. In addition, even if obesity is deemed a disability, questions remain regarding whether a self-funded plan would be subject to Section 1557.
Because of the novelty of semaglutide drugs as an available treatment, cases challenging noncoverage are also in their infancy. As the use of these drugs exponentially increases, however, a rise in such litigation may be inevitable.
Please contact the employee benefits attorney or ERISA litigator at Seyfarth Shaw LLP with whom you usually work if you have any questions regarding health plan coverage of semaglutide drugs. We will be monitoring this case and other cases to see how the scope of Section 1557 is addressed by the courts.
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