A Thumb on the Scale for Wegovy

The Biden administration announced one more bit of executive overreach on its way out the door. On Nov. 26, the Centers for Medicare and Medicaid Services proposed a rule that would require its health-insurance programs to cover weight-loss drugs for patients with obesity. These drugs, which include Wegovy and Zepbound, are extremely effective and expensive. CMS estimates the proposal would cost the federal government about $40 billion over 10 years. States would be on the hook for about $3.8 billion for their Medicaid share.

Yet there is a more fundamental legal problem in a world without Chevron deference: The proposal relies on an agency’s interpretation of a statute rather than the statute’s plain language.

The Medicare Prescription Drug, Improvement and Modernization Act of 2003 prohibits Medicare coverage of drugs used specifically for anorexia, weight loss or weight gain. While the program allows coverage of weight-loss drugs approved for the treatment of type 2 diabetes and cardiovascular disease, it doesn’t when they are used for weight loss alone. States have the option to cover obesity drugs under Medicaid, but most choose not to do so.

Rather than deferring to the law, CMS says its proposed rule would “reinterpret the statute to permit coverage of anti-obesity medications for the treatment of obesity when such drugs are indicated to reduce excess body weight and maintain weight reduction long-term for individuals with obesity.” The claim is that using the drugs to treat obesity is somehow different than using them for weight loss.

This linguistic legerdemain ignores that CMS defines obesity as excess weight—a condition that is present “when body weight is higher than what is considered a healthy weight for a given height measured by the Body Mass Index. . . . A BMI of 30.0 or higher is considered obesity.” It also elides that the goal of treating obesity is weight loss. No matter how salutary obesity treatment is, its purpose is precisely what the congressional statute forbids. CMS’s recharacterization of obesity as a chronic disease doesn’t change the facts or the law.

Read more at Wall Street Journal