Health Law Daily Wrap Up, PRESCRIPTION DRUGS—Wash. App.: Discrimination action dismissed as a matter of law for denying obesity treatment reversed., (May 7, 2026)

By Sara Cracau, J.D.

Court reversed and remanded discrimination action against health insurer that denied coverage for obesity treatment.

The court of appeals of the State of Washington has reversed and remanded a discrimination action against a health insurer that uniformly denies coverage for obesity treatment, finding that it was error to dismiss the action as a matter of law for failure to state a claim because the Washington Law Against Discrimination (WLAD) makes it unlawful to restrict or exclude coverage based on the presence of a disability of the insured. It was undisputed that, except for bariatric surgery and services related to obesity screening and counselling, the carrier’s plan excluded obesity treatment, including drugs to treat obesity and treatment for morbid obesity, precisely what the WLAD makes illegal (Herzog v. Kaiser Foundation Health Plan of Washington, No. 87256-7-1 (Wash. App. May 4, 2026)).

Background. A patient who was suffering from obesity was prescribed Victoza (liraglutide) as medically necessary by his physician, but the health insurer denied coverage based on a uniform exclusion in the patient’s health care plan for drug treatment for obesity. He brought an action against the insurer on behalf of a putative class claiming that the insurer violated the Washington Law Against Discrimination (WLAD) and the Consumer Protection Act (CPA). According to the Office of the Insurance Commissioner’s (OIC) a health care plan may but is not required to cover services for obesity or weight reductio in its essential health benefit (EHB) benchmark plan. The trial court dismissed the claims because insurance regulation WAC 284-43-5642 authorized the exclusion. The patient appealed.

Noting that it had rejected the lower court’s exact same justification in Simonton v. HCA (see Washington court rules health plan's obesity drug exclusion may violate anti-discrimination law, May 6, 2026)), the court reversed and remanded the suit.

Motion to dismiss. The court found that the trial court erred in dismissing the action as a matter of law as the WLAD and the insurance code, under Title 48 RCW, with limited exceptions, bar discrimination in insurance. That title further notes that the number of benefits payable or various other coverage limits or types may not be restricted, modified, excluded, or reduced based on the presence of any disability of the insured. The WLAD, however, allows “fair discrimination” unless prohibited under another statute which pertains to health insurance. The non-discrimination statute allows excluding coverage for services to treat a disability for various undefined reasons, e.g. they are experimental, but does not permit exclusion of coverage for services simply because they treat that disability. Nonetheless, a carrier is not prohibited from using medical management techniques and is not required to cover a service that is not medically necessary. The ACA requires health care carriers to consider the needs of disabled persons and not discriminate against them. They must provide coverage that is consistent with the Secretary’s defined EHBs package.

A carrier that provides EHB must offer benefits that are “substantially equal” to an “EHB-benchmark” plan. Two EHB categories apply to the instant case: “ambulatory patient services and prescription drugs and the items and services that are associated with these two categories. Under ambulatory patient services, EHB-benchmark plans may cover “obesity or weight reduction or control” other than nutritional counseling and obesity-related services in the U.S. Prescription drug services may cover weight loss drugs. Federal law permits states to prohibit benefit substation “within the same EHB category.” The applicable statute ensures that EHBs coverage is not reduced without reducing the plan’s actuarial value and categorization under the ACA as, if a plan covers a non-mandatory benefit, such as obesity treatment, it does not contribute to its actuarial value. WLAD makes it unlawful to restrict or exclude coverage based on the presence of a disability of the insured. In the instant action, it was undisputed that, except for bariatric surgery and services related to obesity screening and counselling, the carrier’s plan excluded obesity treatment, including drugs to treat obesity and treatment for morbid obesity, precisely what the WLAD prohibits.

The case is No. 87256-7-1.

Judge: Coburn, L.

Attorneys: Eleanor Hamburger (Sirianni Youtz Spoonemore Hamburger PLLC) for Kurt Herzog. Medora Marisseau (Ogden Murphy Wallace P.L.L.C.) for Kaiser Foundation Health Plan of Washingtion and Kaiser Foundation Health Plan of Washingtion Options, Inc.

Companies: Kaiser Foundation Health Plan of Washingtion; Kaiser Foundation Health Plan of Washingtion Options, Inc.

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