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Reconstruction Coverage Under the Women’s Health and Cancer Rights Act

When you are diagnosed with breast cancer and opt for mastectomy and breast reconstruction, the last thing you want to worry about is whether your surgery will be covered by your health insurance plan. Such surgical procedures can cost tens of thousands of dollars, taking into account the bills from the lab, the surgeon, the anesthesiologist, the surgical assistant, the hospital, and others.

Prior to 1998, patients often had to foot the cost of reconstruction following a mastectomy. Health insurers considered breast reconstruction after mastectomy to be a cosmetic procedure that was not medically necessary. Claims were rejected on this basis. Many women were stuck with an often dramatically altered physical appearance because they couldn’t afford to pay the plastic surgeon.

This changed when the Women’s Health and Cancer Rights Act (“WHCRA”) was passed by Congress in 1998. Congressional sponsors of the bill recognized that, for many women, their mental and physical well-being depends on having the option of reconstructive surgery after a mastectomy.

WHCRA specifically addresses benefits for breast reconstruction in connection with a mastectomy. It has several important provisions that you should be aware of:

  • WHCRA is binding on group health insurance plans and health insurance issuers providing coverage in connection with a group health plan, which provide medical and surgical benefits for mastectomy.
  • Such health insurance plans and health insurance issuers are prohibited from rejecting claims for all stages of reconstruction of the breast on which a mastectomy has been performed.
  • Surgery and reconstruction of the unaffected breast must be covered if elected to produce a symmetrical appearance.
  • The cost of prostheses and physical complications from mastectomy, including lymphedema, must be covered in a manner determined in consultation with the physician and the patient.

Although WHCRA covers most women with group health plans and individual insurance, the law does not apply to everyone, according to the Department of Labor. If your employer is a church, state, or local school district, and the plan is self-insured, your employer may opt out of WHCRA. It also does not apply to state high-risk pools through which some individuals may obtain health insurance. Even if these plans cover mastectomies, they do not have to cover breast reconstruction.

However, there are still restrictions in your health insurance plan that can apply, regardless of the WHCRA. For example, health plans are not prohibited from applying the usual, customary, and reasonable coverage limits on post-mastectomy breast reconstruction. So if your plan considers a reconstruction procedure to cost $20,000 and your plastic surgeon charges twice that amount, you will generally be restricted to the insurer’s coverage limits.

In 2003, for example, a lawsuit was brought in Federal Court in New York to challenge the coverage limitation imposed by Oxford Health Plans for bilateral breast reconstruction. Oxford would not cover the full cost of breast reconstruction, claiming that the charges exceeded the “usual, customary and reasonable” rates normally charged for that service in that area. The Federal Court determined that WHCRA did not prohibit the insurance plan from covering reconstruction at the “usual, customary and reasonable” rate, even though it was lower than the surgeon’s actual charges for the service.

It’s a good idea to ask if your surgeon will accept the rates dictated by your health insurer and if you will be billed for the difference.

Something else to remember is that, according to information from the U.S. Department of Labor, even if you change insurance companies after a mastectomy, WHCRA still applies to you if you later opt for reconstruction. If the new health insurer provides coverage for mastectomies and you are receiving services relating to the mastectomy, it must cover all stages of your reconstruction procedure as well as prosthesis and treatment of physical complications from the mastectomy, including lymphedema.

In many cases, having a pre-existing condition such as cancer could cause you to be excluded from coverage if you enroll in a new health insurance plan, subject to several exceptions. But starting on January 1, 2014, the Affordable Care Act prohibits insurers from excluding pre-existing conditions from insurance coverage.

If you have further questions about whether your insurer is required to cover your reconstruction procedure, you can review reliable Internet resources, including the U.S. Department of Labor website or the U.S. Department of Health and Human Services website.

The U.S. Department of Labor’s Employee Benefits Security Administration at 1-866-444-3272 is also a good resource for questions about the WHCRA and employer-sponsored group health plans. For specific information about your particular situation, you should consult an attorney.

This article is not intended to provide legal services, or create an attorney-client relationship. The information contained herein is for informational purposes only and does not constitute legal advice. Online readers, subscribers, cancer patients, employers, and other interested parties should not act or rely upon information contained herein without specifically seeking professional legal advice.

Laura Wong-Pan is an attorney with Thomas, Drohan, Waxman, Petigrow & Mayle LLP, specializing in employment and labor law, and is a cancer survivor.

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