How EMPOWERING The Women’s Health and Cancer Rights Act is for women, especially those who may face breast cancer. It ensures that their health plan will be held accountable, giving them the assurance and control they need during such a challenging time.
Congress passed the WHCRA after a health insurance company refused to cover reconstructive surgery for a breast cancer patient. This law covers health insurance companies, HMOs, and private group health plans. It does not cover state and local government health plans. According to the Centers for Medicare and Medicaid Services, group plans can be either ‘insured’ (where the insurance company assumes the financial risk) or ‘self-funded’ plans (where the employer assumes the financial risk).
In 1998, Congress passed the Women’s Health and Cancer Rights Act (WHCRA), a federal law that requires group health plans and individual health policies that cover mastectomy to cover breast reconstruction in connection with mastectomy. Before the passage of the WHCRA, insurers could refuse coverage for reconstruction because these were cosmetic procedures and not medically necessary. Women had to pay for reconstruction themselves or forgo it. The passage of the WHCRA was a result of the collective efforts of patients, survivors, healthcare workers, and their supporters, who worked hard to ensure that a woman would be legally guaranteed the option of reconstructive surgery following mastectomy.
The WHCRA is a shield of protection for breast cancer patients. It doesn’t mandate health insurers or group health plans to cover mastectomies, but they are subject to the WHCRA if they do. This federal law covers mastectomy for any medical reason, not just to treat breast cancer. It ensures that patients who want breast reconstruction surgery are not left to fend for themselves. Under the WHCRA, all group health plans that cover mastectomies must provide coverage for reconstructive surgery and any other post-mastectomy benefits, giving patients the security and care they deserve.
Health Insurance Basics
Health insurance is a personalized contract between you and a health insurer, designed to meet your needs. By paying a premium, they cover your healthcare costs. The specifics of your health coverage, such as coinsurance, deductibles, and co-pays, are tailored to your requirements and depend on your contract or policy. Your policy also outlines your insurer’s health benefits, showing they understand and cater to your unique health needs. These benefits include healthcare items or services that a health insurance plan provides.
Mastectomies and Breast Reconstruction
A mastectomy is a surgical procedure that removes breast tissue to treat or prevent breast cancer. With some mastectomies — called “simple” or “total” mastectomies — a surgeon removes all the breast tissue.
Breast reconstruction is a surgery that rebuilds the breast to give an appearance like the breast pre-mastectomy. This can be achieved through various techniques, including implants or tissue from other body parts. Reconstructive surgery can take place concurrently with the mastectomy or at some point after surgery, depending on the patient’s preference and health condition.
Women choose breast reconstruction for many reasons, including the following:
• To give their upper bodies a more balanced appearance
• To regain the breast shape lost after a mastectomy
• To get rid of the need for a prosthesis or synthetic breast part that fits inside a bra
• To maintain body image and self-esteem
ERISA (The Employee Retirement Income Security Act of 1974), the WHCRA
The Women’s Health and Cancer Rights Act (WHCRA) is an amendment to the Employee Retirement Income Security Act (ERISA) that requires group health plans to provide coverage for breast reconstruction following a mastectomy. ERISA covers health insurance plans provided by private employers but not those offered to state and local government employees. Since the WHCRA is an amendment to ERISA, this law covers those employed by private, non-governmental employers.
The Employee Benefits Security Administration (EBSA), a vital U.S. Department of Labor (USDOL) office, is key in administering and enforcing ERISA’s fiduciary, reporting, and disclosure provisions. This oversight ensures that private health plans are secure and reliable, providing peace of mind to those who are affected by breast cancer.
• Reconstruction of the breast that was removed by mastectomy
• Surgery and reconstruction of the other breast to make the breasts look symmetrical or balanced after mastectomy
• Any external breast prostheses (breast forms that fit into your bra) that are needed before or during the reconstruction
• Any physical complications at all stages of mastectomy, including lymphedema (fluid build-up in the arm and chest on the side of the surgery)
Mastectomy benefits may have a yearly deductible and may require that you pay some out-of-pocket costs
• All stages of reconstruction of the breast on which the mastectomy or lumpectomy was performed
• Surgery and reconstruction of the other breast to achieve symmetry and balance
• Prostheses, if needed, and treatment of any surgical complications, including lymphedema
• One home healthcare visit within 48 hours of hospital discharge
• Outpatient or inpatient care in a healthcare facility based on generally accepted criteria
Under the WHCRA, women are legally entitled to the breast reconstruction method of their choice, even if the woman’s chosen plastic surgeon is outside the insurer’s network. And while it is important to remember that patients will be responsible for deductible and co-insurance payments as with any other care covered by their plans, it is also true that when insurance companies have denied claims or presented obstacles to coverage, challenging those decisions, up to the state’s attorney general if necessary, can be successful with skilled patient advocates who fight for you.
• All stages of reconstruction of the breast on which the mastectomy was performed
• Surgery and reconstruction of the other breast to produce a symmetrical appearance
• Prostheses
• Treatment of physical complications of the mastectomy, including lymphedema
If a covered person is receiving benefits in connection with a mastectomy and elects to have breast reconstruction along with that mastectomy, the policy must provide, in a manner determined in consultation with the attending physician and the patient, coverage for the following:
• All stages of reconstruction of the breast on which the mastectomy was performed
• Surgery and reconstruction of the other breast to produce a symmetrical appearance
• Prostheses and physical complications at all stages of the mastectomy, including lymphedema
These benefits will be provided subject to deductibles and coinsurance to the same extent as for any other illness under your coverage.
This law applies to two different types of coverage:
1. Group health plans (provided by an employer or union)
2. Individual health insurance policies (not based on employment)
Group health plans can either be “insured” plans that purchase health insurance from a health insurance issuer or “self-funded” plans that pay for coverage directly. How they are regulated depends on whether they are sponsored by private employers, or state or local (“non-federal”) governmental employers. The Department of Labor regulates private group health plans. State and local governmental plans, for purposes of WHCRA, are controlled by CMS. If any health plan buys insurance, it is regulated by the State’s insurance department.
Fortunately, all insurance companies in the United States are required to cover breast reconstruction if mastectomy, which includes partial mastectomy (i.e., lumpectomy), is also covered, so any woman undergoing surgical treatment of her breasts should be aware of her rights.
Your Rights: You have the right to this coverage regardless of your state, as this is a federal requirement. Health plans cannot deny coverage based on pre-existing conditions or your health history.
Questions and Answers Regarding The WHCRA
Q: Does WHCRA apply to Medicare?
A: Some types of group health insurance plans are exempt from the WHCRA, including some government health plans and health plans offered by some religious organizations. The WHCRA also doesn’t apply to Medicare and Medicaid.
Q: I am insured under an individual plan, not a group plan, through my employer. Does the WHCRA still apply to me?
A: Yes, the exact requirements apply to individual and group plans.
Q: I have changed jobs since my mastectomy and now have insurance coverage with my new employer. Is my new employer’s insurance company required to comply with WHCRA?
A: If your new employer’s plan covers mastectomies and you are receiving benefits under the plan, then your new employer’s plan will generally be required to cover your request for reconstructive surgery. However, you may be subject to a pre-existing condition exclusion period under your new employer’s plan. If you had prior continuous coverage, the Health Insurance Portability and Accountability Act (HIPAA) may protect you from a pre-existing exclusion period. HIPAA prevents group health plans from denying coverage to individuals with pre-existing conditions if they had prior continuous coverage.
Q: Can insurance deny breast reconstruction?
A: The Women’s Health and Cancer Rights Act (WHCRA) of 1998 provides a safety net in the United States. It requires group health insurance plans that pay for mastectomy, as well as cover breast reconstruction, ensuring your rights and well-being are protected.
Q: How long do you stay in the hospital after a mastectomy and reconstruction?
A: If you had an immediate reconstruction with tissue flaps, you could expect to stay an average of two to five days. This is because your surgical team needs to closely monitor the blood flow to the flap, ensuring your safety and recovery. Your surgeon will also provide you with a prescription for pain medication to take with you when you leave the hospital.
Q: Does my Insurance Company Have to Inform Me that the WHRCA Covers Breast Reconstruction?
A: Yes. Additionally, the law mandates that insurance companies inform you about this coverage when you sign up for their plan and then once a year after that.
Q: Can insurance companies impose deductibles or co-insurance requirements for reconstructive surgery after a mastectomy under the WHRCA?
A: Yes. However, the deductibles and co-insurance must be the same as those that apply to other plans or coverage features. The insurance provider cannot charge a different deductible or copay for breast reconstruction than for other types of surgery.
Q: Does insurance cover implants after mastectomy?
A: Yes, health insurance generally covers breast implants for women who have undergone a mastectomy, particularly those due to breast cancer. This is due to the Women’s Health and Cancer Rights Act of 1998 (WHCRA), which mandates coverage for all stages of breast reconstruction.
Q: Will insurance pay for a bilateral mastectomy?
A: Insurance companies that offer mastectomy coverage must also provide coverage for reconstructive surgery after mastectomy. But there’s a chance that they may not pay to remove or reconstruct a breast that doesn’t have cancer. Your breasts may not look alike after a bilateral mastectomy and reconstruction.
Q: Why won’t insurance cover my breast reduction?
A: A surgeon must determine that your breast reduction is medically necessary to get coverage. You may need to prove to your surgeon and health plan that you’ve tried nonsurgical treatments — such as physical therapy or weight loss — without success.
Q: Who qualifies for prophylactic mastectomy?
A: Prophylactic mastectomy is generally considered for individuals with a significantly increased risk of developing breast cancer. This includes those with a strong family history of breast cancer, specific gene mutations like BRCA1 or BRCA2, a personal history of breast cancer, or a diagnosis of lobular carcinoma in situ (LCIS). Other factors, such as a history of radiation therapy to the chest before age 30, can also contribute to a higher risk.
Q: Does WHCRA require all group health plans and health insurance companies to provide reconstructive surgery benefits?
A: Generally, group health plans, as well as their insurance companies, that provide coverage for medical and surgical benefits concerning a mastectomy must comply with WHCRA.
However, if your coverage is provided by a “church plan” or “governmental plan”, check with your plan administrator. Specific church plans or governmental plans may not be subject to this law.
Q: Where can I get more information about my rights under the WHCRA? If you have more questions or concerns, you can contact:
A: The US Department of Labor for WHCRA information, or you can call their toll-free number, 1-866-487-2365
• The Employee Benefits Security Administration of the Department of Labor, at 1-866-444-3272, for information about employer-based health insurance
• Your health plan administrator (a number should be listed on your insurance card)
• Your State Insurance Commissioner’s office (The number should be listed in your local phone book in the state government section, or you can find it at the National Association of Insurance Commissioners website or call 1-866-470-NAIC (1-866-470-6242.)
SUMMARY
While the Affordable Care Act (ACA) of 1998 did not change any provisions of the WHCRA, it did offer some new protection. Under the ACA, health insurers cannot deny coverage based on pre-existing conditions, including breast cancer. The only exceptions are as follows:
-
- The health plan is a group health plan that started before October 1, 1998, or does not offer mastectomy coverage
Get Help
Healthcare law is complex because it often combines medicine and law. The Women’s Health and Cancer Rights Act is no exception. Speak to an experienced local healthcare law attorney to learn more.
References
American Cancer Society
CMS/gov
FindLaw
US Department of Labor
