No one chooses a cancer diagnosis or to be predisposed to breast cancer through a strong family history or genetic variant. 

Thanks to U.S. federal laws, group and individual insurance policies that elect to offer mastectomy coverage must also cover breast reconstruction. So why is the right to access the treatment of one’s choice not always the case?

Cohen Howard LLP is a leader in the health insurance industry as a highly experienced solutions provider of legal services to maximize reimbursements for out-of-network providers, including analyzing, interpreting, advising, and acting on legislation and regulations that impact reimbursements. Founder and Managing Partner Leslie Howard and Chief Operating Officer Amy Wilkins spoke with The Peak about federal protections for breast reconstruction, why patients don’t always have the choice of treatment, and how patients can use their voice to access the care they deserve. 

What is the Women’s Health and Cancer Rights Act?

The Women’s Health and Cancer Rights Act of 1998 (WHCRA) requires insurance plans that cover mastectomies to also cover breast reconstruction and the treatment of complications that result from the surgeries, such as lymphedema. 

“If there's mastectomy coverage, there is coverage for reconstruction under WHRCA,” explains Howard. 

Under WHCRA, Howard says, it is then not about whether a person’s reconstruction will be covered. Instead, it comes down to the patient’s right to choose the best breast reconstruction option for their circumstance. 

“It is a very personal choice and there are many options of the type of breast reconstruction procedures that is best for an individual,” says Howard, “of which insurance companies don’t always allow the individual to choose.” 

WHCRA law specifies that a person who elects breast reconstruction in connection with a mastectomy, must be provided coverage for:

  1. All stages of reconstruction of the breast on which the mastectomy has been performed;
  2. Surgery and reconstruction of the other breast to produce a symmetrical appearance; and
  3. Prostheses and physical complications of mastectomy, including lymphedemas

Most importantly, Howard emphasizes, is that reconstruction must be, “in a manner determined in consultation with the attending physician and the patient.”

“The statute clearly states that it is the patient’s and the doctor's right to jointly come up with the most suitable surgical plan,” Howard says. “And it should be the insurance company’s obligation to ensure that the chosen care is available. “ 

But rather than the patient being able to move forward with the agreed-upon treatment plan, “what we find a lot is that the insurance companies are interfering with that decision as to which doctor the patient has access to or what procedure is available for that patient,” she says. 

Howard says this can be because many insurance companies do not provide adequate networks of reconstruction specialists who can perform many of the state-of-the-art breast reconstruction surgeries that exist today. In general, highly specialized doctors tend not to participate in insurance company networks, she says. 

If there is not a surgeon within an insurer’s network who is able to perform the chosen procedure for that patient, the patient may be forced to stay with an in-network provider and have to settle for a procedure that is not their choice or go out-of-network, sometimes facing greater costs such as a higher deductible and co-insurance liability.

Gaining Access to Gap Exceptions

So what can be done if you do not have access to an in-network qualified doctor that can perform the chosen reconstruction procedure that is right for you? Request authorization for a gap exception, Wilkins says. 

A gap exception is used when there is no qualified doctor in a member’s network that can perform the required service or procedure. This allows a patient to access qualified specialists who are not in their network. Wilkins says they have seen gap exceptions granted for patients who don’t have any out-of-network benefits as well as for patients that do.

If a gap exception is granted, she explains, the insurer authorizes the procedure at the in-network benefit level, meaning that on the patient's side, it would be no different than had they gone with a surgeon who was in-network, so they should be subject only to their in-network deductible and co-insurance, which is generally less than the out-of-network patient liability.

But there are no rules as to when an insurance company is required to grant a gap exception, she says. Instead of focusing on providing adequate networks so patients can obtain their chosen care, insurance companies put the burden on the patient to fight for qualified care, says Wilkins. 

Other reasons why a gap exception should be considered, beyond not having a qualified surgeon in-network, could include continuation of care so that a patient may continue seeing a doctor with whom they have an existing relationship or when doctors work in a team, like for immediate breast and reconstructive surgeons, should one of the providers not be in-network. 

 Using the Patient Power

If a patient is in a situation where they can’t access the reconstructive procedure of their choice, they should contact their employer’s human resource department as a first step to find out who is paying the claim, advises Wilkins and Howard. 

Many patients may not realize that most policies today are funded by their employer, also known as self-funded plans, especially large to mid-size companies. In those cases, the insurance company is just hired to administer the claims, meaning the employer can accept any decision made by the insurance company.

“We have seen patients have success when they get their employer involved,” says Howard. “Instead of just being another claim to an insurance representative, they could be a very empathetic ear, especially when they have the ultimate financial obligation." 

“Even if the insurance company is the ultimate payer for a fully insured plan, getting your employer involved can be impactful because the employer is the client of the insurance company,” says Howard. “Many times, insurance companies want to avoid complaints at the risk of losing a client.”

“Any advocacy from the patient helps a lot,” agrees Wilkins. 

Insurance coverage is complex today, she continues, and it is important for the patient to understand what rights they have under their health insurance policy and what they are being billed for when the time comes. 

“It's really important that patients are aware of their rights so they can advocate for the best care they are entitled to.”