The Women's Health and Cancer Rights Act

[Guest Damien]

I'm looking for any input on an issue with the Women's Health and Cancer Rights Act. I have a plan member seeking a precert for breast reconstruction under a plan that provides mastectomy benefits. The twist in this case is that her original mastectomy was performed 12 years ago, before her effective date with this plan. Pre-existing exclusion is not an issue in this case.

The original reconstruction used a saline implant, which is now causing constant pain due to contracture since the implant. The physician is proposing to remove the implant and perform a new reconstruction.

Having read the Act and numerous Q&A's, I see nothing addressing the issue of mastectomy performed prior to the passage of the Act or prior to existence of the plan. My inclination is to recommend it be covered, but it would be nice to have a cite or anything else to back it up.

Has anyone out there encountered this issue? I would appreciate any opinions.

[Guest nac]

This is just an opinion, but I would think that there's no real connection between the current event and WHCRA. The mastectomy happened prior to the Act, as did the reconstruction. The fact that the reconstruction has now failed presents a separate issue.

That having been said, while most plans specifically exclude cosmetic surgery, there's usually a loophole that allows it under certain circumstances, such as a disfiguring injury. Plan language also frequently specifically excludes breast enhancement but will cover removal (but not replacement) of failed implants. If it were me trying to rationalize it in my own self-funded plan, I would say that it's 1) medically necessary to remove the failed implant, and 2) repair of the resulting asymmetry would be covered because it was due to a disfiguring illness/injury (that happened 12 years ago, but . . . )

[jeanine]

I think nac is on the right track here. I would cover it as medically necessary to alleviate pain and do the reconstruct based on HIPAA language. The documentation you are looking for to back up your decision doesn't really exist right now, however DOL plans to issue interim final regulations on WHCRA in August 2000, and IRS plans to issue proposed HIPAA regs in Oct. 2000 that should clear things up a bit. From what I have been reading I am inclined to believe that this will be covered. We are hoping that it will clarify external prostheses replacement as we currently have some plans that limit a woman to 1 or 2 external prostheses replacements for life whereas we think it should be more generous than that. Our insured products that we administer give much more generous benefits in this situation.

[Guest HIPAAdrome]

I had a very similar issue come up right after the WHCRA passed, and I called the DOL about it. Their response is as follows: (1) Per the statutory language, the WHCRA applies if a part. "is receiving benefits in connection with a mastectomy and who elects breast reconstruction in connection with such mastectomy." (2) This language does not say a "covered" mastectomy; therefore, it makes no difference whether the current plan covered the mastectomy or not. (3) If the plan has paid for anything related to the mastectomy, WHCRA applies, and it must cover the reconstruction.

Hope that helps.

[Guest Damien]

Thanks for the input, gang. HIPAADrome, how do you go about contacting the DOL for advice? Do you have to know somebody?

[Guest HIPAAdrome]

Sometimes it's easy and sometimes it's not. If regulations have been published on the topic you are calling about, call the number published at the very end of the preamble to those regulations (generally for the author of the reg). Otherwise, look for a number on other relevant publications or similar regulations.