The U.S. Women's Health and Cancer Rights Act, signed into law on October 21, 1998, contains protections for patients who elect breast reconstruction in connection with a mastectomy.
This law, which is administered by the Departments of Labor and Health and Human Services, states that group health plans, insurance companies and health maintenance organizations (HMOs) must provide coverage for reconstructive surgery after mastectomy for breast cancer and prohibited "drive through" mastectomies, where breast cancer patient's hospital stays were limited by their carriers. The required coverage includes 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 treatment of physical complications of the mastectomy, including lymphedema.
The history of the law is an interesting one. Prior to 1998, although several states had laws requiring health insurance carriers to cover reconstructive surgery, there was no federal legislation and many states did not offer such protection. In addition, self-funded insurance plans, such as those often offered by unions, which fall under federal ERISA guidelines, also did not have such protection. Senator Alphonse D'Amato became an outspoken supporter of legislation to change this. D'Amato led a nationwide bipartisan lobbying effort that culminated in legislation that he sponsored with Senator Dianne Feinstein and 21 other senators. This bill also included second opinions out of network for any cancer patient, so that major cancer centers could be accessed. Numerous breast cancer patients and groups were supportive, including Long Island breast cancer advocacy groups and ACOG, the American College of Obstetricians and Gynecologists. Mary Armao McCarthy, Executive Director of ACOG NYS and a breast cancer survivor whose coverage had been denied, was particularly active. Testimony from these advocates was presented at a Senate hearing held November 5, 1997. At this time, New York State had already passed these provision, but state law was unable to include self-insured plans, which Senator D'Amato's federal bill covered by eliminating the self-insured federal ERISA exemption. It was groundbreaking in accomplishing this.
Senator D'Amato also assisted in the case of Janet Franquet, a 32-year-old Long Island woman and used her case as another example of insurance company denials. Ms. Franquet was diagnosed with an aggressive form of breast cancer in late 1997. . She required a mastectomy, after chemotherapy to try to shrink her tumor, and desired reconstructive surgery to restore the breast. Upon contacting her insurance carrier, her reconstructive surgeon, Dr. Todd Wider, learned that her insurance plan, a self-funded plan, refused to cover the reconstructive surgery, and considered it cosmetic. The carrier recommended using a skin graft. Dr. Wider went ahead and performed the surgery for free, but he was outraged by the carrier's decision. Wider also crusaded to change the law, contacting a number of politicians. Speaking on the floor of the Congress, D'Amato said when he had heard that an insurance carrier had denied Ms. Janet Franquet coverage for her surgery:
Mr. President, I decided that I would give Mrs. Franquet's insurance company a call. When I spoke with the Medical Director, he told me that "replacement of a breast is not medically necessary. This is not a bodily function and therefore cannot and should not be replaced" ... Luckily for her, Dr. Todd Wider agreed to forgo payment of this surgery. ... I ask you, Mr. President, how many other Janet Franquets are out there? Will they be lucky enough to have a Dr. Wider to take care of them? ... Too many women have been denied reconstructive surgery because insurers have deemed the procedure cosmetic and not medically necessary. It is absolutely wrong.
On October 21, 1998, the Women's Health and Cancer Rights Act (WHCRA) was signed into federal law. Since passage of this law, many thousands of women have had reconstructive surgery after mastectomy.
While the 1998 Act was hugely significant, there is a proposed Amendment to this Act circulating in the State of California [date?], calling greater control over treatment implementation by women, coverage by board certified surgeons who are breast specialists rather than medical generalists, and surgery at hospital with appropriate length ot stay rather than at surgery center.