Breast Reconstruction and the Women’s Health and Cancer Rights Act (WHCRA)

The Women’s Health and Cancer Rights Act (WHCRA), passed by Congress in 1998 and adopted as part of the Employee Retirement Income Security Act (ERISA), was enacted to protect women from abuses related to health plan coverage for a mastectomy and breast reconstruction following a mastectomy.

The Act requires that any group health plan providing medical benefits to plan participants or participant’s beneficiaries must cover the following:

(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 lymphedema;

• All stages of reconstruction of the breast
• Surgery and reconstruction of the other breast to produce a symmetrical appearance
• External breast prostheses (breast forms that fit into a patient’s bra)
• Physical complications of mastectomy, including lymphedema (fluid build-up in the arm and chest)

Despite the WHCRA, patients and providers can experience coverage and reimbursement issues, such as the following:

• Patient is electing to have a more advanced type of reconstruction involving microsurgery that a limited number of providers are able to perform,
• Patient requires revision for a past reconstruction, and
• Patient chooses or is referred to a plastic surgeon that is not part of the patient’s health insurance plan’s network, namely an out-of-network provider.

Regrettably, insurers often deny authorization for surgery related to these situations as either not covered, as cosmetic or the services are available through in-network providers. The WHCRA was specifically implemented to overcome denials for cosmetic reasons and payor network directories are often not accurate as to the level of skill, training and experience that providers have regarding these complex surgeries.

Advancements in Reconstructive Techniques, Yet Fair Breast Reconstruction Reimbursements Lag

While advancements in surgical techniques have evolved over time since the passage of the WHCRA, breast reconstruction surgical options still fundamentally fall into two categories:

1. Flaps using a patient’s native, autologous soft tissue from other parts of the body such as; transverse rectus abdominis muscle (TRAM) flap, and the more advanced flaps such as the deep inferior epigastric perforator (DIEP) flap, superficial inferior epigastric artery (SIEA) flap and the latissimus dorsi flap.
2. Implants (internal protheses) typically made of a flexible silicone outer shell that are filled with saline or silicone gel.

A patient’s unique history, circumstances, and goals, along with the provider’s guidance, help patients choose the most appropriate reconstructive method for her, as mandated under the WHCRA.  Many women today elect to have the more advanced flap surgeries as they have superior long-term outcomes and overall a better sense of sensation and wholeness for the patient. Yet, these complex surgeries can be reimbursed for far less than implants, with one study finding “the average dollars paid to surgeons for implant surgeries outpaced flaps.”  Reimbursement roadblocks by payors for all types of breast reconstruction on a practical level exist, including:

1. Authorization for delayed reconstruction or second stage reconstruction is often denied
2. Acceptable/recognized breast reconstruction codes can vary by carrier such as S2068 or CPT Code 19364
3. Multiple Procedure Reductions (MPRs) are applied by carriers to limit reimbursements for patients that have bilateral reconstruction with reimbursements at 100% of the allowed or authorized amount for the first breast and 50% for the second breast
4. Reimbursements are limited/denied for co-surgeons or assistant surgeons despite the complexity of these surgeries and the time required to perform them
5. At the time of authorization, carriers will suggest in-network providers, who, under further review, prove to be unqualified to perform the surgery

Challenges are faced by both in-network and out-of-network providers when submitting surgical claims to payors for reimbursements given that payors are decidedly adept at finding ways to reduce payment amounts to surgeons for services rendered.

The deep inferior epigastric perforator flap (DIEP flap) surgery is a prime example of an advanced technique for breast reconstruction for which providers may not receive reasonable reimbursement.

• In many cases, out-of-network surgeons may only receive a fraction of their billed amount and are often reimbursed below the in-network provider’s rate for the same procedure in the same geographic region.
• In many cases, the reimbursement amounts are less than high out-of-network patient cost-sharing obligations based on the use of low Medicare-based out-of-network fee schedules, leaving the member financially responsible for the entire cost of surgery that is otherwise to be ‘covered’ under WHCRA.
• Incredibly, in many cases, this occurs even where payor networks are deficient, without skilled, trained and qualified surgeons to provide these services on a timely basis. Shifting the financial obligation from the payor to the member as a result of network inadequacy is another tactic employed by payors to avoid fair and reasonable payment to these skilled surgeons treating breast cancer survivors who are not otherwise financially and/or emotionally capable of dealing with the cost of treatment from this disability.

The recently adopted No Surprises Act may shift the unbalanced relationship between payors and providers in these circumstances through the negotiation and independent dispute resolution process. Whether this occurs will only be known in the months and years to come.

The Cohen Howard Process

At Cohen Howard, we focus on maximizing revenues for surgeons for under-reimbursed or denied out-of-network surgical claims. Our team consists of more than 45 experienced legal and medical professionals who have recovered tens of millions of dollars in lost revenue for our clients.

Our comprehensive process begins with a strategic evaluation to assess the viability of your claim and determine the best course of action. We’ll then pursue all pathways to attain a favorable outcome, including utilizing negotiations, administrative appeals pre-litigation demands or litigation.

Call us today at 732-747-5202 or contact us online to learn more about how to increase reimbursements for breast reconstruction claims including the DIEP flap surgery.