Know Your Rights

 

Insurance & Breast Reconstruction Surgery

It is important for you to know that if your insurance company covers your mastectomy, they must also cover your breast reconstruction.

 

There are Federal and State Laws that protect your right to have the breast reconstruction of your choice. We suggest that you consult your state law as well as the federal law to learn your rights.

Because medical insurance policies have so many differences among them, and the policy language is often confusing, it is sometimes difficult to know what each policy might cover.

 

However, as a general notion, if your medical insurance policy covers your mastectomy, they must cover your breast reconstruction. Also, if they cover other breast reconstructions, then they should cover breast reconstruction with perforator (DIEP, SIEA and GAP) flaps.

Importantly, because these flaps are newer and less common than other types of breast reconstruction, it is often necessary to educate insurance carriers about these techniques.

 

If you are a managed care (HMO ) patient, it’s important for you to know that even if you don’t have out-of-network benefits, your insurance company may still have to cover you for more advances procedures like a DIEP Flap Breast Reconstuction. This is because there are usually no surgeons in your plan who perform these procedures, and therefore, like those who have out-of-network benefits, even HMO’s may be obligated to cover your breast reconstruction.

Our office will assist you in obtaining the necessary authorizations from your insurance company.

BREAST RECONSTRUCTION AND THE LAW

 

New York State Breast Reconstruction Law

CHAPTER 21
S. 761-A, A. 1458-A
Approved March 18, 1997
Effective Jan. 1, 1998

 

AN ACT to amend the insurance law, in relation to coverage for breast reconstruction surgery after a mastectomy

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

 

à 1. Subsection (i) of section 3216 of the insurance law is amended by adding a new paragraph 20 to read as follows:

(20) (A) Every policy which provides medical, major medical, or similar comprehensive type coverage shall provide the following coverage for breast reconstruction surgery after a mastectomy:

 

(i) all stages of reconstruction of the breast on which the mastectomy has been performed: and

 

(ii) surgery and reconstruction of the other breast to produce a symmetrical appearance; in the manner determined by the attending physician and the patient to be appropriate. Such coverage may be subject to annual deductibles and coinsurance provisions as may be deemed appropriate by the superintendent and as are consistent with those established for other benefits within a given policy. Written notice of the availability of such coverage shall be delivered to the policyholder prior to inception of such policy and annually thereafter.

 

B. An insurer providing coverage under this paragraph and any participating entity through which the insurer offers health services shall not:

 

(i) deny to a covered person eligibility, or continued eligibility, to enroll or to renew coverage under the terms of the policy or vary the terms of the policy for the purpose or with the effect of avoiding compliance with this paragraph;

 

(ii) provide incentives (monetary or otherwise) to encourage a covered person to accept less than the minimum protections available under this paragraph;

 

(iii) penalize in any way or reduce or limit the compensation of a health care practitioner for recommending or providing care to a covered person in accordance with this paragraph;

 

(iv) provide incentives (monetary or otherwise) to a health care practitioner relating to the services provided pursuant to this paragraph intended to induce or have the effect of inducing such practitioner to provide care to a covered person in a manner inconsistent with this paragraph; or

 

(v) restrict coverage for any portion of a period within a hospital length of stay required under this paragraph in a manner which is inconsistent with the coverage provided for any preceding portion of such stay.

 

(C) The prohibitions in this paragraph shall be in addition to the provisions of sections three thousand two hundred thirty-one and three thousand tow hundred thirty-two of this article and nothing in this paragraph shall be construed to suspend, supercede, amend or otherwise modify such sections.

 

Sec. 38a-504. (Formerly Sec. 38-262i). Mandatory coverage for treatment of tumors and leukemia. Mandatory coverage for reconstructive surgery, prosthesis and chemotherapy. Mandatory coverage for breast reconstruction after mastectomy. (a) Any insurance company, hospital service corporation, medical service corporation, health care center or fraternal benefit society which delivers or issues for delivery in this state individual health insurance policies providing coverage of the type specified in subdivisions (1), (2), (4), (10), (11) and (12) of section 38a-469, shall provide coverage under such policies for the surgical removal of tumors and treatment of leukemia, including outpatient chemotherapy, reconstructive surgery, cost of any nondental prosthesis including any maxillo-facial prosthesis used to replace anatomic structures lost during treatment for head and neck tumors or additional appliances essential for the support of such prosthesis, and outpatient chemotherapy following surgical procedure in connection with the treatment of tumors. Such benefits shall be subject to the same terms and conditions applicable to all other benefits under such policies.

(b) Except as provided in subsection (c) of this section, the coverage required by subsection (a) of this section shall provide at least a yearly benefit of five hundred dollars for the surgical removal of tumors, five hundred dollars for reconstructive surgery, five hundred dollars for outpatient chemotherapy and three hundred dollars for prosthesis, except that for purposes of the surgical removal of breasts due to tumors the yearly benefit for prosthesis shall be at least three hundred dollars for each breast removed.

(c) The coverage required by subsection (a) of this section shall provide benefits for the reasonable costs of reconstructive surgery on each breast on which a mastectomy has been performed, and reconstructive surgery on a nondiseased breast to produce a symmetrical appearance. Such benefits shall be subject to the same terms and conditions applicable to all other benefits under such policies. For the purposes of this subsection, reconstructive surgery includes, but is not limited to, augmentation mammoplasty, reduction mammoplasty and mastopexy.

(P.A. 79-327, S. 2; P.A. 86-54; P.A. 87-40; 87-275, S. 2; P.A. 90-243, S. 94; P.A. 97-198, S. 3, 5; P.A. 98-27, S. 17.)

 

History: P.A. 86-54 clarified the section by limiting its applicability to individual and group medical expense insurance policies and contract plans, rather than to all individual and group health insurance policies and contract plans; P.A. 87- 40 amended Subsec. (c) to increase the minimum coverage requirement for prosthesis from two hundred to three hundred dollars; P.A. 87-275 amended Subsec. (c) to provide that the yearly benefit for prosthesis shall be at least three hundred dollars for each breast surgically removed due to tumors; P.A. 90-243 deleted former Subsec. (a) re group coverages, relettered the remaining Subsecs., added references to health care centers, substituted references to health insurance policies for references to medical expense policies or contracts; Sec. 38-262i transferred to Sec. 38a-504 in 1991; P.A. 97-198 added exception in Subsec. (b) and added new Subsec. (c) re breast reconstruction after mastectomy, effective July 1, 1997; P.A. 98-27 amended Subsec. (a) to delete reference to Subdiv. (6) of Sec. 38a-469.

See Secs. 38a-199 to 38a-209, inclusive, re hospital service corporations.

See Secs. 38a-214 to 38a-225, inclusive, re medical service corporations.

See Sec. 38a-542 for similar provisions re group policies.

See Secs. 38a-595 to 38a-626, inclusive, 38a-631 to 38a-640, inclusive, and 38a-800 re fraternal benefit societies.

 

SUBSTITUTE SENATE BILL NO. 334

PUBLIC ACT NO. 97-198

AN ACT CONCERNING INSURANCE COVERAGE FOR MASTECTOMY AND BREAST RECONSTRUCTION AFTER MASTECTOMY.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

 

Section 1. (NEW) (a) Each individual health insurance policy providing coverage of the type specified in subdivisions (1), (2), (4), (10), (11) and (12) of section 38a-469 of the general statutes delivered, issued for delivery, amended, renewed or continued in this state on or after July 1, 1997, shall provide coverage for at least forty-eight hours of inpatient care following a mastectomy or lymph node dissection, and shall provide coverage for a longer period of inpatient care if such care is recommended by the patient’s treating physician after conferring with the patient. No such insurance policy may require mastectomy surgery or lymph node dissection to be performed on an outpatient basis. Outpatient surgery or shorter inpatient care is allowable under this section if the patient’s treating physician recommends such outpatient surgery or shorter inpatient care after conferring with the patient.

 

(b) No individual health insurance carrier may terminate the services of, require additional documentation from, require additional utilization review, reduce payments or otherwise penalize or provide financial disincentives to any attending health care provider on the basis that the provider orders care consistent with the provisions of this section.

 

Sec. 2. (NEW) (a) Each group health insurance policy providing coverage of the type specified in subdivisions (1), (2), (4), (10), (11) and (12) of section 38a-469 of the general statutes delivered, issued for delivery, amended, renewed or continued in this state on or after July 1, 1997, shall provide coverage for at least forty-eight hours of inpatient care following a mastectomy or lymph node dissection, and shall provide coverage for a longer period of inpatient care if such care is recommended by the patient’s treating physician after conferring with the patient.

 

No such insurance policy may require mastectomy surgery or lymph node dissection to be performed on an outpatient basis. Outpatient surgery or shorter inpatient care is allowable under this section if the patient’s treating physician recommends such outpatient surgery or shorter inpatient care after conferring with the patient.

(b) No group health insurance carrier may terminate the services of, require additional documentation from, require additional utilization review, reduce payments or otherwise penalize or provide financial disincentives to any attending health care provider on the basis that the provider orders care consistent with the provisions of this section.

Sec. 3. Section 38a-504 of the general statutes is repealed and the following is substituted in lieu thereof: (a) Any insurance company, hospital service corporation, medical service corporation, health care center or fraternal benefit society which delivers or issues for delivery in this state individual health insurance policies providing coverage of the type specified in subdivisions (1), (2), (4), (10), (11) and (12) of section 38a-469, shall provide coverage under such policies for the surgical removal of tumors and treatment of leukemia, including outpatient chemotherapy, reconstructive surgery, cost of any nondental prosthesis including any maxillo-facial prosthesis used to replace anatomic structures lost during treatment for head and neck tumors or additional appliances essential for the support of such prosthesis, and outpatient chemotherapy following surgical procedure in connection with the treatment of tumors. Such benefits shall be subject to the same terms and conditions applicable to all other benefits under such policies.

 

(b) [The] EXCEPT AS PROVIDED IN SUBSECTION (c) OF THIS SECTION, THE coverage required by subsection (a) of this section shall provide at least a yearly benefit of five hundred dollars for the surgical removal of tumors, five hundred dollars for reconstructive surgery, five hundred dollars for outpatient chemotherapy and three hundred dollars for prosthesis, except that for purposes of the surgical removal of breasts due to tumors the yearly benefit for prosthesis shall be at least three hundred dollars for each breast removed.

 

(c) THE COVERAGE REQUIRED BY SUBSECTION (a) OF THIS SECTION SHALL PROVIDE BENEFITS FOR THE REASONABLE COSTS OF RECONSTRUCTIVE SURGERY ON EACH BREAST ON WHICH A MASTECTOMY HAS BEEN PERFORMED, AND RECONSTRUCTIVE SURGERY ON A NONDISEASED BREAST TO PRODUCE A SYMMETRICAL APPEARANCE. SUCH BENEFITS SHALL BE SUBJECT TO THE SAME TERMS AND CONDITIONS APPLICABLE TO ALL OTHER BENEFITS UNDER SUCH POLICIES. FOR THE PURPOSES OF THIS SUBSECTION, RECONSTRUCTIVE SURGERY INCLUDES, BUT IS NOT LIMITED TO, AUGMENTATION MAMMOPLASTY, REDUCTION MAMMOPLASTY AND MASTOPEXY.

 

Sec. 4. Section 38a-542 of the general statutes is repealed and the following is substituted in lieu thereof: (a) Any insurance company, hospital service corporation, medical service corporation, health care center or fraternal benefit society which delivers or issues for delivery in this state group health insurance policies providing coverage of the type specified in subdivisions (1), (2), (4), (11) and (12) of section 38a-469 [which provide coverage for the surgical removal of tumors] shall provide coverage under such policies for treatment of leukemia, including outpatient chemotherapy, reconstructive surgery, cost of any nondental prosthesis, including any maxillo-facial prosthesis used to replace anatomic structures lost during treatment for head and neck tumors or additional appliances essential for the support of such prosthesis, outpatient chemotherapy following surgical procedures in connection with the treatment of tumors and costs of removal of any breast implant which was implanted on or before July 1, 1994, without regard to the purpose of such implantation, which removal is determined to be medically necessary. Such benefits shall be subject to the same terms and conditions applicable to all other benefits under such policies.

 

(b) [The] EXCEPT AS PROVIDED IN SUBSECTION (c) OF THIS SECTION, THE coverage required by subsection (a) of this section shall provide at least a yearly benefit of one thousand dollars for the costs of removal of any breast implant, five hundred dollars for the surgical removal of tumors, five hundred dollars for reconstructive surgery, five hundred dollars for outpatient chemotherapy and three hundred dollars for prosthesis, except that for purposes of the surgical removal of breasts due to tumors the yearly benefit for prosthesis shall be at least three hundred dollars for each breast removed.

 

(c) THE COVERAGE REQUIRED BY SUBSECTION (a) OF THIS SECTION SHALL PROVIDE BENEFITS FOR THE REASONABLE COSTS OF RECONSTRUCTIVE SURGERY ON EACH BREAST ON WHICH A MASTECTOMY HAS BEEN PERFORMED, AND RECONSTRUCTIVE SURGERY ON A NONDISEASED BREAST TO PRODUCE A SYMMETRICAL APPEARANCE. SUCH BENEFITS SHALL BE SUBJECT TO THE SAME TERMS AND CONDITIONS APPLICABLE TO ALL OTHER BENEFITS UNDER SUCH POLICIES. FOR THE PURPOSES OF THIS SUBSECTION, RECONSTRUCTIVE SURGERY INCLUDES, BUT IS NOT LIMITED TO, AUGMENTATION MAMMOPLASTY, REDUCTION MAMMOPLASTY AND MASTOPEXY.

 

SEC. 5. THIS ACT SHALL TAKE EFFECT JULY 1, 1997.

Approved June 24, 1997
 

FEDERAL BREAST RECONSTRUCTION LAW

 

‘‘(c) PROHIBITIONS.—A group health plan, and a health insurance issuer offering group health insurance coverage in connection with a group health plan, may not—

‘‘(1) deny to a patient eligibility, or continued eligibility, to enroll or to renew coverage under the terms of the plan, solely for the purpose of avoiding the requirements of this section; and

 

‘‘(2) penalize or otherwise reduce or limit the reimbursement of an attending provider, or provide incentives (monetary or otherwise) to an attending provider, to induce such provider to provide care to an individual participant or beneficiary in a manner inconsistent with this section. 1079

 

‘‘(d) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to prevent a group health plan or a health insurance issuer offering group health insurance coverage from negotiating the level and type of reimbursement with a provider for care provided in accordance with this section.

 

‘‘(e) PREEMPTION, RELATION TO STATE LAWS.—

 

‘‘(1) IN GENERAL.—Nothing in this section shall be construed to preempt any State law in effect on the date of enactment of this section with respect to health insurance coverage that requires coverage of at least the coverage of reconstructive breast surgery otherwise required under this section.

 

‘‘(2) ERISA.—Nothing in this section shall be construed to affect or modify the provisions of section 514 with respect to group health plans.’’

 

(b) CLERICAL AMENDMENT.—The table of contents in section 1 of the Employee Retirement Income Security Act of 1974 (29 U.S.C.

1001 note) is amended by inserting after the item relating to section 712 the following new item:

 

‘‘Sec. 713. Required coverage reconstructive surgery following mastectomies.’’.

(c) EFFECTIVE DATES.—

 

(1) IN GENERAL.—The amendments made by this section shall apply with respect to plan years beginning on or after the date of enactment of this Act. 1080

 

(2) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS.—In the case of a group health plan maintained pursuant to 1 or more collective bargaining agreements between employee representatives and 1 or more employers, any plan amendment made pursuant to a collective bargaining agreement relating to the plan which amends the plan solely to conform to any requirement added by this section shall not be treated as a termination of such collective bargaining agreement.

 

SEC. 903. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.

 

(a) GROUP MARKET.—Subpart 2 of part A of title XXVII of the Public Health Service Act (42 U.S.C. 300gg-4 et seq.) is amended by adding at the end the following new section:

 

‘‘SEC. 2706. REQUIRED COVERAGE FOR RECONSTRUCTIVE SURGERY FOLLOWING MASTECTOMIES.

‘‘The provisions of section 713 of the Employee Retirement Income Security Act of 1974 shall apply to group health plans, and health insurance issuers providing health insurance coverage in connection with group health plans, as if included in this subpart.’’.

 

(b) INDIVIDUAL MARKET.—Subpart 3 of part B of title XXVII of the Public Health Service Act (42 U.S.C. 1081 300gg-51 et seq.) is amended by adding at the end the following new section: ‘‘SEC. 2752. REQUIRED COVERAGE FOR RECONSTRUCTIVE SURGERY

 

FOLLOWING MASTECTOMIES. ‘‘The provisions of section 2706 shall apply to health insurance coverage offered by a health insurance issuer in the individual market in the same manner as they apply to health insurance coverage offered by a health insurance issuer in connection with a group health plan in the small or large group market.’’.

(c) EFFECTIVE DATES.—

 

(1) GROUP PLANS.—

(A) IN GENERAL.—The amendment made by subsection (a) shall apply to group health plans for plan years beginning on or after the date of enactment of this Act.

(B) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS.—In the case of a group health plan maintained pursuant to 1 or more collective bargaining agreements between employee representatives and 1 or more employers, any plan amendment made pursuant to a collective bargaining agreement relating to the plan which amends the plan solely to conform to any requirement added by the amendment made by 1082 subsection (a) shall not be treated as a termination of such collective bargaining agreement.

(2) INDIVIDUAL PLANS.—The amendment made by subsection (b) shall apply with respect to health insurance coverage offered, sold, issued, renewed, in effect, or operated in the individual market on or after the date of enactment of this Act

SEC. 901. SHORT TITLE.

This title may be cited as the ‘‘Women’s Health and Cancer Rights Act of 1998’’.

SEC. 902. AMENDMENTS TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974.

(a) IN GENERAL.—Subpart B of part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1185 et seq.) is amended by adding at the end the following new section:

‘‘SEC. 713. REQUIRED COVERAGE FOR RECONSTRUCTIVE SURGERY FOLLOWING MASTECTOMIES.

‘‘(a) IN GENERAL.—A group health plan, and a health insurance issuer providing health insurance coverage in connection with a group health plan, that provides medical and surgical benefits with respect to a mastectomy shall provide, in a case of a participant or beneficiary who is receiving benefits in connection with a mastectomy and who elects breast reconstruction in connection with such mastectomy, coverage for—

‘‘(1) 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 all stages of mastectomy, including lymphedemas; in a manner determined in consultation with the attending physician and the patient. Such coverage may be subject to annual deductibles and coinsurance provisions as may be deemed appropriate and as are consistent with those established for other benefits under the plan or coverage. Written notice of the availability of such coverage shall be delivered to the participant upon enrollment and annually thereafter.

‘‘(b) NOTICE.—A group health plan, and a health insurance issuer providing health insurance coverage in connection with a group health plan shall provide notice to each participant and beneficiary under such plan regarding the coverage required by this section in accordance 1078 with regulations promulgated by the Secretary. Such notice shall be in writing and prominently positioned in any literature or correspondence made available or distributed by the plan or issuer and shall be transmitted—

‘‘(1) in the next mailing made by the plan or issuer to the participant or beneficiary;

‘‘(2) as part of any yearly informational packet sent to the participant or beneficiary; or

‘‘(3) not later than January 1, 1999; whichever is earlier.

Breast Reconstruction & Insurance

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