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To What Extent Does WHCRA Require Coverage of Reconstructive Surgery Performed by an Out-of-Network Provider?



QUESTION: We understand that the Women’s Health and Cancer Rights Act (WHCRA) requires our plan to cover reconstructive surgery following a mastectomy. Can we impose limitations on the plan’s reimbursement of services performed by an out-of-network provider?

ANSWER: Although WHCRA requires group health plans that provide medical and surgical benefits for mastectomy to also provide certain additional mastectomy-related benefits, including reconstructive surgery, it specifically provides that coverage may be subject to a plan’s “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.” It is unclear whether the phrase “deductibles and coinsurance” is an exhaustive list of the provisions to which reconstructive benefits may be subject, or merely examples.

Some courts have held that reconstructive surgery benefits may also be subject to other payment provisions under the plan (such as “reasonable and customary” limitations). One court specifically allowed the application of lower reimbursement rates for reconstructive surgery performed by out-of-network providers, explaining that WHCRA “goes no further than to require that insurers cover post-mastectomy breast reconstruction surgery in a manner consistent with the policies established for other benefits under the plan.” (See our Checkpoint article.) While this may indeed have been Congress’s intent, WHCRA’s wording does not expressly support the imposition of limitations beyond deductibles and coinsurance. You may wish to seek the advice of counsel regarding the application of other plan limitations—such as network restrictions—to reconstructive surgery and related services. For more information, see EBIA’s Group Health Plan Mandates manual at Section XI (“Reconstructive Surgery After Mastectomy”) and EBIA’s Self-Insured Health Plans manual at Section XIII.C.3 (“WHCRA: Required Benefits Following Mastectomy”).

Contributing Editors: EBIA Staff.

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