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Your Right to Breast Reconstruction: The Women’s Health and Cancer Rights Act

Updated: Feb 19



The Women’s Health and Cancer Rights Act (also known as Janet’s Law) is named for Janet Franquet, a woman who was denied reconstructive surgery after mastectomy in 1997 because her insurance company considered the replacement of a breast to be cosmetic and medically unnecessary. Her plastic surgeon generously reconstructed her breast for free. He then aggressively encouraged politicians to change the law to support women’s rights to breast prostheses and reconstruction following mastectomy. A bipartisan effort the following year (1998) resulted in the passage of the WHCRA, a federal law that broadly protects the right to breast reconstruction after mastectomy.

 

Despite the law’s title, its protection isn’t limited to women or cancer patients. Men are also covered, as are people who have mastectomy for other medical . High-risk individuals who have preventive mastectomies are also entitled to WHCRA reconstruction benefits as long as their health insurer covers mastectomy.

 

Franquet pursued a lengthy appeals process, by the way, which she eventually won.


How it Works

The WHCRA doesn’t require health insurers to pay for mastectomy (although most do). Plans that cover mastectomy, however, must also pay for reconstruction. (Some plans are exempt.)

 

Health insurers who cover the cost of mastectomy must also pay for:

  • breast prostheses

  • breast reconstruction

  • surgery to the opposite breast to achieve a symmetrical appearance (after unilateral mastectomy)

  • nipple reconstruction and tattooing

  • treatment for complications from mastectomy or reconstruction

 

Postmastectomy coverage must also:

  • Provide usual and customary coverage consistent with your existing plan benefits, with the same deductibles and co-payments. If your coverage normally pays 80% of your medical services and you pay the remaining 20%, the same payment ratio applies to your reconstruction-related expenses.

  • Provide a description of these benefits whenever an individual health insurance policy is issued.

  • Describe these benefits in the health plan’s Summary of Benefits and Coverage provided annually to policyholders.

 

Although the WHCRA doesn’t extend to Medicare and Medicaid, both government programs cover the cost of breast prostheses and reconstructive surgery. (Medicaid coverage varies from state to state.) Most states also have laws regarding reconstruction benefits, including those provided by individual (rather than group) healthcare policies.

 

The WHCRA protects your right to breast reconstruction, but…

While the WHCRA was certainly a significant step in the right direction and recognizes breast reconstruction as more than cosmetic surgery, it stops short of guaranteeing your absolute choice in the matter—it doesn’t guarantee any or all types of reconstruction by any or all plastic surgeons. Nor does it set payment rates or guarantee payment for specific procedures, surgeons or hospitals.

 

The WHCRA addresses breast reconstruction provided by health care insurance as any other service specified within the parameters of your policy. Insurance companies may impose restrictions on its coverage: it may pay only for reconstruction with in-network surgeons, for example, and restrict coverage to the types of reconstruction those surgeons provide. If your insurance carrier allows you to go to whomever you wish, you're in luck. But if your policy requires that you use in-network physicians for other medical services, the same stipulation will likely apply to your reconstruction. So if your coverage is dependent upon you seeing only certain in-network surgeons, your insurer will probably refuse your request to have breast reconstruction by out-of-network surgeons.


Some health insurance companies, however, are more flexible than others. If you can show just cause, your wish for an out-of-network provider may be granted. If your health coverage consists of surgeons who perform only implant reconstruction, and your doctor agrees that you are not a candidate for implants due to previous radiation, your insurance carrier may be amenable to granting your request to see a surgeon who does autologous or tissue flap surgery.

 

What the WHCRA Covers; What it Doesn’t

Requires Insurers to Pay For:*

Does Not:

All stages of immediate and delayed breast reconstruction

Require insurance companies to pay for mastectomy

Breast prostheses and special mastectomy bras

Apply to certain government, school, and church plans (some do cover mastectomy and reconstruction)

Procedures needed to achieve symmetry with the opposite breast after unilateral reconstruction

Guarantee specific types of reconstructive procedures, out-of-network surgeons, or hospitals

Treatment for lymphedema and other complications related to mastectomy and/or reconstruction

Provide retroactive coverage; if you weren’t insured with your current plan before January 1999 or you had your mastectomy before that time, your current insurer isn’t obligated to cover your reconstruction now**

Reprinted with permission from The Complete Guide to Breast Reconstruction, by Kathy Steligo, 2023, Johns Hopkins University Press.

*Applies to health insurers addressed by WHCRA who pay for mastectomy. 

**If you change insurance companies and your new plan covers mastectomy, it must also pay for your reconstruction.

 

 

Learn more about the WHCRA

To learn more about your rights regarding breast reconstruction:

  • Search for “WHCRA” at the Department of Labor’s Employee Benefits Security Administration website (www.askebsa.dol.gov).

  • Visit the Centers for Medicare & Medicaid Services (www.cms.gov)

  • Contact your state health insurance agency or insurance commissioner for information about laws regarding mastectomy and breast reconstruction; some states provide additional protection and benefits beyond WHCRA requirements.

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