Last Updated on March 9, 2022 by Zwivel
Janet Franquet’s legacy — the Women’s Health and Cancer Rights Act, also known as Janet’s Law — is now in peril. With possible changes to the Affordable Care Act, it may become more difficult for women to be covered for breast reconstruction surgery following a mastectomy.
Franquet, a Long Island woman who was diagnosed with breast cancer toward the end of 1997, had a mastectomy to remove the cancerous cells within her breasts. However, when she sought breast reconstruction to restore her breasts’ symmetrical appearance, her insurance claims were denied. Her health insurer explained that breast reconstruction was not considered “medically necessary,” and she would have to pay out of pocket if she wanted the procedure done.
Unfortunately, Janet didn’t have the thousands of dollars required to pay for the surgery itself, let alone the hospital stay it would require. Lucky for her, however, her reconstructive plastic surgeon had a different idea.
Upon learning Janet’s claim had been denied, Dr. Todd Wider agreed to perform the procedure for her pro bono. However, he also recognized that this was a special exception, and that surgeons aren’t able to perform every surgery for free. So, armed with Janet’s story, he began campaigning for change.
The Women’s Health and Cancer Rights Act
Dr. Wider reached out to numerous politicians on his journey for more patient rights, including then Senator Alphonse D’Amato of New York. Senator D’Amato took Janet’s story to Congress, calling her treatment at the hands of health insurance companies “abusively wrong.”
Mere months before Frankel lost her battle with cancer in May of 1999, their campaigning resulted in the creation of the Women’s Health and Cancer Rights Act (WHCRA). It specifically protected women who sought reconstructive surgery after a mastectomy – women like Janet Franquet – by requiring most insurance companies that cover mastectomies to also cover the reconstructive surgery that follows. After all, many people already consider reconstructions to be part of breast cancer treatment.
The WHCRA is still law today, protecting the rights of American breast cancer survivors. However, recent proposals to replace the Affordable Care Act (ACA) have threatened to undermine it, leaving many plastic surgeons concerned that their patients might soon be left out in the financial cold.
Threats to the WHCRA
For the most part, the federal government leaves health insurance matters up to individual states. However, as in the case of the WHCRA, it will occasionally intervene in matters that concern individual rights. The most recent ACA replacement proposals promise to give states more flexibility and authority over their insurance laws. Many regard this as an effort to undermine the role federal laws have traditionally played in such cases.
By the time of its implementation in late ‘98, several states already had legislation that accomplished much the same thing as the WHCRA. However, some states still don’t have regulations like this in place. If new policies put more power in the hands of the states, it is likely that states with fewer regulations will provide outlets for insurance companies that want to circumvent federal policies. And even if no loopholes are found in the current proposals, many doctors are concerned that the prevailing attitude in Congress regarding who should be controlling insurance policy makes the future of the WHCRA look rather bleak.
The latest proposals carry two provisions that threaten the WHCRA.
One provision makes it possible to sell health insurance plans across state lines. In theory, this would allow post-mastectomy patients to benefit from insurance purchased in states that safeguard breast reconstruction coverage. Unfortunately, things may turn out differently in practice.
It is more likely that insurance companies will choose to establish their operation in states with fewer rules, and avoid highly regulated states altogether. In the end, states with higher regulation may no longer have any companies to regulate — if the WHCRA is taken down at the federal level, individual state policies to protect breast cancer survivors may cease to exist as well.
The other provision makes it possible for groups of people to come together and form insurance pools, allowing them to buy health insurance coverage that is mostly exempt from state regulations. This raises the concern that these pools might also be able to ignore federal regulations.
Although policy makers claim to be empowering the states, private insurance companies have the most to gain from these and other provisions that would allow them to circumvent key regulations.
Continued Challenges with Insurance Coverage
Nearly 20 years after the Women’s Health and Cancer Rights Act (WHCRA) was signed into law, many breast cancer survivors still struggle to receive full and adequate coverage for their post-mastectomy breast reconstruction procedures.
Morristown, NJ plastic surgeon Dr. Daniel Schmid gives the example of insurance companies that push back when the mastectomy performed is only a partial one. Many companies insist on only covering reconstructive surgery for full mastectomies. Dr. Schmid disagrees with this policy, stating that there should be coverage for a “balancing procedure” following a partial mastectomy. In other words, women who only have portions of their breasts removed still need the same reconstructive surgery for the same reasons. They just want to have normal, healthy looking breasts again.
Dr. Schmid also notes that when insurance companies do cover breast reconstruction or reduction, any surgery that could be remotely construed as cosmetic is subject to greater scrutiny. For instance, patients seeking a breast reduction through Blue Cross Blue Shield need a proven six months of chiropractic care, letters from two other physicians, thorough documentation, and more. Dr. Schmid calls it “a long and drawn out process.”
Resources for Uninsured Patients
Fortunately, there are a few organizations that offer uninsured patients assistance. Dr. Schmid mentions Medicaid and other non-profit organizations that seek to help women when insurance fails them. He also notes that many hospitals, his included, have departments set up to help women access these resources.
Of course, you don’t need to go to a hospital to find organizations that might be able to help you. If you’re looking for assistance or simply want to contribute to a good cause, organizations like My Hope Chest and the AiRS Foundation provide financial assistance to women who either have no insurance or have had their claims denied due to the nature of their mastectomy.
You can also look into the Plastic Surgery Foundation’s Breast Reconstruction Awareness Fund and Campaign, which seeks to provide funding to various groups that support uninsured and underinsured breast cancer survivors seeking breast reconstruction surgery.
Advancing a Quality of Life Agenda
As a member of the New Jersey Society of Plastic Surgery, Dr. Schmid notes that the organization “always advocates on behalf of patients.” And although he himself has never been involved in health care policy initiatives, he has completed pro-bono work on behalf of organizations that assist breast cancer survivors.
Dr. Schmid stresses the importance of breast reconstruction, noting the psychological benefits of plastic surgery, particularly in cases where the changes help people achieve normality. Women who receive breast reconstruction after a mastectomy, whether full or partial, are simply trying to repair themselves. Dr. Schmid notes that most women do seek out the surgery. “95% of patients getting a mastectomy see a plastic surgeon,” he says, “and about 90% of them get a reconstruction done.”
“I think that it would be horrible,” Dr. Schmid says of the possibility insurance companies might stop covering post-mastectomy breast reconstructions. About half of his practice involves breast reconstruction, and many of his patients would be negatively affected by the change.
Surgeons like Dr. Schmid feel that insurance companies should expand what they consider to be essential care. Something that may not literally be life-threatening could still be extremely psychologically painful.
“A lot of things aren’t going to kill someone but are still detrimental to their health,” he concludes.
