Legal Mandates for Breast Reconstruction after Mastectomy

by Michael Palisano, Fotheringill & Wade, LLC

With Breast Cancer Awareness month upon us, it is important to take account of the various laws that provide for protection and benefits to women who have been diagnosed with breast cancer. While commercial and government insurers are required under law to provide coverage for reconstructive surgery for women who have undergone mastectomy surgery, we still see denials of claims involving breast reconstruction that should rightfully have been covered.

Takeaway: In almost any situation, breast reconstruction following a mastectomy should be covered whether your patient is insured by a government or commercial insurer. As long as the claim is coded appropriately to indicate that the patient has breast cancer and medical records can be submitted to show the circumstances of the surgery, there should be no reason that a hospital should not receive full reimbursement for breast reconstruction. It is important to coordinate with your scheduling department to make sure that, if necessary, prior authorization is obtained, although it should be a formality to determine that it is not a cosmetic surgery and is being done on a patient who qualifies for the surgery.

Issue: Although breast reconstruction is a covered benefit under any understanding of the law, there can be roadblocks to reimbursement. Medicare and Medicare advantage plans may subject coverage of breast reconstruction following mastectomy to certain local and national coverage determinations. Commercial and government insurers alike may still require prior authorization or notification for the procedure. There can often be confusion on this point, as many commercial insurers may not require notification or authorization.


In 1998, Congress passed the Women’s Health and Cancer Rights Act. This act amended the Employee Retirement Income Security Act of 1974 (ERISA) to provide mandatory coverage for breast reconstruction for patients that are insured through self-funded group health insurance plans which are governed by ERISA.[1] The language of the law itself is quite broad. Section A states that the health plan “shall” provide coverage, meaning that it is an affirmative duty of the health plan to provide the coverage. The coverage that is mandated must cover “all stages of the reconstruction of the breast on which the mastectomy has been performed,” surgery and reconstruction of the non-affected breast in order to “produce a symmetrical appearance” and prostheses and all potential complications of mastectomy. In addition, section B requires the plan to provide written notice of the availability of this coverage to its members in its yearly notice of coverage.

State laws also provide for similar coverage for members who are insured through fully funded group health insurance plans. In Maryland, nearly identical language exists to provide coverage for these services as in the federal law; section c of §15-815 states that health insurers must provide coverage for all stages of reconstruction of the breast on which the mastectomy has been performed as well as surgery necessary to preserve symmetry on the non-affected breasts as well as any complications of mastectomy. The Code of Maryland Regulations (COMAR) also requires breast reconstruction to be covered after mastectomy as part of the standard comprehensive benefits offered group health plans licensed to operate in the state.[2]

In Maryland, it can also be argued that Medicaid MCOs are required to provide coverage for reconstruction following mastectomy, although the language in the regulation which governs this is not specifically worded to apply solely to breast cancer. COMAR states that an MCO must provide medically necessary surgery to correct deformities that have been caused as the result of disease. Fotheringill & Wade has been able to argue successfully that this provision requires an MCO to provide restorative plastic surgery following a mastectomy. C.L. was a 45 year old enrollee with a Maryland MCO. Her claim was originally denied after she had breast reconstruction after a mastectomy because it was originally considered to be a purely cosmetic procedure. After appealing the claim, Fotheringill & Wade was able to convince the MCO to reprocess and pay the claim after discussions with attorneys from the MCO in which we cited the specific COMAR provision described above which mandates restorative plastic surgery.

The Maryland Insurance Commission has previously penalized commercial insurers for denying breast reconstruction claims for lack of notification when the patient’s certificate of coverage stated that no notification was required. The original denial was maintained even after the provider had appealed and was only resolved when the provider sought the involvement of the Maryland Insurance Administration, who brought the matter before the Maryland Insurance Commission. As a result, the insurer was fined $500.00 for failure to pay a claim without just cause.[3] Patient cooperation can be key to fighting any sort of denials that a provider might encounter, so it is worthwhile to coordinate with patients who are undergoing breast reconstruction to make sure that they are informed as to their rights under the law.

[1] 29 USCA §1185(b)


[3] Insurance Commissioner v. UnitedHealthcare Insurance Company, Case No. MIA-2010-03-038 (March 16, 2010), http://