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Consumer Q & A's about the Women's Health and Cancer Rights Act Notice Requirements

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Notice Requirements Update
Questions and Answers
Model Annual Notice

January 28, 2000

Notice Requirements Update

The Women"s Health and Cancer Rights Act (WHCRA) was signed into law on October 21, 1998. The law includes important new protections for mastectomy patients who elect breast reconstruction in connection with a mastectomy. WHCRA amended the Public Health Service Act (PHS Act) and the Employee Retirement Income Security Act of 1974 (ERISA) and is administered by the Department of Health and Human Services and the Department of Labor.

Among other things, WHCRA requires that group health plans and health insurance issuers, including insurance companies and health maintenance organizations (HMOs), notify individuals at three separate instances (after the enactment of the Act, upon enrollment, and annually) regarding the coverage required by WHCRA. The one-time notification provision required plans and issuers to inform participants and beneficiaries no later than January 1, 1999 of the coverage required by WHCRA. The permanent notification provision requires plans and issuers to notify participants upon enrollment and annually thereafter of the benefits required under WHCRA.

The Department of Health and Human Services and the Department of Labor (the Departments) have received numerous inquiries from the public focusing on the enrollment and annual notice requirements under WHCRA. In November 1998, to assist consumers and the regulated community, the Departments issued questions and answers concerning WHCRA. Additionally, in May 1999, the Departments issued a Request for Information (RFI) seeking public comment on the coverage and notice requirements of WHCRA. In response to the RFI, the Departments have received many questions from the public focusing on the annual notice requirement under WHCRA.

The Departments believe that the WHCRA notices distributed by plans and issuers (including insurance companies and HMOs) should educate participants and beneficiaries who had a mastectomy, or who will have a mastectomy, about the benefits available under their plan (or health coverage) for reconstructive surgery and for complications related to a mastectomy. The Departments are also targeting their own outreach efforts and utilizing their health benefits campaigns, in partnership with a diverse group of companies and other interested parties, to most effectively educate the population protected by WHCRA.

The Departments also believe that employers, unions, and health insurance issuers play a key role in educating participants, beneficiaries, and covered individuals and should have some flexibility in determining how best to educate consumers about their rights under WHCRA. To this end, the following information is intended to provide general guidance on frequently asked questions about the enrollment and annual notice requirements under the provisions of WHCRA that amend the PHS Act.

Questions:

1. Are all group health plans, and their insurance companies or HMOs, required to satisfy the notice requirements under WHCRA?
2. What are the notice requirements under WHCRA?
3. When must the annual notice be delivered?
4. During a plan year, must both an annual notice and an enrollment notice be provided to participants or policyholders enrolling in the plan?
5. How must the annual notice be delivered?
6. Does WHCRA require plans to send the annual notice separately?
7. Can a plan or issuer satisfy the annual notice requirement by using the same notice as the one used to satisfy the enrollment notice?
8. If a plan or issuer does not use the enrollment notice to satisfy the annual notice requirement, is there another way to fulfill the annual notice requirement?
9. Must a group health plan or health insurance issuer furnish separate notices under WHCRA?
10. Where can I obtain more information?

Answers:

All group health plans and health insurance issuers that offer coverage for medical and surgical benefits with respect to a mastectomy are subject to the notice requirements under WHCRA. This requirement applies to issuers in both the group and individual markets.

There are three separate notices required under WHCRA. The first notice is a one-time requirement under which group health plans and insurance issuers must have furnished a written description of the benefits that WHCRA requires to participants, policyholders in the individual market, and beneficiaries no later than January 1, 1999. The second notice must also describe the benefits required under WHCRA, but it must be provided to participants and policyholders in the individual market upon enrollment in the plan. The third notice is required to be furnished annually to participants under the plan and to individual policyholders.

As mentioned above, WHCRA requires a written notice of the availability of such coverage to be delivered to the participant or policyholder upon enrollment and annually thereafter. A plan or health insurance issuer satisfies the annual requirement if the plan or issuer delivers the annual notice anytime during a plan year.

No. If a plan or health insurance issuer provides appropriate enrollment notice to a participant or policyholder upon enrollment in the plan, then the plan or issuer does not have to provide that participant or policyholder with an annual notice for the plan year during which that participant enrolled.

The plan or health insurance issuer must use measures reasonably calculated to ensure actual receipt of the annual notice by plan participants and policyholders and the notice must be sent by a method or methods of delivery likely to result in full distribution.

No. The annual notice may be sent by itself or may, for example, be included in any of the following:

• A summary plan description (SPD), a summary of material modifications (SMM), or a summary annual report (SAR);
• A union newsletter (or a benefits newsletter);
• Open enrollment materials;
• Policy renewal notification letter; or
• Any other written communication by the plan or issuer.

Yes. Although WHCRA does not require plans to use the same notice to fulfill the enrollment and annual notice requirements, plans and issuers may satisfy the annual notice requirement by using the enrollment notice and delivering it to participants or policyholders on an annual basis.

The enrollment notice shall describe the benefits that group health plans and insurance issuers must cover under WHCRA. The enrollment notice must indicate that, in the case of a participant, policyholder, or beneficiary who is receiving benefits in connection with a mastectomy, coverage will be provided in a manner determined in consultation with the attending physician and the patient, for:

• All stages of reconstruction of the breast on which the mastectomy was performed;
• Surgery and reconstruction of the other breast to produce a symmetrical appearance; and
• Prostheses and treatment of physical complications of the mastectomy, including lymphedema.

The enrollment notice must also describe any deductibles and coinsurance limitations applicable to such coverage. Under WHCRA, coverage of breast reconstruction benefits may be subject only to deductibles and coinsurance limitations consistent with those established for other benefits under the plan or coverage.

Yes. Instead of distributing the enrollment notice annually, a plan or issuer may choose to distribute annually a notice informing participants and policyholders of the following:

1. The availability of benefits for the treatment of mastectomy-related services, including reconstructive surgery, prosthesis, and physical complications, including lymphedema; and
2. Information (telephone number, web address, etc.) on how to obtain a detailed description of the mastectomy-related benefits available under the plan.

See attached Model Annual Notice that may be used to satisfy WHCRA"s annual notice requirement.

No. To avoid duplication of notices, a group health plan or health insurance issuer can satisfy the notice requirements of WHCRA by contracting with another party to provide the required notice. For example, in the case of a group health plan funded through an insurance policy, the group health plan will satisfy the notice requirements with respect to a participant or beneficiary if the insurance company or HMO provides the notice that includes the information required by WHCRA.

Questions and answers pertaining to WHCRA are available on-line at www.hcfa.gov/hipaa on the Health Care Financing Administration"s website. For additional information see the Department of Labor"s Questions and Answers: Notice Requirements under WHCRA (November 1998). Individuals interested in obtaining a copy of this publication may call the Department of Labor at 800-998-7542, a toll free number, or access the publication on-line at www.dol.gov/dol/pwba, the Department of Labor"s website

Model Annual Notice

"Did you know that your plan, as required by the Women"s Health and Cancer Rights Act of 1998, provides benefits for mastectomy-related services including reconstruction and surgery to achieve symmetry between the breasts, prostheses, and complications resulting from a mastectomy (including lymphedema). Call your health insurance issuer [insert phone number] for more information."