II 118th CONGRESS 1st Session S. 3069 IN THE SENATE OF THE UNITED STATES October 18, 2023 Ms. Duckworth (for herself and Ms. Murkowski ) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend title XVIII of the Social Security Act to provide coverage for custom fabricated breast prostheses following a mastectomy.

1. Short title; findings (a) Short title This Act may be cited as the Breast Cancer Patient Equity Act . (b) Findings Congress finds the following: (1) There are currently more than 4,000,000 women with a history of breast cancer in the United States, many of whom experience unreconstructed breast loss. (2) In 2023, an estimated 297,790 women will be diagnosed with invasive breast cancer that requires surgery, with many having to undergo surgical breast removal. (3) In 2023, an estimated 43,100 women in the United States are expected to die from breast cancer. (4) Annually, there are more than 100,000 women in the United States who undergo mastectomies, a surgical removal of the breast. (5) The number of breast mastectomies in the United States has increased among younger women, ages 18 to 34 years old, at a rate of 30 percent and at a rate of 15 percent for women ages 35 to 44 years old. (6) The results of breast reconstruction surgery can vary, and, as with any surgical procedure, there are inherent risks associated with such surgery. Additionally, reconstruction of the breast using implants requires lifelong follow up to ensure the health of the patient. (7) While the number of women choosing to undergo surgical breast reconstruction continues to increase, many women continue to lack the viable option of custom fabricated prosthetic breasts to restore the lost breast. (8) Both older women and minority women are less likely to be offered or undergo surgical breast reconstruction and are disproportionately disadvantaged by a lack of access to the option of custom fabricated prosthetic breasts. (9) Currently, the Medicare program provides coverage and reimbursement for custom fabricated prostheses for any body part, with the exception of breasts, that has been lost. (10) Following passage of the Women's Health and Cancer Rights Act of 1998 ( Public Law 105–277 ; 42 U.S.C. 201 note), many private insurers and group health plans began to provide coverage for custom fabricated breast prostheses as an alternative to surgical breast reconstruction. (11) While the Medicare program recognizes custom fabricated breast prostheses as a discrete device and valid treatment option, having assigned a billing code for such option under the Healthcare Common Procedure Coding System ( HCPCS ) and setting a maximum allowable fee, Medicare does not provide reimbursement and denies claims as not medically necessary . Medicare does provide reimbursement, however, for more costly surgical breast reconstruction. (12) Due to the fact that the Medicare program does not provide reimbursement for custom fabricated breast prostheses, many private insurance companies have also begun to limit their reimbursement for them. (13) The Department of Veterans Affairs does provide the option of a custom fabricated prosthetic breast for women post-mastectomy. (14) Providing coverage for custom fabricated prosthetic breast devices and components will not increase the incidence of breast mastectomies. 2. Coverage (a) In general Section 1861(s)(8) of the Social Security Act ( 42 U.S.C. 1395x(s)(8) ) is amended— (1) by adding and after the semicolon at the end; (2) by inserting (A) after (8) ; and (3) by inserting after subparagraph (A) the following new subparagraph: (B) custom fabricated breast prostheses following surgical removal of the breast, including replacement of such prostheses; . (b) Conforming amendment Section 1862(a)(7) of such Act ( 42 U.S.C. 1395y(a)(7) ) is amended by striking 1861(s)(8) and inserting 1861(s)(8)(A) . (c) Effective date The amendments made by this section shall apply to items and services furnished on or after the date of enactment of this Act.