The federal government's rule governing the length-of-stay requirements for a vaginal or cesarean delivery of beneficiaries covered in a group or individual health plan was made final in 2008.
The rule implemented changes to the Employee Retirement Income Security Act of 1974 (ERISA) and the Public Health Service Act (PHS Act) made by the Newborns' and Mothers' Health Protection Act of 1996 (the Newborns' Act). The Newborns' Act prohibits the restriction of mothers' and newborns' benefits for hospitals length-of-stay in connection with childbirth to less than 48 hours for a vaginal delivery or 96 hours for a cesarean section. The final regulations were effective Dec. 9, 2008, and apply to group and individual market plans with coverage that began on or after Jan. 1, 2009.
Impact on State Laws
A number of states adopted requirements for benefits covering maternity stays prior to the enactment of the Newborns' Act. These final rules did not preempt state law if that law meets certain criteria including:
- State law requirements that plan coverage provide for at least a length of stay of 48 hours for a vaginal delivery (or 96 hour for cesarean).
- State law requirements that health insurance coverage provide for maternity and pediatric care in accordance with guidelines established by the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics , or any recognized and relevant professional medical association.
- State law requirements that the decisions regarding the appropriate length of stay be left to the attending provider and the mother.
All provisions addressed in the federal law will not be required in the state statute beyond those listed. The rules apply to self-insured plans with the exception of those nonfederal governmental plans that have opted out of the PHS Act requirements.
Standards Relating to Benefits for Mothers and Newborns
Applies to Individual or Group Health Plans
Hospital Length of Stay
- 48 hours following a vaginal delivery.
- 96 hours following a cesarean section.
When the Stay Begins
- Delivery in the hospital: at the time of delivery (in the case of multiple births, at the time of the last delivery).
- Delivery outside the hospital (for example in a birthing center): at the time of hospital admission.
Authorization Not Required
- Prohibits a health plan from requiring authorization for the stay.
- Early discharge is permitted if the attending provider and mother are in agreement.
Definition of Attending Provider
- An individual who is licensed under applicable state law to provide maternity or pediatric care and who is responsible for providing care to a mother and newborn.
- Denial of eligibility or continued eligibility to enroll or renew coverage in order to avoid these requirements.
- Provide payments or rebates to the mother to encourage her to accept less.
- A group health plan may not penalize a provider based on the provisions of this rule.
- Provide incentives to a provider to induce them to furnish care in a manner inconsistent with this rule.
Hospital Stay Benefits Are Not Mandated
- The rules are not intended to mandate hospital stay benefits on a plan that does not provide that coverage.
Cost Sharing Rules
- The rules do not prohibit a group plan from imposing deductibles, coinsurance, or other cost-sharing in relation to the benefits but they may not be any greater than for any preceding portion of the stay.
Disclosure Notification of Rights
- Requires health plans to notify beneficiaries of these requirements in a notice with the following statement:
- Under federal law, group health plans and health insurance issuers offering group health insurance coverage generally may not restrict benefits for any hospital length of stay in connection with childbirth for the mother or newborn child to less than 48 hours following a vaginal delivery, or less than 96 hours following a delivery by cesarean section. However, the plan or issuer may pay for a shorter stay if the attending provider (e.g., your physician, nurse midwife, or physician assistant), after consultation with the mother, discharges the mother or newborn earlier. Also, under federal law, plans and issuers may not set the level of benefits or out-of-pocket costs so that any later portion of the 48-hour (or 96-hour) stay is treated in a manner less favorable to the mother or newborn than any earlier portion of the stay. In addition, a plan or issuer may not, under federal law, require that a physician or other health care provider obtain authorization for prescribing a length of stay of up to 48 hours (or 96 hours). However, to use certain providers or facilities, or to reduce your out-of-pocket costs, you may be required to obtain precertification. For information on precertification, contact your plan administrator.
- Group plans will be required to send out these notification within 60 days of the first day of the new plan year following Jan. 1, 2009.
- Plans in the individual market will be required to provide notice in the form of a contract or a rider no later than Dec. 19, 2008.
Applicability in Certain States
- The rules will not apply to health plans in states where the state law meets the required criteria.
- For a group health plan that provides all benefits for hospital care in connection with childbirth other than through health insurance coverage, the requirements apply.
For additional information, please call NCSL staff Haley Nicholson, policy director, Health, State-Federal Affairs at 202-624-8662 or Abbie Gruwell, policy director, Human Services, State-Federal Affairs, at 202-624-3569.