Newborns' and Mothers' Health Protection Act Department of Health and Human Services Interim Rules
[Federal Register: October 27, 1998 (Volume 63, Number 207)]
[Pages 57558-57654]
HEALTH CARE FINANCING ADMINISTRATION
45 CFR SUBTITLE A, SUBCHAPTER B
45 CFR subtitle A, subchapter B, 45 CFR subtitle A, subchapter B,
is amended as set forth below:
A. Part 144 is amended as follows:
PART 144--REQUIREMENTS RELATING TO HEALTH INSURANCE COVERAGE
1. The authority citation for part 144 continues to read as
follows:
Authority: Secs. 2701 through 2763, 2791, and 2792 of the Public
Health Service Act, 42 U.S.C. 300gg through 300gg-63, 300gg-91, and
300gg-92.
2. Section 144.101 is revised to read as follows:
Sec. 144.101 Basis and purpose.
Part 146 of this subchapter implements sections 2701 through 2723
of the Public Health Service Act (PHS Act, 42 U.S.C. 300gg, et seq.).
Its purpose is to improve access to group health insurance coverage, to
guarantee the renewability of all coverage in the group market, and to
provide certain protections for mothers and newborns with respect to
coverage for hospital stays in connection with childbirth. Part 148 of
this subchapter implements sections 2741 through 2763 of the PHS Act.
Its purpose is to improve access to individual health insurance
coverage for certain eligible individuals who previously had group
coverage, to guarantee the renewability of all coverage in the
individual market, and to provide protections for mothers and newborns
with respect to coverage for hospital stays in connection with
childbirth. Sections 2791 and 2792 of the PHS Act define terms used in
the regulations in this subchapter and provide the basis for issuing
these regulations, respectively.
3. In Sec. 144.102, paragraph (b) is revised to read as follows:
Sec. 144.102 Scope and applicability.
* * * * *
(b) The protections afforded under 45 CFR parts 144 through 148 to
individuals and employers (and other sponsors of health insurance
offered in connection with a group health plan) are determined by
whether the coverage
[[Page 57559]]
involved is obtained in the small group market, the large group market,
or the individual market. Small employers, and individuals who are
eligible to enroll under the employer's plan, are guaranteed
availability of insurance coverage sold in the small group market.
Small and large employers are guaranteed the right to renew their group
coverage, subject to certain exceptions. Eligible individuals are
guaranteed availability of coverage sold in the individual market, and
all coverage in the individual market must be guaranteed renewable. All
coverage issued in the small or large group market, and in the
individual market, must provide certain protections for mothers and
newborns with respect to coverage for hospital stays in connection with
childbirth.
* * * * *
B. Part 146 is amended as follows:
PART 146--REQUIREMENTS FOR THE GROUP HEALTH INSURANCE MARKET
1. The authority citation for part 146 continues to read as
follows:
Authority: Secs. 2701 through 2763, 2791, and 2792 of the PHS
Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-92).
2. In Sec. 146.101, paragraph (a) is revised, paragraphs (b)(2)
through (b)(4) are redesignated as paragraphs (b)(3) through (b)(5),
respectively, and a new paragraph (b)(2) is added to read as follows:
Sec. 146.101 Basis and scope.
(a) Statutory basis. This part implements sections 2701 through
2723 of the PHS Act. Its purpose is to improve access to group health
insurance coverage, to guarantee the renewability of all coverage in
the group market, and to provide certain protections for mothers and
newborns with respect to coverage for hospital stays in connection with
childbirth. Sections 2791 and 2792 of the PHS Act define terms used in
the regulations in this subchapter and provide the basis for issuing
these regulations, respectively.
(b) * * *
(2) Subpart C. Subpart C of this part sets forth the requirements
that apply to plans and issuers with respect to coverage for hospital
stays in connection with childbirth. It also sets forth the regulations
governing parity between medical/surgical benefits and mental health
benefits in group health plans and health insurance coverage offered by
issuers in connection with a group health plan.
* * * * *
Subpart C--Requirements Relating to Benefits
3. Section 146.130 is added to Subpart C to read as follows:
Sec. 146.130 Standards relating to benefits for mothers and newborns.
(a) Hospital length of stay--(1) General rule. Except as provided
in paragraph (a)(5) of this section, a group health plan, or a health
insurance issuer offering group health insurance coverage, that
provides benefits for a hospital length of stay in connection with
childbirth for a mother or her newborn may not restrict benefits for
the stay to less than--
(i) 48 hours following a vaginal delivery; or
(ii) 96 hours following a delivery by cesarean section.
(2) When stay begins--(i) Delivery in a hospital. If delivery
occurs in a hospital, the hospital length of stay for the mother or
newborn child begins at the time of delivery (or in the case of
multiple births, at the time of the last delivery).
(ii) Delivery outside a hospital. If delivery occurs outside a
hospital, the hospital length of stay begins at the time the mother or
newborn is admitted as a hospital inpatient in connection with
childbirth. The determination of whether an admission is in connection
with childbirth is a medical decision to be made by the attending
provider.
(3) Examples. The rules of paragraphs (a)(1) and (a)(2) of this
section are illustrated by the following examples. In each example, the
group health plan provides benefits for hospital lengths of stay in
connection with childbirth and is subject to the requirements of this
section, as follows:
Example 1. (i) A pregnant woman covered under a group health
plan goes into labor and is admitted to the hospital at 10 p.m. on
June 11. She gives birth by vaginal delivery at 6 a.m. on June 12.
(ii) In this Example 1, the 48-hour period described in
paragraph (a)(1)(i) of this section ends at 6 a.m. on June 14.
Example 2. (i) A woman covered under a group health plan gives
birth at home by vaginal delivery. After the delivery, the woman
begins bleeding excessively in connection with the childbirth and is
admitted to the hospital for treatment of the excessive bleeding at
7 p.m. on October 1.
(ii) In this Example 2, the 48-hour period described in
paragraph (a)(1)(i) of this section ends at 7 p.m. on October 3.
Example 3. (i) A woman covered under a group health plan gives
birth by vaginal delivery at home. The child later develops
pneumonia and is admitted to the hospital. The attending provider
determines that the admission is not in connection with childbirth.
(ii) In this Example 3, the hospital length-of-stay requirements
of this section do not apply to the child's admission to the
hospital because the admission is not in connection with childbirth.
(4) Authorization not required--(i) In general. A plan or issuer
may not require that a physician or other health care provider obtain
authorization from the plan or issuer for prescribing the hospital
length of stay required under paragraph (a)(1) of this section. (See
also paragraphs (b)(2) and (c)(3) of this section for rules and
examples regarding other authorization and certain notice
requirements.)
(ii) Example. The rule of this paragraph (a)(4) is illustrated by
the following example:
Example. (i) In the case of a delivery by cesarean section, a
group health plan subject to the requirements of this section
automatically provides benefits for any hospital length of stay of
up to 72 hours. For any longer stay, the plan requires an attending
provider to complete a certificate of medical necessity. The plan
then makes a determination, based on the certificate of medical
necessity, whether a longer stay is medically necessary.
(ii) In this Example, the requirement that an attending provider
complete a certificate of medical necessity to obtain authorization
for the period between 72 hours and 96 hours following a delivery by
cesarean section is prohibited by this paragraph (a)(4).
(5) Exceptions--(i) Discharge of mother. If a decision to discharge
a mother earlier than the period specified in paragraph (a)(1) of this
section is made by an attending provider, in consultation with the
mother, the requirements of paragraph (a)(1) of this section do not
apply for any period after the discharge.
(ii) Discharge of newborn. If a decision to discharge a newborn
child earlier than the period specified in paragraph (a)(1) of this
section is made by an attending provider, in consultation with the
mother (or the newborn's authorized representative), the requirements
of paragraph (a)(1) of this section do not apply for any period after
the discharge.
(iii) Attending provider defined. For purposes of this section,
attending provider means an individual who is licensed under applicable
State law to provide maternity or pediatric care and who is directly
responsible for providing maternity or pediatric care to a mother or
newborn child.
(iv) Example. The rules of this paragraph (a)(5) are illustrated by
the following example:
Example. (i) A pregnant woman covered under a group health plan
subject to the requirements of this section goes into labor and is
admitted to a hospital. She gives birth
[[Page 57560]]
by cesarean section. On the third day after the delivery, the
attending provider for the mother consults with the mother, and the
attending provider for the newborn consults with the mother
regarding the newborn. The attending providers authorize the early
discharge of both the mother and the newborn. Both are discharged
approximately 72 hours after the delivery. The plan pays for the 72-
hour hospital stays.
(ii) In this Example, the requirements of this paragraph (a)
have been satisfied with respect to the mother and the newborn. If
either is readmitted, the hospital stay for the readmission is not
subject to this section.
(b) Prohibitions--(1) With respect to mothers--(i) In general. A
group health plan, and a health insurance issuer offering group health
insurance coverage, may not--
(A) Deny a mother or her newborn child eligibility or continued
eligibility to enroll or renew coverage under the terms of the plan
solely to avoid the requirements of this section; or
(B) Provide payments (including payments-in-kind) or rebates to a
mother to encourage her to accept less than the minimum protections
available under this section.
(ii) Examples. The rules of this paragraph (b)(1) are illustrated
by the following examples. In each example, the group health plan is
subject to the requirements of this section, as follows:
Example 1. (i) A group health plan provides benefits for at
least a 48-hour hospital length of stay following a vaginal
delivery. If a mother and newborn covered under the plan are
discharged within 24 hours after the delivery, the plan will waive
the copayment and deductible.
(ii) In this Example 1, because waiver of the copayment and
deductible is in the nature of a rebate that the mother would not
receive if she and her newborn remained in the hospital, it is
prohibited by this paragraph (b)(1). (In addition, the plan violates
paragraph (b)(2) of this section because, in effect, no copayment or
deductible is required for the first portion of the stay and a
double copayment and a deductible are required for the second
portion of the stay.)
Example 2. (i) A group health plan provides benefits for at
least a 48-hour hospital length of stay following a vaginal
delivery. In the event that a mother and her newborn are discharged
earlier than 48 hours and the discharges occur after consultation
with the mother in accordance with the requirements of paragraph
(a)(5) of this section, the plan provides for a follow-up visit by a
nurse within 48 hours after the discharges to provide certain
services that the mother and her newborn would otherwise receive in
the hospital.
(ii) In this Example 2, because the follow-up visit does not
provide any services beyond what the mother and her newborn would
receive in the hospital, coverage for the follow-up visit is not
prohibited by this paragraph (b)(1).
(2) With respect to benefit restrictions--(i) In general. Subject
to paragraph (c)(3) of this section, a group health plan, and a health
insurance issuer offering group health insurance coverage, may not
restrict the benefits for any portion of a hospital length of stay
required under paragraph (a) of this section in a manner that is less
favorable than the benefits provided for any preceding portion of the
stay.
(ii) Example. The rules of this paragraph (b)(2) are illustrated by
the following example:
Example. (i) A group health plan subject to the requirements of
this section provides benefits for hospital lengths of stay in
connection with childbirth. In the case of a delivery by cesarean
section, the plan automatically pays for the first 48 hours. With
respect to each succeeding 24-hour period, the participant or
beneficiary must call the plan to obtain precertification from a
utilization reviewer, who determines if an additional 24-hour period
is medically necessary. If this approval is not obtained, the plan
will not provide benefits for any succeeding 24-hour period.
(ii) In this Example, the requirement to obtain precertification
for the two 24-hour periods immediately following the initial 48-
hour stay is prohibited by this paragraph (b)(2) because benefits
for the latter part of the stay are restricted in a manner that is
less favorable than benefits for a preceding portion of the stay.
(However, this section does not prohibit a plan from requiring
precertification for any period after the first 96 hours.) In
addition, if the plan's utilization reviewer denied any mother or
her newborn benefits within the 96-hour stay, the plan would also
violate paragraph (a) of this section.
(3) With respect to attending providers. A group health plan, and a
health insurance issuer offering group health insurance coverage, may
not directly or indirectly--
(i) Penalize (for example, take disciplinary action against or
retaliate against), or otherwise reduce or limit the compensation of,
an attending provider because the provider furnished care to a
participant or beneficiary in accordance with this section; or
(ii) Provide monetary or other incentives to an attending provider
to induce the provider to furnish care to a participant or beneficiary
in a manner inconsistent with this section, including providing any
incentive that could induce an attending provider to discharge a mother
or newborn earlier than 48 hours (or 96 hours) after delivery.
(c) Construction. With respect to this section, the following rules
of construction apply:
(1) Hospital stays not mandatory. This section does not require a
mother to--
(i) Give birth in a hospital; or
(ii) Stay in the hospital for a fixed period of time following the
birth of her child.
(2) Hospital stay benefits not mandated. This section does not
apply to any group health plan, or any group health insurance coverage,
that does not provide benefits for hospital lengths of stay in
connection with childbirth for a mother or her newborn child.
(3) Cost-sharing rules--(i) In general. This section does not
prevent a group health plan or a health insurance issuer offering group
health insurance coverage from imposing deductibles, coinsurance, or
other cost-sharing in relation to benefits for hospital lengths of stay
in connection with childbirth for a mother or a newborn under the plan
or coverage, except that the coinsurance or other cost-sharing for any
portion of the hospital length of stay required under paragraph (a) of
this section may not be greater than that for any preceding portion of
the stay.
(ii) Examples. The rules of this paragraph (c)(3) are illustrated
by the following examples. In each example, the group health plan is
subject to the requirements of this section, as follows:
Example 1. (i) A group health plan provides benefits for at
least a 48-hour hospital length of stay in connection with vaginal
deliveries. The plan covers 80 percent of the cost of the stay for
the first 24-hour period and 50 percent of the cost of the stay for
the second 24-hour period. Thus, the coinsurance paid by the patient
increases from 20 percent to 50 percent after 24 hours.
(ii) In this Example 1, the plan violates the rules of this
paragraph (c)(3) because coinsurance for the second 24-hour period
of the 48-hour stay is greater than that for the preceding portion
of the stay. (In addition, the plan also violates the similar rule
in paragraph (b)(2) of this section.)
Example 2. (i) A group health plan generally covers 70 percent
of the cost of a hospital length of stay in connection with
childbirth. However, the plan will cover 80 percent of the cost of
the stay if the participant or beneficiary notifies the plan of the
pregnancy in advance of admission and uses whatever hospital the
plan may designate.
(ii) In this Example 2, the plan does not violate the rules of
this paragraph (c)(3) because the level of benefits provided (70
percent or 80 percent) is consistent throughout the 48-hour (or 96-
hour) hospital length of stay required under paragraph (a) of this
section. (In addition, the plan does not violate the rules in
paragraph (a)(4) or paragraph (b)(2) of this section.)
(4) Compensation of attending provider. This section does not
prevent a group health plan or a health insurance issuer offering group
health insurance coverage from negotiating with an attending provider
the level and type of compensation for care furnished
[[Page 57561]]
in accordance with this section (including paragraph (b) of this
section).
(d) Notice requirement. Except as provided in paragraph (d)(4)of
this section, a group health plan that provides benefits for hospital
lengths of stay in connection with childbirth must meet the following
requirements:
(1) Required statement. The plan document that provides a
description of plan benefits to participants and beneficiaries must
disclose information that notifies participants and beneficiaries of
their rights under this section.
(2) Disclosure notice. To meet the disclosure requirement set forth
in paragraph (d)(1) of this section, the following disclosure notice
must be used:
Statement of Rights Under the Newborns' and Mothers' Health Protection
Act
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.
(3) Timing of disclosure. The disclosure notice in paragraph (d)(2)
of this section shall be furnished to each participant covered under a
group health plan, and each beneficiary receiving benefits under a
group health plan, not later than 60 days after the first day of the
first plan year beginning on or after January 1, 1999.
(4) Exceptions. The requirements of this paragraph (d) do not apply
in the following situations:
(i) Self-insured plans. The benefits for hospital lengths of stay
in connection with childbirth are not provided through health insurance
coverage, and the group health plan has made the election described in
Sec. 146.180 to be exempted from the requirements of this section.
(ii) Insured plans. The benefits for hospital lengths of stay in
connection with childbirth are provided through health insurance
coverage, and the coverage is regulated under a State law described in
paragraph (e) of this section.
(e) Applicability in certain States--(1) Health insurance coverage.
The requirements of section 2704 of the PHS Act and this section do not
apply with respect to health insurance coverage offered in connection
with a group health plan if there is a State law regulating the
coverage that meets any of the following criteria:
(i) The State law requires the coverage to provide for at least a
48-hour hospital length of stay following a vaginal delivery and at
least a 96-hour hospital length of stay following a delivery by
cesarean section.
(ii) The State law requires the coverage to 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 other established professional medical
association.
(iii) The State law requires, in connection with the coverage for
maternity care, that the hospital length of stay for such care is left
to the decision of (or is required to be made by) the attending
provider in consultation with the mother. State laws that require the
decision to be made by the attending provider with the consent of the
mother satisfy the criterion of this paragraph (e)(1)(iii).
(2) Group health plans--(i) Fully-insured plans. For a group health
plan that provides benefits solely through health insurance coverage,
if the State law regulating the health insurance coverage meets any of
the criteria in paragraph (e)(1) of this section, then the requirements
of section 2704 of the PHS Act and this section do not apply.
(ii) Self-insured plans. For a group health plan that provides all
benefits for hospital lengths of stay in connection with childbirth
other than through health insurance coverage, the requirements of
section 2704 of the PHS Act and this section apply.
(iii) Partially-insured plans. For a group health plan that
provides some benefits through health insurance coverage, if the State
law regulating the health insurance coverage meets any of the criteria
in paragraph (e)(1) of this section, then the requirements of section
2704 of the PHS Act and this section apply only to the extent the plan
provides benefits for hospital lengths of stay in connection with
childbirth other than through health insurance coverage.
(3) Relation to section 2723(a) of the PHS Act. The preemption
provisions contained in section 2723(a)(1) of the PHS Act and
Sec. 146.143(a) do not supersede a State law described in paragraph
(e)(1) of this section.
(4) Examples. The rules of this paragraph (e) are illustrated by
the following examples:
Example 1. (i) A group health plan buys group health insurance
coverage in a State that requires that the coverage provide for at
least a 48-hour hospital length of stay following a vaginal delivery
and at least a 96-hour hospital length of stay following a delivery
by cesarean section.
(ii) In this Example 1, the coverage is subject to State law,
and the requirements of section 2704 of the PHS Act and this section
do not apply.
Example 2. (i) A self-insured group health plan covers hospital
lengths of stay in connection with childbirth in a State that
requires health insurance coverage to provide for maternity care in
accordance with guidelines established by the American College of
Obstetricians and Gynecologists and to provide for pediatric care in
accordance with guidelines established by the American Academy of
Pediatrics.
(ii) In this Example 2, even though the State law satisfies the
criterion of paragraph (e)(1)(ii) of this section, because the plan
provides benefits for hospital lengths of stay in connection with
childbirth other than through health insurance coverage, the plan is
subject to the requirements of section 2704 of the PHS Act and this
section.
(f) Effective date. Section 2704 of the PHS Act applies to group
health plans, and health insurance issuers offering group health
insurance coverage, for plan years beginning on or after January 1,
1998. This section applies to group health plans, and health insurance
issuers offering group health insurance coverage, for plan years
beginning on or after January 1, 1999.
C. Part 148 is amended as follows:
PART 148--REQUIREMENTS FOR THE INDIVIDUAL HEALTH INSURANCE MARKET
1. The authority citation for part 148 continues to read as
follows:
Authority: Secs. 2741 through 2763, 2791, and 2792 of the Public
Health Service Act (42 U.S.C. 300gg-41 through 300gg-63, 300gg-91,
and 300gg-92).
2. Section 148.101 is revised to read as follows:
Sec. 148.101 Basis and purpose.
This part implements sections 2741 through 2763 and 2791 and 2792
of the PHS Act. Its purpose is to improve access to individual health
insurance coverage for certain eligible individuals
[[Page 57562]]
who previously had group coverage, and to guarantee the renewability of
all coverage in the individual market. It also provides certain
protections for mothers and newborns with respect to coverage for
hospital stays in connection with childbirth.
3. In Sec. 148.102, paragraphs (a) heading, (a)(2), and (b) are
revised to read as follows:
Sec. 148.102 Scope, applicability, and effective dates.
(a) Scope and applicability. * * *
(2) The requirements of this part that pertain to guaranteed
availability of individual health insurance coverage for certain
eligible individuals apply to all issuers of individual health
insurance coverage in a State, unless the State implements an
acceptable alternative mechanism as described in Sec. 148.128. The
requirements that pertain to guaranteed renewability for all
individuals, and to protections for mothers and newborns with respect
to hospital stays in connection with childbirth, apply to all issuers
of individual health insurance coverage in the State, regardless of
whether a State implements an alternative mechanism.
(b) Effective date. Except as provided in Secs. 148.124
(certificate of coverage), 148.128 (alternative State mechanisms), and
148.170 (standards relating to benefits for mothers and newborns), the
requirements of this part apply to health insurance coverage offered,
sold, issued, renewed, in effect, or operated in the individual market
after June 30, 1997, regardless of when a period of creditable coverage
occurs.
4. A new subpart C is added to read as follows:
Subpart C--Requirements Related to Benefits
Sec. 148.170 Standards relating to benefits for mothers and newborns.
(a) Hospital length of stay--(1) General rule. Except as provided
in paragraph (a)(5) of this section, an issuer offering health
insurance coverage in the individual market that provides benefits for
a hospital length of stay in connection with childbirth for a mother or
her newborn may not restrict benefits for the stay to less than--
(i) 48 hours following a vaginal delivery; or
(ii) 96 hours following a delivery by cesarean section.
(2) When stay begins--(i) Delivery in a hospital. If delivery
occurs in a hospital, the hospital length of stay for the mother or
newborn child begins at the time of delivery (or in the case of
multiple births, at the time of the last delivery).
(ii) Delivery outside a hospital. If delivery occurs outside a
hospital, the hospital length of stay begins at the time the mother or
newborn is admitted as a hospital inpatient in connection with
childbirth. The determination of whether an admission is in connection
with childbirth is a medical decision to be made by the attending
provider.
(3) Examples. The rules of paragraphs (a)(1) and (a)(2) of this
section are illustrated by the following examples. In each example, the
issuer provides benefits for hospital lengths of stay in connection
with childbirth and is subject to the requirements of this section, as
follows:
Example 1. (i) A pregnant woman covered under a policy issued in
the individual market goes into labor and is admitted to the
hospital at 10 p.m. on June 11. She gives birth by vaginal delivery
at 6 a.m. on June 12.
(ii) In this Example 1, the 48-hour period described in
paragraph (a)(1)(i) of this section ends at 6 a.m. on June 14.
Example 2. (i) A woman covered under a policy issued in the
individual market gives birth at home by vaginal delivery. After the
delivery, the woman begins bleeding excessively in connection with
the childbirth and is admitted to the hospital for treatment of the
excessive bleeding at 7 p.m. on October 1.
(ii) In this Example 2, the 48-hour period described in
paragraph (a)(1)(i) of this section ends at 7 p.m. on October 3.
Example 3. (i) A woman covered under a policy issued in the
individual market gives birth by vaginal delivery at home. The child
later develops pneumonia and is admitted to the hospital. The
attending provider determines that the admission is not in
connection with childbirth.
(ii) In this Example 3, the hospital length-of-stay requirements
of this section do not apply to the child's admission to the
hospital because the admission is not in connection with childbirth.
(4) Authorization not required--(i) In general. An issuer may not
require that a physician or other health care provider obtain
authorization from the issuer for prescribing the hospital length of
stay required under paragraph (a)(1) of this section. (See also
paragraphs (b)(2) and (c)(3) of this section for rules and examples
regarding other authorization and certain notice requirements.)
(ii) Example. The rule of this paragraph (a)(4) is illustrated by
the following example:
Example. (i) In the case of a delivery by cesarean section, an
issuer subject to the requirements of this section automatically
provides benefits for any hospital length of stay of up to 72 hours.
For any longer stay, the issuer requires an attending provider to
complete a certificate of medical necessity. The issuer then makes a
determination, based on the certificate of medical necessity,
whether a longer stay is medically necessary.
(ii) In this Example, the requirement that an attending provider
complete a certificate of medical necessity to obtain authorization
for the period between 72 hours and 96 hours following a delivery by
cesarean section is prohibited by this paragraph (a)(4).
(5) Exceptions--(i) Discharge of mother. If a decision to discharge
a mother earlier than the period specified in paragraph (a)(1) of this
section is made by an attending provider, in consultation with the
mother, the requirements of paragraph (a)(1) of this section do not
apply for any period after the discharge.
(ii) Discharge of newborn. If a decision to discharge a newborn
child earlier than the period specified in paragraph (a)(1) of this
section is made by an attending provider, in consultation with the
mother (or the newborn's authorized representative), the requirements
of paragraph (a)(1) of this section do not apply for any period after
the discharge.
(iii) Attending provider defined. For purposes of this section,
attending provider means an individual who is licensed under applicable
State law to provide maternity or pediatric care and who is directly
responsible for providing maternity or pediatric care to a mother or
newborn child.
(iv) Example. The rules of this paragraph (a)(5) are illustrated by
the following example:
Example. (i) A pregnant woman covered under a policy offered by
an issuer subject to the requirements of this section goes into
labor and is admitted to a hospital. She gives birth by cesarean
section. On the third day after the delivery, the attending provider
for the mother consults with the mother, and the attending provider
for the newborn consults with the mother regarding the newborn. The
attending providers authorize the early discharge of both the mother
and the newborn. Both are discharged approximately 72 hours after
the delivery. The issuer pays for the 72-hour hospital stays.
(ii) In this Example, the requirements of this paragraph (a)
have been satisfied with respect to the mother and the newborn. If
either is readmitted, the hospital stay for the readmission is not
subject to this section.
(b) Prohibitions--(1) With respect to mothers--(i) In general. An
issuer may not--
(A) Deny a mother or her newborn child eligibility or continued
eligibility to enroll in or renew coverage solely to avoid the
requirements of this section; or
(B) Provide payments (including payments-in-kind) or rebates to a
mother to encourage her to accept less than the minimum protections
available under this section.
(ii) Examples. The rules of this paragraph (b)(1) are illustrated
by the
[[Page 57563]]
following examples. In each example, the issuer is subject to the
requirements of this section, as follows:
Example 1. (i) An issuer provides benefits for at least a 48-
hour hospital length of stay following a vaginal delivery. If a
mother and newborn covered under a policy issued in the individual
market are discharged within 24 hours after the delivery, the issuer
will waive the copayment and deductible.
(ii) In this Example 1, because waiver of the copayment and
deductible is in the nature of a rebate that the mother would not
receive if she and her newborn remained in the hospital, it is
prohibited by this paragraph (b)(1). (In addition, the issuer
violates paragraph (b)(2) of this section because, in effect, no
copayment or deductible is required for the first portion of the
stay and a double copayment and a deductible are required for the
second portion of the stay.)
Example 2. (i) An issuer provides benefits for at least a 48-
hour hospital length of stay following a vaginal delivery. In the
event that a mother and her newborn are discharged earlier than 48
hours and the discharges occur after consultation with the mother in
accordance with the requirements of paragraph (a)(5) of this
section, the issuer provides for a follow-up visit by a nurse within
48 hours after the discharges to provide certain services that the
mother and her newborn would otherwise receive in the hospital.
(ii) In this Example 2, because the follow-up visit does not
provide any services beyond what the mother and her newborn would
receive in the hospital, coverage for the follow-up visit is not
prohibited by this paragraph (b)(1).
(2) With respect to benefit restrictions--(i) In general. Subject
to paragraph (c)(3) of this section, an issuer may not restrict the
benefits for any portion of a hospital length of stay required under
paragraph (a) of this section in a manner that is less favorable than
the benefits provided for any preceding portion of the stay.
(ii) Example. The rules of this paragraph (b)(2) are illustrated by
the following example:
Example. (i) An issuer subject to the requirements of this
section provides benefits for hospital lengths of stay in connection
with childbirth. In the case of a delivery by cesarean section, the
issuer automatically pays for the first 48 hours. With respect to
each succeeding 24-hour period, the covered individual must call the
issuer to obtain precertification from a utilization reviewer, who
determines if an additional 24-hour period is medically necessary.
If this approval is not obtained, the issuer will not provide
benefits for any succeeding 24-hour period.
(ii) In this Example, the requirement to obtain precertification
for the two 24-hour periods immediately following the initial 48-
hour stay is prohibited by this paragraph (b)(2) because benefits
for the latter part of the stay are restricted in a manner that is
less favorable than benefits for a preceding portion of the stay.
(However, this section does not prohibit an issuer from requiring
precertification for any period after the first 96 hours.) In
addition, if the issuer's utilization reviewer denied any mother or
her newborn benefits within the 96-hour stay, the issuer would also
violate paragraph (a) of this section.
(3) With respect to attending providers. An issuer may not directly
or indirectly ``
(i) Penalize (for example, take disciplinary action against or
retaliate against), or otherwise reduce or limit the compensation of,
an attending provider because the provider furnished care to a covered
individual in accordance with this section; or
(ii) Provide monetary or other incentives to an attending provider
to induce the provider to furnish care to a covered individual in a
manner inconsistent with this section, including providing any
incentive that could induce an attending provider to discharge a mother
or newborn earlier than 48 hours (or 96 hours) after delivery.
(c) Construction. With respect to this section, the following rules
of construction apply:
(1) Hospital stays not mandatory. This section does not require a
mother to
(i) Give birth in a hospital; or
(ii) Stay in the hospital for a fixed period of time following the
birth of her child.
(2) Hospital stay benefits not mandated. This section does not
apply to any issuer that does not provide benefits for hospital lengths
of stay in connection with childbirth for a mother or her newborn
child.
(3) Cost-sharing rules--(i) In general. This section does not
prevent an issuer from imposing deductibles, coinsurance, or other
cost-sharing in relation to benefits for hospital lengths of stay in
connection with childbirth for a mother or a newborn under the
coverage, except that the coinsurance or other cost-sharing for any
portion of the hospital length of stay required under paragraph (a) of
this section may not be greater than that for any preceding portion of
the stay.
(ii) Examples. The rules of this paragraph (c)(3) are illustrated
by the following examples. In each example, the issuer is subject to
the requirements of this section, as follows:
Example 1. (i) An issuer provides benefits for at least a 48-
hour hospital length of stay in connection with vaginal deliveries.
The issuer covers 80 percent of the cost of the stay for the first
24-hour period and 50 percent of the cost of the stay for the second
24-hour period. Thus, the coinsurance paid by the patient increases
from 20 percent to 50 percent after 24 hours.
(ii) In this Example 1, the issuer violates the rules of this
paragraph (c)(3) because coinsurance for the second 24-hour period
of the 48-hour stay is greater than that for the preceding portion
of the stay. (In addition, the issuer also violates the similar rule
in paragraph (b)(2) of this section.)
Example 2. (i) An issuer generally covers 70 percent of the cost
of a hospital length of stay in connection with childbirth. However,
the issuer will cover 80 percent of the cost of the stay if the
covered individual notifies the issuer of the pregnancy in advance
of admission and uses whatever hospital the issuer may designate.
(ii) In this Example 2, the issuer does not violate the rules of
this paragraph (c)(3) because the level of benefits provided (70
percent or 80 percent) is consistent throughout the 48-hour (or 96-
hour) hospital length of stay required under paragraph (a) of this
section. (In addition, the issuer does not violate the rules in
paragraph (a)(4) or paragraph (b)(2) of this section.)
(4) Compensation of attending provider. This section does not
prevent an issuer from negotiating with an attending provider the level
and type of compensation for care furnished in accordance with this
section (including paragraph (b) of this section).
(5) Applicability. This section applies to all health insurance
coverage issued in the individual market, and is not limited in its
application to coverage that is provided to eligible individuals as
defined in section 2741(b) of the PHS Act.
(d) Notice requirement. Except as provided in paragraph (d)(4) of
this section, an issuer offering health insurance in the individual
market must meet the following requirements with respect to benefits
for hospital lengths of stay in connection with childbirth:
(1) Required statement. The insurance contract must disclose
information that notifies covered individuals of their rights under
this section.
(2) Disclosure notice. To meet the disclosure requirement set forth
in paragraph (d)(1) of this section, the following disclosure notice
must be used:
Statement of Rights Under the Newborns' and Mothers' Health Protection
Act
Under federal law, health insurance issuers 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 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, issuers may not set the level of
benefits or out-of-pocket costs
[[Page 57564]]
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, an 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 issuer.
(3) Timing of disclosure. The disclosure notice in paragraph (d)(2)
of this section shall be furnished to the covered individuals in the
form of a copy of the contract, or a rider (or equivalent amendment to
the contract), not later than March 1, 1999.
(4) Exception. The requirements of this paragraph (d) do not apply
with respect to coverage regulated under a State law described in
paragraph (e) of this section.
(e) Applicability in certain States--(1) Health insurance coverage.
The requirements of section 2751 of the PHS Act and this section do not
apply with respect to health insurance coverage in the individual
market if there is a State law regulating the coverage that meets any
of the following criteria:
(i) The State law requires the coverage to provide for at least a
48-hour hospital length of stay following a vaginal delivery and at
least a 96-hour hospital length of stay following a delivery by
cesarean section.
(ii) The State law requires the coverage to 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 other established professional medical
association.
(iii) The State law requires, in connection with the coverage for
maternity care, that the hospital length of stay for such care is left
to the decision of (or is required to be made by) the attending
provider in consultation with the mother. State laws that require the
decision to be made by the attending provider with the consent of the
mother satisfy the criterion of this paragraph (e)(1)(iii).
(2) Relation to section 2762(a) of the PHS Act. The preemption
provisions contained in section 2762(a) of the PHS Act and
Sec. 148.210(b) do not supersede a State law described in paragraph
(e)(1) of this section.
(f) Effective date. Section 2751 of the PHS Act applies to health
insurance coverage offered, sold, issued, renewed, in effect, or
operated in the individual market on or after January 1, 1998. This
section applies to health insurance coverage offered, sold, issued,
renewed, in effect, or operated in the individual market on or after
January 1, 1999.
Dated: August 27, 1998.
Nancy-Ann Min DeParle,
Administrator, Health Care Financing Administration.
Dated: September 21, 1998.
Donna E. Shalala,
Secretary, Department of Health and Human Services.
[FR Doc. 98-28442 Filed 10-26-98; 8:45 am]
BILLING CODE 4120-01-P; 4830-01-P; 4510-29-P
Last Modified on Friday, September 17, 2004
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