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U.S. Department of Labor
Employee Benefits Security Administration
Updated: September 2004
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If you have health coverage and are pregnant, you and your new child may be
entitled to a 48-hour hospital stay following childbirth (96 hours in the
case of a cesarean section). If your employer or your spouse’s employer
offers a health plan, birth, adoption, and placement for adoption may also
trigger a special enrollment opportunity for you, your spouse, and your
child, without regard to any open season for enrollment.
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If a group health plan, health insurance company, or
health maintenance organization (HMO) provides maternity benefits, it may
not restrict benefits for a hospital stay in connection with childbirth to
less than 48 hours following a vaginal delivery or 96 hours following a
delivery by cesarean section.
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You cannot be required to obtain preauthorization from your plan in order
for your 48-hour or 96-hour stay to be covered. (However, certain
requirements that you give notice to the plan of the pregnancy or the
childbirth may apply.)
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The law allows you and your baby to be released earlier
than these time periods only if the attending provider decides, after
consulting with you, that you or your baby can be discharged earlier.
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In any case, the attending provider cannot receive
incentives or disincentives to discharge you or your child earlier than 48
hours (or 96 hours).
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If your state has a law that provides similar hospital
stay protections and your plan offers coverage through an insurance policy
or HMO, then you may be protected under state law rather than the Newborns’
and Mothers’ Health Protection Act.
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If you are eligible but not enrolled in an employer’s
health plan, you may enroll yourself, your spouse, and your new child upon
the birth, adoption, or placement for adoption of a new child. This is
referred to as “special enrollment.”
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Special enrollment is available regardless of whether the
employer offers open season, or when the next open season might otherwise
be.
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To be eligible, you must request special enrollment in
the plan within 30 days of the birth, adoption, or placement for adoption.
Check with your plan administrator, or check your plan’s summary plan
description (SPD) to find out if the plan has special procedures for
requesting special enrollment.
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Coverage for special enrollees is effective retroactive
to the date of birth, adoption, or placement for adoption.
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Special enrollees must be treated the same as similarly
situated individuals who enrolled when first eligible. They cannot be
treated as late enrollees (individuals who did not enroll when first
eligible); therefore, the maximum preexisting condition exclusion that can
be imposed on a special enrollee is 12 months, (late enrollees can be
subject to an 18-month preexisting condition exclusion reduced by prior
creditable coverage.
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Most health coverage is creditable coverage, including
most coverage under a group health plan (including COBRA), group or
individual health insurance coverage, Medicare, Medicaid, TRICARE, Indian
Health Service, state risk pools, Federal Employees Health Benefit Plan,
public health plans, Peace Corps plans, and State Children’s Health
Insurance Programs.
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HIPAA also prohibits preexisting condition exclusions
relating to pregnancy and for newborns, adopted children, and children
placed for adoption who are enrolled within 30 days of birth, adoption, or
placement for adoption.
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For more information on preexisting condition exclusions,
see Health Coverage Portability -
Health Insurance Portability and Accountability Act of 1996 (HIPAA).
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Know your rights. If your plan provides maternity
benefits, you should be entitled to a minimum hospital stay of 48 hours
following a vaginal delivery and 96 hours following a cesarean delivery.
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You cannot be required to get a preauthorization from
your plan in order for the minimum hospital stay to be covered.
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Your plan must provide you with a notice regarding your
rights relating to a hospital stay following childbirth. If your plan is
insured, the notice must describe your protections under state law.
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Contact your health plan or your spouse’s health plan
as soon as possible to find out how to enroll your new baby in group health
plan coverage.
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As long as you enroll your newborns within 30 days of
birth, coverage should be effective as of your baby’s birth date, and your
baby cannot be subject to a preexisting condition exclusion.
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Remember, you should enroll your baby within 30 days of
the date of birth.
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Contact your health plan or your spouse’s health plan
as soon as possible to find out how to enroll your child in group health
plan coverage.
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As long as you enroll your child within 30 days of
adoption or placement for adoption, coverage should be effective as of your
child’s adoption or placement date and your child cannot be subject to a
preexisting condition exclusion.
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Remember, you should enroll your child within 30 days of
the date of adoption or placement for adoption.
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I am pregnant. How does the Newborns’ Act affect my
health care benefits?
The Newborns’ Act affects the amount of time you and
your newborn child are covered for a hospital stay following childbirth.
Group health plans, insurance companies, and HMOs that provide maternity
benefits may not restrict benefits for a hospital stay in connection with
childbirth to less than 48 hours following a vaginal delivery or 96 hours
following a delivery by cesarean section. However, the attending, provider
may decide, after consulting with you, to discharge you or your newborn
child earlier. In any case, the attending provider cannot receive incentives
or disincentives to discharge you or your child earlier than 48 hours (or 96
hours). The Newborns’ Act does not require plans, insurance companies, or
HMOs to provide coverage for hospital stays in connection with childbirth.
Other legal requirements, including Title VII of the Civil Rights Act of
1964, may require this type of coverage.
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Who is the attending provider?
The attending provider is an individual licensed under
state law who is directly responsible for providing maternity or pediatric
care to a mother or newborn child. Therefore, a plan, hospital, insurance
company, or HMO would not be an attending provider.
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When does the 48-hour or 96-hour period begin?
If you deliver in the hospital, the 48-hour period (or
96-hour period) starts at the time of delivery. So, for example, if a woman
goes into labor and is admitted to the hospital at 10 p.m. on June 11, but
gives birth by vaginal delivery at 6 a.m. on June 12, the 48-hour period
begins at 6 a.m. on June 12.
However, if you deliver outside the hospital and you are
later admitted to the hospital in connection with childbirth (as determined
by the attending provider), the period begins at the time of the admission.
So, for example, if a woman gives birth at home by vaginal delivery, but
begins bleeding excessively in connection with childbirth and is admitted to
the hospital, the 48-hour period starts at the time of admission.
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Is it permissible for my health plan, insurance
company, or HMO to require me to get permission for a 48-hour (or 96-hour)
stay (sometimes called prior authorization or precertification) based upon
their determination of whether it is medically necessary?
No. Plans, insurance companies and HMOs cannot deny
your coverage for the 48-hour (or 96-hour) hospital stay based on a
failure to show medical necessity. However plans, insurance companies, and
HMOs can deny coverage for any portion of the stay that is longer than 48
hours (or 96 hours) based on their determination of whether it is
medically necessary.
In addition, a plan may require you to give notice of
pregnancy before admission to the hospital (or to give notice of your
admission at the time of admission) in order to obtain more favorable cost
sharing. However, a plan may not reduce your benefits because your
pregnancy began before the first day of coverage and you failed to give
notice of the pregnancy before becoming covered under the plan. This type
of plan provision operates as a preexisting condition exclusion and these
exclusions cannot be applied to pregnancy.
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May group health plans, insurance companies, or HMOs
impose deductibles or other cost-sharing provisions for hospital stays in
connection with childbirth?
Yes, but only if the deductible, coinsurance, or other
cost sharing for the later part of a 48-hour (or 96-hour) stay is not
greater than that imposed for the earlier part of the stay. For example,
with respect to a 48-hour stay, a group health plan is permitted to cover
only 80 percent of the cost of the hospital stay. However, a plan covering
80 percent of the cost of the first 24 hours could not reduce coverage to
50 percent for the second 24 hours.
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My attending provider discharged me in less than 48
hours. Is this permissible?
Yes. Under the Newborns’ Act an attending provider,
after consulting with a mother, can discharge a mother or newborn in less
than 48 hours. Your attending provider, after consulting with you, can
decide to discharge you or your newborn earlier. However, it is not
permissible for your plan or insurance company to offer you incentives to
induce you to accept less than the minimum protections available to you
under the Newborns’ Act. Further, it is not permissible for your plan or
insurance company to provide incentives to induce your attending provider to
discharge you or your newborn earlier than the minimum 48 hours after
delivery (or 96 hours in the case of a cesarean delivery).
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How do I know if the Newborns’ Act protections apply
to my coverage?
Even if your plan offers benefits for hospital stays in
connection with childbirth, the Newborns’ Act only applies to certain
coverage. Specifically, it depends on whether your coverage is “insured”
by an insurance company or HMO or “self-insured” by an employment-based
plan. (You should check yo7ur summary plan description (SPD), the document
that outlines your benefits and your rights under the plan, or contact your
plan administrator to find out if your coverage in connection with
childbirth is “insured” or “self-insured.”)
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How does giving birth to or adopting a baby affect my
rights to enroll in my health plan or health insurance coverage?
Under HIPAA, you, your spouse, and your new child have a
special right to enroll in your health plan upon the birth, adoption, or
placement for adoption of your new child, if you, your spouse, and your new
child are otherwise eligible to enroll in the plan. You must request
enrollment in the plan within 30 days of the birth, adoption, or placement
for adoption. Your plan or insurance issuer may not treat your or your
spouse as a late enrollee in this circumstance. So, for example, the longest
preexisting condition exclusion that could be imposed on you of your spouse
is 12 months. Your family’s coverage under this type of special enrollment
must be effective as of the date of the birth, adoption, or placement for
adoption.
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May my plan or health insurance coverage impose
preexisting condition exclusions on my newborn child, adopted child, or
child placed for adoption?
Under HIPAA, as long as you enroll your newborn child,
adopted child, or child placed for adoption within 30 days of the birth,
adoption, or placement for adoption, your plan or insurance coverage may not
impose preexisting condition exclusions on the child. Further, any future
plan may not impose a preexisting condition exclusion, provided the child
does not incur a significant break in coverage (generally, a break in
coverage of at least 63 days).
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If I enroll in a new plan or health insurance
coverage while I am pregnant, may my plan or insurance coverage impose a
preexisting condition exclusion relating to my pregnancy?
No. Under HIPAA a plan or insurance issuer cannot
refuse to pay benefits by imposing a preexisting condition relating to
pregnancy.
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The Newborns’ Act is administered by the U.S.
Departments of Labor and the Treasury, state insurance departments, and the
U.S. Department of Health and Human Services. If you have questions
regarding your rights under an employer-sponsored group health plan, contact
the following:
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1.866.444.EBSA (3272) – Ask for a
copy of Health Coverage Portability and a list of all
publications from the Employee Benefits Security Administration.
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www.dol.gov/ebsa - Select About
EBSA then Organization Chart for a link to the
addresses of the 15 field offices that can assist you with
health-related questions. Also view EBSA’s publications on health.
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The address of the Centers
for Medicare and Medicaid Services.
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This publication has been developed by the U.S.
Department of Labor, Employee Benefits Security Administration. For a
complete list of EBSA publications, call the agency's toll-free number at:
1.866.444.EBSA (3272). This material will be made available to sensory
impaired individuals upon request. Call 202.693.8664, TTY:
202.501.3911.
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