(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 (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 caesarean 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
caesarean 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.
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(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 by caesarean 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 caesarean 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
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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
(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 in accordance with
this section (including paragraph (b) of this section).
(d) Notice requirement. See 29 CFR 2520.102-3 (u) and (v)(2)
(relating to the disclosure requirement under section 711(d) of the
Act).
(e) Applicability in certain States--(1) Health insurance coverage.
The requirements of section 711 of the Act and this
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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
caesarean 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 711 of the 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 711 of the 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 711
of the 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 731(a) of the Act. The preemption provisions
contained in section 731(a)(1) of the Act and Sec. 2590.731(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
caesarean section.
(ii) In this Example 1, the coverage is subject to State law, and
the requirements of section 711 of the 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 711 of the Act and this section.
(f) Effective date. Section 711 of the 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.
[63 FR 57556, Oct. 27, 1998. Redesignated at 65 FR 82142, Dec. 27, 2000]