Newborns' and Mothers' Health Protection Act -- Final Regulations Issued with Few Changes

• Attending Provider Makes the Determination of whether an admission is "in connection with childbirth."
• Hospital Stay Begins with Delivery for purposes of applying the general rule (not admission or the onset of labor).
• Early Discharge prior to the 48-hour (or 96-hour) general rule is permitted if the attending provider decides, in consultation with the mother, to discharge the mother or her newborn earlier.
• Health Care Provider Can Not Be Required to Obtain Authorization from the plan or insurer to prescribe a hospital stay that is subject to the 48-hour (or 96-hour) general rule. However, a plan or issuer may require pre-certification for any portion of a stay after 48 hours (or 96 hours), or for an entire stay. The plan or issuer may not restrict benefits for the part of a stay that is subject to the 48-hour (or 96-hour) general rule in a way that is less favorable than a prior portion of the stay. However, a plan may require advance notice for services or providers related to the hospital length of stay in order for the covered individual to receive more favorable cost sharing (e.g., could generally apply less favorable cost sharing toward the hospital length of stay of an individual who failed to satisfy the advance notice requirements).
• Plans and Insurers Are Prohibited from Penalizing Attending Providers who provide care in accordance with the new provisions, and are prohibited from inducing attending providers to provide care in a manner that is inconsistent (e.g., bonuses to providers based on the percentage of discharges within 24 hours would be prohibited).
• Notice Requirements Apply and are different for ERISA-covered group health plans, nonfederal governmental plans, and health insurance issuers in the individual market.
• Health Insurance Coverage under State Law may be exempt from the requirements of the Act. The Act and regulations do not apply if there is a state law that requires:
  • health insurance coverage to provide at least a 48-hour (or 96-hour) hospital stay in connection with childbirth;
  • health insurance to provide coverage for maternity and pediatric care in accordance with the guidelines established by the American College of Obstetrics and Gynecologists, the American Academy of Pediatrics, or any other established professional medical association; or
  • decisions regarding the appropriate length of hospital stay in connection with childbirth to be left to the attending provider in consultation with (or with the consent of) the mother.

• Attending Provider definition is clarified to specifically exclude a plan, hospital, managed care organization, or other issuer. The functional definition otherwise remain intact, to define the "attending provider" as an individual who is licensed under applicable state law to provide maternal or pediatric care and who is directly responsible for providing such care to a mother or newborn.
• State Law Exemption, which applies when a state law requires health insurance coverage in accordance with professional guidelines, will apply if the state law simply requires coverage in accordance with professional guidelines that deal with care following childbirth. The state law need not require coverage in accordance with the professional guidelines that cover other care issues in connection with childbirth.
• Notice requirements are clarified to provide that: (a) nonfederal governmental plans can provide notice either in the plan document or the document that is generally used to inform participants and beneficiaries of benefit changes; and (b) ERISA group health plans can provide the notice electronically, consistent with Labor Regulation §2520.1-4b-1.

If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Erinn Madden 202.572.7677, Bart Massey 202.220.2104, Mark Neilio 202.378.5046, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Tom Veal 312.946.2595, Deborah Walker 202.879.4955.

Copyright 2008, Deloitte.

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