Protections For

Newborns,

Adopted Children, And New Parents

U.S. Department

of Labor

Employee

Benefits Security

Administration

The Newborns’and Mothers’

Health Protection

Act of 1996
Important Information for New or

Soon-To-Be New Parents:

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. 

1

This publication has been developed

by the U.S. Department of Labor,

Employee Benefits Security Administration

It is available on the Internet at:

www.dol.gov/ebsa

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:

Voice phone: 202-693-8664

 TTY: 1-202-501-3911

This booklet constitutes a small entity compliance guide for purposes of the

Small Business Regulatory Enforcement Fairness Act of 1996.
Your Protections Under The

Newborns’ And Mothers’ Health

Protection Act (Newborns’ Act):

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.

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.)

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.

In any case the attending provider cannot receive incentives or

disincentives to discharge you or your child earlier than 48 hours

(or 96 hours).

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 under the

Newborns’ and Mothers’ Health Protection Act.

Your Protections Under The Health

Insurance Portability And

Accountability Act (HIPAA):

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.’

Special enrollment is available regardless of whether the employer

offers open season, or when the next open season might otherwise be.

To be eligible, you must request special enrollment in the plan within

30 days of 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.

Coverage for special enrollees is effective retroactive to the date of birth,

adoption, or placement for adoption.

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.

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.

2 3
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.

For more information on preexisting condition exclusions, see

An Employee’s Guide to Health Coverage Portability available on the

Department of Labor Web site at www.dol.gov/ebsa.

Important Facts

When Having A

New Baby:

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.

You cannot be required to get a preauthorization

from your plan in order for the minimum hospital

stay to be covered.

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.

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.

As long as you enroll your newborn 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.

Remember, you

should enroll your

baby within 30 days of

the date of birth.

4 5
Important Facts

When

Adopting:

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.

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.

Common

Questions:

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.

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.

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.

Remember, you

should enroll your

child within 30 days

of the date of adoption

or placement for

adoption.

6 7
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.

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.

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.

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).

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 your summary plan description (SPD), the

document that outlines your benefits and your rights under the plan, or

8 9
contact your plan administrator to find out if your coverage in

connection with childbirth is ‘insured’ or ‘self-insured.’)

Self-insured coverage is subject to the Newborns’ Act. However,

if your coverage is ‘insured’ by an insurance company or HMO and

your state has a similar law regulating coverage for newborns and

mothers that meets specific criteria, then your rights will be the rights

provided under state law rather than under the Newborns’ Act. The

state law may differ slightly from the Newborns’ Act requirements, so it

is important for you to know which law applies to your coverage in

order to know what your rights are. Based on a preliminary analysis of

state laws, most insured coverage is subject to state law requirements in

lieu of the Federal protections.

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

you or your spouse as a late enrollee in this circumstance. So, for

example, the longest preexisting condition exclusion that could be

imposed on you or 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.

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).

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.

10 11
Resources:

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:

1-866-444-EBSA - Ask for a copy of Health Coverage Portability and a list

of all publications from the Employee Benefits Security Administration.

www.dol.gov/ebsa - Click on About EBSA, 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.

www.naic.org - The address of the National Association of Insurance

Commissioners. Click on State Insurance Regulators, then the state of your

choice for the office in your state.

www.cms.gov - The address of the Centers for Medicare and

Medicaid Services.

September 2004