The Newborns' and Mothers' Health Protection Act of 1996 (Newborns' and Mothers' Act) prohibits group health plans—both ERISA-governed plans and non-ERISA plans—from restricting benefits for any hospital length of stay in connection with childbirth for the mother or newborn child, following a vaginal delivery to less than 48 hours, or following a cesarean section to less than 96 hours. The Newborns' and Mothers' Act also prohibits group health plans from requiring a physician or other health care provider to obtain authorization from the plan for prescribing the minimum hospital stay for the mother or newborn.

Plans subject to ERISA must include information about the Newborns' and Mothers' Act protections in their summary plan descriptions (SPDs). Church and governmental plans, which are exempt from ERISA, are not required to have SPDs, so the Newborns' and Mothers' Act requires church plans and state and local governmental plans to include a notice about the Newborns' and Mothers' Act protections in the plan's governing document. (Some state and local governmental plans may opt out of the Newborns' and Mothers' Act, which is discussed below.)

State and local governmental employers that have not opted out of the Newborns' and Mothers' Act protections and all church plans must include the following language in their governing document:

Under federal law, group health plans and health insurance issuers offering group health insurance generally may not restrict benefits for any hospital length of stay in connection with childbirth for the mother or the newborn child to less than 48 hours following a vaginal delivery, or less than 96 hours following a cesarean section. However, the plan or issuer may pay for a shorter stay if the attending physician (e.g., your physician, nurse, or midwife, or a physician assistant), after consultation with the mother, discharges the mother or newborn earlier.

Also, under federal law, plans and insurers 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.

The Newborns' and Mothers' Act does not establish when or to whom the plan document must be given. To be safe, the plan document—with the above Newborns' and Mothers' Act notice—should be distributed or at least made available to employees annually (such as during open enrollment) and at a participant's initial enrollment (such as during the new hire process).

Self-insured state and local governmental employers may opt out of the protections provided under the Newborns' and Mothers' Act by filing an electronic exemption application with the Center for Consumer Information & Insurance Oversight, which is a division of CMS. A self-insured state or local governmental employer that opts out of the Newborns' and Mothers' Act must provide notice of that fact to all plan enrollees.

The opt-out notice must (1) identify what federal laws the employer is electing an exemption from, such as the Newborns' and Mothers' Act, with a statement that, in general, federal law imposes these requirements on group health plans; (2) state that federal law gives the plan a right to elect an exemption and that the plan sponsor has elected an exemption; (3) identify which parts of the plan are subject to the election; and (4) identify which provisions continue to apply to the plan (i.e., are not subject to the election). HHS has published a model notice available here.

The opt-out notice must be provided to all enrolling employees and the spouses and dependents of enrolling employees who do not share the same address as the employee.

The opt-out notice must be provided annually (such as during open enrollment) and at the time of an employee's initial enrollment (such as during the new hire process). For newly effective opt-out elections, notice must be provided before the first day of the plan year for which the opt-out is effective.