[Senate Report 104-326]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 505
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-326
_______________________________________________________________________


 
          NEWBORNS' AND MOTHERS' HEALTH PROTECTION ACT OF 1996

                                _______
                                

                 July 19, 1996.--Ordered to be printed

_______________________________________________________________________


   Mrs. Kassebaum, from the Committee on Labor and Human Resources, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 969]

    The Committee on Labor and Human Resources, to which was 
referred the bill (S. 969) to require that health plans provide 
coverage for a minimum hospital stay for a mother and child 
following the birth of the child, and for other purposes, 
having considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill as amended do pass.

                                CONTENTS

                                                                   Page
  I. Summary of the legislation.......................................1
 II. Background and need for legislation..............................2
III. Legislative history and committee action.........................5
 IV. Committee views..................................................6
  V. Cost estimate...................................................11
 VI. Regulatory impact statement.....................................17
VII. Section-by-section analysis.....................................17
VIII.Additional views................................................20


                     i. summary of the legislation

    Senate bill 969 requires health plans and insurance 
carriers to provide coverage for postpartum hospital stays of 
48 hours for uncomplicated vaginal deliveries and 96 hours for 
caesarean sections. Coverage can be provided for shorter 
hospital stays at the discretion of the attending provider, in 
consultation with the mother. In the case of an early 
discharge, health plans must offer patients follow-up care. 
This legislative structure is based on current medical practice 
guidelines devised by the American College of Obstetricians and 
Gynecologists (ACOG) and the American Academy of Pediatrics 
(AAP), which recommend that when no complications are present, 
the postpartum hospital stay ranges from 48 hours for vaginal 
delivery to 96 hours for caesarean birth, excluding the day of 
delivery.

                ii. background and need for legislation

A. Overview

    Senate bill 969 requires health plans and insurance 
carriers to provide coverage for postpartum hospital stays of 
at least 48 hours for uncomplicated vaginal deliveries and 96 
hours for caesarean sections. Coverage can be provided for 
shorter hospital stays at the discretion of the attending 
provider in consultation with the mother. In the case of an 
early discharge, health plans must offer follow-up care. This 
structure is based on current medical practice guidelines 
devised jointly by the American College of Obstetricians and 
Gynecologists (ACOG) and the American Academy of Pediatrics 
(AAP), which recommend that when no complications are present, 
the postpartum hospital stay ranges from 48 hours for vaginal 
delivery to 96 hours for caesarean birth, excluding the day of 
delivery.
    The legislation was introduced in response to a growing 
trend among insurers and health plans to limit coverage to 
postpartum care. With health costs rising rapidly, many plans 
now cover stays of only 24 hours, including the day of 
delivery. In some cases, insurers limit postpartum coverage to 
as little as 12 hours, or even 8 hours
    While efforts to limit postpartum coverage have received 
national attention only recently, unwarranted early discharge 
has been a source of concern for women and their doctors for 
some time. Clinical data has shown that, in many cases, early 
discharge increases the health risks for mothers and newborns, 
including health risks from preventable medical conditions. For 
example, infants released from the hospital in 24 hours or less 
have experienced an increase in conditions such as severe 
jaundice which, left untreated, can result in brain damage or 
death.
    In addition, physicians have been under intense pressure 
from payers to limit stays to 24 hours or less, even when their 
medical judgment suggests the need for a longer stay.
    In the past year, 26 States followed New Jersey and 
Maryland in enacting legislation or adopted regulations to 
address postpartum coverage for mothers and their newborns.
    Despite these State efforts, the committee believes that 
federal legislation is necessary to provide protection for 
adequate coverage for postpartum care. There are many women who 
are not affected by State legislation because they receive 
health benefits through employer-sponsored self-insured health 
plans shielded from State insurance laws by the preemption 
provisions of the Employee Retirement Income Security Act 
(ERISA). In the State of Kansas, for example, only 40 percent 
of companies providing insurance offer insured plans that are 
subject to State regulation. In addition, as implementation of 
the New Jersey law has demonstrated, women who live in one 
State and work in another, or whose employers are based outside 
of a State that has passed a maternity stay law may not be 
protected by State legislation.

B. Postpartum length of stay in the United States and medical 
        guidelines

    The actual length of hospital stay following the delivery 
of a child in the United States has decreased over the last two 
decades. Prior to the 1970s, postpartum hospital stays ranged 
from 4 to 5 days for a routine vaginal delivery and 1 to 2 
weeks for a cesarean delivery. During the 1970s, there was a 
move toward earlier discharge, much of which has been 
attributed to consumer demand to decrease medical interventions 
surrounding childbirth and provide a more family-centered birth 
experience. The Centers for Disease Control report that between 
1970 and 1992 the median length of stay for women who give 
birth vaginally decreased from 3.9 to 2.1 days, and for those 
who had a cesarean delivery from 7.8 to 4 days.
    This data includes complicated deliveries, meaning that the 
median length of stay for uncomplicated vaginal or cesarean 
deliveries was probably considerably shorter. This trend is in 
sharp contrast with the length of postpartum stays in many 
European nations and Japan, where the length of stay ranges 
anywhere from 3 to 7 days after an uncomplicated vaginal 
delivery.
    During the initial trend of decreased hospital stay after 
delivery, a consensus formed among obstetric care providers 
about the appropriate length of stay. This consensus was 
formalized into guidelines in 1983, and ACOG and AAP jointly 
published the first edition of Guidelines for Perinatal Care. 
The exact wording of the guidelines has evolved over the years, 
but the recommendation of a minimum 48-hour postpartum stay has 
been consistent.
    The first edition of the Guidelines stated, ``A patient who 
has had an uncomplicated delivery is usually discharged 48 to 
72 hours after deliver * * * the patient should not be 
discharged until the physician is reasonably certain there are 
no major postpartum complications.'' Postpartum stays for 
cesarean delivery were not addressed in these first guidelines.
    The second edition of the Guidelines, published 5 years 
later in 1988, stated, ``When no complications are present (the 
postpartum stay) ranges from 48 hours for vaginal delivery to 
96 hours for cesarean birth, excluding the day of delivery.'' 
The guidelines also were revised to state that ``special 
criteria once designed to accommodate early discharge now apply 
to the average length of stay for most patients.'' Therefore, 
it was the view of ACOG and AAP that stays of 48 hours 
constituted early discharge.
    The current edition of the Guidelines was published in 
1992. In addition to recommending stays ranging from 48 hours 
for uncomplicated vaginal deliveries to 96 hours for cesarean 
deliveries, the most recent guidelines further specify that 
early discharge is acceptable as long as certain criteria are 
met. These criteria include determination that the course of 
pregnancy and delivery was uncomplicated, the collection of all 
pertinent laboratory data for both the mother and infant, 
demonstration of maternal readiness to assume independent 
responsibility for her newborn, and identification of a 
physician-directed source of continuing medical care for both 
mother and baby, which should be arranged for within 48 hours 
of discharge.

C. Scientific data and clinical experience

    Available data with regard to the results of early 
discharge is inconclusive. A recent study by Dr. Judith Frank 
of readmission rates at New Hampshire hospitals found that 
within an infant's first 2 weeks of life, there is a 50 percent 
increased risk of readmission and a 70 percent increased risk 
of emergency room visits if the infant is discharged at less 
than 2 days of age. Other studies have indicated that early 
release of infants may result in jaundice, feeding problems, 
respiratory difficulties, metabolic disorders, and infections 
in the cord, ears, and eyes.
    However, studies generally provide conflicting evidence on 
the safety of early discharge, and many are not 
methodologically sound. A critical review of the existing 
literature conducted by Bravemen et al. and recently published 
in Pediatrics, found that studies have not yet conclusively 
demonstrated the safety of early discharge.
    There is substantial clinical experience--reflected in the 
guidelines of AAP and ACOG--to guide obstetrical providers. 
According to testimony supplied to the committee, the care 
provided in the first few days after delivery is crucial to the 
health and well-being of both mother and infant, as significant 
maternal physiologic changes and newborn adaption occur during 
the first few days of life. Moreover, not all serious maternal 
or newborn complications are evident within the first few hours 
following birth.
    In addition, there is increasing anecdotal evidence of 
serious problems in newborns following early discharge. These 
problems, such as decreased completion of newborn screening and 
undetected jaundice, have resulted in more serious medical 
conditions and led to increasing hospital readmission. While 
these conditions have been more prevalent among infants of 
women who are young, uneducated, and poor, they are by no means 
confined to those populations. The committee heard from three 
witnesses from varying backgrounds whose newborn infants had 
experienced a range of health problems--in one case, resulting 
in the death of a child--following early discharges.
    While early discharges can create health problems for 
newborns, providers who testified before the committee also 
explained that it takes time for mothers, especially first-time 
mothers, to recover from the pain and exhaustion of labor. 
Moreover, opportunities for educating new mothers in the care 
of their newborns, including learning to feed and identify 
health problems, are lost when inappropriate early discharge 
occurs. For example, the initiation of breast-feeding and 
lactation is a very important process that occurs over the 
first few days following birth. Dehydration in infants can 
occur if mothers experience difficulty in breast-feeding. Such 
difficulty is not uncommon among new mothers, regardless of 
whether a woman feels adequately prepared to care for her 
infant. In fact, many of the anecdotal reports of infant 
dehydration associated with early discharge have occurred in 
infants of middle-class, well-educated mothers who were 
experiencing difficulty breast-feeding.
    Some have proposed that home care services can adequately 
provide education regarding maternal recovery and newborn care. 
However, such instruction may not always be an effective 
substitute for the education and care provided in the hospital 
and may preclude the opportunity for expert observation of both 
the mother and infant. Moreover, the availability, structure, 
and content of home care services vary widely across the 
country.

             iii. legislative history and committee action

    The Newborns' and Mothers' Health Protection Act of 1996, 
S. 969, was first introduced on June 27, 1995, by Senators 
Kassebaum, Bradley, and Rockefeller. The bill seeks to assure 
that mothers and their newborn children will not be forced to 
leave the hospital in the first few critical days following 
birth because of arbitrary insurance company or health plan 
limits on the number of hours or days patients may remain in 
the hospital. The bill allows new mothers and their doctors, 
rather than insurance companies and other third-party payers, 
to make decisions about the appropriate length of stay.
    The Senate Committee on Labor and Human Resources held 
hearings on S. 969 on September 12, 1995. The bill was 
reintroduced on March 28, 1996, by Senators Bradley, Kassebaum, 
Frist, and DeWine et al., and currently has 42 cosponsors (27 
Democrats and 15 Republicans). Representative Solomon (R-N.Y.) 
and Representative Miller (D-CA.) introduced a companion 
measure in the House of Representatives.
    In executive session on April 17, 1996, the full committee 
considered an amendment in the nature of a substitute offered 
by Chairman Kassebaum and voted to report that measure 
favorably by a roll call vote of 14 to 2.
        YEAS                          NAYS
Kassebaum                           Gregg
Jeffords                            Faircloth
Coats
Frist
DeWine
Ashcroft
Gorton
Kennedy
Pell
Dodd
Simon
Harkin
Mikulski
Wellstone

    Before adopting the amendment in the nature of a 
substitute, three amendments directing the Secretary of HHS to 
conduct studies regarding maternal and child health, early 
discharge, and the impact of the legislation were agreed to by 
voice vote. Those studies are contained in section 11 of the 
legislation.
    After a division, a separate amendment offered by Senate 
Jeffords to sunset the bill in 5 years was defeated on a tie 
roll call vote of 8 to 8.
        YEAS                          NAYS
Jeffords                            Kassebaum
Coats                               Kennedy
Gregg                               Pell
Frist                               Dodd
DeWine                              Simon
Ashcroft                            Harkin
Gorton                              Mikulski
Faircloth                           Wellstone

                          iv. committee views

A. General overview of S. 969

    According to numerous witnesses who appeared before the 
committee, it is becoming increasingly common for health plans 
and insurance carriers to limit the length of hospital stays 
following the delivery of a child--in some cases to 24 hours or 
less. The Centers for Disease Control report that between 1970 
and 1992 the median length of stay for women who give birth 
vaginally decreased from 3.9 to 2.1 days, and for those who had 
a cesarean delivery from 7.8 to 4 days. Because this data 
includes complicated deliveries, the median length of stay for 
uncomplicated vaginal or cesarean deliveries was probably 
considerably shorter. In contrast, joint guidelines issued by 
the American College of Obstetricians and Gynecologists (ACOG) 
and the American Academy of Pediatrics (AAP) indicate that the 
length of hospital stay following uncomplicated births should 
range from 48 hours for vaginal delivery to 96 hours for 
cesarean delivery, exclusive of the day of delivery.
    Modeled after the ACOG and AAP guidelines, S. 969 is 
intended to ensure that mothers and newborns receive adequate 
care in the critical first few days following birth. The 
legislation requires health plans and insurance carriers to 
allow new mothers and their infants to remain in the hospital 
for 48 hours after a normal vaginal birth, and 96 hours after a 
caesarean delivery. Mothers and doctors may agree that a 
shorter hospital stay is appropriate if a follow-up visit is 
provided. One of the sites offered for follow-up care must be 
the home.
    The committee is concerned that the recent trend toward 
shorter hospital stays following delivery appears to be driven 
primarily by financial motivations of health plans and 
insurers, rather than the clinical judgment of health 
professionals. Therefore, despite some hesitation about the 
precedential nature of this legislation, the committee believes 
this limited legislation is a necessary and appropriate step to 
help protect the health of mothers and their newborn children. 
Particularly in the absence of conclusive data about the impact 
of reduced hospital stays on the health of mothers and 
newborns, the committee believes that decisions regarding early 
discharge should be made on a case-by-case basis and should be 
a mutual decision between the patient and the health care 
provider.
    It has been argued that S. 969 amounts to legislating 
medical practice. However, nothing in this legislation 
interferes with a doctor's ability to make a medical decision 
in the best interest of his or her patient. To the contrary, S. 
969 would transfer decision-making authority from third-party 
prayers to providers and would promote mutual decision making 
on a case-by-case basis by patients and their providers.
    Furthermore, S. 969 would not force mothers to stay in the 
hospital against their will or to give birth in a hospital. The 
legislation simply guarantees that insurance will cover the 
costs of allowing patients and their doctors to determine the 
appropriate length of stay within a period of 48 hours in the 
case of a vaginal delivery and 96 hours in the case of a 
cesarean birth.
    The medical community is virtually unanimous in its support 
of this legislation. For example, Dr. Palma Formica testified 
before the committee on behalf of the AMA that although ``[t]he 
AMA has long opposed congressional intervention into a 
physician's clinical decision making,'' in the postpartum 
context, ``we believe that S. 969 is necessary to stem the tide 
of insurers who are replacing the physician's judgment of what 
is best for the patient with what is the cheapest way to pay 
for health care.'' Dr. Formica went on to state that ``S. 969 
would ensure that the decision of when to discharge a mother 
and newborn is made by the physician and not dictated by 
financial considerations of the managed care company.'' Dr. 
Michael Menutti, representing ACOG, added that ``insurers are 
now pressuring doctors to make decisions based on economics. S. 
969 would protect doctors from the continual pressure of 
insurers for early discharge. In the absence of responsible 
action by insurers to provide adequate postpartum care 
coverage, Federal intervention is entirely appropriate.''
    ACOG has stated that selective, early discharge is safe and 
desirable for some mothers and babies. However, a decision for 
early discharge should be individualized and should be a mutual 
decision between the patient and her obstetric provider--taking 
into account medical condition, medical risk factors, support 
systems for the family, and the readiness of the mother to care 
for herself and her newborn. The trend among insurers of 
limiting coverage for hospital stays of only 24 hours or less 
is preventing this sound medical decision-making process from 
occurring. According to ACOG testimony before the committee:

          What we now have is a situation where physicians are 
        pressured to make a decision about early discharge not 
        based on the best medical interests of their patients 
        but, rather, based on the dictates of their patients' 
        insurance policies. This pressure from insurers for 
        early discharge appears to be driven primarily by 
        financial motivations. It is a source of great 
        frustration to ACOG that, after physicians have been 
        encouraged by policy makers for years to develop 
        practice guidelines to encourage uniform, quality 
        patient care, we now see such guidelines completely 
        ignored by insurers who believe they know best.

    Senate bill 969 seeks to remedy this situation by requiring 
insurers to provide adequate postpartum coverage for mothers 
and their newborns as defined by current medical guidelines and 
as recommended by individual providers.

B. Overview of substantive changes to S. 969 contained in legislation 
        adopted by the committee

    The chairman's amendment in the nature of a substitute 
adopted by the committee contained several significant changes 
from the legislation that was originally introduced.
            1. Coverage for minimum hospital stay following birth
    The chairman's substitute modified the legislation's 
coverage requirements to make clear that there is a time period 
of up to 48 hours in the case of vaginal deliveries and 96 
hours in the case of cesarean births where ultimate deference 
is accorded the decisions of providers and patients regarding 
the appropriate length of stay. As such, the legislation now 
requires health plans and insurance carriers that provider 
maternity benefits, including benefits for childbirth, to 
provide coverage to mothers and their newborns for at least 48 
hours of inpatient stay following a normal vaginal delivery and 
at least 96 hours following a cesarean section without 
requiring the attending provider to obtain authorization from 
the health plan for such stays. Health plans and carriers are 
not required to provide coverage for this period if two 
conditions are met. First, the attending provider, in 
consultation with the mother, decides to discharge the mother 
earlier and, second, the plan provides coverage for 
postdelivery follow-up care.
            2. Postdelivery follow-up care
    The chairman's substitute also made changes to the bill's 
requirements for follow-up care. The modifications are designed 
to provide more flexibility to health plans and insurers, to 
assure that follow-up care is appropriate to monitor the health 
of the newborn and mother, and to provide plans more certainty 
about the required scope of follow-up care without imposing 
overly prescriptive requirements. The legislation now provides 
that where a mother and newborn are discharged from the 
hospital prior to 48 hours following a normal vaginal delivery 
or 96 hours following a cesarean section, health plans are 
required to provide postdelivery follow-up care not more than 
72 hours following the discharge. Such care is to be provided 
by a registered nurse, physician, nurse practitioner, nurse 
midwife, or physician's assistant experienced in maternal and 
child health. Care may be provided at home, hospital, doctor's 
office, birthing center, intermediate care facility, federally 
qualified health center, State health department maternity 
clinic, or other setting determined appropriate by the 
Secretary of Labor in consultation with the Secretary of Health 
and Human Services (HHS), but mothers must be given the option 
of receiving care in the home.
            3. Plan prohibitions
    The chairman's substitute includes a new consumer 
protection section designed to prohibit health plans and 
insurers from: (1) dropping mothers and newborns from health 
insurance coverage because they comply with the act; (2) 
providing monetary payments or rebates to mothers to encourage 
them to request less than 48/96 hours of stay; (3) penalizing 
doctors because they comply with the act; or (4) providing 
incentives to doctors to induce them to provide treatment in a 
manner inconsistent with the act.
            4. Applicability
    This section was added in the chairman's substitute to 
clarify that States have primary responsibility for enforcing 
the requirements of this act with respect to insurers and 
health maintenance organizations as they do under current law, 
that the Secretary of Labor has sole responsibility for 
ensuring that the requirements of the act are met by employer-
sponsored ERISA plans, and that nothing in this act should be 
construed to affect or modify the preemption provisions of 
ERISA.
            5. Enforcement
    As introduced, S. 969 did not contain any enforcement 
provisions. The chairman's substitute specifies how the 
requirements of the legislation are to be enforced. States are 
to enforce the requirements of the act with respect to insurers 
and HMOs, and States may apply whatever penalties for 
noncompliance they deem appropriate. Employer-sponsored plans 
may be subject to civil enforcement penalties contained in 
sections 502, 504, 506, and 510 of ERISA. If a State fails to 
``substantially'' enforce the requirements of the act, the 
Secretary of Labor, in consultation with the Secretary of HHS, 
will enforce the requirements with respect to insurers and HMOs 
using civil penalties provided under ERISA. This construct is 
necessary to ensure enforcement but to avoid imposing unfunded 
mandates on the States.
            6. Definitions
    This section of the chairman's substitute defines the terms 
``Attending Provider,'' ``Beneficiary,'' ``Employee Health 
Benefit Plan,'' ``Group Purchaser,'' ``Health Plan,'' ``Health 
Plan Issuer,'' ``Participant,'' and ``Secretary.'' Of 
particular note is the expansion of the term ``Attending 
Provider'' to include ``obstetrician-gynecologists, 
pediatricians, family physicians, nurse practitioners, nurse 
midwives, or other physicians primarily responsible for the 
care of a mother and her newborn child'' (the original bill 
only applied to ``physicians'').
            7. Preemption
    The chairman's substitute clarifies that the act does not 
preempt those State laws and regulations that: (1) provide 
greater protection to patients and policyholders; (2) require 
health plans to provide coverage for at least 48/96 hours; (3) 
require health plans to provide coverage in accordance with 
guidelines established by the American College of Obstetricians 
and Gynecologists, the American Academy of Pediatrics, or other 
established professional medical associations; or (4) leave 
decisions about length of stay entirely to the doctor in 
consultation with the mother. With regard to follow-up care, 
the act does not preempt State laws providing greater 
protection to patients and policyholders or providing an option 
of timely follow-up care in the home.
            8. Studies
    Separate amendments by Senators Jeffords, DeWine, and 
Kennedy containing studies and reports on childbirth and the 
effect of reduced hospital stays were adopted by voice vote 
during the committee's executive session. These amendments were 
then combined into a single section of the bill. In this 
section, the Secretary of Health and Human Services is directed 
to establish an advisory panel to review data on health care 
services provided to mothers and newborns. The Secretary is 
also to study several issues related to quality of care and 
length of maternity stay, and to report to Congress within 5 
years on a series of issues related to private sector 
improvements in prenatal and postnatal care. An interim report 
is required in 18 months.
    This section would set up an advisory panel designed to 
bring together public and private organizations that have been 
working independently to determine appropriate methods for 
measuring the quality, safety, and effectiveness of the health 
care services provided to mothers and newborns following 
childbirth.
    It became evident during the committee's deliberation that 
there was inadequate data available to suggest an appropriate 
length of stay and treatment protocol for mother and newborn 
after delivery. Moreover, the length of stay in the hospital 
was only one of the factors contributing to the health of 
mothers and newborns.
    There is some data regarding postdelivery health outcomes 
currently in both the public and the private sectors. The 
Secretary of Health and Human Services shall, in consultation 
with the advisory panel, review the current data and conduct 
additional studies as necessary to explore the factors which 
affect the health of mothers and newborns.
    Health consequences can be linked to specific maternal 
factors as well as newborn factors. Some maternal factors 
include the maternal age, number of pregnancies, and health 
knowledge. Some newborn factors include birth weight, 
infection, or delivery complications. Health care provider 
interventions at any point along the continuum can influence 
ultimate outcomes. The Secretary is directed to study these 
factors and the influence of these factors on length of stay.
    The committee also recognizes that there is a diversity of 
measures of positive and negative consequences for mothers and 
newborns. This study should give focus to the particular 
benefits to be promoted or avoided. For instance, a negative 
outcome for a newborn could include infant death, jaundice, or 
a hospital readmission.
    Postnatal care has changed significantly over the last 
several decades as have the settings in which treatment is 
delivered. An analysis of the advantages and disadvantages of 
different approaches during the postnatal period is another 
part of the studies. The introduction of financial incentives 
by health plans could also have an impact upon the health of 
mothers and newborns. Incentives have been provided directly to 
the mothers and/or to providers encouraging shorter hospital 
stays.
    The committee intends for the advisory panel to consist of 
at least 15 members but no more than 21. The members of the 
panel should be chosen from public and private organizations 
and should have knowledge or experience in areas such as 
patient care, patient education, quality assurance, outcomes 
research, and consumer issues. The public entities would 
include federal agencies (such as the Maternal and Child Health 
Bureau and the Agency for Health Care Policy and Research) and 
State associations (such as the National Association of 
Insurance Commissioners). Private sector organizations would 
include organizations such as the American College of 
Obstetricians and Gynecologists and the American Academy of 
Pediatrics representing providers, as well as those 
representing insurers. Other private sector members could 
include consumer groups, private foundations, the National 
Committee for Quality Assurance, the Joint Commission on 
Accreditation of Health Care Organizations, and employer 
representatives, including those involved in the development of 
the Health Plan Employer Data Information Set (HEDIS).
    The committee recognizes the valuable leadership of HRSA's 
Maternal and Child Health Bureau (MCHB) support for research 
studies on safe hospital discharge practices for mothers and 
neonates. The MCHB's approach--in cooperation with such 
national organizations as the American Academy of Pediatrics, 
the American College of Obstetricians and Gynecologists, and 
the American Medical Association--emphasizes the benefits of 
bringing sound clinical judgment and state-of-the-art research 
methodologies to bear in exploring how length of stay and other 
common postdelivery services can affect health outcomes for 
mothers and newborns. A Scientific Summit sponsored by the MCHB 
concerned with ``Assuring Quality Care for Moms and Babies'' 
already has brought together researchers, providers, health 
plans, hospital administrators, consumers, employers, and 
representatives of federal and State governments to address 
appropriate medical procedures during the perinatal period, and 
to identify opportunities to strengthen the family and 
establish beneficial health care practices during the perinatal 
and postpartum periods. The committee expects the work of the 
advisory committee to build upon these timely efforts.
    The committee intends for the advisory panel to work to 
establish consensus among its members as to the appropriateness 
of the act requiring health plans to provide a minimum length 
of stay for mothers and newborns following childbirth. The 
committee also intends that a summary of best practices for the 
care of newborns and mothers, recommendations for improvements 
in prenatal, postnatal, and follow-up care, and limitations on 
the databases in existence on the date of enactment of the act 
be reported to Congress.
    The committee intends that the Secretary of HHS report to 
Congress at 18 months and at 3 years after the enactment of the 
act as to the progress and plan developed, and data from the 
study as available. A final report shall be given by the 
Secretary at no later than 5 years after the date of enactment 
of this act.

                            v. cost estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 17, 1996.
Hon. Nancy Landon Kassebaum,
Chairman, Committee on Labor and Human Resources,
U.S. Senate, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office (CBO) 
has reviewed S. 969, the Newborns' and Mothers' Health 
Protection Act of 1996, as ordered reported on April 17, 1996. 
Enclosed are CBO's federal cost estimate and estimates of the 
costs of intergovernmental and private-sector mandates.
    The bill would affect direct spending and thus would be 
subject to pay-as-you-go procedures under section 252 of the 
Balanced Budget and Emergency Deficit Control Act of 1985.
    If you wish further details on these estimates, we will be 
pleased to provide them. The CBO staff contacts are identified 
in the separate estimates.
            Sincerely,
                                              James L. Blum
                                   (For June E. O'Neill, Director).

           congressional budget office federal cost estimate

    1. Bill number: S. 969.
    2. Bill title: The Newborns' and Mothers' Health Protection 
Act of 1966.
    3. Bill status: As ordered reported by the Senate Committee 
on Labor and Human Resources, April 17, 1996.
    4. Bill purpose: The bill would require that health 
insurers cover a mother and newborn for at least two nights in 
the hospital after most births and at least four nights after a 
caesarean section. Coverage of fewer days would be permissible 
if agreed to by the attending provider in consultation with the 
mother, and if a timely follow-up visit was covered. An 
advisory commission would be established within the Department 
of Health and Human Services.
    5. Estimated cost to the Federal Government: CBO and the 
Joint Committee on Taxation (JCT) estimate that S. 969 would 
increase the federal deficit by about $265 million between 1997 
and 2002 (see attached table). As a result of increases in 
employer-paid health premiums, federal income and payroll tax 
revenues would fall by about $130 million over that period. 
Federal outlays for Medicaid would increase by about $120 
million, and mandatory outlays for federal employees' health 
benefits would increase by about $15 million over the period. 
Discretionary spending for benefits of active federal workers 
and for the advisory commission would rise by another $20 
million, assuming appropriation of the necessary amounts.
    6. Basis of the estimate: CBO estimates that the proposal 
would initially raise private group health insurance premiums 
by about 0.06 percent. In response, employers and employees 
would reduce coverage or drop benefits for other services. 
Because of these reactions, we assume that employer 
contributions for health insurance would rise by only 0.02 
percent. Most of that increase would be passed back to 
employees in lower wage. The lower wages, in turn, would reduce 
federal income and payroll tax revenues. JCT estimates that 
revenues would fall by about $130 million between 1997 and 
2002.
    CBO assumes that the number of hospital days would increase 
by about 400,000 under employer-sponsored plans, and that the 
marginal costs to health plans of each additional hospital day 
would be $400. In addition, CBO estimates that the number of 
home health or other follow-up visits would increase by about 
200,000 at a cost of $100 per visit. The estimated federal cost 
of S. 969 is reduced to the extent that states have enacted or 
are likely to enact similar legislation.
    CBO estimates that S. 969 would increase the federal share 
of Medicaid by about $120 million over the period. Although the 
bill's requirements would not necessarily apply to Medicaid as 
a direct payer, plans contracting to provide care to Medicaid 
recipients would be affected. CBO assumes that about 80,000 
additional hospital days and home health visits would be 
provided by those plans at a cost of about $300 for each 
additional hospital day and $75 for each home health visit. On 
average, Medicaid costs would rise by about $35 million a year, 
with the federal share increasing by about $20 million a year 
and the states' share increasing by about $15 million a year.
    Costs for federal employees' health benefits would also 
increase slightly. Direct spending for annuitants' benefits 
would rise by about $15 million over the period, and 
discretionary spending for active workers would rise by another 
$15 million, assuming appropriation of the necessary amounts.
    7. Pay-as-you-go considerations: The Balanced Budget and 
Emergency Deficit Control Act of 1985 set up pay-as-you-go 
procedures for legislation affecting direct spending or 
receipts through 1998. The bill would have the following pay-
as-you-go impact:

------------------------------------------------------------------------
                                            1996       1997       1998  
------------------------------------------------------------------------
Change in outlays......................          0         19         20
Change in receipts.....................          0        -13        -20
------------------------------------------------------------------------

    8. Previous CBO estimate: None.
    9. Estimate prepared by: Jeff Lemieux (private insurance 
and federal employees' benefits) and Jean Hearne (Medicaid).
    10. Estimate approved by: Paul N. Van De Water, Assistant 
Director for Budget Analysis.

                        S. 969, THE NEWBORNS' AND MOTHERS' HEALTH PROTECTION ACT OF 1996.                       
                                    [By fiscal year, in millions of dollars]                                    
----------------------------------------------------------------------------------------------------------------
                                                   1997     1998     1999     2000     2001     2002   1997-2002
----------------------------------------------------------------------------------------------------------------
                                          DIRECT SPENDING AND RECEIPTS                                          
                                                                                                                
Outlays:                                                                                                        
    Medicaid...................................       17       18       19       20       22       23       119 
    Federal employees health benefits..........        2        2        3        3        3        3        15 
                                                ----------------------------------------------------------------
      Total, outlays...........................       19       20       22       23       25       26       134 
Revenues:                                                                                                       
    Income and payroll taxes...................      -13      -20      -22      -23      -25      -27      -130 
    Deficit....................................       32       40       44       46       50       53       264 
                                                                                                                
                                        SPENDING SUBJECT TO APPROPRIATION                                       
                                                                                                                
Federal employees health benefits:                                                                              
    Budget authority...........................        2        2        3        3        3        3        16 
    Outlays....................................        2        2        3        3        3        3        16 
Advisory Commission:                                                                                            
    Budget authority...........................        1        1        1        1        1        0         5 
    Outlays....................................        1        1        1        1        1        0         5 
Total, Discretionary Spending:                                                                                  
    Budget authority...........................        3        3        4        4        4        3        21 
    Outlays....................................        3        3        4        4        4        2        21 
----------------------------------------------------------------------------------------------------------------
Sources: Congressional Budget Office, Joint Committee on Taxation.                                              

    CONGRESSIONAL BUDGET OFFICE ESTIMATED COST OF INTERGOVERNMENTAL 
                                MANDATES

    1. Bill number: S. 969.
    2. Bill title: The Newborns' and Mothers' Health Protection 
Act of 1996.
    3. Bill status: As ordered reported by the Senate Committee 
on Labor and Human Resources on April 17, 1995.
    4. Bill purpose: S. 969 would require health plans, 
including employer sponsored health plans, that provide 
maternity benefits to allow mothers and newborns to stay in the 
hospital for 48 hours after a normal vaginal delivery and 96 
hours after a caesarean section. Hospital stays could be 
shortened if the attending provider, in consultation with the 
mother, agreed to a shorter stay and if the health plan covered 
a timely follow-up visit. Finally, health plans would have to 
notify each participant of the change in maternity benefits 
within 120 days of enactment.
    5. Intergovernmental mandates contained in bill: The 
maternity benefit and notification requirements are mandates as 
defined by Public Law 104-4, the Unfunded Mandates Act of 1995. 
State and local governments as sponsors of health insurance for 
their employees would have to comply with these requirements.
    6. Estimated direct costs of mandates to State, local, and 
tribal governments:
          (a) Is the $50 Million Threshold Exceeded? No.
          (b) Total Direct Costs of Mandates: S. 1028 would 
        increase the cost of health insurance for covered 
        employees of state and local governments, but this cost 
        would primarily be borne by the employees themselves 
        and not state or local taxpayers. Although the amount 
        of total compensation paid by state and local 
        governments would remain unchanged in the long run, 
        states and local governments would remain unchanged in 
        the long run, states and local governments would face 
        additional costs of $1 million to $10 million over 
        about two years as they change other elements of their 
        employees' compensation packages.
          (c) Estimate of Necessary budget Authority: None.
    7. Basic of estimate: CBO estimates that the new maternity 
benefit would increase health care costs by about 0.06 percent. 
State and local governments spend about $40 billion on their 
employees' health care. Therefore, this bill would raise these 
costs by about $25 million. We assume, however, that these cost 
would be passed on to state and local employees. Economists 
generally believe, and CBO's cost estimates have long assumed, 
that workers as a group bear most of the cost of employers' 
health insurance premiums. The primary reason for this 
conclusion is that the supply of labor is relatively 
insensitive to changes in take-home wages. Because most workers 
continue to work even if their take-home pay declines, 
employers have little trouble shifting most of the cost of 
additional health insurance to workers' wages or other fringe 
benefits.
    During a transition period of about two years, however, 
state and local governments would face additional costs of $1 
million to $10 million. State and local governments would be 
unable to immediately adjust the compensation packages of all 
their employees. About 40 percent of state and local employee 
are represented by unions, and many of these employees are 
covered by collective bargaining agreements, which last about 2 
years.
    8. Appropriation or other Federal financial assistance 
provided in bill to cover mandate costs: None.
    9. Other impacts on State, local, and tribal governments: 
The maternity benefit would also apply to managed care plans 
that contract with states to cover Medicaid recipients. As a 
result, CBO estimates that Medicaid costs for states would 
annually increase by about $15 million. States would have the 
flexibility to reduce their coverage of optional services or 
benefits in order to pay for the additional Medicaid costs.
    States would have the option of enforcing the requirements 
of S. 969 on issuers of health insurance in the group and 
individual markets. If a state decides not to enforce the new 
requirements, the federal government would do so. Because 
enforcement would be voluntary, this provision would not impose 
an intergovernmental mandate as defined in Public Law 104-4. 
However, the enforcement provisions would have a budgetary 
impact on state governments. States currently regulate the 
group and individual markets, and CBO does not expect any state 
would give up this authority and responsibility. States thus 
would incur additional costs as they enforce the new 
requirements. In 1995, according to the National Association of 
Insurance Commissioners, states spent $650 million regulating 
all forms of insurance (health and others). CBO expects that S. 
969 would increase their costs only marginally.
    10. Previous CBO estimate: None.
    11. Estimate prepared by: John Patterson.
    12. Estimate approved by: Paul N. Van de Water, Assistant 
Director for Budget Analysis.

    congressional budget office estimate of costs of private-sector 
                                mandates

    1. Bill number: S. 969.
    2. Bill title: The Newborns' and Mothers' Health Protection 
Act of 1996.
    3. Bill status: As ordered reported by the Senate Committee 
on Labor and Human Resources on April 17, 1996.
    4. Bill purpose: S. 969 would require health plans 
providing maternity benefits to cover a specified minimum 
number of postpartum inpatient days for mothers and newborns. 
Coverage of fewer days would be permitted if agreed to by the 
attending provider in consultation with the mother, and if the 
plan covered a timely follow-up visit.
    5. Private-sector mandates contained in the bill: S. 969 
contains private-sector mandates, as defined in P.L. 104-4, the 
Unfunded Mandates Reform Act, that would affect both fully-
insured health plans and self-insured employee health benefits 
plans.
    Health plans that provide maternity benefits would be 
required to cover a minimum number of inpatient days after 
delivery for both mothers and newborns. (Federal law requires 
firms with 15 or more employees to cover maternity benefits, if 
they offer health insurance.) The minimum length of stay would 
be 48 hours for normal vaginal deliveries and 96 hours for 
caesarean sections. Those coverage requirements could be waived 
only if the attending provider, in consultation with the 
mother, agreed to a shorter stay, and if the health plan 
covered a follow-up visit within 72 hours of leaving the 
hospital. Health plans would have to inform plan participants 
about the minimum length of stay requirements.
    The bill would also prohibit practices that would encourage 
short inpatient stays. For example, health plans would not be 
permitted to provide monetary or other incentives to the mother 
or the attending provider in order to induce behavior 
inconsistent with the bill's provisions.
    6. Estimated direct costs to the private-sector: CBO 
estimates that the maternity benefit mandates in S. 969 would 
increase aggregate premium payments for employment-based and 
individually purchased health plans by 0.06 percent. The 
additional direct costs to private-sector health plans--those 
plans that cover private-sector employees and individually 
purchased plans--would be approximately $130 million in fiscal 
year 1997, rising to $220 million by 2001 (see Table). The 
provisions would be effective for plan years beginning on or 
after January 1, 1997.

----------------------------------------------------------------------------------------------------------------
                                                                       1997     1998     1999     2000     2001 
----------------------------------------------------------------------------------------------------------------
Direct private-sector cost.........................................      130      180      190      200      220
----------------------------------------------------------------------------------------------------------------

    Basis of the estimate: The direct costs of the maternity 
mandates in S. 969 consist of the costs of the additional 
hospital days and follow-up visits that health plans would now 
have to cover. Reductions in future insured costs resulting 
from the increased services required under the bill would be 
subtracted from the additional costs, but those savings appear 
to be relatively small.
    After adjusting for state laws that already mandate similar 
coverage, CBO concluded that about 900,000 insured births a 
year currently have shorter lengths of stay than the minimums 
specified in the bill. Under S. 969, some of those births would 
have an additional inpatient day, while others would have a 
follow-up visit. But some of the latter group already receive a 
timely follow-up visit under current law, and so would incur no 
additional costs. Thus, CBO estimated that the bill would 
result in about 400,000 additional inpatient days and 200,000 
additional follow-up visits annually. Assuming that an 
additional post-delivery hospital day would have a marginal 
cost to health plans of $400 in 1996 and a postpartum visit 
would cost $100, CBO concluded that the bill would result in an 
increase in insured costs or 0.06 percent of all employment-
based and individually purchased premiums. Applying that 
percentage to private-sector premiums only, leads to the 
estimate that the direct private-sector costs of S. 969 would 
be about $130 million in 1997 rising to about $220 million in 
2001.
    Not all of those costs would be transformed into higher 
premiums. Employers, for example, might reduce the generosity 
of other benefits to offset the increased maternity costs. 
People purchasing policies in the individual market might also 
choose to purchase less generous policies rather than pay 
higher premiums. Any net increases in premiums paid by 
employers would most likely be passed on to workers in the form 
of lower wages and other fringe benefits.
    CBO's estimates do not take into account any benefits from 
the additional coverage that might accrue to parties other than 
health plans--such as to new parents. Nor do the estimates 
incorporate other indirect costs or benefits. Although such 
factors may be important for weighing the merits of the bill, 
the Unfunded Mandates Reform Act restricts CBO's estimates of 
the mandates' effects to direct costs and savings.
    7. Appropriations or other Federal financial assistance: 
None.
    8. Previous CBO estimate: None.
    9. Estimate prepared by: James Baumgardner.
    10. Estimate approved by: Joseph R. Antos, Assistant 
Director for Health and Human Resources.

                    vi. regulatory impact statement

    The committee has determined that there will be no increase 
in the regulatory burden of paperwork as the result of this 
bill.

                    vii. section-by-section analysis

Section 1. Short title

    The act is cited as the ``Newborns' and Mothers' Health 
Protection Act of 1996.''

Section 2. Findings

    The chairman's substitute contains a new findings section 
stating that: (1) the length of postdelivery inpatient care 
should be based on unique characteristics of each mother and 
her newborn child, and (2) the decision to discharge a mother 
and newborn from the hospital should be made by the attending 
provider in consultation with the mother.

Section 3. Required coverage for minimum hospital stay following birth

    This section requires health plans that provide maternity 
benefits, including benefits for childbirth, to provide 
coverage to mothers and their newborns for at least 48 hours of 
inpatient stay following a normal vaginal delivery and at least 
96 hours following a caesarean section without requiring the 
attending provider to obtain authorization from the health 
plan. Health plans are not required to provide coverage for the 
48/96 hour period if two conditions are met: (1) the attending 
provider, in consultation with the mother, decides to discharge 
the mother earlier; and (2) the health plan provides coverage 
for postdelivery follow-up care.

Section 4. Postdelivery follow-up care

    Where a mother and a newborn are discharged from the 
hospital prior to 48 hours following a normal vaginal delivery 
or 96 hours following a caesarean section, health plans are 
required to provide postdelivery follow-up care not more than 
72 hours following the discharge. Such care is to be provided 
by a registered nurse, physician, nurse practitioner, nurse 
midwife, or physician's assistant experienced in maternal and 
child health. Care may be provided at home, hospital, doctor's 
office, birthing center, intermediate care facility, federally 
qualified health center, State health department maternity 
clinic, or other setting determined appropriate by the 
Secretary of Labor in consultation with the Secretary of Health 
and Human Services (HHS), but mothers must be given the option 
of receiving care in the home.

Section 5. Prohibitions

    This section of the chairman's substitute prohibits health 
plans from: (1) dropping mothers and newborns from coverage 
because they comply with the act; (2) providing monetary 
payments or rebates to mothers to encourage them to request 
less than 48/96 hours of stay; (3) penalizing doctors because 
they comply with the act; or (4) providing incentives to 
doctors to induce them to provide treatment in a manner 
inconsistent with the act.

Section 6. Notice

    This section of the chairman's substitute requires both 
insurers and employer-sponsored plans covered by the Employee 
Retirement Income Security Act (ERISA) to notify plan 
participants and policyholders of the coverage required by this 
act.

Section 7. Applicability

    This section, which works in conjunction with Section 8 on 
``Enforcement,'' clarifies that States have primary 
responsibility for enforcing the requirements of this act with 
respect to insurers and HMOs--as they do under current law, 
that the Secretary of Labor has sole responsibility for 
ensuring that the requirements of the act are meet by employer-
sponsored ERISA plans, and that nothing in this act should be 
construed to affect or modify the preemption provisions of 
ERISA.

Section 8. Enforcement

    This section specifies that State enforce the requirements 
of the act with respect to insurers and HMOs and that they may 
apply whatever penalties for noncompliance they wish. Employer-
sponsored plans may be subject to civil enforcement penalties 
contained in sections 502, 504, 506, and 510 of ERISA. If a 
State fails to ``substantially'' enforce the requirements of 
the act, the Secretary of Labor, in consultation with the 
Secretary of HHS, will enforce the requirements with respect to 
insurers and HMOs using civil penalties provided under ERISA. 
This construct is necessary to ensure enforcement but to avoid 
imposing unfunded mandates on the States.

Section 9. Definitions

    This section of the chairman's substitute defines the terms 
``Attending Provider,'' ``Beneficiary,'' ``Employee Health 
Benefit Plan,'' ``Group Purchaser,'' ``Health Plan,'' ``Health 
Plan Issuer,'' ``Participant,'' and ``Secretary.'' Of 
particular note is the expansion of the term ``Attending 
Provider'' to include ``obstetrician-gynecologists, 
pediatricians, family physicians, nurse practitioners, nurse 
midwives, or other physicians primarily responsible for the 
care of a mother and her newborn child'' (the original bill 
only applied to ``physicians'').

Section 10. Preemption

    The act does not preempt those State laws that: (1) provide 
greater protection to patients and policyholders; (2) require 
health plans to provide coverage for at least 48/96 hours; (3) 
require health plans to provide coverage in accordance with 
guidelines established by the American College of Obstetricians 
and Gynecologists, the American Academy of Pediatrics, or other 
established professional medical association; or (4) leave 
decisions about length to stay entirely to the doctor in 
consultation with the mother. With regard to follow-up care, 
the act does not preempt State laws providing greater 
protection to patients and policyholders or providing an option 
of timely follow-up care in the home.

Section 11. Study and reports concerning childbirth

    The act directs the Secretary of Health and Human Services 
to establish an advisory panel to review data on health care 
services provided to mothers and newborns and postpartum care. 
It also directs the Secretary to study several issues related 
to quality of care and length of maternity stay, and to report 
to Congress within 5 years on a series of issues related to 
private sector improvements in prenatal and postnatal care. An 
interim report is required in 18 months.

Section 12. Effective date

    The act is effective on the first day of the plan year or 
contract year beginning on or after January 1, 1997.
             ADDITIONAL VIEWS OF SENATOR JAMES M. JEFFORDS

    We have never in the past stepped legislatively in the 
realm of defining what, specifically, should be covered by a 
health plan in treating a particular disease or medical 
condition. This Act suggests a specific treatment guideline for 
the length of stay after child-birth and follow-up care in 
federal legislation. The Act refers to a specific ``window of 
time'' in which providers and mothers can make their own 
decision about when to leave the hospital. The time frame is 48 
hours after a vaginal birth and 96 hours after cesarean 
section.
    During consideration of the ``Newborns' and Mothers' Health 
Protection Act of 1996'' in Committee it became apparent that 
there has not been enough data collected on the impact of 
shorter hospital says for mothers and newborns. It is a problem 
that some health plans have moved ahead with shorter and 
shorter stays without such data, but it is also concerning that 
we commit ourselves in legislation to a specific length of 
hospital stay without this data in order to solve this problem.
    Medical practices change over time with innovations, new 
clinical information, public pressure and changes in the social 
environment. Several years ago it was thought that longer stays 
in the hospital for mothers and newborn were necessary than are 
routinely practiced today. In addition, health outcomes for 
mothers and newborns are dependent upon the continuum of care 
they receive before, during and after the delivery event 
involving a broader range of factors than simply the care given 
in the hospital setting. For example, a young inexperienced 
mother might have the same length of hospital stay as a more 
experienced mother, but the outcomes would be very different 
because maternal education is a very important factor 
influencing outcomes. Both the health plans and the medical 
community would concur on this: there is not enough data out 
there to say what is the ``optimum length of stay'' for mothers 
and newborns after delivery.
    I supported this legislation out of the Committee because I 
believe we should err on the side of caution. I am concerned 
about the health risks for mothers and their newborns if they 
are being discharged from the hospital too soon. I also believe 
that we need to do the required research to make an informed 
decision about the optimum length of stay and best practices 
for mothers and newborns while essentially putting a moratorium 
on health plans shortening the length of stay. As more 
information is available on the optimum length of stay for 
mothers and newborns the federal role should be minimized.
    We are in an era of cost containment for our health care 
delivery system. Hospital inpatient stays are more costly than 
managing patients on an outpatient basis. There was no formal 
CBO scoring on this legislation, but by some estimates a .5% 
increase in premiums is anticipated. Legislation such as this 
also inhibits the manner in which plans work toward cost-
containment by specifying what should be covered by them. 
Requiring specific hospital stays impedes market competition 
among plans to achieve the most cost-effective care.
    I offered an amendment that would sunset this bill in 5 
years after an advisory panel reports to Congress as to the 
appropriateness of the requirements of this Act. My amendment 
directed the Secretary of Health and Human Services to 
establish an advisory panel of experts in maternal and child 
health and health outcomes that would review the data currently 
available and then recommend that, if required, additional data 
be gathered through the appropriate channels. It is anticipated 
that such review and research can be successfully done in 
approximately 3 to 5 years. The advisory panel, composed of 
representation from both the public and private sectors, will 
come to consensus about the length of stay and best practices 
for mothers and newborns after childbirth so that deliveries 
can be both safe for mothers and newborns, and cost effective 
for plans. The Secretary of Health and Human Services shall 
then report this information to Congress and thus, raise again 
the question as to the need for this legislation. It may be 
found by that time that 48 hours time for a hospital stay for 
mother and newborn after delivery is obsolete. Unfortunately 
only the study portion of my amendment was passed by the 
committee. I believe the combined study with the potential 
sunset best keeps this Act timely, accurate and responsible.

                                                      Jim Jeffords.