Insurance Circular Letter No. 1 (2021)

February 3, 2021

STATUTORY REFERENCES: N.Y. Insurance Law §§ 3216, 3221, and 4303; Part L of Chapter 56 of the Laws of 2020; Family Court Act Article 5-C

I. Purpose

The purpose of this circular letter is to remind insurers authorized to write accident and health insurance in New York State, Article 43 corporations, health maintenance organizations, student health plans certified pursuant to Insurance Law § 1124, municipal cooperative health benefit plans, and prepaid health services plans (collectively, “issuers”) that the Insurance Law requirements for maternity care and preventive care and screenings related to pregnancy apply when an individual is acting as a surrogate and is covered under a health insurance policy or contract subject to the Insurance Law.

II. Discussion

Part L of Chapter 56 of the Laws of 2020 amended the Family Court Act to add Article 5-C, which sets forth requirements for paid surrogacy in New York and which is effective on February 15, 2021. Family Court Act Article 5-C requires that the person acting as the surrogate obtain a comprehensive health insurance policy that covers preconception care, prenatal care, major medical treatments, hospitalization, and behavioral health care for a term that extends throughout the duration of the expected pregnancy and for 12 months after the birth of a child, a stillbirth, a miscarriage resulting in termination of pregnancy, or termination of the pregnancy.

Coverage for maternity care is set forth in Insurance Law § 3216(i)(10), 3221(k)(5), and 4303(c), which require that every policy or contract that provides hospital, surgical or medical care coverage must provide coverage for maternity care to the same extent that hospital, surgical or medical coverage is provided for illness or disease under the policy or contract. This coverage includes inpatient hospital coverage for the mother (in this case, the surrogate) and newborn for at least 48 hours after childbirth for any delivery other than a caesarean section, and coverage for at least 96 hours after a caesarean section. If the mother/surrogate elects to be discharged earlier than the established time periods, the coverage must include at least one home care visit, in addition to any home health care coverage available under the policy or contract. The mother/surrogate may request the home care visit at any time within 48 hours after delivery (or 96 hours, in the case of a caesarean section) and the home care visit must be provided within 24 hours of either discharge or the mother’s/surrogate’s request, whichever is later. This home care coverage is not subject to deductibles, copayments, or coinsurance.

Maternity care coverage also includes the services of a midwife licensed pursuant to Education Law Article 140, practicing consistent with Education Law § 6951 and affiliated or practicing in conjunction with a facility licensed pursuant to Public Health Law Article 28. Issuers are not required to pay for duplicative routine services provided by both a licensed midwife and a physician. Additionally, maternity care coverage includes parent (or in this case surrogate) education, assistance and training in breast or bottle feeding, and the performance of any necessary maternal and newborn clinical assessments.

Further, Insurance Law §§ 3216(i)(17)(E), 3221(l)(8)(E) and (F), and 4303(j)(3) require every policy or contract that provides hospital, surgical, or medical care coverage, except for a grandfathered health plan,^[1] to provide coverage for preventive care and screenings at no cost-sharing. Coverage includes preventive care and screenings identified in guidelines supported by the Health Resources and Services Administration (“HRSA”) and evidence-based items or services with an “A” or “B” rating from the United States Preventive Services Task Force (“USPSTF”). Many of the preventive care and screenings recommended by the USPSTF or HRSA, such as preeclampsia screening, gestational diabetes screening, and folic acid supplementation, relate to pregnancy.

The Department has issued two Circular Letters regarding preventive care and screenings relating to pregnancy. For information on the requirements for comprehensive lactation support services and maternal depression screening, see Insurance Circular Letter No. 5 (2018) and Insurance Circular Letter No. 1 (2016).

III. Conclusion

Issuers are reminded that maternity care benefits and preventive care and screenings relating to pregnancy must be provided in accordance with the Insurance Law, including when an individual is acting as a surrogate.

Please direct any questions regarding this circular letter by email to [email protected].

Very truly yours,

Lisette Johnson
Chief, Health Bureau

^[1] A “grandfathered health plan” means coverage provided by an issuer in which an individual was enrolled on March 23, 2010, for as long as the coverage maintains grandfathered status in accordance with 42 U.S.C § 18011(e). Ins. Law §§ 3216(i)(17)(F), 3221(l)(8)(G), 4303(j)(4).