OGC Opinion No. 07-06-18

The Office of General Counsel issued the following opinion on June 19, 2007, representing the position of the New York State Insurance Department.

RE: Maternity & Newborn Coverage

Questions Presented:

1. What coverage is required in a health maintenance organization (“HMO”) contract for hospitalization of a mother and newborn infant after a “normal” delivery?

2. If a parent does not add the newborn infant to the HMO contract, is the newborn infant still covered?


1. Pursuant to New York Insurance Law § 4303 (McKinney 2007), coverage of the mother and newborn infant is required for at least 48 hours after a vaginal birth and at least 96 hours after a caesarean birth.

2. In accordance with New York Insurance Law § 4305 (McKinney 2007), if the insured parent does not add the newborn infant to the coverage within 30 days, the newborn infant would be covered only for the period specified in Insurance Law § 4303.


The first question posed is general in nature, without reference to particular facts. As to the second question, the inquirer has indicated that the health maintenance organization in question has taken the position that, if the newborn child is not added within 30 days of delivery, no care related to the child is covered.


Insurance Law § 4303(c)(1)(a) regulates contracts issued by not-for-profit health service corporations and HMOs. That statute provides:

Every contract issued by a corporation subject to the provisions of this article which provides hospital service, medical expense indemnity or both shall provide coverage for maternity care including hospital, surgical or medical care to the same extent that hospital service, medical expense indemnity or both are provided for illness or disease under the contract. Such maternity care coverage, other than coverage for perinatal complications, shall include inpatient hospital coverage for mother and for newborn for at least forty-eight hours after childbirth for any delivery other than a caesarean section, and for at least ninety-six hours following a caesarean section. Such coverage for maternity care shall include the services of a midwife licensed pursuant to article one hundred forty of the education law, practicing consistent with a written agreement pursuant to section sixty-nine hundred fifty-one of the education law and affiliated or practicing in conjunction with a facility licensed pursuant to article twenty-eight of the public health law, but no insurer shall be required to pay for duplicative routine services actually provided by both a licensed midwife and a physician.

Accordingly, coverage must be provided for 48 hours of hospitalization for the mother and newborn child for any delivery, other than a caesarean section. For caesarean deliveries, a health contract issued by a not-for-profit health service corporation or by an HMO must provide coverage for 96 hours. Insurance Law §§ 3216(h)(10)(A)(i), which regulates individual policies issued by commercial health insurers, and 3221(k)(5)(a)(i), which regulates group policies issued by commercial health insurers, set forth similar requirements.

With respect to the second question, which asks about the addition of the newborn infant to existing coverage, Insurance Law § 4305(c)(1) is relevant to the inquiry. It provides:

Any such contract may provide that benefits will be furnished to a member of a covered group, for himself, his spouse, his child or children, or other person's chiefly dependent upon him for support and maintenance . . . . Notwithstanding any rule, regulation or law to the contrary, any contract under which a member elects coverage for himself, his spouse, his children or other persons chiefly dependent upon him for support and maintenance shall provide that coverage of newborn infants . . . shall be effective from the moment of birth for injury or sickness including the necessary care and treatment of medically diagnosed congenital defects and birth abnormalities including premature birth . . . . If notification and/or payment of an additional premium or contribution is required to make coverage effective for a newborn infant, the coverage may provide that such notice and/or payment be made within no less than thirty days of the day of birth to make coverage effective from the moment of birth. . . .

Thus, if continuing coverage of the newborn infant is desired, the insured must take steps to add the infant to the contract within 30 days. Insurance Law §§ 3216(c)(4)(C), which regulates individual policies of commercial health insurers, and 4235(f)(2), which regulates group policies of commercial health insurers, set forth similar requirements.

This Department has previously indicated that coverage of a newborn infant beyond that mandated by Insurance Law § 4303(c)(1)(A) may require, as a contractual matter, that the parent purchase the additional coverage. See Opinion of September 18, 2002. But, even if the parent does not opt to add the newborn infant to the contract, the HMO is still obligated under the statute to provide the minimal coverage for the infant mandated by Insurance Law § 4303(c)(1)(A).

For further information you may contact, Principal Attorney Alan Rachlin at the New York City Office.