Mandating coverage for maternity length of stays: certain problems with the good idea.

• Author: Ryan, Kate E.

1. INTRODUCTION II. STATE LEGISLATION REGULATING MATERNITY STAY

   COVERAGE

   1. Ohio's Maternity Length-of-Stay Law

   2. Maternity Standards Implemented in Cleveland III. NATIONAL LEGISLATION-THE FEDERAL ROLE IN

   HEALTH CARE IV. HOW THE REGULATIONS MAY AFFECT MATERNITY

   HEALTH CARE V. CONCLUSION

1. INTRODUCTION

   The Newborns'and Mothers' Health Protection Act of 1996 (Newborns' Act), enacted on September 20, 1996, intends to ensure appropriate maternity health care for insured mothers and their newborn infants by mandating increased insurance coverage.(1) Specifically, insurance groups, health maintenance organizations (HMOs), and private payors who offer maternity coverage must cover at least forty-eight or ninety-six hours of post-natal hospital care.(2) The Newborns' Act, along with several and similar state laws, percolated during the 1996 presidential election.(3) The state legislation, including Ohio's Maternity Length-of-Stay Law (Maternity Law), nearly mirror the federal law of which New Jersey law served as the blueprint.(4) The combined state and federal maternity laws intend to affect all payors which offer maternity health care coverage for mothers and newborns.

   The battle ensued when insurers and HMOs (payors) imposed policy restrictions to achieve cost effective, quality maternity health care.(5) Medical groups, disagreeing with the policy restrictions, faced professional and financial incentives to either accept the policy or seek a new payor.(6) Likewise, consumers faced financial burdens for violating the policy.(7) Thus, Most physicians and consumers grudgingly accepted the payor policy. Payors felt that they effectively and appropriately contained Costs.(8) However, certain medical and consumer groups considered the payor policies as harmful to both mother and newborn.(9)

   Medical groups petitioned first the state then the federal governments for legislative protection and intervention. The combined state and federal law intends to promote appropriate maternity health care. Unfortunately, the law fails to protect uninsured mothers and newborns. Also, the law indirectly standardizes maternity health care which may burden the evolution of maternity health care.

   Federalism poses an interesting question for the Newborns' Act. Does America want its federal government to regulate maternity health care? Health care remains a local issue retained by the existing states at the United States (U.S.) Constitution's ratification. Over the years, the federal government has chipped away at the states' exclusive control of health care by legislating in health-related areas under other constitutionally delegated powers such as the spending and commerce powers. Americans ought to consider the consequences of unbalanced federalism when the federal government legislates in traditional state powers.

   For simplification, the current payor trends, such as hospitals owning insurance companies and vice versa, will be condensed and generalized with insurance providers, HMOs, and other maternity payors as "payors." Likewise, not every medical group (certainly not the HMOs) advocated for state and federal legislation restricting payors in maternity health care. For simplification, any general mention of the medical profession or medical groups indicates those medical associations that advocated for the Newborns' Act.

   This paper will outline the issues influenced by the Newborns' Act and the Maternity Law, including federalism. Likewise, the paper examines certain shortcomings of the maternity legislation. Section II focuses on Ohio's Maternity Law and whether it will prove effective as exemplified by Cleveland's maternity health care standards. Section III addresses the Newborns' Act and how it will influence federalism. Additionally, section III compares the Newborns' Act to the Maternity Law Section IV explores how the concurrent regulations may affect maternity health care.

2. STATE LEGISLATION REGULATING MATERNITY STAY COVERAGE

   Physicians, hospitals, and health care providers continuously struggle to provide the very best medical care to mothers and their newborns despite the rising costs of maternity health care.(10) The U.S. has witnessed drastic changes in maternity health care services over the years, from home births, to hospital wards, to high-tech home births, to private birthing rooms.(11) Medical groups and consumers continue in their quest for the ultimate maternity health In contrast, payors struggle to provide the most cost-effective coverage for the growing expenses that accompany a wellness event, birth.(12) Not often have the federal and state governments intervened between the competing interests of the two groups. Medical groups ought to provide the ultimate health care for mothers and newborns. However, payors can only provide so much of the enormous cost for maternity health care services.

   Three important trends have driven maternity health care for the past fifty years.(13) Medical groups created the first trend after World War II when families respected and preferred the sterile hospital environment as the primary place for birthing.(14) "By the 1930's, the introduction of antiseptic techniques and surgical anesthesia had begun to reduce the death rate from complicated labor and delivery, providing a justification for hospital births."(15) Generally, mothers and newborns were separated to different rooms and physicians for at least five days post delivery.(16) However, Dr. Edith Jackson of Yale New Haven Hospital conducted research from 1946 to 1952 that changed the post war maternity standards.(17) Dr. Jackson observed and studied mothers and their newborns who stayed together post delivery and received medical care from the same provider. The research showed that mothers are an important source of care for the newborn and that the mother-newborn bond ought to be encouraged.(18)

   Consumers created a second trend in the 1970's by demanding less medical intervention with uncomplicated births.(19) Thus, hospitals and physicians permitted shorter post-delivery care.(20) The consumer-driven trend stemmed from studies such as Dr. Jackson's which educated women on their importance in caretaking for their newborns. Maternity policy no longer separated mothers and newborns at birth for the duration of the hospital stay.(21) Likewise, breast feeding received acceptance and preference to formula feeding, while home deliveries and nurse midwives gained respect equal to hospital deliveries and physicians.(22) "As a part of the [consumer-driven trend] . . ., physicians and hospitals came under increasing pressure from consumers to discharge mothers and infants from the hospital earlier [than the former five-day standard]."(23)

   Third party payors instigated the debated trend which demanded that the physician release the mother and newborn just one day after an uncomplicated delivery.(24) Many payor policies covered one full hospital day upon the mother's entry.(25) Thus, if a woman entered the hospital at 5:00 p.m. and delivered by 8:00 p.m., her insurance coverage could terminate by 8:00 a.m. the following morning.(26) Bottom-line market theory and increasing medical costs drove payors to a cost-effective coverage.(27) While many mothers welcomed the trend, others reluctantly conceded only to find themselves with seriously ill infants.(28) Consumers and medical staff who dealt with the unexpectedly ill infants advocated for federal and state legislation regulating coverage for mothers and newborns.

   Advocates for the maternity laws emphasized the dramatic and frighteningly possible dangers to newborns released according to the prior payor policy. Karen Davies testified that she and her daughter were released from their Kansas City hospital against the hospital doctors' and nursing staff's better judgment because Davies' coverage expired at twenty-four hours.(29) Davies and her daughter received one medical in-home visit by a nurse.(30) Although the first (payor-covered) nurse noticed the newborn's jaundice, not until a second, presumably uninsured visit did Davies realize her daughter's dangerous medical condition.(31) Fortunately, Davies' daughter, although very ill, survived without any subsequent harm.(32) Regardless of the visiting nurse and hospital staff, Davies argues that her payor acted inflexible and ultimately directed her doctor's medical judgment.(33) Thus, Davies blames her payor and its contract for her daughter's illness. Perhaps had Davies stayed an extra day in the hospital, the medical staff would have identified and treated her daughter's illness promptly. Thus, because the Davies went home according to policy restriction, Davies' daughter suffered an illness.

   Advocates of the legislation also focused on sympathy for new mothers unqualified to identify illness in the infant or troubleshoot when first breast feeding.(34) Consider N.J.'s Senator Bradley's statement to the U.S. Senate.

   [T]hink about what... "drive-through deliveries" [twenty-four hour

   coverage post delivery standard] mean[s] to millions of American

   mothers. Imagine a typical first-time mother, who has just undergone

   a long and difficult labor. Twenty-four hours after giving birth, she is

   both physically and mentally exhausted. She has been too tired to learn

   what symptoms, both in her baby and herself, are the warning signs

   of potentially dangerous illnesses. There may be few supports at home

   to help her cope with the overwhelming responsibilities of caring for

   herself and her baby in the first few day6 after birth. Nevertheless, she

   is sent home, left to muddle through as best she can. All she can do is

   hope no problems occur, fearing that if they do, there is little chance

   for recognition and treatment.(35)

   While compassionate, Senator Bradley's focus on the "typical first-time mother['s]" experience fails to identify the maternity issues affecting all women. First of all, childbirth is difficult on all women whether...