2015 New York Laws
PBH - Public Health
Article 29-D - HEALTH INFORMATION AND QUALITY IMPROVEMENT
Title 4 - (2999-G - 2999-J) NEW YORK STATE MEDICAL INDEMNITY FUND
2999-J - Payments from the fund.

 2999-j. Payments from the fund. 1. The fund shall be used to pay the
  qualifying health care costs of qualified plaintiffs.
2.  The  provision  of  qualifying  health  care  costs  to  qualified
  plaintiffs shall not  be  subject  to  prior  authorization,  except  as
  described  by  the  commissioner  in regulation; provided, however, that
  such regulation shall not prevent qualified  plaintiffs  from  receiving
  care  or  assistance  that  would, at a minimum, be authorized under the
  medicaid program; and provided, further, that if any prior authorization
  is required by  such  regulation,  the  regulation  shall  require  that
  requests for prior authorization be processed within a reasonably prompt
  period  of  time  and shall identify a process for prompt administrative
  review of any denial of a request for prior authorization.
3. In determining the amount of qualifying health  care  costs  to  be
  paid  from  the  fund,  any  such cost or expense that was or will, with
  reasonable  certainty,  be  paid,  replaced  or  indemnified  from   any
  collateral  source  as provided by subdivision (a) of section forty-five
  hundred forty-five of  the  civil  practice  law  and  rules  shall  not
  constitute  a qualifying health care cost and shall not be paid from the
  fund. For purposes of this title, "collateral source" shall not  include
  medicare or Medicaid.
4. The amount of qualifying health care costs to be paid from the fund
  shall  be  calculated:  (a) with respect to services provided in private
  physician practices on the basis of one hundred percent of the usual and
  customary rates, as defined by the commissioner in  regulation;  or  (b)
  with  respect  to  all other services, on the basis of Medicaid rates of
  reimbursement or, where no such rates are available, as defined  by  the
  commissioner in regulation.
5. Claims for the payment or reimbursement from the fund of qualifying
  health  care  costs shall be made upon forms prescribed and furnished by
  the fund administrator in consultation  with  the  commissioner  and  in
  conjunction  with regulations establishing a mechanism for submission of
  claims by health care providers directly to the fund, where practicable.
6. (a)  Every  settlement  agreement  for  claims  arising  out  of  a
  plaintiff's  or  claimant's birth related neurological injury subject to
  this title, and that provides for the payment of future medical expenses
  for the plaintiff or claimant, shall  provide  that  in  the  event  the
  administrator of the fund determines that the plaintiff or claimant is a
  qualified  plaintiff,  all payments for future medical expenses shall be
  paid in accordance with this title, in  lieu  of  that  portion  of  the
  settlement  agreement  that  provides  for payment of such expenses. The
  plaintiff's or claimant's future  medical  expenses  shall  be  paid  in
  accordance with this title. When such a settlement agreement does not so
  provide,  the  court  shall  direct the modification of the agreement to
  include such term as a condition of court approval.
(b) In any case where the jury or court has made an award  for  future
  medical expenses arising out of a birth related neurological injury, any
  party to such action or person authorized to act on behalf of such party
  may  make  application  to  the court that the judgment reflect that, in
  lieu of that portion of the award that  provides  for  payment  of  such
  expenses,  and  upon  a determination by the fund administrator that the
  plaintiff is a qualified plaintiff, the future medical expenses  of  the
  plaintiff  shall  be paid out of the fund in accordance with this title.
  Upon a finding by the court that the applicant has made  a  prima  facie
  showing  that  the  plaintiff  is a qualified plaintiff, the court shall
  ensure that the judgment so provides.
7. A qualified plaintiff shall be enrolled when (a) such plaintiff  or
  person  authorized  to  act on behalf of such person, upon notice to all
  defendants, or any of the defendants in regard to the plaintiff's claim,

  upon notice to such plaintiff, makes an application  for  enrollment  by
  providing  the  fund administrator with a certified copy of the judgment
  or of  the  court  approved  settlement  agreement;  and  (b)  the  fund
  administrator  determines  upon the basis of such judgment or settlement
  agreement and any additional information the  fund  administrator  shall
  request  that the relevant provisions of subdivision six of this section
  have been met and that the plaintiff is a qualified plaintiff;  provided
  that  no  enrollment  shall  occur when the fund is closed to enrollment
  pursuant to subdivision six of section twenty-nine hundred ninety-nine-i
  of this title.
8. As to all claims, the fund administrator shall:
(a) determine which of such costs are qualifying health care costs  to
  be paid from the fund; and
(b)  thereupon  certify  to  the  commissioner of taxation and finance
  those costs that have been determined to be qualifying health care costs
  to be paid from the fund.
9. Payments from the  fund  shall  be  made  by  the  commissioner  of
  taxation  and  finance  on the said certificate of the superintendent of
  financial services. No payment shall be  made  by  the  commissioner  of
  taxation  and  finance  in excess of the amount certified. Promptly upon
  receipt of the said  certificate  of  the  superintendent  of  financial
  services,  the  commissioner  of  taxation  and  finance  shall  pay the
  qualified plaintiff's health care provider or  reimburse  the  qualified
  plaintiff the amount so certified for payment.
10.  Payment  from  the  fund  shall  not  give  the fund any right of
  recovery against any qualified plaintiff or such  qualified  plaintiff's
  attorney except in the case of fraud or mistake.
11.  All health care providers shall accept from qualified plaintiff's
  or persons authorized to act on behalf of such  plaintiff's  assignments
  of  the  right  to  receive payments from the fund for qualifying health
  care costs.
12. Health insurers (other than medicare and Medicaid)  shall  be  the
  primary  payers of qualifying health care costs of qualified plaintiffs.
  Such costs shall be paid from the fund only to the  extent  that  health
  insurers  or other collateral sources or other persons are not otherwise
  obligated to make payments therefor. Health insurers that make  payments
  for qualifying health care costs to or on behalf of qualified plaintiffs
  shall  have no right of recovery against and shall have no lien upon the
  fund or any person or entity nor shall the fund constitute an additional
  payment source to offset the payments otherwise  contractually  required
  to  be  made  by  such  health insurers. The superintendent of financial
  services shall have the authority to  enforce  the  provisions  of  this
  subdivision.
13.  Except as provided for by this title, with respect to a qualified
  plaintiff, no payment shall be required to be made by any  defendant  or
  such  defendant's  insurer  for  qualifying  health  care  costs  and no
  judgment shall be made or entered requiring that  any  such  payment  be
  made  by  any defendant or such defendant's insurer for such health care
  costs.
14. The determination of  the  qualified  plaintiff's  attorney's  fee
  shall  be  based upon the entire sum awarded by the jury or the court or
  the full sum of the settlement,  as  the  case  may  be.  The  qualified
  plaintiff's attorney's fee shall be paid in a lump sum by the defendants
  and  their  insurers  pursuant to section four hundred seventy-four-a of
  the judiciary law; provided however that the portion of the attorney fee
  that is allocated to the non-fund elements of damages shall be  deducted
  from the non-fund portion of the award in a proportional manner.

15.  The  commissioner,  in  consultation  with  the superintendent of
  financial services, shall promulgate, amend and enforce  all  rules  and
  regulations  necessary  for  the  proper  administration  of the fund in
  accordance with the provisions  of  this  section,  including,  but  not
  limited  to,  those  concerning the payment of claims and concerning the
  actuarial calculations  necessary  to  determine,  annually,  the  total
  amount  to  be  paid  into the fund as provided herein, and as otherwise
  needed to implement this title.
16. The commissioner shall convene a consumer advisory  committee  for
  the  purpose of providing information, as requested by the commissioner,
  in the development of the regulations authorized by subdivision  fifteen
  of this section.