Bill Text: NY A02814 | 2011-2012 | General Assembly | Introduced
Bill Title: Enacts the New York birth-related neurological injury compensation act; directs the workers' compensation board to determine all claims for compensation for birth-related impairment, and if the injury falls within the defined scope of neurological injuries, direct compensation by the fund, similar to a no fault system.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-02-08 - enacting clause stricken [A02814 Detail]
Download: New_York-2011-A02814-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2814
2011-2012 Regular Sessions
I N A S S E M B L Y
January 20, 2011
___________
Introduced by M. of A. CALHOUN -- read once and referred to the Commit-
tee on Insurance
AN ACT to amend the insurance law, in relation to enacting the New York
birth-related neurological injury compensation act
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The insurance law is amended by adding a new article 57 to
2 read as follows:
3 ARTICLE 57
4 NEW YORK BIRTH-RELATED NEUROLOGICAL
5 INJURY COMPENSATION ACT
6 SECTION 5701. SHORT TITLE.
7 5702. DEFINITIONS.
8 5703. NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION
9 PROGRAM; EXCLUSIVE REMEDY; EXCEPTION.
10 5704. WORKERS' COMPENSATION BOARD AUTHORIZED TO HEAR AND DETER-
11 MINE CLAIMS.
12 5705. FILING OF CLAIMS; REVIEW BY STATE BOARD FOR PROFESSIONAL
13 MEDICAL CONDUCT; FILING OF RESPONSES.
14 5706. TOLLING OF STATUTE OF LIMITATIONS.
15 5707. HEARING; PARTIES.
16 5708. INTERROGATORIES AND DEPOSITIONS.
17 5709. DETERMINATION OF CLAIMS; PRESUMPTION; FINDINGS OF BOARD
18 BINDING ON PARTICIPANTS; MEDICAL ADVISORY PANEL.
19 5710. BOARD AWARDS FOR BIRTH-RELATED NEUROLOGICAL INJURIES;
20 NOTICE OF AWARD.
21 5711. LIMITATION ON CLAIMS.
22 5712. SCOPE.
23 5713. BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION FUND.
24 5714. BOARD OF DIRECTORS; APPOINTMENT; VACANCIES; TERM.
25 5715. PLAN OF OPERATION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02850-01-1
A. 2814 2
1 5716. FUNDS TO BE HELD IN RESTRICTED CASH ACCOUNT.
2 5717. ASSESSMENTS.
3 5718. ACTUARIAL INVESTIGATION, VALUATIONS, GAIN/LOSS ANALYSIS;
4 NOTICE IF ASSESSMENTS PROVE INSUFFICIENT.
5 S 5701. SHORT TITLE. THE PROVISIONS OF THIS ARTICLE SHALL BE KNOWN AND
6 MAY BE CITED AS THE "NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY COMPEN-
7 SATION ACT".
8 S 5702. DEFINITIONS. AS USED IN THIS ARTICLE:
9 (A) "BIRTH-RELATED NEUROLOGICAL INJURY" MEANS A NON-PROGRESSIVE
10 IMPAIRMENT OF BRAIN OR SPINAL CORD WHICH OCCURRED OR WHICH COULD HAVE
11 OCCURRED DURING PREGNANCY, DURING LABOR, DURING DELIVERY OR IN THE IMME-
12 DIATE RESUSCITATION PERIOD AFTER DELIVERY WHICH RESULTS IN A SIGNIFICANT
13 IMPAIRMENT IN CENTRAL NERVOUS SYSTEM FUNCTION RENDERING THE INFANT
14 SUBSTANTIALLY HANDICAPPED. THE DETERMINATION OF WHETHER A SUBSTANTIAL
15 HANDICAP EXISTS SHALL BE MADE BY THE STATE BOARD OF PROFESSIONAL MEDICAL
16 CONDUCT. THIS TERM SHALL APPLY ONLY TO LIVE BIRTHS, AND SHALL NOT
17 INCLUDE DISABILITIES CAUSED BY CONGENITAL ABNORMALITIES INCLUDING, BUT
18 NOT LIMITED TO: GENETIC, DEVELOPMENTAL OR TERATOGENIC CAUSES.
19 (B) "CLAIMANT" MEANS ANY PERSON WHO FILES A CLAIM PURSUANT TO SECTION
20 FIVE THOUSAND SEVEN HUNDRED FIVE OF THIS ARTICLE FOR COMPENSATION FOR A
21 BIRTH-RELATED NEUROLOGICAL INJURY TO AN INFANT. SUCH CLAIMS MAY BE
22 FILED BY ANY LEGAL REPRESENTATIVE ON BEHALF OF AN INJURED INFANT; AND,
23 IN THE CASE OF A DECEASED INFANT, THE CLAIM MAY BE FILED BY AN ADMINIS-
24 TRATOR, EXECUTOR, OR OTHER LEGAL REPRESENTATIVE.
25 (C) "BOARD" MEANS THE WORKERS' COMPENSATION BOARD OF THE STATE OF NEW
26 YORK.
27 (D) "PARTICIPATING PHYSICIAN" MEANS A PHYSICIAN LICENSED IN THIS STATE
28 TO PRACTICE MEDICINE, WHO PRACTICES OBSTETRICS OR PERFORMS OBSTETRICAL
29 SERVICES EITHER FULL OR PART-TIME AND WHO HAD IN FORCE AN AGREEMENT WITH
30 THE STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT WHEREBY THE PHYSICIAN
31 AGREED TO SUBMIT TO REVIEW BY THE STATE BOARD FOR PROFESSIONAL MEDICAL
32 CONDUCT AS REQUIRED BY SUBSECTION (B) OF SECTION FIVE THOUSAND SEVEN
33 HUNDRED FIVE OF THIS ARTICLE.
34 (E) "PARTICIPATING HOSPITAL" MEANS A HOSPITAL LICENSED IN NEW YORK
35 WHICH AT THE TIME OF THE INJURY HAD IN FORCE AN AGREEMENT WITH THE BOARD
36 WHEREBY THE HOSPITAL AGREED TO SUBMIT TO REVIEW OF ITS OBSTETRICAL
37 SERVICE, AS REQUIRED BY SUBSECTION (C) OF SECTION FIVE THOUSAND SEVEN
38 HUNDRED FIVE OF THIS ARTICLE.
39 (F) "PROGRAM" MEANS THE NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY
40 COMPENSATION PROGRAM ESTABLISHED BY THIS ARTICLE.
41 S 5703. NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION
42 PROGRAM; EXCLUSIVE REMEDY; EXCEPTION. (A) THERE IS HEREBY ESTABLISHED
43 THE NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM.
44 (B) THE RIGHTS AND REMEDIES GRANTED PURSUANT TO THIS ARTICLE TO AN
45 INFANT ON ACCOUNT OF A BIRTH-RELATED NEUROLOGICAL INJURY SHALL EXCLUDE
46 ALL OTHER RIGHTS AND REMEDIES OF SUCH INFANT, HIS OR HER PERSONAL REPRE-
47 SENTATIVE, PARENTS, DEPENDENTS OR NEXT OF KIN, AT COMMON LAW OR OTHER-
48 WISE ARISING OUT OF OR RELATED TO A MEDICAL MALPRACTICE CLAIM WITH
49 RESPECT TO SUCH INJURY.
50 (C) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, A CIVIL
51 ACTION SHALL NOT BE FORECLOSED AGAINST A PHYSICIAN OR A HOSPITAL WHERE
52 THERE IS CLEAR AND CONVINCING EVIDENCE THAT SUCH PHYSICIAN OR HOSPITAL
53 INTENTIONALLY OR WILLFULLY CAUSED OR INTENDED TO CAUSE A BIRTH-RELATED
54 NEUROLOGICAL INJURY, PROVIDED THAT SUCH SUIT IS FILED PRIOR TO AND IN
55 LIEU OF PAYMENT OF AN AWARD UNDER THIS ARTICLE. SUCH SUIT SHALL BE FILED
56 BEFORE THE AWARD OF THE BOARD BECOMES CONCLUSIVE AND BINDING.
A. 2814 3
1 S 5704. WORKERS' COMPENSATION BOARD AUTHORIZED TO HEAR AND DETERMINE
2 CLAIMS. THE BOARD IS AUTHORIZED TO HEAR AND PASS UPON ALL CLAIMS FILED
3 PURSUANT TO THIS ARTICLE. THE BOARD MAY EXERCISE THE POWER AND AUTHORITY
4 GRANTED TO IT BY ARTICLE EIGHT OF THE WORKERS' COMPENSATION LAW AS
5 NECESSARY TO CARRY OUT THE PURPOSES OF THIS ARTICLE.
6 S 5705. FILING OF CLAIMS; REVIEW BY STATE BOARD FOR PROFESSIONAL
7 MEDICAL CONDUCT; FILING OF RESPONSES. (A) (1) IN ALL CLAIMS FILED UNDER
8 THIS ARTICLE, THE CLAIMANT SHALL FILE WITH THE BOARD A PETITION, SETTING
9 FORTH THE FOLLOWING INFORMATION:
10 (A) THE NAME AND ADDRESS OF THE LEGAL REPRESENTATIVE AND THE BASIS FOR
11 HIS OR HER REPRESENTATION OF THE INJURED INFANT;
12 (B) THE NAME AND ADDRESS OF THE INJURED INFANT;
13 (C) THE NAME AND ADDRESS OF ANY PHYSICIAN PROVIDING OBSTETRICAL
14 SERVICES WHO WAS PRESENT AT THE BIRTH AND THE NAME AND ADDRESS OF THE
15 HOSPITAL AT WHICH THE BIRTH OCCURRED;
16 (D) A DESCRIPTION OF THE DISABILITY FOR WHICH CLAIM IS MADE;
17 (E) THE TIME AND PLACE WHERE THE INJURY OCCURRED;
18 (F) A BRIEF STATEMENT OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE
19 INJURY AND GIVING RISE TO THE CLAIM;
20 (G) ALL AVAILABLE RELEVANT MEDICAL RECORDS RELATING TO THE PERSON WHO
21 ALLEGEDLY SUFFERED A BIRTH-RELATED NEUROLOGICAL INJURY AND AN IDENTIFI-
22 CATION OF ANY UNAVAILABLE RECORDS KNOWN TO THE CLAIMANT AND THE REASONS
23 FOR THEIR UNAVAILABILITY;
24 (H) APPROPRIATE ASSESSMENTS, EVALUATIONS, AND PROGNOSES AND SUCH OTHER
25 RECORDS AND DOCUMENTS AS ARE REASONABLY NECESSARY FOR THE DETERMINATION
26 OF THE AMOUNT OF COMPENSATION TO BE PAID TO, OR ON BEHALF OF, THE
27 INJURED INFANT ON ACCOUNT OF A BIRTH-RELATED NEUROLOGICAL INJURY;
28 (I) DOCUMENTATION OF EXPENSES AND SERVICES INCURRED TO DATE, WHICH
29 INDICATES WHETHER SUCH EXPENSES AND SERVICES HAVE BEEN PAID FOR, AND IF
30 SO, BY WHOM; AND
31 (J) DOCUMENTATION OF ANY APPLICABLE PRIVATE OR GOVERNMENTAL SOURCE OF
32 SERVICES OR REIMBURSEMENT RELATIVE TO THE ALLEGED IMPAIRMENTS.
33 (2) THE CLAIMANT SHALL FURNISH THE BOARD WITH AS MANY COPIES OF THE
34 PETITION AS REQUIRED FOR SERVICE UPON THE PROGRAM, ANY PHYSICIAN AND
35 HOSPITAL NAMED IN THE PETITION, AND THE STATE BOARD FOR PROFESSIONAL
36 MEDICAL CONDUCT, ALONG WITH A FIFTEEN DOLLAR FILING FEE. UPON RECEIPT OF
37 THE PETITION, THE BOARD SHALL IMMEDIATELY SERVE THE PROGRAM BY SERVICE
38 UPON THE AGENT DESIGNATED TO ACCEPT SERVICE ON BEHALF OF THE PROGRAM IN
39 THE PLAN OF OPERATION BY REGISTERED OR CERTIFIED MAIL, AND SHALL MAIL
40 COPIES OF THE PETITION TO ANY PHYSICIAN AND HOSPITAL NAMED IN THE PETI-
41 TION, THE STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT AND THE DEPART-
42 MENT OF HEALTH.
43 (B) UPON RECEIPT OF THE PETITION, THE STATE BOARD FOR PROFESSIONAL
44 MEDICAL CONDUCT SHALL EVALUATE THE CLAIM, AND IF IT DETERMINES THAT
45 THERE IS REASON TO BELIEVE THAT THE ALLEGED INJURY RESULTED FROM, OR WAS
46 AGGRAVATED BY, SUBSTANDARD CARE ON THE PART OF THE PHYSICIANS, IT SHALL
47 TAKE ANY APPROPRIATE ACTION.
48 (C) UPON RECEIPT OF THE PETITION, THE DEPARTMENT OF HEALTH SHALL EVAL-
49 UATE THE CLAIM, AND IF IT DETERMINES THAT THERE IS REASON TO BELIEVE
50 THAT THE ALLEGED INJURY RESULTED FROM, OR WAS AGGRAVATED BY, SUBSTANDARD
51 CARE ON THE PART OF THE HOSPITAL AT WHICH THE BIRTH OCCURRED, IT SHALL
52 TAKE ANY APPROPRIATE ACTION.
53 (D) THE PROGRAM SHALL HAVE THIRTY DAYS FROM THE DATE OF SERVICE IN
54 WHICH TO FILE A RESPONSE TO THE PETITION, AND TO SUBMIT RELEVANT WRITTEN
55 INFORMATION RELATING TO THE ISSUE OF WHETHER THE INJURY ALLEGED IS A
56 BIRTH-RELATED NEUROLOGICAL INJURY, WITHIN THE MEANING OF THIS ARTICLE.
A. 2814 4
1 S 5706. TOLLING OF STATUTE OF LIMITATIONS. THE STATUTE OF LIMITATIONS
2 WITH RESPECT TO ANY CIVIL ACTION THAT MAY BE BROUGHT BY OR ON BEHALF OF
3 AN INJURED INFANT ALLEGEDLY ARISING OUT OF OR RELATED TO A BIRTH-RELATED
4 INJURY SHALL BE TOLLED BY THE FILING OF A CLAIM IN ACCORDANCE WITH THIS
5 SECTION, AND THE TIME SUCH CLAIM IS PENDING SHALL NOT BE COMPUTED AS
6 PART OF THE PERIOD WITHIN WHICH SUCH CIVIL ACTION MAY BE BROUGHT.
7 S 5707. HEARING; PARTIES. (A) IMMEDIATELY AFTER SUCH PETITION HAS BEEN
8 RECEIVED, THE BOARD SHALL SET THE DATE FOR A HEARING, WHICH SHALL BE
9 HELD NO SOONER THAN FORTY-FIVE DAYS AND NO LATER THAN ONE HUNDRED TWENTY
10 DAYS AFTER THE FILING OF A PETITION, AND SHALL NOTIFY THE PARTIES THERE-
11 TO OF THE TIME AND PLACE OF SUCH HEARING. THE HEARING SHALL BE HELD IN
12 THE CITY OR COUNTY WHERE THE INJURY OCCURRED, OR IN A CONTIGUOUS CITY OR
13 COUNTY, UNLESS OTHERWISE AGREED TO BY THE PARTIES AND AUTHORIZED BY THE
14 BOARD.
15 (B) THE PARTIES TO THE HEARING REQUIRED UNDER THIS SECTION SHALL
16 INCLUDE THE CLAIMANT AND THE PROGRAM.
17 S 5708. INTERROGATORIES AND DEPOSITIONS. ANY PARTY TO A PROCEEDING
18 UNDER THIS ARTICLE MAY, UPON APPLICATION TO THE BOARD SETTING FORTH THE
19 MATERIALITY OF THE EVIDENCE TO BE GIVEN, SERVE INTERROGATORIES OR CAUSE
20 THE DEPOSITIONS OF WITNESSES RESIDING WITHIN OR WITHOUT THE STATE TO BE
21 TAKEN, THE COSTS TO BE TAXED AS EXPENSES INCURRED IN CONNECTION WITH THE
22 FILING OF A CLAIM, IN ACCORDANCE WITH SUBSECTION (B) OF SECTION FIVE
23 THOUSAND SEVEN HUNDRED TEN OF THIS ARTICLE. SUCH DEPOSITIONS SHALL BE
24 TAKEN AFTER GIVING NOTICE AND IN THE MANNER PRESCRIBED BY LAW, FOR DEPO-
25 SITIONS IN ACTIONS AT LAW, EXCEPT THAT THEY SHALL BE FILED WITH THE
26 BOARD.
27 S 5709. DETERMINATION OF CLAIMS; PRESUMPTION; FINDINGS OF BOARD BIND-
28 ING ON PARTICIPANTS; MEDICAL ADVISORY PANEL. (A) THE BOARD SHALL DETER-
29 MINE, ON THE BASIS OF THE EVIDENCE PRESENTED TO IT, THE FOLLOWING
30 ISSUES:
31 (1) WHETHER THE INJURIES CLAIMED ARE BIRTH-RELATED NEUROLOGICAL INJU-
32 RIES AS DEFINED IN SECTION FIVE THOUSAND SEVEN HUNDRED TWO OF THIS ARTI-
33 CLE. A REBUTTABLE PRESUMPTION SHALL ARISE THAT THE INJURY ALLEGED IS A
34 BIRTH-RELATED NEUROLOGICAL INJURY WHERE IT HAS BEEN DEMONSTRATED, TO THE
35 SATISFACTION OF THE BOARD, THAT THE INFANT HAS SUSTAINED A BRAIN OR
36 SPINAL CORD INJURY CAUSED BY OXYGEN DEPRIVATION OR MECHANICAL INJURY,
37 AND THAT THE INFANT WAS THEREBY RENDERED PERMANENTLY NONAMBULATORY,
38 APHASIC AND INCONTINENT.
39 IF EITHER PARTY DISAGREES WITH SUCH PRESUMPTION, THAT PARTY SHALL HAVE
40 THE BURDEN OF PROVING THAT THE INJURIES ALLEGED ARE NOT BIRTH-RELATED
41 NEUROLOGICAL INJURIES WITHIN THE MEANING OF THIS ARTICLE.
42 (2) WHETHER OBSTETRICAL SERVICES WERE DELIVERED BY A PARTICIPATING
43 PHYSICIAN AT THE BIRTH.
44 (3) WHETHER THE BIRTH OCCURRED IN A PARTICIPATING HOSPITAL.
45 (4) HOW MUCH COMPENSATION, IF ANY, IS AWARDABLE PURSUANT TO SECTION
46 FIVE THOUSAND SEVEN HUNDRED TEN OF THIS ARTICLE.
47 (5) IF THE BOARD DETERMINES THAT THE INJURY ALLEGED IS NOT A BIRTH-RE-
48 LATED NEUROLOGICAL INJURY WITHIN THE MEANING OF THIS ARTICLE, THAT
49 OBSTETRICAL SERVICES WERE NOT DELIVERED BY A PARTICIPATING PHYSICIAN AT
50 THE BIRTH, OR THAT THE BIRTH DID NOT OCCUR IN A PARTICIPATING HOSPITAL,
51 IT SHALL CAUSE A COPY OF SUCH DETERMINATION TO BE SENT IMMEDIATELY TO
52 THE PARTIES BY REGISTERED OR CERTIFIED MAIL.
53 (6) BY BECOMING A PARTICIPATING PHYSICIAN OR HOSPITAL EACH PARTICIPANT
54 IS BOUND FOR ALL PURPOSES INCLUDING ANY SUIT AT LAW AGAINST A PARTIC-
55 IPATING PHYSICIAN OR PARTICIPATING HOSPITAL, BY THE FINDING OF THE BOARD
A. 2814 5
1 (OR ANY APPEAL THEREFROM) WITH RESPECT TO WHETHER SUCH INJURY IS BIRTH-
2 RELATED.
3 (B) THE DEANS OF THE MEDICAL SCHOOLS OF THE STATE SHALL DEVELOP A PLAN
4 WHEREBY EACH CLAIM FILED WITH THE BOARD IS REVIEWED BY A PANEL OF THREE
5 QUALIFIED AND IMPARTIAL PHYSICIANS. THIS PANEL SHALL FILE ITS REPORT AND
6 RECOMMENDATIONS AS TO WHETHER THE INJURY ALLEGED IS A BIRTH-RELATED
7 NEUROLOGICAL INJURY WITHIN THE MEANING OF THIS ARTICLE WITH THE BOARD AT
8 LEAST TEN DAYS PRIOR TO THE DATE SET FOR HEARING PURSUANT TO SECTION
9 FIVE THOUSAND SEVEN HUNDRED SEVEN OF THIS ARTICLE. AT THE REQUEST OF
10 THE BOARD, AT LEAST ONE MEMBER OF THE PANEL SHALL BE AVAILABLE TO TESTI-
11 FY AT THE HEARING. THE BOARD MUST CONSIDER, BUT SHALL NOT BE BOUND BY,
12 THE RECOMMENDATION OF THE PANEL.
13 S 5710. BOARD AWARDS FOR BIRTH-RELATED NEUROLOGICAL INJURIES; NOTICE
14 OF AWARD. UPON DETERMINING THAT AN INFANT HAS SUSTAINED A BIRTH-RELATED
15 NEUROLOGICAL INJURY, THAT OBSTETRICAL SERVICES WERE DELIVERED BY A
16 PARTICIPATING PHYSICIAN AT THE BIRTH, AND THAT THE BIRTH OCCURRED IN A
17 PARTICIPATING HOSPITAL, THE BOARD SHALL MAKE AN AWARD PROVIDING COMPEN-
18 SATION FOR THE FOLLOWING ITEMS RELATIVE TO SUCH INJURY:
19 (A) ACTUAL MEDICALLY NECESSARY AND REASONABLE EXPENSES OF MEDICAL AND
20 HOSPITAL, REHABILITATIVE, RESIDENTIAL AND CUSTODIAL CARE AND SERVICE,
21 SPECIAL EQUIPMENT OR FACILITIES, AND RELATED TRAVEL. HOWEVER, SUCH
22 EXPENSES SHALL NOT INCLUDE:
23 (1) EXPENSES FOR ITEMS OR SERVICES THAT THE INFANT HAS RECEIVED, OR IS
24 ENTITLED TO RECEIVE, UNDER THE LAWS OF ANY STATE OR THE FEDERAL GOVERN-
25 MENT EXCEPT TO THE EXTENT PROHIBITED BY FEDERAL LAW;
26 (2) EXPENSES FOR ITEMS OR SERVICES THAT THE INFANT HAS RECEIVED, OR IS
27 CONTRACTUALLY ENTITLED TO RECEIVE, FROM ANY PREPAID HEALTH PLAN, HEALTH
28 MAINTENANCE ORGANIZATION, OR OTHER PRIVATE INSURING ENTITY;
29 (3) EXPENSES FOR WHICH THE INFANT HAS RECEIVED REIMBURSEMENT, OR FOR
30 WHICH THE INFANT IS ENTITLED TO RECEIVE REIMBURSEMENT, UNDER THE LAWS OF
31 ANY STATE OR FEDERAL GOVERNMENT EXCEPT TO THE EXTENT PROHIBITED BY
32 FEDERAL LAW; AND
33 (4) EXPENSES FOR WHICH THE INFANT HAS RECEIVED REIMBURSEMENT, OR FOR
34 WHICH THE INFANT IS CONTRACTUALLY ENTITLED TO RECEIVE REIMBURSEMENT,
35 PURSUANT TO THE PROVISIONS OF ANY HEALTH OR SICKNESS INSURANCE POLICY OR
36 OTHER PRIVATE INSURANCE PROGRAM.
37 (B) EXPENSES OF MEDICAL AND HOSPITAL SERVICES UNDER SUBSECTION (A) OF
38 THIS SECTION SHALL BE LIMITED TO SUCH CHARGES AS PREVAIL IN THE SAME
39 COMMUNITY FOR SIMILAR TREATMENT OF INJURED PERSONS OF A LIKE STANDARD OF
40 LIVING WHEN SUCH TREATMENT IS PAID FOR BY THE INJURED PERSON.
41 (C) LOSS OF EARNINGS FROM THE AGE OF EIGHTEEN. AN INFANT FOUND TO HAVE
42 SUSTAINED A BIRTH-RELATED NEUROLOGICAL INJURY SHALL BE CONCLUSIVELY
43 PRESUMED TO HAVE BEEN ABLE TO EARN INCOME FROM WORK FROM THE AGE OF
44 EIGHTEEN THROUGH THE AGE OF SIXTY-FIVE, IF HE OR SHE HAD NOT BEEN
45 INJURED, IN THE AMOUNT OF FIFTY PERCENT OF THE AVERAGE WEEKLY WAGE IN
46 THE STATE OF WORKERS IN THE PRIVATE, NONFARM SECTOR.
47 (D) REASONABLE EXPENSES INCURRED IN CONNECTION WITH THE FILING OF A
48 CLAIM UNDER THIS ARTICLE, INCLUDING REASONABLE ATTORNEYS' FEES, WHICH
49 SHALL BE SUBJECT TO THE APPROVAL AND AWARD OF THE BOARD.
50 (E) A COPY OF THE AWARD SHALL BE SENT IMMEDIATELY BY REGISTERED OR
51 CERTIFIED MAIL TO THE PARTIES.
52 S 5711. LIMITATION ON CLAIMS. ANY CLAIM UNDER THIS ARTICLE THAT IS
53 FILED MORE THAN TEN YEARS AFTER THE BIRTH OF AN INFANT ALLEGED TO HAVE A
54 BIRTH-RELATED NEUROLOGICAL INJURY SHALL BE BARRED.
55 S 5712. SCOPE. THIS ARTICLE APPLIES TO ALL CLAIMS FOR BIRTH-RELATED
56 NEUROLOGICAL INJURIES OCCURRING IN THIS STATE ON OR AFTER JANUARY FIRST,
A. 2814 6
1 TWO THOUSAND TEN. THIS ARTICLE SHALL NOT APPLY TO DISABILITY OR DEATH
2 CAUSED BY GENETIC OR CONGENITAL ABNORMALITIES, OR DISABILITY OR DEATH
3 CAUSED BY BIRTH AT HOME UNATTENDED BY A PHYSICIAN.
4 S 5713. BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION FUND. THERE IS
5 ESTABLISHED THE BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION FUND TO
6 FINANCE THE NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION
7 PROGRAM CREATED BY THIS ARTICLE.
8 S 5714. BOARD OF DIRECTORS; APPOINTMENT; VACANCIES; TERM. (A) THE
9 BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM SHALL BE GOVERNED
10 BY A BOARD OF FIVE DIRECTORS.
11 (B) DIRECTORS SHALL BE APPOINTED FOR A TERM OF THREE YEARS OR UNTIL
12 THEIR SUCCESSORS ARE APPOINTED AND HAVE QUALIFIED.
13 (C) (1) THE DIRECTORS SHALL BE APPOINTED BY THE GOVERNOR AS FOLLOWS:
14 (A) ONE CITIZEN REPRESENTATIVE;
15 (B) ONE REPRESENTATIVE OF PARTICIPATING PHYSICIANS;
16 (C) ONE REPRESENTATIVE OF PARTICIPATING HOSPITALS;
17 (D) ONE REPRESENTATIVE OF LIABILITY INSURERS; AND
18 (E) ONE REPRESENTATIVE OF PHYSICIANS OTHER THAN PARTICIPATING PHYSI-
19 CIANS.
20 (2) THE GOVERNOR MAY SELECT THE REPRESENTATIVE OF THE PARTICIPATING
21 PHYSICIANS FROM A LIST OF AT LEAST THREE NAMES TO BE RECOMMENDED BY THE
22 AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS; THE REPRESENTATIVE
23 OF PARTICIPATING HOSPITALS FROM A LIST OF AT LEAST THREE NAMES TO BE
24 RECOMMENDED BY THE HEALTH CARE ASSOCIATION OF NEW YORK STATE; THE REPRE-
25 SENTATIVE OF LIABILITY INSURERS FROM A LIST OF AT LEAST THREE NAMES, ONE
26 OF WHICH IS RECOMMENDED BY THE AMERICAN INSURANCE ASSOCIATION, ONE BY
27 THE ALLIANCE OF AMERICAN INSURERS, AND ONE BY THE NATIONAL ASSOCIATION
28 OF INDEPENDENT INSURERS; AND THE REPRESENTATIVE OF PHYSICIANS OTHER THAN
29 PARTICIPATING PHYSICIANS FROM A LIST OF AT LEAST THREE NAMES TO BE
30 RECOMMENDED BY THE MEDICAL SOCIETY OF NEW YORK. IN NO CASE SHALL THE
31 GOVERNOR BE BOUND TO MAKE ANY APPOINTMENT FROM AMONG THE NOMINEES OF THE
32 RESPECTIVE ASSOCIATIONS.
33 (D) THE GOVERNOR SHALL PROMPTLY NOTIFY THE ASSOCIATION, WHICH MAY MAKE
34 NOMINATIONS, OF ANY VACANCY OTHER THAN BY EXPIRATION AMONG THE MEMBERS
35 OF THE BOARD REPRESENTING A PARTICULAR INTEREST AND LIKE NOMINATIONS MAY
36 BE MADE FOR THE FILLING OF THE VACANCY.
37 (E) THE DIRECTORS SHALL ACT BY MAJORITY VOTE WITH FIVE DIRECTORS
38 CONSTITUTING A QUORUM FOR THE TRANSACTION OF ANY BUSINESS OR THE EXER-
39 CISE OF ANY POWER OF THE PROGRAM. THE DIRECTORS SHALL SERVE WITHOUT
40 SALARY, BUT EACH DIRECTOR SHALL BE REIMBURSED FOR ACTUAL AND NECESSARY
41 EXPENSES INCURRED IN THE PERFORMANCE OF HIS OR HER OFFICIAL DUTIES AS A
42 DIRECTOR OF THE PROGRAM. THE DIRECTORS SHALL NOT BE SUBJECT TO ANY
43 PERSONAL LIABILITY WITH RESPECT TO THE ADMINISTRATION OF THE PROGRAM.
44 (F) THE BOARD ESTABLISHED BY THIS SECTION SHALL HAVE THE POWER TO
45 ADMINISTER THE PROGRAM, ADMINISTER THE BIRTH-RELATED NEUROLOGICAL INJURY
46 COMPENSATION FUND, APPOINT A SERVICE COMPANY OR COMPANIES TO ADMINISTER
47 THE PAYMENT OF CLAIMS ON BEHALF OF THE PROGRAM, DIRECT THE INVESTMENT
48 AND REINVESTMENT OF ANY SURPLUS IN THE FUND OVER LOSSES AND EXPENSES,
49 PROVIDED ANY INVESTMENT INCOME GENERATED THEREBY REMAINS IN THE FUND,
50 AND REINSURE THE RISKS OF THE FUND IN WHOLE OR IN PART.
51 S 5715. PLAN OF OPERATION. (A) ON OR BEFORE SEPTEMBER THIRTIETH, TWO
52 THOUSAND TWELVE, THE DIRECTORS OF THE PROGRAM SHALL SUBMIT TO THE SUPER-
53 INTENDENT FOR REVIEW A PROPOSED PLAN OF OPERATIONS CONSISTENT WITH THIS
54 ARTICLE.
55 (B) THE PLAN OF OPERATION SHALL PROVIDE FOR THE EFFICIENT ADMINIS-
56 TRATION OF THE PROGRAM AND FOR THE PROMPT PROCESSING OF CLAIMS MADE
A. 2814 7
1 AGAINST THE FUND PURSUANT TO AN AWARD UNDER THIS ARTICLE. THE PLAN SHALL
2 CONTAIN OTHER PROVISIONS INCLUDING:
3 (1) ESTABLISHMENT OF NECESSARY FACILITIES;
4 (2) MANAGEMENT OF THE FUND;
5 (3) APPOINTMENT OF SERVICING CARRIERS OR OTHER SERVICING ARRANGEMENTS
6 TO ADMINISTER THE PROCESSING OF CLAIMS AGAINST THE FUND; AND
7 (4) ANY OTHER MATTERS NECESSARY FOR THE EFFICIENT OPERATION OF THE
8 PROGRAM.
9 (C) THE PLAN OF OPERATION SHALL BE SUBJECT TO APPROVAL BY THE SUPER-
10 INTENDENT AFTER CONSULTATION WITH REPRESENTATIVES OF INTERESTED INDIVID-
11 UALS AND ORGANIZATIONS. IF THE SUPERINTENDENT DISAPPROVES ALL OR ANY
12 PART OF THE PROPOSED PLAN OF OPERATION, THE DIRECTORS SHALL WITHIN THIR-
13 TY DAYS SUBMIT FOR REVIEW AN APPROPRIATE REVISED PLAN OF OPERATION. IF
14 THE DIRECTORS FAIL TO DO SO, THE SUPERINTENDENT SHALL PROMULGATE A PLAN
15 OF OPERATION. THE PLAN OF OPERATION APPROVED OR PROMULGATED BY THE
16 SUPERINTENDENT SHALL BECOME EFFECTIVE AND OPERATIONAL UPON ORDER OF THE
17 SUPERINTENDENT.
18 (D) AMENDMENTS TO THE PLAN OF OPERATION MAY BE MADE BY THE DIRECTORS
19 OF THE PROGRAM, SUBJECT TO THE APPROVAL OF THE SUPERINTENDENT.
20 S 5716. FUNDS TO BE HELD IN RESTRICTED CASH ACCOUNT. ALL FUNDS, SHALL
21 BE HELD IN A SEPARATE RESTRICTED CASH ACCOUNT UNDER THE SOLE CONTROL OF
22 AN INDEPENDENT FUND MANAGER TO BE SELECTED BY THE DIRECTORS. THE FUND,
23 AND ANY INCOME FROM IT, SHALL BE DISBURSED FOR THE PAYMENT OF AWARDS AS
24 PROVIDED IN THIS ARTICLE AND FOR THE PAYMENT OF THE EXPENSES OF ADMINIS-
25 TRATION OF THE FUND.
26 S 5717. ASSESSMENTS. FUNDS FOR THIS PROGRAM SHALL BE DERIVED FROM THE
27 EXCESS MEDICAL LIABILITY POOL, ENACTED BY SECTION EIGHTEEN OF CHAPTER
28 TWO HUNDRED SIXTY-SIX OF THE LAWS OF NINETEEN HUNDRED EIGHTY-SIX, AS
29 AMENDED, IN AN AMOUNT DETERMINED BY THE DIRECTORS OF THE FUND AND CERTI-
30 FIED BY THE SUPERINTENDENT TO BE ACTUARIALLY SOUND.
31 S 5718. ACTUARIAL INVESTIGATION, VALUATIONS, GAIN/LOSS ANALYSIS;
32 NOTICE IF ASSESSMENTS PROVE INSUFFICIENT. THE SUPERINTENDENT SHALL
33 UNDERTAKE AN ACTUARIAL INVESTIGATION OF THE REQUIREMENTS OF THE FUND
34 BASED ON THE FUND'S EXPERIENCE IN THE FIRST YEAR OF OPERATION, INCLUDING
35 WITHOUT LIMITATION THE ASSETS AND LIABILITIES OF THE FUND. PURSUANT TO
36 SUCH INVESTIGATION, THE SUPERINTENDENT SHALL ESTABLISH THE RATE OF
37 CONTRIBUTION FROM THE EXCESS LIABILITY POOL.
38 FOLLOWING THE INITIAL VALUATION, THE SUPERINTENDENT SHALL CAUSE AN
39 ACTUARIAL VALUATION TO BE MADE OF THE ASSETS AND LIABILITIES OF THE FUND
40 NO LESS FREQUENTLY THAN BIENNIALLY. PURSUANT TO THE RESULTS OF SUCH
41 VALUATIONS, THE SUPERINTENDENT SHALL PREPARE A STATEMENT AS TO THE
42 APPLICABLE CONTRIBUTION FROM THE EXCESS LIABILITY POOL.
43 S 2. This act shall take effect immediately.
