2023 New York Laws › PBH - Public Health › Article 29-D - Health Information and Quality Improvement › Title 4 - 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:
(a)  such  regulation  shall  not  prevent  qualified  plaintiffs from
receiving care or assistance that would, at  a  minimum,  be  authorized
under the medicaid program;
(b)  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; and
(c) such regulations shall not prohibit qualifying health  care  costs
on  the  grounds  that  the qualifying health care cost may incidentally
benefit other members  of  the  household,  provided  that  whether  the
qualifying  health  care  cost  primarily  benefits  the  patient may be
considered.
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 on the basis of  one  hundred  percent  of  the
usual  and  customary cost. For the purposes of this section, "usual and
customary costs" shall mean the eightieth percentile of all charges  for
the  particular  health care service performed by a provider in the same
or similar specialty and provided  in  the  same  geographical  area  as
reported   in   a   benchmarking  database  maintained  by  a  nonprofit
organization specified by the superintendent of financial  services.  If
no  such  rates  are  available  qualifying  health  care costs shall be
calculated on the basis of no less than one hundred  thirty  percent  of
Medicaid  or Medicare rates of reimbursement, whichever is higher. If no
such  rate  exists,  costs  shall  be  reimbursed  as  defined  by   the
commissioner in regulation.
* NB Effective until December 31, 2025
* 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.
* NB Effective December 31, 2025
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 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  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, 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 that the relevant provisions of subdivision six
of this section have been met; 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 commissioner. 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  commissioner,  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.  Such  payments  shall  constitute  payment in full for any
services provided to a  qualified  plaintiff  in  accordance  with  this
article.
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 upon the referral of the commissioner.
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 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.