S T A T E   O F   N E W   Y O R K
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    S. 8414                                                 A. 11596

                      S E N A T E - A S S E M B L Y

                              June 29, 2010
                               ___________

IN SENATE -- Introduced by Sen. BRESLIN -- read twice and ordered print-
  ed, and when printed to be committed to the Committee on Rules

IN  ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of M. of
  A. Morelle, Titone, Heastie,  Jeffries,  Barclay)  --  read  once  and
  referred to the Committee on Insurance

AN  ACT to amend the insurance law, in relation to enacting the "automo-
  bile insurance fraud prevention act of 2010"

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. This act shall be known and may be cited as the "automobile
insurance fraud prevention act of 2010".
  S  2. Section 5106 of the insurance law, subsection (b) as amended and
subsection (d) as added by chapter 452 of the laws of 2005,  is  amended
to read as follows:
  S  5106. Fair claims settlement. (a) (1) Payments of first party bene-
fits and additional first party benefits shall be made as  the  loss  is
incurred.    Such  benefits  are  overdue if not paid within thirty days
after the claimant supplies  proof  of  the  fact  and  amount  of  loss
sustained.  If  proof is not supplied as to the entire claim, the amount
which is supported by proof is overdue if not paid  within  thirty  days
after  such  proof is supplied. All overdue payments shall bear interest
at the rate of two percent per month. If a valid claim  or  portion  was
overdue,  the  claimant shall also be entitled to recover his attorney's
reasonable fee, for services necessarily performed  in  connection  with
securing payment of the overdue claim, subject to limitations promulgat-
ed by the superintendent in regulations.
  (2)  THE FAILURE TO ISSUE A DENIAL OF A CLAIM WITHIN THIRTY DAYS SHALL
NOT PRECLUDE THE INSURER OR SELF-INSURER  FROM  PRESENTING  EVIDENCE  TO
ESTABLISH  THAT (A) THE SERVICES OR ITEMS BILLED FOR IN A CLAIM WERE NOT
PROVIDED; (B) CERTAIN PORTIONS OF THE CHARGES FOR SERVICES  IN  A  CLAIM
EXCEED,  BY  MORE THAN TEN PERCENT, THE CHARGES PERMISSIBLE UNDER SCHED-
ULES PREPARED AND ESTABLISHED PURSUANT TO SUBSECTIONS  (A)  AND  (B)  OF
SECTION  FIVE  THOUSAND  ONE  HUNDRED  EIGHT OF THIS ARTICLE, OR (C) THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD17894-01-0

S. 8414                             2                           A. 11596

EVENT FROM WHICH THE CLAIM AROSE WAS BASED UPON AN INTENT TO DEFRAUD  AN
INSURER  OR  SELF-INSURER.  NOTHING  CONTAINED  IN  THIS PARAGRAPH SHALL
PRECLUDE AN INSURER FROM CONTESTING THE EXISTENCE OF  APPLICABLE  INSUR-
ANCE COVERAGE FOR THE LOSS CLAIMED.
  (3) AN INSURER MAY DENY A CLAIM ON THE BASIS OF LACK OF MEDICAL NECES-
SITY  NOT  LATER  THAN  SIXTY  DAYS  AFTER THE DATE UPON WHICH THE CLAIM
BECAME OVERDUE. ANY DENIAL OF A CLAIM WHICH IS  BASED  UPON  A  LACK  OF
MEDICAL  NECESSITY SHALL BE BASED UPON REVIEW BY A LICENSED PROVIDER WHO
TYPICALLY DIAGNOSES AND  PROVIDES  TREATMENT  FOR  THE  CONDITION  UNDER
REVIEW, OR TYPICALLY PROVIDES THE HEALTH CARE SERVICE OR TREATMENT UNDER
REVIEW.  COPIES  OF  ALL  REPORTS PREPARED BY A HEALTH CARE PROVIDER WHO
EXAMINES A CLAIMANT AT THE REQUEST OF AN INSURER OR REVIEWS A CLAIM  FOR
MEDICAL  BENEFITS  AT THE REQUEST OF AN INSURER SHALL BE PROVIDED TO THE
CLAIMANT, THE CLAIMANT'S ATTORNEY AND  THE  CLAIMANT'S  TREATING  HEALTH
CARE PROVIDER WITHIN THIRTY BUSINESS DAYS OF SUCH EXAMINATION OR REVIEW.
  (b)  [Every  insurer shall provide a] (1) A claimant [with] SHALL HAVE
the option of submitting any dispute involving the  insurer's  liability
to  pay  first  party  benefits, or additional first party benefits, the
amount  thereof  or  any  other  matter  which  may  arise  pursuant  to
subsection  (a)  of  this  section to arbitration pursuant to simplified
procedures to be promulgated or approved  by  the  superintendent.  Such
simplified  procedures  shall  include  an expedited eligibility hearing
option, when required, to designate the insurer for first party benefits
pursuant to subsection [(d)] (F) of this section. The  expedited  eligi-
bility  hearing  option  shall be a forum for eligibility disputes only,
and shall not include the submission of any particular bill, payment  or
claim  for  any specific benefit for adjudication, nor shall it consider
any other defense to payment.
  [(c)] (2) THE COMMENCEMENT OF A COURT PROCEEDING OR THE SUBMISSION  OF
A  DISPUTE TO ARBITRATION SHALL NOT PRECLUDE A CLAIMANT FROM ELECTING TO
SUBMIT OTHER DISPUTES ARISING FROM THE SAME INSTANCE OF USE OR OPERATION
OF A MOTOR VEHICLE TO THE ALTERNATE FORUM. HOWEVER, WITH  THE  EXCEPTION
OF  A  PROCEEDING  BROUGHT PURSUANT TO ARTICLE SEVENTY-FIVE OF THE CIVIL
PRACTICE LAW AND RULES, A CLAIMANT MAY NOT SUBMIT  A  DISPUTE  REGARDING
THE SAME DENIAL TO MULTIPLE FORUMS.
  (3)  ARBITRATORS  ARE REQUIRED TO FOLLOW AND APPLY SUBSTANTIVE LAW. An
award by an arbitrator shall be binding except where vacated or modified
by a master arbitrator in accordance with simplified  procedures  to  be
promulgated  or  approved  by  the superintendent, WHICH SHALL OFFER THE
PARTIES THE OPPORTUNITY TO SUBMIT WRITTEN BRIEFS. The grounds for vacat-
ing or modifying an arbitrator's award by a master arbitrator shall  not
be limited to those grounds for review set forth in article seventy-five
of the civil practice law and rules AND SHALL INCLUDE FACTUAL, LEGAL AND
PROCEDURAL  ERRORS.    The award of a master arbitrator shall be binding
except for the grounds for review set forth in article  seventy-five  of
the  civil  practice  law and rules, and provided further that where the
amount of such master arbitrator's award is  five  thousand  dollars  or
greater,  exclusive  of interest and attorney's fees, the insurer or the
claimant may institute a court action to adjudicate the dispute de novo.
  [(d)] (C) WITH RESPECT TO AN ACTION FOR SERIOUS PERSONAL INJURY PURSU-
ANT TO SECTION FIVE THOUSAND ONE HUNDRED FOUR OF THIS ARTICLE, THE AWARD
OF AN ARBITRATOR OR MASTER ARBITRATOR RENDERED IN A  PROCEEDING  BROUGHT
PURSUANT TO THIS ARTICLE, OTHER THAN AN AWARD PERTAINING TO THE ISSUE OF
THE  EXISTENCE  OF  INSURANCE  COVERAGE, SHALL NOT CONSTITUTE COLLATERAL
ESTOPPEL OF THE ISSUES ARBITRATED.

S. 8414                             3                           A. 11596

  (D) WITH RESPECT TO AN ARBITRATION OR AN ACTION COMMENCED IN  A  COURT
OF  COMPETENT  JURISDICTION  INITIATED  TO  OBTAIN PAYMENT OF AN OVERDUE
CLAIM FOR THE PAYMENT OF MEDICAL BENEFITS  PRIMA  FACIE  ENTITLEMENT  TO
BENEFITS  SHALL  BE ESTABLISHED BY FILING A VERIFICATION BY THE CLAIMANT
WITH THE ARBITRATION DEMAND OR COMPLAINT, SETTING FORTH THAT:
  (1)  THE  CLAIMANT  WAS  LICENSED  TO RENDER THE SERVICES OR THE ITEMS
PROVIDED AT THE TIME THEY WERE PROVIDED;
  (2) THE SERVICES WERE RENDERED OR ITEMS SUPPLIED BY THE CLAIMANT;
  (3) THE SERVICES OR ITEMS WERE MEDICALLY NECESSARY, OR,  FOR  SERVICES
OR  SUPPLIES  PROVIDED PURSUANT TO PRESCRIPTION, THAT SUCH WERE PROPERLY
SUPPORTED BY A PRESCRIPTION;
  (4) THE CLAIMANT RECEIVED AN ASSIGNMENT OF BENEFITS FROM  THE  INJURED
PARTY OR THE GUARDIAN OR PARENT OF THE INJURED PARTY; AND
  (5)  THE  CLAIMANT  AUTHORIZED  THE PARTICULAR ATTORNEY OR LAW FIRM TO
COMMENCE THE SUIT.
  (E) WITH RESPECT TO AN ACTION COMMENCED IN A COURT OF COMPETENT JURIS-
DICTION TO OBTAIN BENEFITS PURSUANT TO THIS ARTICLE:
  (1) A REBUTTABLE  PRESUMPTION  OF  ADMISSIBILITY  ATTACHES  TO  CLAIMS
FORMS, DENIAL OF CLAIMS FORMS, VERIFICATION REQUESTS AND RESPONSES THER-
ETO,  WHEN  SUCH  ARE ACCOMPANIED BY AN AFFIDAVIT ESTABLISHING THAT SUCH
FORMS ARE BUSINESS RECORDS PURSUANT TO RULE FORTY-FIVE HUNDRED  EIGHTEEN
OF THE CIVIL PRACTICE LAW AND RULES.
  (2)  A  REBUTTABLE  EVIDENTIARY PRESUMPTION SHALL ATTACH TO SUCH DOCU-
MENTS REFERENCED IN PARAGRAPH ONE  OF  THIS  SUBSECTION  THAT  SUCH  ARE
VALID.
  (3)  A  REBUTTABLE  EVIDENTIARY PRESUMPTION SHALL ATTACH TO SUCH DOCU-
MENTS REFERENCED IN PARAGRAPH ONE OF  THIS  SUBSECTION  THAT  SUCH  WERE
MAILED TO THE ADDRESS CONTAINED THEREON, ON THE DATE CONTAINED THEREON.
  (4)  A  REBUTTABLE  EVIDENTIARY  PRESUMPTION SHALL ATTACH TO PROOFS OF
PAYMENT THAT SUCH PAYMENTS WERE MADE BY THE INSURER AND RECEIVED BY  THE
PLAINTIFF.
  (5)  IN  MATTERS  WHERE  THE INSURER'S DENIAL IS BASED UPON AN ALLEGED
LACK OF MEDICAL NECESSITY, A  REBUTTABLE  PRESUMPTION  OF  ADMISSIBILITY
ATTACHES TO MEDICAL REPORTS OF THE CLAIMANT'S TREATING PROVIDERS.
  (6)  NOTHING  CONTAINED IN THIS SUBSECTION SHALL PRECLUDE A PARTY FROM
OFFERING EVIDENCE AT TRIAL TO REBUT ANY PRESUMPTION IN THIS  SUBSECTION,
NOR  TO PRECLUDE AN INSURER FROM OFFERING EVIDENCE AT TRIAL ON ANY MERI-
TORIOUS, NON-PRECLUDED DEFENSE TO PAYMENT OF THE BENEFITS.
  (7) THE DEPOSITION OF ANY PERSON MAY BE USED BY ANY PARTY WITHOUT  THE
NECESSITY OF SHOWING UNAVAILABILITY OR SPECIAL CIRCUMSTANCES, SUBJECT TO
THE  RIGHT  OF  ANY PARTY TO MOVE PURSUANT TO SECTION THIRTY-ONE HUNDRED
THREE OF THE CIVIL PRACTICE LAW AND RULES  TO  PREVENT  ABUSE,  PROVIDED
THAT THE PARTY AGAINST WHOM THE EVIDENCE IS OFFERED HAD BEEN AFFORDED AN
OPPORTUNITY TO PARTICIPATE AND QUESTION THE WITNESS AT THE DEPOSITION.
  (F)  Where  there  is reasonable belief more than one insurer would be
the source of first party benefits, the insurers may agree  among  them-
selves, if there is a valid basis therefor, that one of them will accept
and  pay  the  claim  initially. If there is no such agreement, then the
first insurer to whom notice of claim is given shall be responsible  for
payment. Any such dispute shall be resolved in accordance with the arbi-
tration  procedures  established  pursuant  to section five thousand one
hundred five of this article and regulation as promulgated by the super-
intendent, and any insurer paying first-party benefits  shall  be  reim-
bursed  by  other insurers for their proportionate share of the costs of
the claim and the allocated expenses of processing the claim, in accord-
ance with the provisions entitled "other coverage"  contained  in  regu-

S. 8414                             4                           A. 11596

lation  and  the provisions entitled "other sources of first-party bene-
fits" contained in regulation. If there is no such insurer and the motor
vehicle accident occurs in this state, then an applicant who is a quali-
fied person as defined in article fifty-two of this chapter shall insti-
tute  the  claim  against  motor vehicle accident indemnification corpo-
ration.
  S 3. Section 5109 of the insurance law, as added by chapter 423 of the
laws of 2005, is amended to read as follows:
  S 5109. Unauthorized providers of health services. (a) The superinten-
dent[, in consultation with the commissioner of health and  the  commis-
sioner  of  education,]  shall  by  regulation, promulgate standards and
procedures for investigating and suspending  or  removing  the  authori-
zation for providers of health services to demand or request payment for
health  services  as  specified  in  paragraph  one of subsection (a) of
section five thousand one hundred two  of  this  article  upon  findings
reached  after  investigation pursuant to this section. Such regulations
shall ensure the same or greater due process provisions, [including] AND
INCLUDE notice and opportunity to be heard, as those afforded physicians
investigated under article two of  the  workers'  compensation  law  and
shall  include  provision for notice to all providers of health services
of the provisions of this section and regulations promulgated thereunder
at least ninety days in advance of the  effective  date  of  such  regu-
lations.    AS  USED  IN THIS SECTION, "HEALTH SERVICES" MEANS SERVICES,
SUPPLIES, THERAPIES OR OTHER TREATMENT AS SPECIFIED IN SUBPARAGRAPH (I),
(II) OR (IV) OF PARAGRAPH ONE OF SUBSECTION (A) OF SECTION FIVE THOUSAND
ONE HUNDRED TWO OF THIS ARTICLE.
  (b) [The commissioner of health  and  the  commissioner  of  education
shall  provide  a  list of the names of all providers of health services
who the commissioner of health and the commissioner of  education  shall
deem,  after  reasonable  investigation,  not  authorized  to  demand or
request any payment for medical services in connection  with  any  claim
under  this article because such] FOLLOWING THE HEARING CONDUCTED PURSU-
ANT TO THE  PROCEDURES  AND  REGULATION  PROMULGATED  PURSUANT  TO  THIS
SECTION,  THE  SUPERINTENDENT MAY PROHIBIT A PROVIDER OF HEALTH SERVICES
FROM DEMANDING OR REQUESTING PAYMENT FOR  HEALTH  SERVICES  SUBSEQUENTLY
RENDERED  UNDER THIS ARTICLE, FOR A PERIOD NOT EXCEEDING THREE YEARS, IF
THE SUPERINTENDENT  DETERMINES,  AFTER  NOTICE  AND  HEARING,  THAT  THE
provider of health services:
  (1)  has ADMITTED TO, OR been FOUND guilty of, professional [or other]
misconduct [or incompetency],  AS  DEFINED  IN  THE  EDUCATION  LAW,  in
connection  with  [medical] HEALTH services rendered under this article;
or
  (2) has exceeded the limits of his or her professional  competence  in
rendering  medical care under this article or has knowingly made a false
statement or representation as to a material fact in any medical  report
made in connection with any claim under this article; or
  (3)  solicited,  or  has  employed  another  to solicit for himself or
herself or for another, professional treatment, examination or  care  of
an injured person in connection with any claim under this article; or
  (4)  has  refused  to appear before, or to answer upon request of, the
[commissioner of health, the] superintendent[,] or any  duly  authorized
officer  of  the  state,  any  legal question, or REFUSED to produce any
relevant information concerning [his or her] THE conduct OF THE PROVIDER
OF  HEALTH  SERVICES  in  connection  with  [rendering  medical]  HEALTH
services RENDERED under this article; or

S. 8414                             5                           A. 11596

  (5)  has  engaged  in  [patterns]  A  PATTERN  of  billing for: HEALTH
services [which were not provided.] ALLEGED TO HAVE BEEN RENDERED  UNDER
THIS  ARTICLE, WHEN THE HEALTH SERVICES WERE NOT RENDERED, PROVIDED THAT
THIS SHALL NOT BE CONSTRUED TO APPLY TO GOOD  FAITH  DISPUTES  REGARDING
THE  APPROPRIATENESS  OF  A  PARTICULAR CODING TO DESCRIBE A HEALTH CARE
SERVICE; OR
  (6) UTILIZED UNLICENSED PERSONS TO RENDER HEALTH SERVICES  UNDER  THIS
ARTICLE, WHEN ONLY A PERSON LICENSED IN THIS STATE MAY RENDER THE HEALTH
SERVICES; OR
  (7)  UTILIZED  LICENSED  PERSONS  TO RENDER HEALTH SERVICES UNDER THIS
ARTICLE, WHEN RENDERING THE HEALTH SERVICES  IS  BEYOND  THE  AUTHORIZED
SCOPE OF THE LICENSE OF SUCH PERSON; OR
  (8)  UNLAWFULLY  CEDED  OWNERSHIP,  OPERATION OR CONTROL OF A BUSINESS
ENTITY AUTHORIZED TO PROVIDE PROFESSIONAL HEALTH SERVICES IN THIS STATE,
INCLUDING BUT NOT LIMITED TO A PROFESSIONAL SERVICE CORPORATION, PROFES-
SIONAL LIMITED LIABILITY COMPANY OR REGISTERED LIMITED  LIABILITY  PART-
NERSHIP,  TO  A  PERSON NOT LICENSED TO RENDER THE HEALTH SERVICES WHICH
THE ENTITY IS LEGALLY AUTHORIZED TO PROVIDE; OR
  (9) COMMITTED A FRAUDULENT INSURANCE ACT AS DEFINED IN SECTION  176.05
OF THE PENAL LAW; OR
  (10)  HAS  BEEN CONVICTED OF A CRIME INVOLVING FRAUDULENT OR DISHONEST
PRACTICES; OR
  (11) HAS, AFTER WARNING BY THE SUPERINTENDENT, ENGAGED IN A PATTERN OF
UNLAWFULLY ATTEMPTING TO COLLECT PAYMENT DIRECTLY FROM  THE  PATIENT  OR
ELIGIBLE  PERSON  FOR  SERVICES  RENDERED  UNDER  THIS ARTICLE WHEN SUCH
ATTEMPTS VIOLATE THE TERMS OF AN ENFORCEABLE ASSIGNMENT OF BENEFITS.
  (c) [Providers] THE SUPERINTENDENT SHALL  BY  REGULATION  DEVELOP  DUE
PROCESS  PROCEDURES  TO  ASSURE  A  HEALTH  PROVIDER  ACCUSED UNDER THIS
SECTION HAS APPROPRIATE NOTICE, AN OPPORTUNITY FOR A  FAIR  HEARING  AND
APPEAL  PRIOR  TO  A DETERMINATION THAT THE HEALTH PROVIDER MAY NOT BILL
FOR SERVICES UNDER THIS SECTION. A PROVIDER  of  health  services  shall
[refrain  from  subsequently  treating  for  remuneration,  as a private
patient, any person seeking medical treatment]  NOT  DEMAND  OR  REQUEST
PAYMENT  FOR  ANY  HEALTH  SERVICES under this article [if such provider
pursuant to this section has been prohibited from demanding or  request-
ing  any  payment  for  medical  services under this article. An injured
claimant so treated or examined may raise this  as]  THAT  ARE  RENDERED
DURING  THE TERM OF THE PROHIBITION ORDERED BY THE SUPERINTENDENT PURSU-
ANT TO SUBSECTION (B) OF THIS SECTION. THE PROHIBITION  ORDERED  BY  THE
SUPERINTENDENT  MAY BE a defense in any action by [such] THE provider OF
HEALTH SERVICES for payment for  [treatment]  HEALTH  SERVICES  rendered
PURSUANT  TO  THIS  ARTICLE  at  any  time  after such provider has been
prohibited from demanding  or  requesting  payment  for  [medical]  SUCH
HEALTH services in connection with any claim under this article.
  (d)  The  [commissioner  of  health and the commissioner of education]
SUPERINTENDENT shall maintain and regularly update a database containing
a list of providers of health services prohibited by this  section  from
demanding  or requesting any payment [for health services connected to a
claim] RENDERED under this article and shall make [such] THE information
available to the public [by means of  a  website  and  by  a  toll  free
number].
  (e)  THE  SUPERINTENDENT  MAY LEVY A CIVIL PENALTY NOT EXCEEDING FIFTY
THOUSAND DOLLARS ON ANY PROVIDER OF HEALTH SERVICES THAT THE SUPERINTEN-
DENT PROHIBITS FROM DEMANDING OR REQUESTING PAYMENT FOR HEALTH  SERVICES
PURSUANT  TO  SUBSECTION  (B) OF THIS SECTION. ANY CIVIL PENALTY IMPOSED

S. 8414                             6                           A. 11596

FOR A FRAUDULENT INSURANCE ACT, AS DEFINED  IN  SECTION  176.05  OF  THE
PENAL LAW, SHALL BE LEVIED PURSUANT TO ARTICLE FOUR OF THIS CHAPTER.
  (F)  Nothing  in  this  section  shall be construed as limiting in any
respect the powers and duties of the commissioner of health, commission-
er of education  or  the  superintendent  to  investigate  instances  of
misconduct  by  a  [health care] provider [and, after a hearing and upon
written notice to the provider, to temporarily prohibit  a  provider  of
health  services  under  such investigation from demanding or requesting
any payment for medical services under this article  for  up  to  ninety
days from the date of such notice] OF HEALTH SERVICES AND TAKE APPROPRI-
ATE  ACTION  PURSUANT  TO ANY OTHER PROVISION OF LAW. A DETERMINATION OF
THE SUPERINTENDENT PURSUANT TO SUBSECTION (B) OF THIS SECTION SHALL  NOT
BE BINDING UPON THE COMMISSIONER OF HEALTH OR THE COMMISSIONER OF EDUCA-
TION  IN  A  PROFESSIONAL  DISCIPLINE  PROCEEDING  RELATING  TO THE SAME
CONDUCT.
  S 4. Paragraph 2 of subsection (b) of section 5103  of  the  insurance
law is amended to read as follows:
  (2)  Is  injured  as a result of operating a motor vehicle while in an
intoxicated condition or while his ability to operate  such  vehicle  is
impaired  by  the  use  of  a  drug within the meaning of section eleven
hundred ninety-two of the vehicle and traffic  law;  PROVIDED,  HOWEVER,
THAT AN INSURER SHALL NOT EXCLUDE SUCH PERSON FROM COVERAGE WITH RESPECT
TO  NECESSARY  EMERGENCY HEALTH SERVICES RENDERED IN A GENERAL HOSPITAL,
AS DEFINED IN SUBDIVISION TEN OF SECTION TWO THOUSAND EIGHT HUNDRED  ONE
OF THE PUBLIC HEALTH LAW, INCLUDING AMBULANCE SERVICES ATTENDANT THERETO
AND RELATED MEDICAL SCREENING.  NOTWITHSTANDING ANY OTHER LAW, WHERE THE
COVERED  PERSON IS FOUND TO HAVE VIOLATED SECTION ELEVEN HUNDRED NINETY-
TWO OF THE VEHICLE AND TRAFFIC LAW, THE INSURER HAS A  CAUSE  OF  ACTION
FOR THE AMOUNT OF FIRST PARTY BENEFITS PAID OR PAYABLE ON BEHALF OF SUCH
COVERED PERSON AGAINST SUCH COVERED PERSON.
  S  5.  Subsection (d) of section 5102 of the insurance law, as amended
by chapter 955 of the laws of 1984, is amended to read as follows:
  (d) "Serious injury" means a personal injury which results  in  death;
dismemberment; significant disfigurement; a fracture; loss of a fetus; A
COMPLETE  TEAR  OR  RUPTURE  OF  A NERVE, TENDON, LIGAMENT, CARTILAGE OR
MUSCLE; A TEAR, RUPTURE OR IMPINGEMENT OF  A  NERVE,  TENDON,  LIGAMENT,
CARTILAGE  OR MUSCLE WHICH RESULTS IN A SIGNIFICANT IMPAIRMENT OF A BODY
ORGAN, MEMBER, FUNCTION OR SYSTEM; permanent  loss  of  use  of  a  body
organ, member, function or system; permanent consequential limitation of
use  of  a body organ or member; significant limitation of use of a body
function or system; or a medically determined injury or impairment of  a
non-permanent  nature  which prevents the injured person from performing
substantially all of the material acts which  constitute  such  person's
usual  and  customary  daily  activities  for  not less than ninety days
during the one hundred eighty days immediately following the  occurrence
of the injury or impairment.
  S 6. Subsection (j) of section 3420 of the insurance law is amended by
adding a new paragraph 4 to read as follows:
  (4)  THE  TERM "COVERED PERSON" AS USED IN THIS ARTICLE SHALL MEAN ANY
PEDESTRIAN INJURED THROUGH THE USE OR OPERATION OF, OR ANY OWNER, OPERA-
TOR OR OCCUPANT OF, A MOTOR VEHICLE WHICH HAS IN  EFFECT  THE  FINANCIAL
SECURITY REQUIRED BY ARTICLE SIX OR EIGHT OF THE VEHICLE AND TRAFFIC LAW
OR  WHICH  IS  REFERRED  TO  IN SUBDIVISION TWO OF SECTION THREE HUNDRED
TWENTY-ONE OF SUCH LAW; OR ANY OTHER  PERSON  ENTITLED  TO  FIRST  PARTY
BENEFITS.  FOR THE PURPOSES OF THIS ARTICLE, "COVERED PERSON" SHALL ALSO
INCLUDE ANY PERSON INJURED AS THE RESULT OF A STAGED, PLANNED OR  INTEN-

S. 8414                             7                           A. 11596

TIONAL  ACCIDENT, PROVIDED THAT SUCH PERSON IS NOT A PERPETRATOR OF OR A
KNOWING PARTICIPANT IN THE STAGING OR PLANNING OF THE ACCIDENT.
  S  7.  Section  5202  of  the insurance law is amended by adding a new
subsection (m) to read as follows:
  (M) "COVERED PERSON" MEANS ANY PEDESTRIAN INJURED THROUGH THE  USE  OR
OPERATION  OF,  OR  ANY  OWNER, OPERATOR OR OCCUPANT OF, A MOTOR VEHICLE
WHICH HAS IN EFFECT THE FINANCIAL SECURITY REQUIRED BY  ARTICLE  SIX  OR
EIGHT OF THE VEHICLE AND TRAFFIC LAW OR WHICH IS REFERRED TO IN SUBDIVI-
SION  TWO  OF SECTION THREE HUNDRED TWENTY-ONE OF SUCH LAW; OR ANY OTHER
PERSON ENTITLED TO FIRST PARTY BENEFITS. FOR THE PURPOSES OF THIS  ARTI-
CLE,  "COVERED  PERSON"  SHALL  ALSO  INCLUDE  ANY PERSON INJURED AS THE
RESULT OF A STAGED, PLANNED OR INTENTIONAL ACCIDENT, PROVIDED THAT  SUCH
PERSON  IS  NOT A PERPETRATOR OF OR A KNOWING PARTICIPANT IN THE STAGING
OR PLANNING OF THE ACCIDENT.
  S 8. This act shall take effect immediately; provided that:
  (a) section two of this act shall apply to benefits  initiated  on  or
after  the  one hundred eightieth day after this act shall have become a
law;
  (b) sections three, six and seven of this act shall take effect on the
one hundred eightieth day after it shall have become a law provided that
the superintendent of insurance shall immediately promulgate  rules  and
regulations  pursuant to section 5109 of the insurance law as amended by
section three of this act and sections six and seven of this  act  shall
apply  to  all  new  policies  and policies that are renewed or modified
after such one hundred eightieth day; and
  (c) section four of this act shall apply to actions  commenced  on  or
after the thirtieth day after this act shall have become a law.