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