Senate Bill S2808

                                BILL NUMBER:S2808

TITLE OF BILL:  An act to amend the insurance law, in relation to
medical proof in no-fault actions, and provides for the repeal of such
provisions upon expiration thereof

PURPOSE:  This bill expedites the efficiency in which No-Fault cases are
handled by the New York City Civil Court system. This bill will allow
the New York City Civil Court system to try four times as many legiti-
mate cases by relaxing the rules of evidence and therefore relieving the
dockets.

SUMMARY OF PROVISIONS:

Section 1: Medical proof in no-fault actions. A party who initiates an
action which seeks reimbursement for medical treatment, testing, or
supplies pursuant to section 5106 of the insurance law, shall at trial,
submit the sworn statement of the licensed medical professional that
rendered, prescribed or ordered the medical treatment on the issue(s) of
medical necessity or a sworn statement from a representative that the
claimed services had been billed in accordance with the workers compen-
sation fee schedule pursuant to section 5108 of the insurance law.

The licensed medical professional shall affirm that no-fault benefits
were duly assigned to the plaintiff, the claimed treatment, testing or
supplies were rendered, prescribed or ordered by the plaintiff,
              

medically necessary to treat accident related injuries and shall include
the material facts and documents upon which the opinion of medical
necessity was based; or, the representative shall include the relevant
sections of the fee schedule and the material facts and documents that
support the claimed services were billed in accordance with the fee
schedule. Submission of such sworn statement does not create a presump-
tion of medical necessity or provide greater deference to the treating
medical professional or adherence to the fee schedule.

A party opposing said action may submit a sworn statement on the
issue(s) of medical necessity or that the claimed services were not
billed in accordance with the workers compensation fee schedule pursuant
to section 5108 of the insurance law. Such statement shall include the
material facts and/or documents upon which that opinion was based.

A copy of the sworn statement(s) shall be furnished to all parties no
later than the time the statement is submitted to the court. The sworn
statement shall be accepted by the court in lieu of testimony unless,
after submission of the sworn statement, the court determines that it
wishes to hear testimony wherein the court shall then direct that all
parties submitting a sworn statement shall have that person appear and
testify in person.

This act shall take effect immediately and shall apply to all actions
and proceedings commenced on or after such date and shall also apply to

any action or proceeding which was commenced prior to such effective
date where, as of such date, either (a) a trial of the issues has not
yet commenced, or (b) the parties have not yet entered into a stipu-
lation of settlement. This act shall expire December 31, 2018.

EXISTING LAW:  Current law and practice, when defending at trial, the
No-Fault insurer must produce an expert to testify as to the basis for
denying payment of medical and other health-related bills.

LEGISLATIVE HISTORY:  2010: S.8246 - Held in Rules

JUSTIFICATION:  Under the current law, when defending at trial, the
No-Fault insurer must produce an expert to testify as to the basis for
denying payment of medical and other health-related bills. There are not
enough resources for all the No-Fault medical provider cases to be heard
in a venue on the scheduled trial date.

During the last two years civil filings have increased by 25% in the New
York City Civil Courts. By October of 2009 alone, there were over
225,000 No-Fault medical provider claims filed in the NYC civil Court
and it is projected by the end of 2009 there will be 257,000 cases
filed. These No-Fault cases only involve the insurance carriers and the
medical providers. The NYC Civil Court is where individual litigants go
to resolve their everyday civil legal problems. Whether you are a local
merchant, a consumer, a debtor, or a creditor, the Civil Court is where
you go to have a legal matter resolved.  Unfortunately, since the
No-Fault cases account for at least 41.1% of the cases in the NYC Civil
Court most of the court resources are tied up in No-Fault matters. The
cases for the individual litigants will be heard quicker and more effi-
ciently when this proposed bill is passed.

The court's resources are currently funneled into the No-Fault Civil
Courtrooms in an attempt to manage the daily dockets. The NYC Civil
Court's workload has more than doubled since 2001 and will only continue
to grow as a result of the mounting No-Fault cases.

In 2008 approximately $18,677,383 of the $54,529,232 NYC Civil Court
budget was allocated to the ever growing No-Fault cases. The NYC Civil
Court 2007-2008 budget request stated that the "civil caseload increased
dramatically in recent years, with over 150,000 No-Fault insurance
claims a major contributor...the request also includes $500,000 to
support judicial hearing officers, some of whom are dedicated to handl-
ing the over 150,000 No-Fault insurance cases which account for the
largest component of the workload."

To manage the Court's No-Fault caseload in 2009 the amount allocated was
approximately $23,765,958 of the $57,824,715 NYC Civil Court budget. The
2008-2009 NYC civil Court budget request stated that the budget increase
was due to the No-Fault cases. "The most dramatic workload increase in
City and District Courts has occurred in the Civil Court due to the
growth in no-fault cases in the past year, the civil workload grew by 28
percent and has more than doubled since 2001. To assist in managing this

voluminous caseload, additional staffing was provided in 2006 through
relaxation of hiring controls. Also, the 2008-09 request continues the
use of judicial hearing officers and back-office overtime."

The Judiciary budget request continues to include the need for increases
in staff and overtime to assist in managing the unprecedented growth in
the No-Fault medical provider caseload every year. The 2009-2010 NYC
Civil Court Budget Request states that "civil caseload has increased
dramatically in recent years; in the past two years alone, civil filings
increased by 241 statewide and by 2551- in New York city Civil court.
No-fault insurance claims are a major contributor to this growth.. e
growth of no-fault cases is most evident in the New York city Civil
Court, which receives over 225,000 no-fault filings a year."

The influx of the personal Injury Protection (No-Fault) suits is hinder-
ing the NYC Civil Courts' efforts to adjudicate the suits on their indi-
vidual merits. During today's cost cutting economic environment, deserv-
ing courts such as the Family Courts which serve the neediest in society
lose resources to the NYC Civil Courts' No-Fault caseloads.

New York state's courts are closing 2009 with 4.7 million cases, the
highest tally ever according to the December 28, 2009 New York Times
article The Recession Begins Flooding Into the Courts. The court dockets
are overloaded and people are seeing more and more delays in their
cases. Even though the number of cases continues to rise the courts are
being forced to do a lot more with a lot less.

By the end of 2009 the NYC Civil Court No-Fault medical provider cases
will cost $23,777,640 for the Court to maintain and New York insurance
to defend with witnesses.

The amendment would allow any party to an action for money, which seeks
reimbursement for medical treatment, services, supplies, or testing
pursuant to Article 51 of the insurance law to submit, at trial, the
sworn statement of a licensed medical professional on the issue of the
necessity of the medical treatment, services, supplies, or testing. such
statement shall state the opinion of the medical professional and the
material facts upon which that opinion is based.  A copy of the sworn
statement shall be furnished to all parties no later than the time the
statement is submitted to the court. The sworn statement shall be
accepted by the court in lieu of testimony by the medical professional.
The use of a sworn statement in lieu of live testimony shall not give
rise to any adverse inference concerning the lack of live testimony of
the licensed medical professional.

The proposed bill will help save the courts millions of dollars by elim-
inating the need for redundant court appearances, the filing of unneces-
sary papers and briefs, and the delays caused by courthouse backlogs and
inefficiencies due to the numerous No-Fault cases.

This minor change to the rules of evidence in No-Fault matters will
allow the courts to adjudicate the cases on their merits while moving
the cases off the court's docket at four times the current pace.

The current state of extended adjournments, in every venue, exacerbates
the costs to maintain the Court's caseload to an unbelievable level
considering the number of No-Fault cases initiated each year.

The resulting quicker pace will save the courts millions of dollars by
shortening the length of time the court must house a case and therefore
eliminate the need for increase of staff and overtime pay.

BUDGET IMPLICATIONS:

EFFECTIVE DATE:  This bill shall take effect immediately, with
provisions.