TATION, OR BY OTHER MEDICAL SERVICES PROVIDED OR NOT PROVIDED DURING
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14781-01-8
S. 8435 2
DELIVERY ADMISSION, THAT RENDERED THE INFANT WITH A PERMANENT AND
SUBSTANTIAL MOTOR IMPAIRMENT OR WITH A DEVELOPMENTAL DISABILITY AS THAT
TERM IS DEFINED IN SECTION 1.03 OF THIS CHAPTER, OR BOTH. THIS DEFI-
NITION SHALL APPLY TO LIVE BIRTHS ONLY.
(B) "FUND" MEANS THE NEW YORK STATE MEDICAL INDEMNITY FUND.
(C) "QUALIFYING HEALTH CARE COSTS" MEANS THE FUTURE MEDICAL, HOSPITAL,
SURGICAL, NURSING, DENTAL, REHABILITATION, HABILITATION, RESPITE, CUSTO-
DIAL, DURABLE MEDICAL EQUIPMENT, HOME MODIFICATIONS, ASSISTIVE TECHNOLO-
GY, VEHICLE MODIFICATIONS, TRANSPORTATION FOR PURPOSES OF HEALTH CARE
RELATED APPOINTMENTS, PRESCRIPTION AND NON-PRESCRIPTION MEDICATIONS, AND
OTHER HEALTH CARE COSTS ACTUALLY INCURRED FOR SERVICES RENDERED TO AND
SUPPLIES UTILIZED BY QUALIFIED PLAINTIFFS, WHICH ARE NECESSARY TO MEET
THEIR HEALTH CARE NEEDS, AS DETERMINED BY THEIR TREATING PHYSICIANS,
PHYSICIAN ASSISTANTS, OR NURSE PRACTITIONERS AND AS OTHERWISE DEFINED BY
THE COMMISSIONER IN REGULATION.
(D) "QUALIFIED PLAINTIFF" MEANS EVERY PLAINTIFF OR CLAIMANT WHO: (I)
HAS BEEN FOUND BY A JURY OR COURT TO HAVE SUSTAINED A BIRTH-RELATED
NEUROLOGICAL INJURY AS THE RESULT OF MEDICAL MALPRACTICE; OR (II) HAS
SUSTAINED A BIRTH-RELATED NEUROLOGICAL INJURY AS THE RESULT OF ALLEGED
MEDICAL MALPRACTICE, AND HAS SETTLED HIS OR HER LAWSUIT OR CLAIM THERE-
FOR.
(E) ANY REFERENCE TO THE "OFFICE" AND THE "COMMISSIONER" IN THIS ARTI-
CLE SHALL MEAN, RESPECTIVELY, THE "OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES" AND "THE COMMISSIONER OF THE OFFICE FOR PEOPLE WITH DEVEL-
OPMENTAL DISABILITIES".
§ 17.05 CUSTODY AND ADMINISTRATION OF THE FUND.
(A)(1) THE COMMISSIONER OF TAXATION AND FINANCE SHALL BE THE CUSTODIAN
OF THE FUND AND THE SPECIAL ACCOUNT ESTABLISHED PURSUANT TO SECTION
NINETY-NINE-T OF THE STATE FINANCE LAW. ALL PAYMENTS FROM THE FUND SHALL
BE MADE BY THE COMMISSIONER OF TAXATION AND FINANCE UPON CERTIFICATES
SIGNED BY THE COMMISSIONER, OR HIS OR HER DESIGNEE, AS HEREINAFTER
PROVIDED. THE FUND SHALL BE SEPARATE AND APART FROM ANY OTHER FUND AND
FROM ALL OTHER STATE MONIES; PROVIDED, HOWEVER, THAT MONIES OF THE FUND
MAY BE INVESTED AS SET FORTH IN PARAGRAPH TWO OF THIS SUBDIVISION. NO
MONIES FROM THE FUND SHALL BE TRANSFERRED TO ANY OTHER FUND, NOR SHALL
ANY SUCH MONIES BE APPLIED TO THE MAKING OF ANY PAYMENT FOR ANY PURPOSE
OTHER THAN THE PURPOSE SET FORTH IN THIS ARTICLE.
(2) ANY MONIES OF THE FUND NOT REQUIRED FOR IMMEDIATE USE MAY, AT THE
DISCRETION OF THE COMMISSIONER IN CONSULTATION WITH THE DIRECTOR OF THE
BUDGET, BE INVESTED BY THE COMMISSIONER OF TAXATION AND FINANCE IN OBLI-
GATIONS OF THE UNITED STATES OR THE STATE OR OBLIGATIONS THE PRINCIPAL
AND INTEREST OF WHICH ARE GUARANTEED BY THE UNITED STATES OR THE STATE.
THE PROCEEDS OF ANY SUCH INVESTMENT SHALL BE RETAINED BY THE FUND AS
ASSETS TO BE USED FOR THE PURPOSES OF THE FUND.
(B) (1) THE FUND SHALL BE ADMINISTERED BY THE COMMISSIONER OR HIS OR
HER DESIGNEE IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE.
(2) THE COMMISSIONER SHALL HAVE ALL POWERS NECESSARY AND PROPER TO
CARRY OUT THE PURPOSES OF THE FUND.
(3) NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS SECTION, SECTIONS
ONE HUNDRED TWELVE AND ONE HUNDRED SIXTY-THREE OF THE STATE FINANCE LAW
OR ANY OTHER CONTRARY PROVISION OF LAW, THE SUPERINTENDENT OF FINANCIAL
SERVICES IS AUTHORIZED TO ASSIGN AND THE COMMISSIONER IS AUTHORIZED TO
RECEIVE ASSIGNMENT OF ANY AND ALL CONTRACTS ENTERED INTO BY THE SUPER-
INTENDENT OF FINANCIAL SERVICES TO ADMINISTER THE FUND FOR PERIODS PRIOR
TO AUGUST FIRST, TWO THOUSAND EIGHTEEN.
S. 8435 3
(4) THE OFFICE SHALL POST ON ITS WEBSITE INFORMATION ABOUT THE FUND,
ELIGIBILITY FOR ENROLLMENT IN THE FUND, AND THE PROCESS FOR ENROLLMENT
IN THE FUND.
(C) THE EXPENSE OF ADMINISTERING THE FUND SHALL BE PAID FROM THE FUND.
(D) MONIES FOR THE FUND WILL BE PROVIDED PURSUANT TO THIS CHAPTER.
(E) BEGINNING APRIL FIRST, TWO THOUSAND EIGHTEEN AND ANNUALLY THERE-
AFTER, THE SUPERINTENDENT OF FINANCIAL SERVICES OR THE COMMISSIONER,
WHICHEVER IS APPLICABLE, SHALL CAUSE TO BE DEPOSITED INTO THE FUND,
SUBJECT TO AVAILABLE APPROPRIATIONS, AN AMOUNT EQUAL TO THE DIFFERENCE
BETWEEN THE AMOUNT APPROPRIATED TO THE FUND IN THE PRECEDING FISCAL
YEAR, AS INCREASED BY THE ADJUSTMENT FACTOR DEFINED IN SUBDIVISION (G)
OF THIS SECTION, AND THE ASSETS OF THE FUND AT THE CONCLUSION OF THAT
FISCAL YEAR.
(F) (1) FOLLOWING THE DEPOSIT REFERENCED IN SUBDIVISION (E) OF THIS
SECTION, THE COMMISSIONER, IN CONSULTATION WITH THE SUPERINTENDENT OF
FINANCIAL SERVICES, SHALL CONDUCT AN ACTUARIAL CALCULATION OF THE ESTI-
MATED LIABILITIES OF THE FUND FOR THE COMING YEAR RESULTING FROM THE
QUALIFIED PLAINTIFFS ENROLLED IN THE FUND. THE ADMINISTRATOR SHALL FROM
TIME TO TIME ADJUST SUCH CALCULATION. IF THE TOTAL OF ALL ESTIMATES OF
CURRENT LIABILITIES EQUALS OR EXCEEDS EIGHTY PERCENT OF THE FUND'S
ASSETS, THEN THE FUND SHALL NOT ACCEPT ANY NEW ENROLLMENTS UNTIL A NEW
DEPOSIT HAS BEEN MADE PURSUANT TO SUBDIVISION (E) OF THIS SECTION.
WHEN, AS A RESULT OF SUCH NEW DEPOSIT, THE FUND'S LIABILITIES NO LONGER
EXCEED EIGHTY PERCENT OF THE FUND'S ASSETS, THE FUND ADMINISTRATOR SHALL
ENROLL NEW QUALIFIED PLAINTIFFS IN THE ORDER THAT AN APPLICATION FOR
ENROLLMENT HAS BEEN SUBMITTED IN ACCORDANCE WITH SUBDIVISION (G) OF
SECTION 17.07 OF THIS ARTICLE.
(2) WHENEVER ENROLLMENT IS SUSPENDED PURSUANT TO PARAGRAPH ONE OF THIS
SUBDIVISION AND UNTIL SUCH TIME AS ENROLLMENT RESUMES PURSUANT TO SUCH
PARAGRAPH: (I) NOTICE OF SUCH SUSPENSION SHALL BE PROMPTLY POSTED ON THE
OFFICE'S WEBSITE; (II) THE FUND ADMINISTRATOR SHALL DENY EACH APPLICA-
TION FOR ENROLLMENT THAT HAD BEEN RECEIVED BUT NOT ACCEPTED PRIOR TO THE
DATE OF SUSPENSION AND EACH APPLICATION FOR ENROLLMENT RECEIVED AFTER
THE DATE OF SUCH SUSPENSION; AND (III) NOTIFICATION OF EACH SUCH DENIAL
SHALL BE MADE TO THE PLAINTIFF OR CLAIMANT OR PERSONS AUTHORIZED TO ACT
ON BEHALF OF SUCH PLAINTIFF OR CLAIMANT AND ALL DEFENDANTS IN REGARD TO
SUCH PLAINTIFF OR CLAIMANT, TO THE EXTENT THEY ARE KNOWN TO THE FUND
ADMINISTRATOR. JUDGMENTS AND SETTLEMENTS FOR PLAINTIFFS OR CLAIMANTS FOR
WHOM APPLICATIONS ARE DENIED UNDER THIS PARAGRAPH OR WHO ARE NOT ELIGI-
BLE FOR ENROLLMENT DUE TO SUSPENSION PURSUANT TO PARAGRAPH ONE OF THIS
SUBDIVISION SHALL BE SATISFIED AS IF THIS ARTICLE HAD NOT BEEN ENACTED.
(3) FOLLOWING A SUSPENSION, WHENEVER ENROLLMENT RESUMES PURSUANT TO
PARAGRAPH ONE OF THIS SUBDIVISION, NOTICE THAT ENROLLMENT HAS RESUMED
SHALL BE PROMPTLY POSTED ON THE OFFICE'S WEBSITE.
(4) THE SUSPENSION OF ENROLLMENT PURSUANT TO PARAGRAPH ONE OF THIS
SUBDIVISION SHALL NOT IMPACT PAYMENT UNDER THE FUND FOR ANY QUALIFIED
PLAINTIFFS ALREADY ENROLLED IN THE FUND.
(G) FOR PURPOSES OF THIS SECTION, THE ADJUSTMENT FACTOR REFERENCED IN
THIS SECTION SHALL BE THE TEN YEAR ROLLING AVERAGE MEDICAL COMPONENT OF
THE CONSUMER PRICE INDEX AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF
LABOR, BUREAU OF LABOR STATISTICS, FOR THE PRECEDING TEN YEARS.
§ 17.07 PAYMENTS FROM THE FUND.
(A) THE FUND SHALL BE USED TO PAY THE QUALIFYING HEALTH CARE COSTS OF
QUALIFIED PLAINTIFFS.
S. 8435 4
(B) THE PROVISION OF QUALIFYING HEALTH CARE COSTS TO QUALIFIED PLAIN-
TIFFS SHALL NOT BE SUBJECT TO PRIOR AUTHORIZATION, EXCEPT AS DESCRIBED
BY THE COMMISSIONER IN REGULATION, PROVIDED, HOWEVER:
(1) SUCH REGULATION SHALL NOT PREVENT QUALIFIED PLAINTIFFS FROM
RECEIVING CARE OR ASSISTANCE THAT WOULD, AT A MINIMUM, BE AUTHORIZED
UNDER THE MEDICAID PROGRAM;
(2) IF ANY PRIOR AUTHORIZATION IS REQUIRED BY SUCH REGULATION, THE
REGULATION SHALL REQUIRE THAT REQUESTS FOR PRIOR AUTHORIZATION BE PROC-
ESSED 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
(3) 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 QUALI-
FYING HEALTH CARE COST PRIMARILY BENEFITS THE PATIENT MAY BE CONSIDERED.
(C) 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 COLLAT-
ERAL 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 ARTICLE, "COLLATERAL SOURCE" SHALL NOT INCLUDE MEDICARE
OR MEDICAID.
(D) (1) EFFECTIVE UNTIL DECEMBER THIRTY-FIRST, TWO THOUSAND NINETEEN,
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 COSTS. 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 SPECI-
FIED BY THE COMMISSIONER. 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.
(2) EFFECTIVE DECEMBER THIRTY-FIRST, TWO THOUSAND NINETEEN, THE AMOUNT
OF QUALIFYING HEALTH CARE COSTS TO BE PAID FROM THE FUND SHALL BE CALCU-
LATED: (I) WITH RESPECT TO SERVICES PROVIDED IN PRIVATE PHYSICIAN PRAC-
TICES ON THE BASIS OF ONE HUNDRED PERCENT OF THE USUAL AND CUSTOMARY
RATES, AS DEFINED BY THE COMMISSIONER IN REGULATION; OR (II) 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.
(E) CLAIMS FOR THE PAYMENT OR REIMBURSEMENT FROM THE FUND OF QUALIFY-
ING 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.
(F) (1) EVERY SETTLEMENT AGREEMENT FOR CLAIMS ARISING OUT OF A
PLAINTIFF'S OR CLAIMANT'S BIRTH RELATED NEUROLOGICAL INJURY SUBJECT TO
THIS ARTICLE, AND THAT PROVIDES FOR THE PAYMENT OF FUTURE MEDICAL
EXPENSES FOR THE PLAINTIFF OR CLAIMANT, SHALL PROVIDE THAT IN THE EVENT
THE ADMINISTRATOR OF THE FUND DETERMINES THAT THE PLAINTIFF OR CLAIMANT
IS A QUALIFIED PLAINTIFF, ALL PAYMENTS FOR FUTURE MEDICAL EXPENSES SHALL
BE PAID IN ACCORDANCE WITH THIS TITLE, IN LIEU OF THAT PORTION OF THE
S. 8435 5
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 ARTICLE. 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.
(2) 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, AND UPON A DETERMINATION BY THE FUND ADMINISTRATOR THAT THE
PLAINTIFF IS A QUALIFIED PLAINTIFF, THE FUTURE MEDICAL EXPENSES OF THE
PLAINTIFF SHALL BE PAID OUT OF THE FUND IN ACCORDANCE WITH THIS ARTICLE.
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.
(G) A QUALIFIED PLAINTIFF SHALL BE ENROLLED WHEN: (1) 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 (2) THE FUND ADMINIS-
TRATOR DETERMINES UPON THE BASIS OF SUCH JUDGMENT OR SETTLEMENT AGREE-
MENT AND ANY ADDITIONAL INFORMATION THE FUND ADMINISTRATOR SHALL REQUEST
THAT THE RELEVANT PROVISIONS OF SUBDIVISION (F) OF THIS SECTION HAVE
BEEN MET AND THAT THE PLAINTIFF IS A QUALIFIED PLAINTIFF; PROVIDED THAT
NO ENROLLMENT SHALL OCCUR WHEN THE FUND IS CLOSED TO ENROLLMENT PURSUANT
TO SUBDIVISION (F) OF SECTION 17.05 OF THIS ARTICLE.
(H) AS TO ALL CLAIMS, THE FUND ADMINISTRATOR SHALL:
(1) DETERMINE WHICH OF SUCH COSTS ARE QUALIFYING HEALTH CARE COSTS TO
BE PAID FROM THE FUND; AND
(2) 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.
(I) PAYMENTS FROM THE FUND SHALL BE MADE BY THE COMMISSIONER OF TAXA-
TION 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.
(J) PAYMENT FROM THE FUND SHALL NOT GIVE THE FUND ANY RIGHT OF RECOV-
ERY AGAINST ANY QUALIFIED PLAINTIFF OR SUCH QUALIFIED PLAINTIFF'S ATTOR-
NEY EXCEPT IN THE CASE OF FRAUD OR MISTAKE.
(K) ALL HEALTH CARE PROVIDERS SHALL ACCEPT FROM QUALIFIED PLAINTIFFS
OR PERSONS AUTHORIZED TO ACT ON BEHALF OF SUCH PLAINTIFFS ASSIGNMENTS OF
THE RIGHT TO RECEIVE PAYMENTS FROM THE FUND FOR QUALIFYING HEALTH CARE
COSTS. SUCH PAYMENTS SHALL CONSTITUTE PAYMENT IN FULL FOR ANY SERVICE
PROVIDED TO A QUALIFIED PLAINTIFF IN ACCORDANCE WITH THIS ARTICLE.
(L) 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
S. 8435 6
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 COMMISSIONER SHALL HAVE THE
AUTHORITY TO ENFORCE THE PROVISIONS OF THIS SUBDIVISION.
(M) EXCEPT AS PROVIDED FOR BY THIS ARTICLE, WITH RESPECT TO A QUALI-
FIED 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.
(N) 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'S
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.
(O) 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 ARTICLE.
(P) THE COMMISSIONER SHALL CONVENE A CONSUMER ADVISORY COMMITTEE FOR
THE PURPOSE OF PROVIDING INFORMATION, AS REQUESTED BY THE COMMISSIONER,
IN THE DEVELOPMENT OF THE REGULATIONS AUTHORIZED BY SUBDIVISION (O) OF
THIS SECTION.
§ 3. Subdivisions 2 and 3 of section 99-t of the state finance law, as
added by section 52-e of part H of chapter 59 of the laws of 2011, are
amended to read as follows:
2. All moneys received by the New York state medical indemnity fund
pursuant to title four of article twenty-nine-D of the public health
law, AND ON AND AFTER AUGUST FIRST, TWO THOUSAND EIGHTEEN, ARTICLE
SEVENTEEN OF THE MENTAL HYGIENE LAW, from whatever source derived shall
be deposited to the exclusive credit of such fund account. Said moneys
shall be kept separate and shall not be commingled with any other moneys
in the custody of the commissioner of taxation and finance.
3. The moneys in said account shall be retained by the fund and shall
be released by the commissioner of taxation and finance only upon
certificates signed by: (A) the superintendent of financial services or
the head of any successor agency to the department of insurance or his
or her designee and only for the purposes set forth in title four of
article twenty-nine-D of the public health law; OR (B) ON AND AFTER
AUGUST FIRST, TWO THOUSAND EIGHTEEN, THE COMMISSIONER OF THE OFFICE FOR
PEOPLE WITH DEVELOPMENTAL DISABILITIES OR HIS OR HER DESIGNEE AND ONLY
FOR THE PURPOSES SET FORTH IN ARTICLE SEVENTEEN OF THE MENTAL HYGIENE
LAW.
§ 4. That part entitled "DEPARTMENT OF HEALTH", of section 1 of a
chapter of the laws of 2018, enacting the aid to localities budget, as
proposed in legislative bill numbers S.7503 and A.9503, is amended by
repealing the items hereinbelow set forth in brackets and by adding to
such section the items hereinbelow set forth in italics as follows:
S. 8435 7
HEALTH CARE REFORM ACT PROGRAM
Special Revenue Funds - Other
HCRA Resources Fund
HCRA Program Account - 20807
For [suballocation to the department of
financial services, for] the purpose of
supporting the New York state medical
indemnity fund established pursuant to
chapter 59 of the laws of 2011, A PORTION
OF WHICH MAY BE SUBALLOCATED TO THE
DEPARTMENT OF FINANCIAL SERVICES OR THE
OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISA-
BILITIES (29736) ............................ 52,000,000
§ 5. Notwithstanding any inconsistent provision of article 2 of the
state administrative procedure act, regulations set forth in subpart
69-10 of title 10 of the codes, rules and regulations of the state of
New York governing administration of the NYS Medical Indemnity Fund
shall continue in full force and effect until the date the commissioner
of the office for people with developmental disabilities promulgates
regulations on a final basis pursuant to this act; provided, however,
the following revised meanings shall apply on and after August 1, 2018:
1. References to the "department of financial services" shall be null
and void and have no force and effect.
2. References to the "commissioner of health" or "commissioner" and
"superintendent of financial services" shall each mean the "commissioner
of the office for people with developmental disabilities".
3. References to the "fund administrator" shall mean the "commissioner
of the office for people with developmental disabilities".
4. References to the "department of health's chief administrative law
judge" for purposes of providing an administrative review process pursu-
ant to sections 69-10.16, 69-10.17 and 69-10.18 of title 10 of the
codes, rules and regulations of the state of New York shall mean a chief
administrative law judge designated by the commissioner of the office
for people with developmental disabilities who may be employed by either
the department of health or the office of temporary and disability
assistance, or may be an independent administrative law judge used for
other programs administered by the office for people with developmental
disabilities.
5. References to a section of title 4 of article 29-D of the public
health law shall mean the correlating section of article 17 of the
mental hygiene law.
§ 6. This act shall take effect August 1, 2018. Effective immediately,
the commissioner of the office for people with developmental disabili-
ties is authorized to take any steps necessary to implement this act
prior to its effective date; and, notwithstanding any inconsistent
provision of the state administrative procedure act or any other
provision of law, rule or regulation, the commissioner of the office for
people with developmental disabilities is authorized to adopt or amend
or promulgate on an emergency basis any regulation he or she determines
necessary to implement any provision of this act on its effective date;
provided that, upon such promulgation, the provisions of subpart 69-10
of title 10 of the codes, rules and regulations of the state of New York
shall be null and void and have no force and effect.
