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This entry was published on 2014-09-22
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Charging or receiving of rates; deviations
Insurance (ISC) CHAPTER 28, ARTICLE 23
§ 2339. Charging or receiving of rates; deviations. (a) This section
shall apply only to kinds of insurance the rates for which are subject
to prior approval pursuant to subsection (b) of section two thousand
three hundred five of this article.

(b) No member of or subscriber to a rate service organization, and no
insurer which makes and files its own rates, shall charge or receive any
rate which deviates from the rates, rating plans, classifications,
schedules, rules and standards made and filed by such rate service
organization, or by such insurer, as the case may be, which are
applicable to any kind or type of business done by such member or
subscriber, or by such insurer, except as provided in this article.

(c) Any insurer which is a member of or subscriber to a rate service
organization may make written application to the superintendent for
permission to deviate from the rates, schedules, rating plans or rules
filed on its behalf by the rate service organization. The application
shall specify the basis for the modification and a copy shall also be
sent simultaneously to such rate service organization. In considering
the application to deviate the superintendent shall give consideration
to the available statistics and the principles for rate making as
provided in section two thousand three hundred four of this article. If
the superintendent finds the deviation to be justified, he shall approve
it to be effective for a period to be fixed by him, but in no event for
a period of less than one year, unless sooner terminated by the
applicant with the permission of the superintendent or unless sooner
withdrawn or appropriately adjusted by an order of the superintendent
made in accordance with the provisions of this article generally
applicable to rate filings. If the superintendent finds that the
deviation applied for does not meet the requirements of this article, he
shall send to the applicant written notice of his disapproval,
specifying in what respects he finds it fails to meet the requirements
of this article. The superintendent shall inform the rate service
organization of his action upon the deviation application.

(d) (1) Notwithstanding any other provision of law, except as provided
in paragraph three of this subsection, the state insurance fund shall
not charge an insured any rate, or receive from an insured any rate in
excess of the total of (i) the applicable loss cost approved by the
superintendent, (ii) the applicable expense component of the state
insurance fund and (iii) a fair and reasonable differential charge which
takes into consideration the nature and hazards of the insured's
business or operations, the insured's prior loss experience, the
insured's prior and presently existing safety practices, the insured's
prior premium payment history, the number of persons the insured employs
in such business or operations and the specific type of work they
perform, the insured's prior and current compliance with obligations
imposed upon the insured by the workers' compensation law and other laws
which require premium or other payments by the insured on the basis of
earnings and other remuneration earned by persons engaged in the
furtherance of the insured's enterprise or enterprises, the promptness
and completeness of such reports as the insured has filed on accidents
and claims, and such other factors as may be relevant to the appraisal
of the insured or proposed insured as a risk in whole.

(2) A differential charge applied by the state insurance fund to a
workers' compensation and employer's liability insurance policy may be
challenged by the insured by an appeal to the superintendent after an
exhaustion by the insured of all internal review procedures of the state
insurance fund as established by rules adopted by the commissioners of
the state insurance fund and filed with the secretary of state; provided
that a writing setting forth the grounds upon which such appeal is based
is served and filed with the superintendent and with the secretary to
the board of commissioners of the state insurance fund within thirty
days after a final determination by the state insurance fund. Appeals to
the superintendent shall be determined upon papers and documents that
were before the state insurance fund in connection with the internal
review procedures, the writing setting forth the grounds of the
insured's appeal and any answer to such appeal served by the state
insurance fund upon the insured and filed with the superintendent within
thirty days after the service of the insured's notice.

(3) The provisions of this section shall not apply to a policy sold by
the state insurance fund under article six-G of the executive law. The
rate which the state insurance fund may charge under such article shall
be governed only by such regulations or guidelines as the superintendent
may issue.