STATE OF NEW YORK ________________________________________________________________________ 7300 2017-2018 Regular Sessions IN ASSEMBLY April 21, 2017 ___________ Introduced by M. of A. CAHILL -- read once and referred to the Committee on Insurance AN ACT to amend the insurance law and the executive law, in relation to public auto insurance claims The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subsections (a), (b) and (c) of section 5106 of the insur- 2 ance law, subsection (b) as amended by chapter 452 of the laws of 2005, 3 are amended to read as follows: 4 (a) Payments of first party benefits and additional first party bene- 5 fits shall be made as the loss is incurred. Such benefits are overdue 6 if not paid within thirty days after the claimant supplies proof of the 7 fact and amount of loss sustained. If proof is not supplied as to the 8 entire claim, the amount which is supported by proof is overdue if not 9 paid within thirty days after such proof is supplied. All overdue 10 payments shall bear interest at the rate of two percent per month. If a 11 valid claim or portion was overdue, the claimant shall also be entitled 12 to recover [~~his attorney's~~] a reasonable attorney fee, for services 13 necessarily performed in connection with securing payment of the overdue 14 claim, subject to limitations promulgated by the superintendent in regu- 15 lations. 16 (b) Every claimant shall have the option of designating the name and 17 address to which the insurer will be required to send duplicate copies 18 of all requests for information and examinations. 19 (c)(1) Every insurer shall provide a claimant with the option of 20 submitting any dispute involving the insurer's liability to pay first 21 party benefits, or additional first party benefits, the amount thereof 22 or any other matter which may arise pursuant to subsection (a) of this 23 section to arbitration pursuant to simplified procedures to be promul- 24 gated or approved by the superintendent. Such simplified procedures 25 shall: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11045-01-7

A. 7300 2 1 (i) permit a claimant to group disputes arising from the same occur- 2 rence with a single insurer based on common questions of law and fact; 3 (ii) permit either the claimant or the insurer, at their own expense, 4 to record or transcribe all proceedings related to the arbitration 5 demand; 6 (iii) include an expedited eligibility hearing option, when required, 7 to designate the insurer for first party benefits pursuant to subsection 8 (d) of this section. The expedited eligibility hearing option shall be a 9 forum for eligibility disputes only, and shall not include the 10 submission of any particular bill, payment or claim for any specific 11 benefit for adjudication, nor shall it consider any other defense to 12 payment. [~~(c)~~] The expedited eligibility hearing option shall also be 13 available to promptly adjudicate all disputes related to document 14 requests and examinations under oath of a claimant health service 15 provider regarding the provider's ineligibility for reimbursement due to 16 the alleged failure to meet any applicable New York state or local 17 licensing requirement necessary to perform such service in New York, or 18 meet any applicable licensing requirement necessary to perform such 19 service in any other state where such service is performed. The timely 20 filing of the request for expedited eligibility hearing shall toll the 21 time to comply until the time set forth in the arbitrator's decision. 22 (2) The commencement of a court proceeding or the submission of a 23 dispute to arbitration shall not preclude a claimant from electing to 24 submit other disputes arising from the same occurrence to the alternate 25 forum. Arbitrators are required to follow and apply substantive law. An 26 award by an arbitrator shall be binding except where vacated or modified 27 by a master arbitrator in accordance with simplified procedures to be 28 promulgated or approved by the superintendent. The grounds for vacating 29 or modifying an arbitrator's award by a master arbitrator shall not be 30 limited to those grounds for review set forth in article seventy-five of 31 the civil practice law and rules and shall include factual, legal and 32 procedural errors. The award of a master arbitrator shall be binding 33 except for the grounds for review set forth in article seventy-five of 34 the civil practice law and rules[~~, and provided further that where the~~ 35 ~~amount of such master arbitrator's award is five thousand dollars or~~ 36 ~~greater, exclusive of interest and attorney's fees, the insurer or the~~ 37 ~~claimant may institute a court action to adjudicate the dispute de~~ 38 ~~novo~~]. 39 (3) With respect to an action for serious personal injury permissible 40 under section five thousand one hundred four of this article, the award 41 or decision of an arbitrator or master arbitrator rendered pursuant to a 42 no-fault proceeding shall not constitute a collateral estoppel of the 43 issues arbitrated, but such an award or decision may be admissible as 44 relevant evidence by a party to an action. 45 § 2. Section 5102 of the insurance law is amended by adding a new 46 subsection (n) to read as follows: 47 (n) "Provider of health services" for purposes of this article, means 48 an individual or entity who or that renders or has rendered health 49 services, or who provides for remuneration an opinion to an insurer or 50 an entity contracted by an insurer regarding either (i) whether a health 51 service was medically necessary, or (ii) based upon an examination of 52 the claimant, the need for any health service. 53 § 3. Section 5109 of the insurance law, as added by chapter 423 of the 54 laws of 2005, is amended to read as follows: 55 § 5109. Unauthorized providers of health services. (a) The superinten- 56 dent, in consultation with the commissioner of health and the commis-

A. 7300 3 1 sioner of education, shall by regulation, promulgate standards and 2 procedures for investigating and suspending or removing the authori- 3 zation for providers of health services to demand or request payment for 4 health services [~~as specified in paragraph one of subsection (a) of~~ 5 ~~section five thousand one hundred two of~~] under this article upon find- 6 ings reached after investigation pursuant to this section. Such regu- 7 lations shall ensure the same or greater due process provisions, includ- 8 ing notice and opportunity to be heard, as those afforded physicians 9 investigated under article two of the workers' compensation law and 10 shall include provision for notice to all providers of health services 11 of the provisions of this section and regulations promulgated thereunder 12 at least ninety days in advance of the effective date of such regu- 13 lations. As used in this section, "health services" means services, 14 supplies, therapies, or other treatments as specified in subparagraph 15 (i), (ii), or (iv) of paragraph one of subsection (a) of section five 16 thousand one hundred two of this article or an opinion rendered to an 17 insurer or an entity contracted by an insurer regarding either (i) 18 whether such services, supplies, therapies, or treatments were medically 19 necessary, or (ii) based upon an examination of the claimant, the need 20 for any such service, supply, therapy, or treatment. 21 (b) [~~The commissioner of health and the commissioner of education~~ 22 ~~shall provide a list of the names of all providers of health services~~ 23 ~~who the commissioner of health and the commissioner of education shall~~ 24 ~~deem, after reasonable investigation, not authorized to demand or~~ 25 ~~request any payment for medical services in connection with any claim~~ 26 ~~under this article because such provider of health services~~] The super- 27 intendent, in consultation with the commissioner of health and the 28 commissioner of education, may prohibit a provider of health services 29 from demanding or requesting payment for health services rendered under 30 this article, for a period specified by the superintendent, if the 31 superintendent determines that the provider of health services: 32 (1) has admitted to or been found guilty of professional or other 33 misconduct or incompetency in connection with [~~medical~~] health services 34 rendered under this article; or 35 (2) has exceeded the limits of his or her professional competence in 36 rendering medical care under this article, as determined by the appro- 37 priate supervising or licensing agency, or has knowingly made a false 38 statement or representation as to a material fact in any medical report 39 made, or document submitted, in connection with any claim under this 40 article; or 41 (3) solicited, or has employed another to solicit for [~~himself or~~ 42 ~~herself~~] the provider of health services or for another, professional 43 treatment, examination or care of an injured person in connection with 44 any claim under this article; or 45 (4) has refused to appear before, or to answer upon request of, the 46 commissioner of health, the superintendent, or any duly authorized offi- 47 cer of the state, any legal question, or to produce any relevant infor- 48 mation concerning [~~his or her~~] the conduct of the provider of health 49 services in connection with [~~rendering medical services~~] health services 50 rendered under this article; [or] 51 (5) has engaged in [~~patterns~~] a pattern of billing for health services 52 which were not provided; 53 (6) knowingly utilized unlicensed persons to render health services 54 under this article, when only a person licensed in this state may render 55 the health services;

A. 7300 4 1 (7) knowingly utilized licensed persons to render health services 2 beyond the authorized scope of the person's license; 3 (8) directly or indirectly unlawfully ceded ownership or control of a 4 business entity authorized to provide professional health services in 5 this state, including a professional service corporation, professional 6 limited liability company, or registered limited liability partnership, 7 to a person not licensed to render the health services which the entity 8 is legally authorized to provide, except where the unlicensed person's 9 ownership or control is otherwise permitted by law; 10 (9) has engaged in a pattern of recommending against reimbursement 11 when such recommendation is not supported by clearly established stand- 12 ards in the professional community; 13 (10) has submitted an examination report that contains material factu- 14 al misrepresentations or professional conclusions that are not supported 15 by clearly established standards in the professional community; 16 (11) consistently delivered unnecessary health services without 17 reasonable medical justification as determined by the superintendent in 18 consultation with the department of health and the state education 19 department taking into consideration the overall health of the patient 20 and issues of palliative care; or 21 (12) has violated any provision of this article or regulations promul- 22 gated thereunder. 23 (c) Providers of health services shall refrain from subsequently 24 treating for remuneration, as a private patient, any person seeking 25 medical treatment under this article if such provider pursuant to this 26 section has been prohibited from demanding or requesting any payment for 27 [~~medical~~] health services under this article. An injured claimant so 28 treated or examined may raise this as a defense in any action by such 29 provider for payment for treatment rendered at any time after such 30 provider has been prohibited from demanding or requesting payment for 31 [~~medical~~] health services in connection with any claim under this arti- 32 cle. Providers of health services who have been prohibited from demand- 33 ing or requesting any payment for health services under this article 34 shall also refrain from subsequently providing for remuneration an opin- 35 ion to an insurer or an entity contracted by an insurer regarding either 36 (i) whether a health service was medically necessary, or (ii) based upon 37 an examination of the claimant, the need for any health service. 38 (d) The [~~commissioner of health and the commissioner of education~~] 39 superintendent shall maintain and regularly update a database containing 40 a list of providers of health services prohibited by this section from 41 demanding or requesting any payment for health services [~~connected to a~~ 42 ~~claim~~] rendered under this article and shall make such information 43 available to the public by means of a website and by a toll free number. 44 (e) Nothing in this section shall be construed as limiting in any 45 respect the powers and duties of the commissioner of health, commission- 46 er of education or the superintendent to investigate instances of 47 misconduct by a [~~health care~~] provider [~~and, after a hearing and upon~~ 48 ~~written notice to the provider, to temporarily prohibit a provider of~~ 49 ~~health services under such investigation from demanding or requesting~~ 50 ~~any payment for medical services under this article for up to ninety~~ 51 ~~days from the date of such notice~~] of health services and take appropri- 52 ate action pursuant to any other provision of law. A determination 53 pursuant to subsection (b) of this section shall not be binding upon the 54 commissioner of health or commissioner of education in a professional 55 discipline proceeding relating to the same conduct but may be admitted 56 as evidence.

A. 7300 5 1 § 4. Paragraph 1 of subsection (a) of section 308 of the insurance 2 law, as amended by chapter 499 of the laws of 2009, is amended to read 3 as follows: 4 (1) The superintendent may also address to any health maintenance 5 organization, life settlement provider, life settlement intermediary or 6 its officers, any provider of health services who demands or requests 7 payment for health services rendered under article fifty-one of this 8 chapter, or any authorized insurer or rate service organization, or 9 officers thereof, any inquiry in relation to its transactions or condi- 10 tion or any matter connected therewith. Every corporation or person so 11 addressed shall reply in writing to such inquiry promptly and truthful- 12 ly, and such reply shall be, if required by the superintendent, 13 subscribed by such individual, or by such officer or officers of a 14 corporation, as the superintendent shall designate, and affirmed by them 15 as true under the penalties of perjury. 16 § 5. Section 337 of the insurance law, as amended by section 64 of 17 part A of chapter 62 of the laws of 2011, is amended to read as follows: 18 § 337. Annual consumer guide on automobile insurance. (a) The super- 19 intendent shall issue and update, as necessary, a consumer guide on 20 private passenger automobile insurance that shall contain comprehensive 21 information written in plain language in a clear and understandable 22 format, including the following: 23 (1) an annual ranking of automobile insurers: (A) including an analy- 24 sis of private passenger insurers in the state which provides, in 25 detail, a ranking of such insurers from best to worst based on each 26 insurer's record of consumer complaints during the preceding calendar 27 year, using criteria available to the department, adjusted for volume of 28 insurance written; and (B) taking into consideration the corresponding 29 total of claims improperly denied in whole or in part, consumer 30 complaints found to be valid in whole or in part, and any other perti- 31 nent data which would permit the department to objectively determine an 32 insurer's performance; and (C) the superintendent may note, to the 33 extent relevant, actions taken by the department against an insurer for 34 violating any law or regulation; 35 (2) an annual ranking of voluntary claim payment rates of automobile 36 insurers, including: (A) an analysis of private passenger insurers in 37 the state which provides, in detail, a ranking of such insurers from 38 best to worst based on each insurer's record of voluntary claim payment 39 rates for each payment request during the preceding calendar year, 40 adjusted for volume of insurance written; and (B) a reporting to the 41 public of the corresponding total number of claims paid, the total 42 number of claims denied in whole, and the total number of claims denied 43 in part, and any other pertinent data which would permit the public to 44 objectively determine an insurer's performance; 45 (3) an annual ranking of paper peer review and insurer medical exam- 46 ination professionals used to evaluate claims made to automobile insur- 47 ers including: an analysis of the number of times that the paper peer 48 reviewer and insurer medical examination professional recommended full 49 claim payment, partial claim denial, and full claim denial of claims 50 submitted and requests for payment submitted to the paper peer reviewer 51 and insurer medical examination professional during the preceding calen- 52 dar year; 53 (4) a list of makes and models of automobiles that generally do not 54 meet underwriting guidelines of automobile insurers or in regard to 55 which consumers can expect to pay higher premiums as a result of an 56 automobile's style, model type or other distinguishing features, except

A. 7300 6 1 that specific insurers shall not be identified for purposes of such 2 list; 3 [~~(3)~~] (5) an explanation of all types of automobile insurance required 4 by law and available as optional coverage, including policyholders' 5 rights under these types of coverage and when making claims; 6 [~~(4)~~] (6) an explanation of and information on the automobile insur- 7 ance plan established pursuant to article fifty-three of this chapter, 8 including how motorists in such plan should proceed in attempting to 9 obtain insurance in the voluntary market; 10 [~~(5)~~] (7) recommendations as to how best to shop for and compare pric- 11 es, service and quality of automobile insurance coverage; 12 [~~(6)~~] (8) an explanation of prohibited discriminatory practices apply- 13 ing to insurance companies, agents and brokers; and 14 [~~(7)~~] (9) a department toll free consumer hot-line through which 15 consumers may initiate complaints, and request general information, 16 about automobile insurance. 17 (b) The requirements set forth in subsection (a) of this section may 18 be satisfied by separate or supplemental publications and updates. 19 (c) The superintendent shall post the consumer guide on automobile 20 insurance on the department's website. 21 § 6. The executive law is amended by adding a new article 44-A to read 22 as follows: 23 ARTICLE 44-A 24 OFFICE OF PUBLIC AUTO INSURANCE CONSUMER ADVOCATE 25 Section 945. Office of public auto insurance consumer advocate. 26 946. Public auto insurance consumer advocate. 27 947. Powers and duties. 28 § 945. Office of public auto insurance consumer advocate. There is 29 hereby created in the executive department an independent office of 30 public auto insurance consumer advocate (hereinafter referred to as 31 "office") to represent the interests of non-commercial automobile insur- 32 ance consumers in the state. 33 § 946. Public auto insurance consumer advocate. 1. The governor shall 34 appoint a public auto insurance consumer advocate (hereinafter referred 35 to as "advocate") who shall serve as the executive director of the 36 office of public auto insurance consumer advocate and shall receive an 37 annual salary to be fixed by the governor within the amount available 38 therefor by appropriation. 39 2. (a) To be eligible to serve as advocate, a person must be a resi- 40 dent of the state. The advocate shall be a person who has demonstrated a 41 strong commitment to and involvement in efforts to safeguard the rights 42 of the public and who possesses the knowledge and experience necessary 43 to practice effectively in insurance proceedings. 44 (b) A person shall not be eligible for appointment as advocate if such 45 person or the person's spouse: 46 (i) is employed by or participates in the management of a business 47 entity or other organization regulated by the department of financial 48 services or receiving funds from the department; 49 (ii) owns or controls, directly or indirectly, more than ten percent 50 interest in a business entity or other organization regulated by the 51 department of financial services or receiving funds from the department 52 of financial services or the office; or 53 (iii) uses or receives a substantial amount of tangible goods, 54 services or funds from the department of financial services or the 55 office, other than compensation or reimbursement authorized by law for

A. 7300 7 1 the department of financial services or office membership, attendance or 2 expenses. 3 3. The advocate shall serve for a term of two years. 4 4. It shall be a ground for removal from office if the advocate: 5 (a) does not have at the time of appointment the qualifications 6 required by this section; 7 (b) does not maintain during service as advocate the qualifications 8 required by this section; 9 (c) violates a prohibition established by this section; or 10 (d) cannot discharge the advocate's duties for a substantial part of 11 the term for which the advocate is appointed because of illness or disa- 12 bility. 13 5. The validity of an action of the office shall not be affected by 14 the fact that it is taken when a ground for removal of the advocate 15 exists. 16 6. (a) A person shall not serve as the advocate or act as the general 17 counsel for the office of advocate if the person is required to register 18 as a lobbyist pursuant to article one-A of the legislative law. 19 (b) A person serving as the advocate shall not, for a period of two 20 years after the date the person ceases to be an advocate, represent any 21 person in a proceeding before the superintendent of financial services 22 or the department of financial services or receive compensation for 23 services rendered on behalf of any person regarding a case before the 24 department of financial services. 25 (c) A person shall not serve as the advocate or be an employee of the 26 office if the person is an officer, employee or paid consultant of a 27 trade association in the field of insurance. 28 (d) A person who is the spouse of an officer, manager or paid consult- 29 ant of a trade association in the field of insurance shall not serve as 30 the advocate and may not be an office employee. 31 (e) For the purposes of this section, a trade association is a nonpro- 32 fit, cooperative and voluntarily joined association of business or 33 professional competitors designed to assist its members and its industry 34 or profession in dealing with mutual business or professional problems 35 and in promoting their common interest. 36 § 947. Powers and duties. 1. The advocate, as executive director of 37 the office, shall be charged with the responsibility of administering, 38 enforcing and carrying out the provisions of this article, including 39 preparation of a budget for the office, employing all necessary profes- 40 sional, technical and other employees to carry out provisions of this 41 article, approval of expenditures for professional services, travel, per 42 diem and other actual and necessary expenses incurred in administering 43 the office. The compensation of employees of the office shall be fixed 44 by the advocate within the appropriation provided therefor. 45 2. By March first of each year, the office shall file with the gover- 46 nor, temporary president of the senate and speaker of the assembly a 47 complete and detailed written report accounting for all funds received 48 and disbursed by the office during the preceding fiscal year. 49 3. All money paid to the office under this article shall be deposited 50 in the state treasury. 51 4. The office may assess the impact of insurer practices and proposed 52 and in-force insurance rates, rules and regulations on noncommercial 53 automobile insurance consumers in the state; in its own name, advocate 54 on behalf of positions that are most advantageous to a substantial 55 number of insurance consumers as determined by the advocate; and do all 56 things necessary and proper for these purposes, including engaging

A. 7300 8 1 attorneys, and experts in actuarial science, economics, accounting, or 2 any other discipline which may be appropriate. 3 5. The advocate: 4 (a) may disseminate materials and information to consumers regarding 5 consumers rights, the department of financial services' role in regulat- 6 ing insurance, relevant laws, rules, and regulations, and what avenues 7 are available for consumers to pursue their rights; 8 (b) may coordinate with other groups, agencies, or advocates in study- 9 ing current market trends or other relevant issues; 10 (c) may hold regular forums to educate consumers about motor vehicle 11 insurance related matters and the regulatory process, opportunities to 12 lower premium costs, and other matters affecting consumers; 13 (d) may recommend legislation to the legislature that, in the judgment 14 of the advocate, would affect positively the interests of noncommercial 15 motor vehicle insurance consumers; 16 (e) may testify on behalf of consumers at public hearings conducted by 17 the department of financial services or other entities; 18 (f) may represent the interests of consumers of the state before the 19 department of financial services; 20 (g) may advise consumers in pursuing their rights under any relevant 21 law, rule, or regulation; 22 (h) may assist consumers in filing a complaint with the department of 23 financial services or other entities; 24 (i) may initiate or intervene as, or otherwise appear in any judicial 25 proceeding involving or arising out of any action taken by an adminis- 26 trative agency in a proceeding in which the advocate previously appeared 27 under the authority granted by this article; 28 (j) may appear or intervene before the superintendent of financial 29 services or department of financial services as a party or otherwise on 30 behalf of insurance consumers as a class in matters involving insurer 31 practices and proposed and in-force rates, rules and regulations affect- 32 ing noncommercial automobile insurance; 33 (k) is entitled to access any records of the department of financial 34 services that are available to any party in a proceeding before the 35 superintendent of financial services or department of financial services 36 under the authority granted by this article; 37 (l) is entitled to obtain discovery of any non-privileged matter that 38 is relevant to the subject matter involved in a proceeding or submission 39 before the superintendent of financial services or department of finan- 40 cial services where the advocate is a party to that action, as author- 41 ized by this article; and 42 (m) may appear or intervene as a party or otherwise on behalf of 43 noncommercial motor vehicle insurance consumers as a class in all 44 proceedings and actions related to motor vehicle insurance in which the 45 advocate determines that such consumers need representation, except that 46 the advocate shall not intervene in any enforcement or parens patriae 47 proceeding brought by the attorney general; and 48 (n) may conduct any inquiry, hearing, investigation, survey or study 49 which the advocate deems necessary to effectively carry out the 50 provisions of this article. 51 6. (a) The office shall prepare information of public interest 52 describing the functions of the office. The office shall make the infor- 53 mation available to the public, lawmakers and appropriate state agen- 54 cies.

A. 7300 9 1 (b) The office shall prepare and maintain a written plan that 2 describes how each person who does not speak English can be provided 3 reasonable access to the office's programs. 4 (c) The office shall prepare and distribute public education materials 5 for consumers, legislators and regulators. 6 (d) The office may participate in trade associations. 7 7. The office shall be subject to articles six and six-A of the public 8 officers law; provided, however, that documents, records, files, reports 9 or other information concerning confidential matters of the office, as 10 defined and described in regulations promulgated by the office, are 11 specifically exempted from disclosure pursuant to section eighty-seven 12 of the public officers law. 13 § 7. This act shall take effect immediately.

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