§ 2999-J — Payments from the fund

§ 2999-j. Payments from the fund. 1. The fund shall be used to pay the\nqualifying health care costs of qualified plaintiffs.\n 2. The provision of qualifying health care costs to qualified\nplaintiffs shall not be subject to prior authorization, except as\ndescribed by the commissioner in regulation; provided, however:\n (a) such regulation shall not prevent qualified plaintiffs from\nreceiving care or assistance that would, at a minimum, be authorized\nunder the medicaid program;\n (b) if any prior authorization is required by such regulation, the\nregulation shall require that requests for prior authorization be\nprocessed within a reasonably prompt period of time and shall identify a\nprocess for prompt administrative review of any denial of a request for\nprior authorization; and\n (c) such regulations shall not prohibit qualifying health care costs\non the grounds that the qualifying health care cost may incidentally\nbenefit other members of the household, provided that whether the\nqualifying health care cost primarily benefits the patient may be\nconsidered.\n 3. In determining the amount of qualifying health care costs to be\npaid from the fund, any such cost or expense that was or will, with\nreasonable certainty, be paid, replaced or indemnified from any\ncollateral source as provided by subdivision (a) of section forty-five\nhundred forty-five of the civil practice law and rules shall not\nconstitute a qualifying health care cost and shall not be paid from the\nfund. For purposes of this title, "collateral source" shall not include\nmedicare or Medicaid.\n * 4. The amount of qualifying health care costs to be paid from the\nfund shall be calculated on the basis of one hundred percent of the\nusual and customary cost. For the purposes of this section, "usual and\ncustomary costs" shall mean the eightieth percentile of all charges for\nthe particular health care service performed by a provider in the same\nor similar specialty and provided in the same geographical area as\nreported in a benchmarking database maintained by a nonprofit\norganization specified by the superintendent of financial services. If\nno such rates are available qualifying health care costs shall be\ncalculated on the basis of no less than one hundred thirty percent of\nMedicaid or Medicare rates of reimbursement, whichever is higher. If no\nsuch rate exists, costs shall be reimbursed as defined by the\ncommissioner in regulation.\n * NB Effective until June 1, 2026\n * 4. The amount of qualifying health care costs to be paid from the\nfund shall be calculated: (a) with respect to services provided in\nprivate physician practices on the basis of one hundred percent of the\nusual and customary rates, as defined by the commissioner in regulation;\nor (b) with respect to all other services, on the basis of Medicaid\nrates of reimbursement or, where no such rates are available, as defined\nby the commissioner in regulation.\n * NB Effective June 1, 2026\n 5. Claims for the payment or reimbursement from the fund of qualifying\nhealth care costs shall be made upon forms prescribed and furnished by\nthe fund administrator in conjunction with regulations establishing a\nmechanism for submission of claims by health care providers directly to\nthe fund, where practicable.\n 6. (a) Every settlement agreement for claims arising out of a\nplaintiff's or claimant's birth related neurological injury subject to\nthis title, and that provides for the payment of future medical expenses\nfor the plaintiff or claimant, shall provide that all payments for\nfuture medical expenses shall be paid in accordance with this title in\nlieu of that portion of the settlement agreement that provides for\npayment of such expenses. The plaintiff's or claimant's future medical\nexpenses shall be paid in accordance with this title. When such a\nsettlement agreement does not so provide, the court shall direct the\nmodification of the agreement to include such term as a condition of\ncourt approval.\n (b) In any case where the jury or court has made an award for future\nmedical expenses arising out of a birth related neurological injury, any\nparty to such action or person authorized to act on behalf of such party\nmay make application to the court that the judgment reflect that, in\nlieu of that portion of the award that provides for payment of such\nexpenses, the future medical expenses of the plaintiff shall be paid out\nof the fund in accordance with this title. Upon a finding by the court\nthat the applicant has made a prima facie showing that the plaintiff is\na qualified plaintiff, the court shall ensure that the judgment so\nprovides.\n 7. A qualified plaintiff shall be enrolled when (a) such plaintiff or\nperson authorized to act on behalf of such person, upon notice to all\ndefendants, or any of the defendants in regard to the plaintiff's claim,\nupon notice to such plaintiff, makes an application for enrollment by\nproviding the fund administrator with a certified copy of the judgment\nor of the court approved settlement agreement; and (b) the fund\nadministrator determines that the relevant provisions of subdivision six\nof this section have been met; provided that no enrollment shall occur\nwhen the fund is closed to enrollment pursuant to subdivision six of\nsection twenty-nine hundred ninety-nine-i of this title.\n 8. As to all claims, the fund administrator shall:\n (a) determine which of such costs are qualifying health care costs to\nbe paid from the fund; and\n (b) thereupon certify to the commissioner of taxation and finance\nthose costs that have been determined to be qualifying health care costs\nto be paid from the fund.\n 9. Payments from the fund shall be made by the commissioner of\ntaxation and finance on the said certificate of the commissioner. No\npayment shall be made by the commissioner of taxation and finance in\nexcess of the amount certified. Promptly upon receipt of the said\ncertificate of the commissioner, the commissioner of taxation and\nfinance shall pay the qualified plaintiff's health care provider or\nreimburse the qualified plaintiff the amount so certified for payment.\n 10. Payment from the fund shall not give the fund any right of\nrecovery against any qualified plaintiff or such qualified plaintiff's\nattorney except in the case of fraud or mistake.\n 11. All health care providers shall accept from qualified plaintiff's\nor persons authorized to act on behalf of such plaintiff's assignments\nof the right to receive payments from the fund for qualifying health\ncare costs. Such payments shall constitute payment in full for any\nservices provided to a qualified plaintiff in accordance with this\narticle.\n 12. Health insurers (other than medicare and Medicaid) shall be the\nprimary payers of qualifying health care costs of qualified plaintiffs.\nSuch costs shall be paid from the fund only to the extent that health\ninsurers or other collateral sources or other persons are not otherwise\nobligated to make payments therefor. Health insurers that make payments\nfor qualifying health care costs to or on behalf of qualified plaintiffs\nshall have no right of recovery against and shall have no lien upon the\nfund or any person or entity nor shall the fund constitute an additional\npayment source to offset the payments otherwise contractually required\nto be made by such health insurers. The superintendent of financial\nservices shall have the authority to enforce the provisions of this\nsubdivision upon the referral of the commissioner.\n 13. Except as provided for by this title, with respect to a qualified\nplaintiff, no payment shall be required to be made by any defendant or\nsuch defendant's insurer for qualifying health care costs and no\njudgment shall be made or entered requiring that any such payment be\nmade by any defendant or such defendant's insurer for such health care\ncosts.\n 14. The determination of the qualified plaintiff's attorney's fee\nshall be based upon the entire sum awarded by the jury or the court or\nthe full sum of the settlement, as the case may be. The qualified\nplaintiff's attorney's fee shall be paid in a lump sum by the defendants\nand their insurers pursuant to section four hundred seventy-four-a of\nthe judiciary law; provided however that the portion of the attorney fee\nthat is allocated to the non-fund elements of damages shall be deducted\nfrom the non-fund portion of the award in a proportional manner.\n 15. The commissioner shall promulgate, amend and enforce all rules and\nregulations necessary for the proper administration of the fund in\naccordance with the provisions of this section, including, but not\nlimited to, those concerning the payment of claims and concerning the\nactuarial calculations necessary to determine, annually, the total\namount to be paid into the fund as provided herein, and as otherwise\nneeded to implement this title.\n