Thursday, July 1, 2010

The New York Automobile Fraud Prevention Act of 2010 -- Introduced June 29, 2010

After months and months of meetings and multiple drafts of proposed language that I'm told was the product of negotiation and compromise between interested groups and industries, the New York State Legislature introduced its own "Automobile Fraud Prevention Act of 2010" on June 29, 2010.  This "same as" bill is numbered S8414 Breslin in the Senate and A11596 Titone in the Assembly.

The bill has eight sections:
  • § 1 -- Names the bill "the automobile insurance fraud prevention act of 2010"
  • § 2 -- Amends and substantially adds to Insurance Law § 5106 regarding defenses preclusion, medical necessity IME- and peer review-based denials, arbitrations, burdens of proof and evidentiary presumptions in lawsuits, and the use of depositions in no-fault litigation
  • § 3 -- Amends Insurance Law § 5109 regarding unauthorized health service providers
  • § 4 -- Amends Insurance Law § 5103(b)(2) to exempt emergency general hospital and ambulance services from the no-fault intoxication exclusion
  • § 5 -- Amends Insurance Law § 5102(d) to add two more categories of "serious injury"
  • § 6 -- Adds subparagraph (4) to subsection (j) of Insurance Law § 3420 to define "covered person" as used in Insurance Law § 3420(f)(1)
  • § 7 -- Adds subsection (m) to Insurance Law § 5202 adding a definition "covered person" to that section.
  • § 8 -- Provides for the effective dates of the various sections of the act.  
The full text of the bill, in a PDF document, is here.  New language is underlined.  Deleted language is bracketed.

I'll post a more detailed review and assessment in a day of two, but for now, here are the bill's highlights or lowlights, depending on your perspective:
  • Defense preclusion:  If the New York no-fault insurance industry was hoping for a complete eradication of the Presbyterian Hospital decision, this isn't it.  Fair Price (services or supplies not provided) would be gone, but the preclusion of the fee schedule defense up to 10% would remain.  A weak and inartful attempt has been made to codify the courts' non-preclusion for for staged/caused event defense. 
  • IME- and Peer Review-Based Medical Necessity Denials:  Extends to 60 days the time period within which a no-fault insurer may deny a claim based on lack of medical necessity.  Requires that lack of medical necessity denials be based on an IME or peer review and, even if not requested, copies of the IME or peer review report supporting any such denial would be required to be sent to the claimant, the claimant's attorney, and "the claimant's treating health care provider" within 30 days of the IME or peer review.
  • Arbitrations:  Mandatory arbitrations of no-fault disputes?  Not in here.  Instead, a claimant's option to arbitrate some bills or benefits and sue others from the same accident would be codified.  A claimant would not be able to submit the same dispute to multiple forums, however.  Arbitrators would be required to "follow and apply substantive law", master arbitration would include the opportunity for parties to submit "written briefs", the master arbitrator's scope of review would include "factual, legal and procedural errors", and an arbitration or master arbitration award, except as to the issue of "the existence of insurance coverage" would not be given collateral estoppel effect in any personal injury litigation. 
  • Burdens of Proof & Evidential Presumptions in Arbitrations & Lawsuits:  The claimant's prima facie showing would be satisfied by the claimant's filing of a "verification" with the arbitration demand or complaint setting forth that: (1) the claimant was licensed to render the services or the items provided at the time they were provided; (2) the services were rendered or items supplied by the claimant; (3) the services or items were medically necessary, or, for services or supplies provided pursuant to prescription, that such were properly supported by a prescription; (4) the claimant received an assignment of benefits from the injured party or the guardian or parent of the injured party; and (5) the claimant authorized the particular attorney or law firm to commence the suit.  In litigation, certain rebuttable evidentiary presumptions would attach to various billing and claim documents upon the submission of an affidavits sponsoring such documents as business records.
  • Use of Depositions:  Depositions of any person could be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to CPLR 3103 to prevent abuse, "provided that the party against whom the evidence is offered had been afforded an opportunity to participate and question the witness at the deposition."
  • Unauthorized Health Service Providers:  Authorizes the superintendent of insurance to fine up to $50,000 and prohibit a provider of health services from demanding or requesting payment for health services rendered under the no-fault article, for a period not exceeding three years, if the superintendent makes certain determinations after notice and a hearing.
  • "Serious Injury" Threshold:  Would add "a complete tear or rupture of a nerve, tendon, ligament, cartilage or muscle" and "a tear, rupture or impingement of a nerve, tendon, ligament, cartilage or muscle which results in a significant impairment of a body organ, member, function or system" to the "serious injury" categories under Insurance Law § 5102(d).  
  • "Covered Person":  Would define a "covered person" for purposes of Insurance Law §§ 3420(f)(1) and 5202 to include pedestrians and anyone injured in a staged/caused event who "is not a perpetrator of or a knowing participant in the staging or planning of the accident."
My sources tell  me that there is a chance this bill will make it out of committee and onto the floors of the Senate and Assembly for a vote this legislative session.  If you oppose the passage of this packaged bill, you should contact your legislative liaison or contact the sponsors themselves.  Or you could post your comments here or email them to me and I'll make sure they get to people who can get them to the legislators.  I'll post the sponsors' contact information here later tonight or tomorrow. anyone

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