LBD15386-01-0
S. 6744 2
2037. ACTUARIAL INVESTIGATION, VALUATIONS, GAIN/LOSS ANALYSIS;
NOTICE IF ASSESSMENTS PROVE INSUFFICIENT.
S 2021. SHORT TITLE. THE PROVISIONS OF THIS ARTICLE SHALL BE KNOWN AND
MAY BE CITED AS THE "NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY COMPEN-
SATION ACT".
S 2022. DEFINITIONS. AS USED IN THIS ARTICLE:
1. "BIRTH-RELATED NEUROLOGICAL INJURY" MEANS A NON-PROGRESSIVE IMPAIR-
MENT OF BRAIN OR SPINAL CORD WHICH OCCURRED OR WHICH COULD HAVE OCCURRED
DURING PREGNANCY, DURING LABOR, DURING DELIVERY OR IN THE IMMEDIATE
RESUSCITATION PERIOD AFTER DELIVERY WHICH RESULTS IN A SIGNIFICANT
IMPAIRMENT IN CENTRAL NERVOUS SYSTEM FUNCTION RENDERING THE INFANT
SUBSTANTIALLY HANDICAPPED. THE DETERMINATION OF WHETHER A SUBSTANTIAL
HANDICAP EXISTS SHALL BE MADE BY THE STATE BOARD OF PROFESSIONAL MEDICAL
CONDUCT. THIS TERM SHALL APPLY ONLY TO LIVE BIRTHS, AND SHALL NOT
INCLUDE DISABILITIES CAUSED BY CONGENITAL ABNORMALITIES INCLUDING, BUT
NOT LIMITED TO: GENETIC, DEVELOPMENTAL OR TERATOGENIC CAUSES.
2. "CLAIMANT" MEANS ANY PERSON WHO FILES A CLAIM PURSUANT TO SECTION
TWO THOUSAND TWENTY-FOUR OF THIS ARTICLE FOR COMPENSATION FOR A
BIRTH-RELATED NEUROLOGICAL INJURY TO AN INFANT. SUCH CLAIMS MAY BE
FILED BY ANY LEGAL REPRESENTATIVE ON BEHALF OF AN INJURED INFANT; AND,
IN THE CASE OF A DECEASED INFANT, THE CLAIM MAY BE FILED BY AN ADMINIS-
TRATOR, EXECUTOR, OR OTHER LEGAL REPRESENTATIVE.
3. "PARTICIPATING PHYSICIAN" MEANS A PHYSICIAN LICENSED IN THIS STATE
TO PRACTICE MEDICINE, WHO PRACTICES OBSTETRICS OR PERFORMS OBSTETRICAL
SERVICES EITHER FULL OR PART TIME AND WHO HAD IN FORCE AN AGREEMENT WITH
THE STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT WHEREBY THE PHYSICIAN
AGREED TO SUBMIT TO REVIEW BY THE STATE BOARD FOR PROFESSIONAL MEDICAL
CONDUCT AS REQUIRED BY SUBDIVISION TWO OF SECTION TWO THOUSAND
TWENTY-FOUR OF THIS ARTICLE.
4. "PARTICIPATING HOSPITAL" MEANS A HOSPITAL LICENSED IN NEW YORK
WHICH AT THE TIME OF THE INJURY HAD IN FORCE AN AGREEMENT WHEREBY THE
HOSPITAL AGREED TO SUBMIT TO REVIEW OF ITS OBSTETRICAL SERVICE, AS
REQUIRED BY SUBDIVISION THREE OF SECTION TWO THOUSAND TWENTY-FOUR OF
THIS ARTICLE.
5. "PROGRAM" MEANS THE NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY
COMPENSATION PROGRAM ESTABLISHED BY THIS ARTICLE.
S 2023. NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION
PROGRAM; EXCLUSIVE REMEDY; EXCEPTION. 1. THERE IS HEREBY ESTABLISHED THE
NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM.
2. THE RIGHTS AND REMEDIES GRANTED IN THIS ARTICLE TO AN INFANT ON
ACCOUNT OF A BIRTH-RELATED NEUROLOGICAL INJURY SHALL EXCLUDE ALL OTHER
RIGHTS AND REMEDIES OF SUCH INFANT, HIS OR HER PERSONAL REPRESENTATIVE,
PARENTS, DEPENDENTS OR NEXT OF KIN, AT COMMON LAW OR OTHERWISE ARISING
OUT OF OR RELATED TO A MEDICAL MALPRACTICE CLAIM WITH RESPECT TO SUCH
INJURY.
3. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, A CIVIL
ACTION SHALL NOT BE FORECLOSED AGAINST A PHYSICIAN OR A HOSPITAL WHERE
THERE IS CLEAR AND CONVINCING EVIDENCE THAT SUCH PHYSICIAN OR HOSPITAL
INTENTIONALLY OR WILLFULLY CAUSED OR INTENDED TO CAUSE A BIRTH-RELATED
NEUROLOGICAL INJURY, PROVIDED THAT SUCH SUIT IS FILED PRIOR TO AND IN
LIEU OF PAYMENT OF AN AWARD UNDER THIS ARTICLE. SUCH SUIT SHALL BE FILED
BEFORE THE AWARD OF THE BOARD BECOMES CONCLUSIVE AND BINDING.
S 2024. FILING OF CLAIMS; REVIEW BY STATE BOARD FOR PROFESSIONAL
MEDICAL CONDUCT; FILING OF RESPONSES; DETERMINATION OF ESTABLISHED
CLAIMS BY ADMINISTRATIVE LAW JUDGE. 1. (A) IN ALL CLAIMS FILED UNDER
S. 6744 3
THIS ARTICLE, THE CLAIMANT SHALL FILE WITH THE ADMINISTRATIVE LAW JUDGE
A PETITION, SETTING FORTH THE FOLLOWING INFORMATION:
(I) THE NAME AND ADDRESS OF THE LEGAL REPRESENTATIVE AND THE BASIS FOR
HIS OR HER REPRESENTATION OF THE INJURED INFANT;
(II) THE NAME AND ADDRESS OF THE INJURED INFANT;
(III) THE NAME AND ADDRESS OF ANY PHYSICIAN PROVIDING OBSTETRICAL
SERVICES WHO WAS PRESENT AT THE BIRTH AND THE NAME AND ADDRESS OF THE
HOSPITAL AT WHICH THE BIRTH OCCURRED;
(IV) A DESCRIPTION OF THE DISABILITY FOR WHICH CLAIM IS MADE;
(V) THE TIME AND PLACE WHERE THE INJURY OCCURRED;
(VI) A BRIEF STATEMENT OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE
INJURY AND GIVING RISE TO THE CLAIM;
(VII) ALL AVAILABLE RELEVANT MEDICAL RECORDS RELATING TO THE PERSON
WHO ALLEGEDLY SUFFERED A BIRTH-RELATED NEUROLOGICAL INJURY AND AN IDEN-
TIFICATION OF ANY UNAVAILABLE RECORDS KNOWN TO THE CLAIMANT AND THE
REASONS FOR THEIR UNAVAILABILITY;
(VIII) APPROPRIATE ASSESSMENTS, EVALUATIONS, AND PROGNOSES AND SUCH
OTHER RECORDS AND DOCUMENTS AS ARE REASONABLY NECESSARY FOR THE DETERMI-
NATION OF THE AMOUNT OF COMPENSATION TO BE PAID TO, OR ON BEHALF OF, THE
INJURED INFANT ON ACCOUNT OF A BIRTH-RELATED NEUROLOGICAL INJURY;
(IX) DOCUMENTATION OF EXPENSES AND SERVICES INCURRED TO DATE, WHICH
INDICATES WHETHER SUCH EXPENSES AND SERVICES HAVE BEEN PAID FOR, AND IF
SO, BY WHOM; AND
(X) DOCUMENTATION OF ANY APPLICABLE PRIVATE OR GOVERNMENTAL SOURCE OF
SERVICES OR REIMBURSEMENT RELATIVE TO THE ALLEGED IMPAIRMENTS.
(B) THE CLAIMANT SHALL FURNISH THE ADMINISTRATIVE LAW JUDGE WITH AS
MANY COPIES OF THE PETITION AS REQUIRED FOR SERVICE UPON THE PROGRAM,
ANY PHYSICIAN AND HOSPITAL NAMED IN THE PETITION, AND THE STATE BOARD
FOR PROFESSIONAL MEDICAL CONDUCT, ALONG WITH A FIFTEEN DOLLAR FILING
FEE. UPON RECEIPT OF THE PETITION, THE ADMINISTRATIVE LAW JUDGE SHALL
IMMEDIATELY SERVE THE PROGRAM BY SERVICE UPON THE AGENT DESIGNATED TO
ACCEPT SERVICE ON BEHALF OF THE PROGRAM IN THE PLAN OF OPERATION BY
REGISTERED OR CERTIFIED MAIL, AND SHALL MAIL COPIES OF THE PETITION TO
ANY PHYSICIAN AND HOSPITAL NAMED IN THE PETITION, THE STATE BOARD FOR
PROFESSIONAL MEDICAL CONDUCT AND THE DEPARTMENT.
2. UPON RECEIPT OF THE PETITION, THE STATE BOARD FOR PROFESSIONAL
MEDICAL CONDUCT SHALL EVALUATE THE CLAIM, AND IF IT DETERMINES THAT
THERE IS REASON TO BELIEVE THAT THE ALLEGED INJURY RESULTED FROM, OR WAS
AGGRAVATED BY, SUBSTANDARD CARE ON THE PART OF THE PHYSICIANS, IT SHALL
TAKE ANY APPROPRIATE ACTION.
3. UPON RECEIPT OF THE PETITION, THE DEPARTMENT SHALL EVALUATE THE
CLAIM, AND IF IT DETERMINES THAT THERE IS REASON TO BELIEVE THAT THE
ALLEGED INJURY RESULTED FROM, OR WAS AGGRAVATED BY, SUBSTANDARD CARE ON
THE PART OF THE HOSPITAL AT WHICH THE BIRTH OCCURRED, IT SHALL TAKE ANY
APPROPRIATE ACTION.
4. THE PROGRAM SHALL HAVE THIRTY DAYS FROM THE DATE OF SERVICE IN
WHICH TO FILE A RESPONSE TO THE PETITION, AND TO SUBMIT RELEVANT WRITTEN
INFORMATION RELATING TO THE ISSUE OF WHETHER THE INJURY ALLEGED IS A
BIRTH-RELATED NEUROLOGICAL INJURY, WITHIN THE MEANING OF THIS ARTICLE.
5. UPON THE ESTABLISHMENT OF A CLAIM BY THE STATE BOARD FOR PROFES-
SIONAL MEDICAL CONDUCT, SUCH CLAIM SHALL BE ADVANCED TO AN ADMINISTRA-
TIVE LAW JUDGE, AUTHORIZED TO HEAR AND PASS UPON ALL CLAIMS FILED PURSU-
ANT TO THIS ARTICLE.
S 2025. TOLLING OF STATUTE OF LIMITATIONS. THE STATUTE OF LIMITATIONS
WITH RESPECT TO ANY CIVIL ACTION THAT MAY BE BROUGHT BY OR ON BEHALF OF
AN INJURED INFANT ALLEGEDLY ARISING OUT OF OR RELATED TO A BIRTH-RELATED
S. 6744 4
INJURY SHALL BE TOLLED BY THE FILING OF A CLAIM IN ACCORDANCE WITH THIS
SECTION, AND THE TIME SUCH CLAIM IS PENDING SHALL NOT BE COMPUTED AS
PART OF THE PERIOD WITHIN WHICH SUCH CIVIL ACTION MAY BE BROUGHT.
S 2026. HEARING; PARTIES. 1. IMMEDIATELY AFTER SUCH PETITION HAS BEEN
RECEIVED, THE ADMINISTRATIVE LAW JUDGE SHALL SET THE DATE FOR A HEARING,
WHICH SHALL BE HELD NO SOONER THAN FORTY-FIVE DAYS AND NO LATER THAN ONE
HUNDRED TWENTY DAYS AFTER THE FILING OF A PETITION, AND SHALL NOTIFY THE
PARTIES THERETO OF THE TIME AND PLACE OF SUCH HEARING. THE HEARING SHALL
BE HELD IN THE CITY OR COUNTY WHERE THE INJURY OCCURRED, OR IN A CONTIG-
UOUS CITY OR COUNTY, UNLESS OTHERWISE AGREED TO BY THE PARTIES AND
AUTHORIZED BY THE ADMINISTRATIVE LAW JUDGE.
2. THE PARTIES TO THE HEARING REQUIRED UNDER THIS SECTION SHALL
INCLUDE THE CLAIMANT AND THE PROGRAM.
S 2027. INTERROGATORIES AND DEPOSITIONS. ANY PARTY TO A PROCEEDING
UNDER THIS ARTICLE MAY, UPON APPLICATION TO THE ADMINISTRATIVE LAW JUDGE
SETTING FORTH THE MATERIALITY OF THE EVIDENCE TO BE GIVEN, SERVE INTER-
ROGATORIES OR CAUSE THE DEPOSITIONS OF WITNESSES RESIDING WITHIN OR
WITHOUT THE STATE TO BE TAKEN, THE COSTS TO BE TAXED AS EXPENSES
INCURRED IN CONNECTION WITH THE FILING OF A CLAIM, IN ACCORDANCE WITH
SUBDIVISION TWO OF SECTION TWO THOUSAND TWENTY-NINE OF THIS ARTICLE.
SUCH DEPOSITIONS SHALL BE TAKEN AFTER GIVING NOTICE AND IN THE MANNER
PRESCRIBED BY LAW, FOR DEPOSITIONS IN ACTIONS AT LAW, EXCEPT THAT THEY
SHALL BE FILED WITH THE ADMINISTRATIVE LAW JUDGE.
S 2028. DETERMINATION OF CLAIMS; PRESUMPTION; FINDINGS OF ADMINISTRA-
TIVE LAW JUDGE BINDING ON PARTICIPANTS; MEDICAL ADVISORY PANEL. 1. THE
ADMINISTRATIVE LAW JUDGE SHALL DETERMINE, ON THE BASIS OF THE EVIDENCE
PRESENTED TO IT, THE FOLLOWING ISSUES:
(A) WHETHER THE INJURIES CLAIMED ARE BIRTH-RELATED NEUROLOGICAL INJU-
RIES AS DEFINED IN SECTION TWO THOUSAND TWENTY-TWO OF THIS ARTICLE. A
REBUTTABLE PRESUMPTION SHALL ARISE THAT THE INJURY ALLEGED IS A
BIRTH-RELATED NEUROLOGICAL INJURY WHERE IT HAS BEEN DEMONSTRATED, TO THE
SATISFACTION OF THE ADMINISTRATIVE LAW JUDGE, THAT THE INFANT HAS
SUSTAINED A BRAIN OR SPINAL CORD INJURY CAUSED BY OXYGEN DEPRIVATION OR
MECHANICAL INJURY, AND THAT THE INFANT WAS THEREBY RENDERED PERMANENTLY
NONAMBULATORY, APHASIC AND INCONTINENT.
IF EITHER PARTY DISAGREES WITH SUCH PRESUMPTION, THAT PARTY SHALL HAVE
THE BURDEN OF PROVING THAT THE INJURIES ALLEGED ARE NOT BIRTH-RELATED
NEUROLOGICAL INJURIES WITHIN THE MEANING OF THIS ARTICLE.
(B) WHETHER OBSTETRICAL SERVICES WERE DELIVERED BY A PARTICIPATING
PHYSICIAN AT THE BIRTH.
(C) WHETHER THE BIRTH OCCURRED IN A PARTICIPATING HOSPITAL.
(D) HOW MUCH COMPENSATION, IF ANY, IS AWARDABLE PURSUANT TO SECTION
TWO THOUSAND TWENTY-NINE OF THIS ARTICLE.
(E) IF THE ADMINISTRATIVE LAW JUDGE DETERMINES THAT THE INJURY ALLEGED
IS NOT A BIRTH-RELATED NEUROLOGICAL INJURY WITHIN THE MEANING OF THIS
ARTICLE, THAT OBSTETRICAL SERVICES WERE NOT DELIVERED BY A PARTICIPATING
PHYSICIAN AT THE BIRTH, OR THAT THE BIRTH DID NOT OCCUR IN A PARTICIPAT-
ING HOSPITAL, IT SHALL CAUSE A COPY OF SUCH DETERMINATION TO BE SENT
IMMEDIATELY TO THE PARTIES BY REGISTERED OR CERTIFIED MAIL.
(F) BY BECOMING A PARTICIPATING PHYSICIAN OR HOSPITAL EACH PARTICIPANT
IS BOUND FOR ALL PURPOSES INCLUDING ANY SUIT AT LAW AGAINST A PARTIC-
IPATING PHYSICIAN OR PARTICIPATING HOSPITAL, BY THE FINDING OF THE
ADMINISTRATIVE LAW JUDGE (OR ANY APPEAL THEREFROM) WITH RESPECT TO
WHETHER SUCH INJURY IS BIRTH-RELATED.
2. THE DEANS OF THE MEDICAL SCHOOLS OF THE STATE SHALL DEVELOP A PLAN
WHEREBY EACH CLAIM FILED WITH THE ADMINISTRATIVE LAW JUDGE IS REVIEWED
S. 6744 5
BY A PANEL OF THREE QUALIFIED AND IMPARTIAL PHYSICIANS. THIS PANEL SHALL
FILE ITS REPORT AND RECOMMENDATIONS AS TO WHETHER THE INJURY ALLEGED IS
A BIRTH-RELATED NEUROLOGICAL INJURY WITHIN THE MEANING OF THIS ARTICLE
WITH THE ADMINISTRATIVE LAW JUDGE AT LEAST TEN DAYS PRIOR TO THE DATE
SET FOR HEARING PURSUANT TO SECTION TWO THOUSAND TWENTY-SIX OF THIS
ARTICLE. AT THE REQUEST OF THE ADMINISTRATIVE LAW JUDGE, AT LEAST ONE
MEMBER OF THE PANEL SHALL BE AVAILABLE TO TESTIFY AT THE HEARING. THE
ADMINISTRATIVE LAW JUDGE MUST CONSIDER, BUT SHALL NOT BE BOUND BY, THE
RECOMMENDATION OF THE PANEL.
S 2029. ADMINISTRATIVE LAW JUDGE AWARDS FOR BIRTH-RELATED NEUROLOGICAL
INJURIES; NOTICE OF AWARD. UPON DETERMINING THAT AN INFANT HAS SUSTAINED
A BIRTH-RELATED NEUROLOGICAL INJURY, THAT OBSTETRICAL SERVICES WERE
DELIVERED BY A PARTICIPATING PHYSICIAN AT THE BIRTH, AND THAT THE BIRTH
OCCURRED IN A PARTICIPATING HOSPITAL, THE ADMINISTRATIVE LAW JUDGE SHALL
MAKE AN AWARD PROVIDING COMPENSATION FOR THE FOLLOWING ITEMS RELATIVE TO
SUCH INJURY:
1. ACTUAL MEDICALLY NECESSARY AND REASONABLE EXPENSES OF MEDICAL AND
HOSPITAL, REHABILITATIVE, RESIDENTIAL AND CUSTODIAL CARE AND SERVICE,
SPECIAL EQUIPMENT OR FACILITIES, AND RELATED TRAVEL. HOWEVER, SUCH
EXPENSES SHALL NOT INCLUDE:
(A) EXPENSES FOR ITEMS OR SERVICES THAT THE INFANT HAS RECEIVED, OR IS
ENTITLED TO RECEIVE, UNDER THE LAWS OF ANY STATE OR THE FEDERAL GOVERN-
MENT EXCEPT TO THE EXTENT PROHIBITED BY FEDERAL LAW;
(B) EXPENSES FOR ITEMS OR SERVICES THAT THE INFANT HAS RECEIVED, OR IS
CONTRACTUALLY ENTITLED TO RECEIVE, FROM ANY PREPAID HEALTH PLAN, HEALTH
MAINTENANCE ORGANIZATION, OR OTHER PRIVATE INSURING ENTITY;
(C) EXPENSES FOR WHICH THE INFANT HAS RECEIVED REIMBURSEMENT, OR FOR
WHICH THE INFANT IS ENTITLED TO RECEIVE REIMBURSEMENT, UNDER THE LAWS OF
ANY STATE OR FEDERAL GOVERNMENT EXCEPT TO THE EXTENT PROHIBITED BY
FEDERAL LAW; AND
(D) EXPENSES FOR WHICH THE INFANT HAS RECEIVED REIMBURSEMENT, OR FOR
WHICH THE INFANT IS CONTRACTUALLY ENTITLED TO RECEIVE REIMBURSEMENT,
PURSUANT TO THE PROVISIONS OF ANY HEALTH OR SICKNESS INSURANCE POLICY OR
OTHER PRIVATE INSURANCE PROGRAM.
2. EXPENSES OF MEDICAL AND HOSPITAL SERVICES UNDER SUBDIVISION ONE OF
THIS SECTION SHALL BE LIMITED TO SUCH CHARGES AS PREVAIL IN THE SAME
COMMUNITY FOR SIMILAR TREATMENT OF INJURED PERSONS OF A LIKE STANDARD OF
LIVING WHEN SUCH TREATMENT IS PAID FOR BY THE INJURED PERSON.
3. LOSS OF EARNINGS FROM THE AGE OF EIGHTEEN. AN INFANT FOUND TO HAVE
SUSTAINED A BIRTH-RELATED NEUROLOGICAL INJURY SHALL BE CONCLUSIVELY
PRESUMED TO HAVE BEEN ABLE TO EARN INCOME FROM WORK FROM THE AGE OF
EIGHTEEN THROUGH THE AGE OF SIXTY-FIVE, IF HE OR SHE HAD NOT BEEN
INJURED, IN THE AMOUNT OF FIFTY PERCENT OF THE AVERAGE WEEKLY WAGE IN
THE STATE OF WORKERS IN THE PRIVATE, NONFARM SECTOR.
4. REASONABLE EXPENSES INCURRED IN CONNECTION WITH THE FILING OF A
CLAIM UNDER THIS ARTICLE, INCLUDING REASONABLE ATTORNEYS' FEES, WHICH
SHALL BE SUBJECT TO THE APPROVAL AND AWARD OF THE ADMINISTRATIVE LAW
JUDGE.
5. A COPY OF THE AWARD SHALL BE SENT IMMEDIATELY BY REGISTERED OR
CERTIFIED MAIL TO THE PARTIES.
S 2030. LIMITATION ON CLAIMS. ANY CLAIM UNDER THIS ARTICLE THAT IS
FILED MORE THAN TEN YEARS AFTER THE BIRTH OF AN INFANT ALLEGED TO HAVE A
BIRTH-RELATED NEUROLOGICAL INJURY IS BARRED.
S 2031. SCOPE. THIS ARTICLE APPLIES TO ALL CLAIMS FOR BIRTH-RELATED
NEUROLOGICAL INJURIES OCCURRING IN THIS STATE ON OR AFTER JANUARY FIRST,
TWO THOUSAND TEN. THIS ARTICLE SHALL NOT APPLY TO DISABILITY OR DEATH
S. 6744 6
CAUSED BY GENETIC OR CONGENITAL ABNORMALITIES, OR DISABILITY OR DEATH
CAUSED BY BIRTH AT HOME UNATTENDED BY A PHYSICIAN.
S 2032. BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION FUND. THERE IS
ESTABLISHED THE BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION FUND TO
FINANCE THE NEW YORK BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION
PROGRAM CREATED BY THIS ARTICLE.
S 2033. BOARD OF DIRECTORS; APPOINTMENT; VACANCIES; TERM. 1. THE
BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM SHALL BE GOVERNED
BY A BOARD OF FIVE DIRECTORS.
2. DIRECTORS SHALL BE APPOINTED FOR A TERM OF THREE YEARS OR UNTIL
THEIR SUCCESSORS ARE APPOINTED AND HAVE QUALIFIED.
3. (A) THE DIRECTORS SHALL BE APPOINTED BY THE GOVERNOR AS FOLLOWS:
(I) ONE CITIZEN REPRESENTATIVE;
(II) ONE REPRESENTATIVE OF PARTICIPATING PHYSICIANS;
(III) ONE REPRESENTATIVE OF PARTICIPATING HOSPITALS;
(IV) ONE REPRESENTATIVE OF LIABILITY INSURERS; AND
(V) ONE REPRESENTATIVE OF PHYSICIANS OTHER THAN PARTICIPATING PHYSI-
CIANS.
(B) THE GOVERNOR MAY SELECT THE REPRESENTATIVE OF THE PARTICIPATING
PHYSICIANS FROM A LIST OF AT LEAST THREE NAMES TO BE RECOMMENDED BY THE
AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS; THE REPRESENTATIVE
OF PARTICIPATING HOSPITALS FROM A LIST OF AT LEAST THREE NAMES TO BE
RECOMMENDED BY THE HEALTH CARE ASSOCIATION OF NEW YORK STATE; THE REPRE-
SENTATIVE OF LIABILITY INSURERS FROM A LIST OF AT LEAST THREE NAMES, ONE
OF WHICH IS RECOMMENDED BY THE AMERICAN INSURANCE ASSOCIATION, ONE BY
THE ALLIANCE OF AMERICAN INSURERS, AND ONE BY THE NATIONAL ASSOCIATION
OF INDEPENDENT INSURERS; AND THE REPRESENTATIVE OF PHYSICIANS OTHER THAN
PARTICIPATING PHYSICIANS FROM A LIST OF AT LEAST THREE NAMES TO BE
RECOMMENDED BY THE MEDICAL SOCIETY OF NEW YORK. IN NO CASE SHALL THE
GOVERNOR BE BOUND TO MAKE ANY APPOINTMENT FROM AMONG THE NOMINEES OF THE
RESPECTIVE ASSOCIATIONS.
4. THE GOVERNOR SHALL PROMPTLY NOTIFY THE ASSOCIATION, WHICH MAY MAKE
NOMINATIONS, OF ANY VACANCY OTHER THAN BY EXPIRATION AMONG THE MEMBERS
OF THE BOARD REPRESENTING A PARTICULAR INTEREST AND LIKE NOMINATIONS MAY
BE MADE FOR THE FILLING OF THE VACANCY.
5. THE DIRECTORS SHALL ACT BY MAJORITY VOTE WITH FIVE DIRECTORS
CONSTITUTING A QUORUM FOR THE TRANSACTION OF ANY BUSINESS OR THE EXER-
CISE OF ANY POWER OF THE PROGRAM. THE DIRECTORS SHALL SERVE WITHOUT
SALARY, BUT EACH DIRECTOR SHALL BE REIMBURSED FOR ACTUAL AND NECESSARY
EXPENSES INCURRED IN THE PERFORMANCE OF HIS OR HER OFFICIAL DUTIES AS A
DIRECTOR OF THE PROGRAM. THE DIRECTORS SHALL NOT BE SUBJECT TO ANY
PERSONAL LIABILITY WITH RESPECT TO THE ADMINISTRATION OF THE PROGRAM.
6. THE BOARD ESTABLISHED BY THIS SECTION SHALL HAVE THE POWER TO
ADMINISTER THE PROGRAM, ADMINISTER THE BIRTH-RELATED NEUROLOGICAL INJURY
COMPENSATION FUND, APPOINT A SERVICE COMPANY OR COMPANIES TO ADMINISTER
THE PAYMENT OF CLAIMS ON BEHALF OF THE PROGRAM, DIRECT THE INVESTMENT
AND REINVESTMENT OF ANY SURPLUS IN THE FUND OVER LOSSES AND EXPENSES,
PROVIDED ANY INVESTMENT INCOME GENERATED THEREBY REMAINS IN THE FUND,
AND REINSURE THE RISKS OF THE FUND IN WHOLE OR IN PART.
S 2034. PLAN OF OPERATION. 1. ON OR BEFORE SEPTEMBER THIRTIETH, TWO
THOUSAND TEN, THE DIRECTORS OF THE PROGRAM SHALL SUBMIT TO THE COMMIS-
SIONER FOR REVIEW A PROPOSED PLAN OF OPERATIONS CONSISTENT WITH THIS
ARTICLE.
2. THE PLAN OF OPERATION SHALL PROVIDE FOR THE EFFICIENT ADMINIS-
TRATION OF THE PROGRAM AND FOR THE PROMPT PROCESSING OF CLAIMS MADE
S. 6744 7
AGAINST THE FUND PURSUANT TO AN AWARD UNDER THIS ARTICLE. THE PLAN SHALL
CONTAIN OTHER PROVISIONS INCLUDING:
(A) ESTABLISHMENT OF NECESSARY FACILITIES;
(B) MANAGEMENT OF THE FUND;
(C) APPOINTMENT OF SERVICING CARRIERS OR OTHER SERVICING ARRANGEMENTS
TO ADMINISTER THE PROCESSING OF CLAIMS AGAINST THE FUND; AND
(D) ANY OTHER MATTERS NECESSARY FOR THE EFFICIENT OPERATION OF THE
PROGRAM.
3. THE PLAN OF OPERATION SHALL BE SUBJECT TO APPROVAL BY THE COMMIS-
SIONER AFTER CONSULTATION WITH REPRESENTATIVES OF INTERESTED INDIVIDUALS
AND ORGANIZATIONS. IF THE COMMISSIONER DISAPPROVES ALL OR ANY PART OF
THE PROPOSED PLAN OF OPERATION, THE DIRECTORS SHALL WITHIN THIRTY DAYS
SUBMIT FOR REVIEW AN APPROPRIATE REVISED PLAN OF OPERATION. IF THE
DIRECTORS FAIL TO DO SO, THE COMMISSIONER SHALL PROMULGATE A PLAN OF
OPERATION. THE PLAN OF OPERATION APPROVED OR PROMULGATED BY THE COMMIS-
SIONER SHALL BECOME EFFECTIVE AND OPERATIONAL UPON ORDER OF THE COMMIS-
SIONER.
4. AMENDMENTS TO THE PLAN OF OPERATION MAY BE MADE BY THE DIRECTORS OF
THE PROGRAM, SUBJECT TO THE APPROVAL OF THE COMMISSIONER.
S 2035. FUNDS TO BE HELD IN RESTRICTED CASH ACCOUNT. ALL FUNDS, SHALL
BE HELD IN A SEPARATE RESTRICTED CASH ACCOUNT UNDER THE SOLE CONTROL OF
AN INDEPENDENT FUND MANAGER TO BE SELECTED BY THE DIRECTORS. THE FUND,
AND ANY INCOME FROM IT, SHALL BE DISBURSED FOR THE PAYMENT OF AWARDS AS
PROVIDED IN THIS ARTICLE AND FOR THE PAYMENT OF THE EXPENSES OF ADMINIS-
TRATION OF THE FUND.
S 2036. ASSESSMENTS. FUNDS FOR THIS PROGRAM SHALL BE DERIVED FROM THE
HOSPITAL EXCESS LIABILITY POOL, ENACTED BY SECTION EIGHTEEN OF CHAPTER
TWO HUNDRED SIXTY-SIX OF THE LAWS OF NINETEEN HUNDRED EIGHTY-SIX, AS
AMENDED, IN AN AMOUNT DETERMINED BY THE DIRECTORS OF THE FUND AND CERTI-
FIED BY THE SUPERINTENDENT OF INSURANCE TO BE ACTUARIALLY SOUND.
S 2037. ACTUARIAL INVESTIGATION, VALUATIONS, GAIN/LOSS ANALYSIS;
NOTICE IF ASSESSMENTS PROVE INSUFFICIENT. THE SUPERINTENDENT OF INSUR-
ANCE SHALL UNDERTAKE AN ACTUARIAL INVESTIGATION OF THE REQUIREMENTS OF
THE FUND BASED ON THE FUND'S EXPERIENCE IN THE FIRST YEAR OF OPERATION,
INCLUDING WITHOUT LIMITATION THE ASSETS AND LIABILITIES OF THE FUND.
PURSUANT TO SUCH INVESTIGATION, THE SUPERINTENDENT OF INSURANCE SHALL
ESTABLISH THE RATE OF CONTRIBUTION FROM THE HOSPITAL EXCESS LIABILITY
POOL.
FOLLOWING THE INITIAL VALUATION, THE SUPERINTENDENT OF INSURANCE SHALL
CAUSE AN ACTUARIAL VALUATION TO BE MADE OF THE ASSETS AND LIABILITIES OF
THE FUND NO LESS FREQUENTLY THAN BIENNIALLY. PURSUANT TO THE RESULTS OF
SUCH VALUATIONS, THE SUPERINTENDENT OF INSURANCE SHALL PREPARE A STATE-
MENT AS TO THE APPLICABLE CONTRIBUTION FROM THE HOSPITAL EXCESS LIABIL-
ITY POOL.
S 2. This act shall take effect immediately.
