§ 2999-j. Payments from the fund. 1. The fund shall be used to pay the
qualifying health care costs of qualified plaintiffs.

2. The provision of qualifying health care costs to qualified
plaintiffs shall not be subject to prior authorization, except as
described by the commissioner in regulation; provided, however:

(a) such regulation shall not prevent qualified plaintiffs from
receiving care or assistance that would, at a minimum, be authorized
under the medicaid program;

(b) if any prior authorization is required by such regulation, the
regulation shall require that requests for prior authorization be
processed within a reasonably prompt period of time and shall identify a
process for prompt administrative review of any denial of a request for
prior authorization; and

(c) such regulations shall not prohibit qualifying health care costs
on the grounds that the qualifying health care cost may incidentally
benefit other members of the household, provided that whether the
qualifying health care cost primarily benefits the patient may be
considered.

3. In determining the amount of qualifying health care costs to be
paid from the fund, any such cost or expense that was or will, with
reasonable certainty, be paid, replaced or indemnified from any
collateral source as provided by subdivision (a) of section forty-five
hundred forty-five of the civil practice law and rules shall not
constitute a qualifying health care cost and shall not be paid from the
fund. For purposes of this title, "collateral source" shall not include
medicare or Medicaid.

* 4. The amount of qualifying health care costs to be paid from the
fund shall be calculated on the basis of one hundred percent of the
usual and customary cost. For the purposes of this section, "usual and
customary costs" shall mean the eightieth percentile of all charges for
the particular health care service performed by a provider in the same
or similar specialty and provided in the same geographical area as
reported in a benchmarking database maintained by a nonprofit
organization specified by the superintendent of financial services. If
no such rates are available qualifying health care costs shall be
calculated on the basis of no less than one hundred thirty percent of
Medicaid or Medicare rates of reimbursement, whichever is higher. If no
such rate exists, costs shall be reimbursed as defined by the
commissioner in regulation.

* NB Effective until December 31, 2025

* 4. The amount of qualifying health care costs to be paid from the
fund shall be calculated: (a) with respect to services provided in
private physician practices on the basis of one hundred percent of the
usual and customary rates, as defined by the commissioner in regulation;
or (b) with respect to all other services, on the basis of Medicaid
rates of reimbursement or, where no such rates are available, as defined
by the commissioner in regulation.

* NB Effective December 31, 2025

5. Claims for the payment or reimbursement from the fund of qualifying
health care costs shall be made upon forms prescribed and furnished by
the fund administrator in conjunction with regulations establishing a
mechanism for submission of claims by health care providers directly to
the fund, where practicable.

6. (a) Every settlement agreement for claims arising out of a
plaintiff's or claimant's birth related neurological injury subject to
this title, and that provides for the payment of future medical expenses
for the plaintiff or claimant, shall provide that all payments for
future medical expenses shall be paid in accordance with this title in
lieu of that portion of the settlement agreement that provides for
payment of such expenses. The plaintiff's or claimant's future medical
expenses shall be paid in accordance with this title. When such a
settlement agreement does not so provide, the court shall direct the
modification of the agreement to include such term as a condition of
court approval.

(b) In any case where the jury or court has made an award for future
medical expenses arising out of a birth related neurological injury, any
party to such action or person authorized to act on behalf of such party
may make application to the court that the judgment reflect that, in
lieu of that portion of the award that provides for payment of such
expenses, the future medical expenses of the plaintiff shall be paid out
of the fund in accordance with this title. Upon a finding by the court
that the applicant has made a prima facie showing that the plaintiff is
a qualified plaintiff, the court shall ensure that the judgment so
provides.

7. A qualified plaintiff shall be enrolled when (a) such plaintiff or
person authorized to act on behalf of such person, upon notice to all
defendants, or any of the defendants in regard to the plaintiff's claim,
upon notice to such plaintiff, makes an application for enrollment by
providing the fund administrator with a certified copy of the judgment
or of the court approved settlement agreement; and (b) the fund
administrator determines that the relevant provisions of subdivision six
of this section have been met; provided that no enrollment shall occur
when the fund is closed to enrollment pursuant to subdivision six of
section twenty-nine hundred ninety-nine-i of this title.

8. As to all claims, the fund administrator shall:

(a) determine which of such costs are qualifying health care costs to
be paid from the fund; and

(b) thereupon certify to the commissioner of taxation and finance
those costs that have been determined to be qualifying health care costs
to be paid from the fund.

9. Payments from the fund shall be made by the commissioner of
taxation and finance on the said certificate of the commissioner. No
payment shall be made by the commissioner of taxation and finance in
excess of the amount certified. Promptly upon receipt of the said
certificate of the commissioner, the commissioner of taxation and
finance shall pay the qualified plaintiff's health care provider or
reimburse the qualified plaintiff the amount so certified for payment.

10. Payment from the fund shall not give the fund any right of
recovery against any qualified plaintiff or such qualified plaintiff's
attorney except in the case of fraud or mistake.

11. All health care providers shall accept from qualified plaintiff's
or persons authorized to act on behalf of such plaintiff's assignments
of the right to receive payments from the fund for qualifying health
care costs. Such payments shall constitute payment in full for any
services provided to a qualified plaintiff in accordance with this
article.

12. Health insurers (other than medicare and Medicaid) shall be the
primary payers of qualifying health care costs of qualified plaintiffs.
Such costs shall be paid from the fund only to the extent that health
insurers or other collateral sources or other persons are not otherwise
obligated to make payments therefor. Health insurers that make payments
for qualifying health care costs to or on behalf of qualified plaintiffs
shall have no right of recovery against and shall have no lien upon the
fund or any person or entity nor shall the fund constitute an additional
payment source to offset the payments otherwise contractually required
to be made by such health insurers. The superintendent of financial
services shall have the authority to enforce the provisions of this
subdivision upon the referral of the commissioner.

13. Except as provided for by this title, with respect to a qualified
plaintiff, no payment shall be required to be made by any defendant or
such defendant's insurer for qualifying health care costs and no
judgment shall be made or entered requiring that any such payment be
made by any defendant or such defendant's insurer for such health care
costs.

14. The determination of the qualified plaintiff's attorney's fee
shall be based upon the entire sum awarded by the jury or the court or
the full sum of the settlement, as the case may be. The qualified
plaintiff's attorney's fee shall be paid in a lump sum by the defendants
and their insurers pursuant to section four hundred seventy-four-a of
the judiciary law; provided however that the portion of the attorney fee
that is allocated to the non-fund elements of damages shall be deducted
from the non-fund portion of the award in a proportional manner.

15. The commissioner shall promulgate, amend and enforce all rules and
regulations necessary for the proper administration of the fund in
accordance with the provisions of this section, including, but not
limited to, those concerning the payment of claims and concerning the
actuarial calculations necessary to determine, annually, the total
amount to be paid into the fund as provided herein, and as otherwise
needed to implement this title.