Bill Text: NY A10268 | 2011-2012 | General Assembly | Introduced


Bill Title: Regulates the conducting of examinations under oath of claimants for first party benefits under no-fault motor vehicle insurance.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-05-16 - referred to insurance [A10268 Detail]

Download: New_York-2011-A10268-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         10268
                                 I N  A S S E M B L Y
                                     May 16, 2012
                                      ___________
       Introduced by M. of A. TITONE -- read once and referred to the Committee
         on Insurance
       AN ACT to amend the insurance law, in relation to examination under oath
         of  covered persons pursuant to the comprehensive motor vehicle insur-
         ance reparations act
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Section  5103 of the insurance law is amended by adding a
    2  new subsection (i) to read as follows:
    3    (I) WITH REGARD TO ANY CLAIM FOR FIRST PARTY BENEFITS PURSUANT TO THIS
    4  ARTICLE, THE EXAMINATION UNDER OATH OF A PERSON CLAIMING TO BE A COVERED
    5  PERSON SHALL BE SCHEDULED BY THE INSURER  DIRECTLY  OR  BY  AN  ATTORNEY
    6  APPOINTED  BY  THE  INSURER  FOR PURPOSES OF CONDUCTING SUCH EXAMINATION
    7  UNDER OATH FOR WHOSE CONDUCT AND ACTIVITY THE INSURER SHALL BE  DIRECTLY
    8  RESPONSIBLE.  THE  EXAMINATION  UNDER  OATH  OF  A CLAIMANT SHALL NOT BE
    9  DEMANDED UNLESS AND UNTIL AN APPLICATION FOR FIRST  PARTY  BENEFITS  HAS
   10  BEEN  RECEIVED BY THE INSURER. IN ANY EXAMINATION UNDER OATH, THE CLAIM-
   11  ANT SHALL HAVE THE RIGHT TO BE REPRESENTED BY COUNSEL.  THE  EXAMINATION
   12  SHALL  BE CONDUCTED UPON OATH OR AFFIRMATION. THE EXAMINATION UNDER OATH
   13  SHALL BE CONDUCTED IN THE COUNTY WHERE THE CLAIMANT RESIDES OR,  AT  THE
   14  CLAIMANT'S OPTION, IN THE OFFICE OF HIS OR HER REPRESENTATIVE UNLESS THE
   15  CLAIMANT  OR  CLAIMANT'S REPRESENTATIVE AND THE INSURER AGREE OTHERWISE.
   16  THE DAY AND TIME THAT THE EXAMINATION UNDER OATH IS SCHEDULED  SHALL  BE
   17  AGREED  UPON  BY  THE  INSURER  AND THE CLAIMANT OR CLAIMANT'S REPRESEN-
   18  TATIVE. A DEMAND FOR AN EXAMINATION UNDER OATH SHALL BE IN  WRITING  AND
   19  SHALL  BE  SERVED PERSONALLY OR BY REGISTERED OR CERTIFIED MAIL UPON THE
   20  CLAIMANT UNLESS THE CLAIMANT IS REPRESENTED  BY  AN  ATTORNEY,  WHEN  IT
   21  SHALL  BE  SERVED  PERSONALLY  OR  BY MAIL UPON HIS OR HER ATTORNEY. THE
   22  DEMAND SHALL STATE THE PERSON BEFORE WHOM THE EXAMINATION IS TO BE HELD,
   23  THE TIME, PLACE AND SUBJECT MATTER THEREOF. WRITTEN NOTICE OF  AN  EXAM-
   24  INATION UNDER OATH MUST BE RECEIVED BY THE CLAIMANT OR HIS OR HER REPRE-
   25  SENTATIVE  NOT  LESS THAN FOURTEEN DAYS PRIOR TO THE EXAMINATION DATE TO
   26  BE EFFECTIVE TO REQUIRE CLAIMANT TO APPEAR. THE NOTICE SHALL ADVISE  THE
   27  CLAIMANT  OF THE RIGHT TO VIDEO OR OTHERWISE RECORD THE EXAMINATION. THE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD15461-02-2
       A. 10268                            2
    1  CLAIMANT  SHALL  BE  ALLOWED  REASONABLE  ADJOURNMENTS  WHICH  SHALL  BE
    2  ACCEPTED  UP TO NO LESS THAN TWENTY-FOUR HOURS PRIOR TO THE EXAMINATION.
    3  IF THE CLAIMANT TO BE EXAMINED DOES NOT UNDERSTAND THE ENGLISH LANGUAGE,
    4  UPON  REASONABLE  NOTICE  TO  THE  INSURER  SEEKING THE EXAMINATION, THE
    5  INSURER SHALL, AT ITS OWN EXPENSE, PROVIDE A TRANSLATION  OF  ALL  QUES-
    6  TIONS  AND  ANSWERS,  AND  MAY  USE THE SERVICES OF AN INTERPRETER WHOSE
    7  COMPENSATION SHALL BE PAID BY THE INSURER SEEKING THE  EXAMINATION.  THE
    8  EXAMINATION  UNDER  OATH  SHALL  BE  TRANSCRIBED  BEFORE A NOTARY PUBLIC
    9  COMMISSIONED TO ADMINISTER OATHS IN THIS STATE.  ANY  EXAMINATION  UNDER
   10  OATH  THAT  IS NOT SO TRANSCRIBED SHALL NOT BE CITED AS THE BASIS OF ANY
   11  DENIAL OF A CLAIM FOR FIRST PARTY BENEFITS. THE TRANSCRIPT OF THE  EXAM-
   12  INATION  SHALL  NOT  BE  SUBJECT  TO OR AVAILABLE FOR PUBLIC INSPECTION,
   13  EXCEPT UPON COURT ORDER UPON GOOD CAUSE SHOWN, BUT SHALL BE FURNISHED TO
   14  THE CLAIMANT OR HIS OR HER REPRESENTATIVE WITHIN SIXTY DAYS OF THE EXAM-
   15  INATION. THE CONDUCT OF EXAMINATIONS UNDER OATH SHALL BE GOVERNED BY THE
   16  UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS, PART 221  OF  THE  UNIFORM
   17  RULES FOR THE NEW YORK STATE TRIAL COURTS.  AN EXAMINATION UNDER OATH OF
   18  THE  CLAIMANT  MAY  BE  REQUESTED  WHERE  (1) THE INSURER SUSPECTS FRAUD
   19  PERPETRATED BY THE CLAIMANT WHICH MUST BE CLEARLY CONVEYED TO THE CLAIM-
   20  ANT OR CLAIMANT'S REPRESENTATIVE. THE INSURER SHALL SUPPLY THE  CLAIMANT
   21  OR  CLAIMANT'S  REPRESENTATIVE  WITH ANY AND ALL EVIDENCE SUPPORTING ITS
   22  CLAIM OF FRAUD NOT LESS THAN TEN DAYS PRIOR  TO  THE  EXAMINATION  UNDER
   23  OATH  SO  AS  TO  PRESERVE  THE CLAIMANT'S FEDERAL FIFTH AMENDMENT RIGHT
   24  AGAINST BEING COMPELLED TO TESTIFY AGAINST HIMSELF OR HERSELF;  (2)  THE
   25  INSURER  SUSPECTS  THAT  THE CLAIMANT IS RECEIVING UNNECESSARY TREATMENT
   26  WHICH SHALL BE CLEARLY CONVEYED TO THE CLAIMANT OR CLAIMANT'S  REPRESEN-
   27  TATIVE.  THE  INSURER  SHALL SUPPLY THE CLAIMANT OR CLAIMANT'S REPRESEN-
   28  TATIVE WITH ANY AND ALL EVIDENCE SUPPORTING ITS CLAIM THAT THE TREATMENT
   29  IS UNNECESSARY, INCLUDING BUT NOT LIMITED TO, PEER REVIEWS NOT LESS THAN
   30  TEN DAYS PRIOR TO THE EXAMINATION UNDER OATH; (3) THE  INSURER  SUSPECTS
   31  THAT THE TREATING PROVIDER OR FACILITY IS BILLING FOR TREATMENT THAT THE
   32  CLAIMANT  IS NOT RECEIVING WHICH SHALL BE CLEARLY CONVEYED TO THE CLAIM-
   33  ANT OR CLAIMANT'S REPRESENTATIVE.  THE INSURER SHALL PROVIDE THE  CLAIM-
   34  ANT  OR  CLAIMANT'S  REPRESENTATIVE WITH ANY AND ALL EVIDENCE SUPPORTING
   35  ITS CLAIM THAT THE BILLING IS NOT COMMENSURATE WITH THE ACTUAL TREATMENT
   36  RECEIVED, INCLUDING BUT NOT LIMITED  TO,  THE  BILLS  SUBMITTED  BY  THE
   37  TREATING  PROVIDER NOT LESS THAN TEN DAYS PRIOR TO THE EXAMINATION UNDER
   38  OATH; OR (4) THE INSURER HAS A SUSPICION THAT  THE  CLAIM  NEEDS  TO  BE
   39  VERIFIED  FOR  A  REASON NOT ENUMERATED ABOVE. THE JUSTIFICATION MUST BE
   40  RELEVANT TO THE VERIFICATION OF THE CLAIM AND THE REASON MUST BE CLEARLY
   41  CONVEYED TO THE CLAIMANT OR CLAIMANT'S REPRESENTATIVE. THE INSURER SHALL
   42  PROVIDE SUPPORTING EVIDENCE TO SUPPORT ITS  CLAIM  TO  THE  CLAIMANT  OR
   43  CLAIMANT'S  REPRESENTATIVE  NOT LESS THAN TEN DAYS PRIOR TO THE EXAMINA-
   44  TION UNDER OATH. IF THE CLAIMANT OR CLAIMANT'S REPRESENTATIVE WISHES  TO
   45  CONTEST  THE  REQUEST  FOR AN EXAMINATION UNDER OATH BECAUSE CLAIMANT OR
   46  CLAIMANT'S REPRESENTATIVE BELIEVES THE REQUEST  TO  BE  PRE-TEXTURAL  OR
   47  SUSPECTS  ABUSE IN REQUESTING THE EXAMINATION, HE OR SHE SHALL SUBMIT AN
   48  APPLICATION TO THE DEPARTMENT FOR REVIEW WITHIN FIVE  BUSINESS  DAYS  OF
   49  RECEIPT OF THE WRITTEN REQUEST FROM THE INSURER. NO INSURER SHALL DENY A
   50  CLAIM  BASED UPON A TREATING PROVIDER'S FAILURE TO APPEAR AT AN EXAMINA-
   51  TION UNDER OATH OTHER THAN BILLS SUBMITTED BY SUCH PROVIDER,  NOR  SHALL
   52  IT FORM THE BASIS OF ANY LIABILITY ON THE PART OF ANY PROVIDER OR CLAIM-
   53  ANT  FOR  PAYMENT PREVIOUSLY MADE RELATING TO THE CLAIM IN QUESTION.  IF
   54  THE TREATING PROVIDER FAILS TO APPEAR AT AN EXAMINATION UNDER OATH,  THE
   55  CLAIMANT  SHALL  NOT  BE  HELD  RESPONSIBLE TO THE PROVIDER FOR SERVICES
   56  RENDERED BY THAT PROVIDER. WHEN AN INSURER REQUIRES AN EXAMINATION UNDER
       A. 10268                            3
    1  OATH OF A CLAIMANT TO ESTABLISH PROOF OF CLAIM, SUCH  REQUIREMENT  SHALL
    2  BE  BASED  ON  THE  APPLICATION  OF OBJECTIVE STANDARDS SO THAT THERE IS
    3  SPECIFIC JUSTIFICATION FOR THE USE OF SUCH EXAMINATION.  INSURER  STAND-
    4  ARDS  SHALL  BE AVAILABLE FOR REVIEW BY DEPARTMENT EXAMINERS, AS WELL AS
    5  BY THE CLAIMANT AND HIS OR HER REPRESENTATIVE.  THE SCOPE OF  THE  EXAM-
    6  INATION  UNDER  OATH SHALL BE NARROWLY TAILORED TO THE REASONS OR JUSTI-
    7  FICATION FOR SEEKING THE EXAMINATION AS SET FORTH IN THE INSURER'S WRIT-
    8  TEN REQUEST. ANY QUESTION THAT GOES BEYOND THE SCOPE MAY BE OBJECTED  TO
    9  AND  SUCH  OBJECTED TO QUESTION SHALL BE SUBMITTED BY THE INSURER WITHIN
   10  SEVEN DAYS OF THE COMPLETION OF THE SCHEDULED AND CONDUCTED  EXAMINATION
   11  TO THE DEPARTMENT TO DETERMINE IF THE OBJECTED TO QUESTION IS BEYOND THE
   12  SCOPE OF THE EXAMINATION. IF ANY QUESTION IS DETERMINED TO BE BEYOND THE
   13  LEGITIMATE  SCOPE OF THE EXAMINATION AND ITS ORIGINAL WRITTEN JUSTIFICA-
   14  TION FOR THE SAME, THE CLAIMANT SHALL NOT BE REQUIRED TO RESPOND TO  THE
   15  QUESTION AND CANNOT FORM THE BASIS OF A DENIAL. IF THE OBJECTED TO QUES-
   16  TION  IS  DETERMINED  BY  THE  DEPARTMENT  TO BE LEGITIMATE AND NARROWLY
   17  TAILORED TO MEET THE OBJECTIVES CONTAINED IN THE WRITTEN REQUEST FOR THE
   18  EXAMINATION UNDER OATH INITIALLY GIVEN BY THE INSURER WHEN THE  EXAMINA-
   19  TION WAS SCHEDULED, THE EXAMINATION MAY BE RESCHEDULED IN THE MANNER SET
   20  FORTH  ABOVE  FOR  THE  LIMITED  PURPOSE  OF  RECEIVING RESPONSES TO THE
   21  IMPROPERLY OBJECTED TO QUESTIONS, AS DETERMINED BY THE  DEPARTMENT,  AND
   22  RESPONSES  TO  OTHER QUESTIONS THAT MIGHT NATURALLY FLOW FROM THE CLAIM-
   23  ANT'S RESPONSES THAT ARE LIKEWISE NARROWLY TAILORED TO  INVESTIGATE  THE
   24  LEGITIMATE  JUSTIFICATION  FOR  CONDUCTING  THE EXAMINATION GIVEN IN THE
   25  INSURER'S ORIGINAL WRITTEN REQUEST, WITH THE SAME RULES  FOR  OBJECTIONS
   26  APPLYING  AS  SET  FORTH  ABOVE. AN INSURER SHALL NOT DENY A CLAIM BASED
   27  UPON AN OBJECTION AT  AN  EXAMINATION  UNDER  OATH  UNLESS  THE  INSURER
   28  COMPLETES  THE  ABOVE OBJECTION APPEALS PROCEDURE, WINS SAID APPEAL, AND
   29  THE CLAIMANT THEREAFTER FAILS TO COMPLY WITH THE DEMAND  FOR  A  FURTHER
   30  EXAMINATION  UNDER  OATH.  EACH  EXAMINATION UNDER OATH SHALL NOT EXCEED
   31  THREE HOURS FROM THE TIME THE FIRST QUESTION IS  ASKED  UNTIL  THE  LAST
   32  QUESTION  IS  ASKED  UNLESS  REASONABLE  CAUSE  EXISTS.  FOR EXAMINATION
   33  CONSTRUCTED WITH THE AID OF AN INTERPRETER, THE TIME  SHALL  NOT  EXCEED
   34  FOUR  HOURS  UNLESS  REASONABLE CAUSE EXISTS. THE CLAIMANT OR CLAIMANT'S
   35  REPRESENTATIVE SHALL HAVE THE RIGHT TO TERMINATE  THE  EXAMINATION  UPON
   36  THE  PASSAGE  OF THE ABOVE TIME LIMITS. THE CLAIM SHALL NOT BE DENIED IF
   37  THE CLAIMANT OR CLAIMANT'S  REPRESENTATIVE  TERMINATES  THE  EXAMINATION
   38  AFTER  THE ALLOTTED TIME HAS EXPIRED. ISSUES OF LIABILITY RELATED TO ANY
   39  ONGOING OR POTENTIAL THIRD PARTY ACTION ARISING FROM THE  SUBJECT  CLAIM
   40  MAY  BE  ADDRESSED  AT THE EXAMINATION UNDER OATH. THE EXAMINATION UNDER
   41  OATH AND ANY INVESTIGATION RELATED THERETO  SHALL  BE  CONFIDENTIAL  AND
   42  SHALL NOT BE SUBJECT TO DISCOVERY OR USE IN ANY THIRD PARTY ACTION ARIS-
   43  ING  OUT OF THE INCIDENT THAT SERVES AS THE BASIS OF THE CLAIM FOR FIRST
   44  PARTY BENEFITS, AND SHALL NOT BE USED AGAINST THE CLAIMANT IN  ANY  SUCH
   45  THIRD  PARTY ACTION.   ABSENT AN ADMISSION OF FRAUD BY A CLAIMANT DURING
   46  THE EXAMINATION UNDER OATH, OR ALLEGATION OF FRAUD  PERPETRATED  BY  THE
   47  CLAIMANT  SUPPORTED  BY  THE  TESTIMONY ELICITED AT THE EXAMINATION, THE
   48  EXAMINATION UNDER OATH ALONE SHALL NOT FORM THE BASIS  OF  A  DENIAL  OF
   49  FIRST  PARTY  BENEFITS. ANY DENIAL OF FIRST PARTY BENEFITS BASED IN PART
   50  UPON AN EXAMINATION UNDER OATH, INCLUDING ONE  BASED  ON  FRAUD  BY  THE
   51  CLAIMANT,  SHALL  BE ACCOMPANIED BY ANY OTHER WRITTEN REPORTS, INCLUDING
   52  INVESTIGATIVE, THAT IN WHOLE OR IN PART FORM THE BASIS  OF  THE  DENIAL.
   53  THE  CLAIMANT  AND  HIS  OR  HER  REPRESENTATIVE SHALL HAVE THE RIGHT TO
   54  CONDUCT AN EXAMINATION UNDER OATH, UPON WRITTEN REQUEST TO THE  INSURER,
   55  OF  ANY  INDIVIDUAL,  INCLUDING  THE  PERSON  OR  ATTORNEY CONDUCTING OR
   56  REVIEWING THE EXAMINATION, WHOSE REPORTS OR OPINIONS FORM THE  BASIS  OF
       A. 10268                            4
    1  ANY  DENIAL  OF  FIRST  PARTY  BENEFITS BASED IN WHOLE OR IN PART ON THE
    2  EXAMINATION. ONCE AN INSURER HAS DENIED FURTHER FIRST PARTY BENEFITS  TO
    3  THE CLAIMANT FOR ANY REASON, IT SHALL BE BARRED FROM SEEKING ANY FURTHER
    4  VERIFICATION  OF  THE  CLAIM  INCLUDING,  BUT NOT LIMITED TO, CONDUCTING
    5  MEDICAL EXAMINATIONS AND/OR FURTHER EXAMINATIONS UNDER OATH. THE  DENIAL
    6  OF  A CLAIM FOR FAILURE TO ATTEND AN EXAMINATION UNDER OATH SHALL NOT BE
    7  RETROACTIVE TO THE DATE OF THE CLAIM,  BUT  SHALL  ONLY  RESULT  IN  THE
    8  DENIAL  OF ALL BENEFITS RECEIVED AFTER THE DATE OF THE EXAMINATION UNDER
    9  OATH.
   10    S 2. This act shall take effect immediately and  shall  apply  to  all
   11  claims for first party benefits pending on or after such date.
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