NY Insurance Law
Article 55,
Medical Malpractice Insurance Association
Section
5501. Definitions.
5502. Medical malpractice insurance association.
5503. Plan of operation.
5504. Policies.
5505. Rates.
5506. Procedures.
5507. Participation.
5508. Directors.
5509. Stabilization reserve fund.
5510. Appeals.
5511. Annual statement.
5512. Examinations.
5513. Immunity.
5514. Evaluation.
5515. Federal program.
5516. Transfer of association funds.
5516-a. Transfer of association funds.
5516-b. Further transfer of association funds.
5516-c. Further transfer of association funds.
5516-d. Further transfer of association funds.
5516-e. Further transfer of association funds.
5516-f. Further transfer of moneys of the association.
5517. Transfer of association funds; reinsurance evaluation.
5517-a. Return of association premium.
S 5501. Definitions. In this article:
(a) "Association" means the medical malpractice insurance association.
(b) "Medical malpractice insurance" means insurance against legal
liability of the insured, and against loss, damage, or expense incident
to a claim of such liability arising out of the death or injury of any
person due to medical, dental, podiatric, certified nurse-midwifery or
hospital malpractice by any licensed physician, dentist, podiatrist,
certified nurse-midwife, certified registered nurse anesthetist or
hospital.
(c) "Hospital" means:
(1) Any facility defined as a hospital under section twenty-eight
hundred one of the public health law and issued an operating certificate
as a hospital or nursing home, and those distinct parts of a facility
which are subject to the powers of visitation, examination, inspection
and investigation of the department of mental hygiene which provide
hospital or nursing home service.
(2) Any ambulance service which is registered or certified under
article thirty of the public health law and which is designed and
equipped to provide definitive acute medical care pursuant to rules and
regulations of the commissioner of health in accordance with such
article concerning the requirements for an advanced life support system.
Such a service must include, but not be limited to, the provision of
advanced life support services.
(3) Any community mental health center operated by a county, city,
town or village, holding an operating certificate issued by an office of
the department of mental hygiene.
(4) Any certified public or voluntary non-profit home care service
agency which possesses a valid certificate of approval issued under
article twenty-eight or thirty-six of the public health law.
(d) "Net direct premiums" means gross direct premiums written on
personal injury liability insurance, including the liability component
of multiple peril package policies as computed by the superintendent,
less return premiums for the unused or unabsorbed portions of premium
deposits.
(e) "Personal injury liability insurance" means all forms of insurance
written under paragraph thirteen of subsection (a) of section one
thousand one hundred thirteen of this chapter, including the liability
component of multiple peril package policies.
S 5502. Medical malpractice insurance association. (a) The medical
malpractice insurance association is continued consisting of all
insurers authorized to write and engaged in writing, within this state,
on a direct basis, personal injury liability insurance but excluding
assessment cooperative fire insurance companies transacting business
pursuant to article sixty-six of this chapter. Every such insurer shall
be and remain a member of the association as a condition of its
authority to continue to transact personal injury liability insurance in
this state.
(b) The association shall be a non-profit unincorporated association
constituting a legal entity separate and distinct from its members. All
funds and reserves of the association shall be separately held and
invested. It shall maintain complete accounts of all monies received and
all losses and expenses incurred in connection with its operations,
including investment income on policyholder-supplied funds. For the
purpose of any contributions required by insurers to the
property/casualty insurance security fund pursuant to article
seventy-six of this chapter, and for the purpose of the protection
afforded policyholders by such fund, the association is an authorized
insurer. The association shall include in the premiums charged for
medical malpractice insurance an amount sufficient to offset any such
contributions.
(c) (1) The purpose of the association is to provide, for the period
July first, nineteen hundred seventy-five through June thirtieth, two
thousand one, a market for medical malpractice insurance pursuant to
this article and subject to regulation pursuant to section two thousand
three hundred seventeen of this chapter. If, after June thirtieth, two
thousand one, the surcharges on premiums imposed pursuant to section
forty, as amended, of chapter two hundred sixty-six of the laws of
nineteen hundred eighty-six, by the superintendent to satisfy any
actuarially projected deficiency that is attributable to the premium
levels for policies providing coverage for physicians and surgeons
medical malpractice for the periods commencing July first, nineteen
hundred eighty-five and ending June thirtieth, two thousand one, are
still in effect or may still be reasonably imposed, the association
shall continue in existence until June thirtieth next following such
time as such surcharges are no longer imposed or may no longer be
reasonably imposed.
* (2) (A) The association shall, no later than December thirtieth,
nineteen hundred ninety-nine, submit to the superintendent for approval
a plan for the final dissolution of the association, including a
transfer or extinguishment of all liabilities of the association and a
plan for the servicing of existing policies of the association. The
dissolution of the association and cessation of its activities shall be
fully accomplished and the association shall be deemed dissolved at such
time and under such conditions as the superintendent deems proper;
provided, however, that all policies of insurance written by the
association shall expire or be transferred prior to such dissolution.
(B) In the preparation of a plan for the final dissolution of the
association, the board of directors of the association shall: (i)
solicit proposed plans for the dissolution of the association from at
least three outside entities; (ii) arrange for an independent actuarial
review of the association, its operations, assets and liabilities; and
(iii) recommend, by a majority vote of its board of directors, that
proposal which maximizes the value of the association to the state. The
association shall thereafter file all proposed plans, along with the
plan recommended by the board, to the superintendent for approval.
(C) (i) The superintendent shall, by April thirtieth, two thousand,
review all proposed plans, along with the recommended plan, filed by the
board of directors of the association with the superintendent and may
approve a plan of dissolution. The superintendent may determine to add
provisions which may vary from those submitted by the association or
delete others as proposed by the association or adopt an alternate plan.
Any plan of dissolution of the association which provides for the sale
or transfer of its operations, assets and/or liabilities to a private
entity shall do so net of any appropriated and encumbered amounts
required by subsection (c) of section five thousand five hundred
sixteen, subsection (c) of section five thousand five hundred sixteen-a,
subsection (c) of section five thousand five hundred sixteen-b,
subsection (c) of section five thousand five hundred sixteen-c and
subsection (c) of section five thousand five hundred sixteen-e of this
article and, in the event such plan is approved and implemented, such
sections five thousand five hundred sixteen, five thousand five hundred
sixteen-a, five thousand five hundred sixteen-b, five thousand five
hundred sixteen-c, and five thousand five hundred sixteen-e are hereby
deemed repealed. A public hearing shall be held to examine the proposed
plan of dissolution, the plans reviewed, and the superintendent`s
recommended plan of approval. Such public hearing shall be held not
later than thirty days prior to the superintendent`s approval of that
plan which maximizes the value of the association to the state while not
impairing or impeding the operation of the voluntary medical malpractice
insurance market or limiting the access to medical malpractice coverage
for health care practitioners or facilities insured by the association.
Upon approval, the superintendent shall certify the estimated amount of
funds to be transferred pursuant to subsection (b) of section five
thousand five hundred sixteen-f of this article and shall transmit such
certification to the director of the division of the budget.
To assist in making such determination, the superintendent may appoint
one or more qualified disinterested persons or institutions as
consultants to advise on any matters related to the dissolution. The
appointment of a consultant shall be in writing and shall set forth the
duties and responsibilities of the consultant. The association shall
provide access to the superintendent, and any consultants appointed by
the superintendent, to its books and records and any information in its
possession necessary to make valuations and determinations required by
this section. For the purposes of this section, all expenses and costs
associated with such appointment shall be deemed and considered expenses
pursuant to section three hundred thirteen of this chapter.
(ii) (I) Any action challenging the validity of or arising out of acts
taken or proposed to be taken under this paragraph two of this
subsection must be commenced within two months after a copy of the plan
of final dissolution of the association, with the superintendent`s
approval endorsed thereon, has been filed in the office of the
superintendent.
(II) In any action arising out of acts taken or proposed to be taken
under this paragraph two of this subsection, the superintendent shall be
entitled to, at any stage of the proceedings before final judgment,
petition the court to give security for the costs and charges which may
be incurred by the superintendent in connection with such action and by
any other parties defendant in connection therewith or for which the
superintendent or the association may become liable under this chapter,
under any contract or otherwise by law, to which security the
superintendent shall have recourse in such amount as the court having
jurisdiction of such action shall determine upon termination of such
action. The amount of security may thereafter from time to time be
increased or decreased in the discretion of the court having
jurisdiction of such action upon showing that the security provided has
or may become inadequate or excessive.
(III) Any person aggrieved by any act taken or order, regulation, or
rule issued pursuant to this paragraph two of this subsection may
petition for judicial review of such acts taken or orders, regulations
or rules, pursuant to the limitations period prescribed in clause (I) of
item (ii) of this subparagraph. The petition shall be brought in the
appellate division of the supreme court in the third judicial
department. The jurisdiction of the appellate division of the supreme
court in the third judicial department shall be exclusive and its
judgment and order shall be final subject to review by the court of
appeals in the same manner and form and with the same effect as provided
for appeals in a special proceeding. All such proceedings shall be heard
and determined by the appellate division and by the court of appeals as
expeditiously as possible and with lawful precedence over other matters.
Acts taken or orders, regulations or rules issued pursuant to this
section shall not be stayed or enjoined except upon application to the
appellate division of the supreme court in the third judicial department
after notice to the superintendent and to the attorney general and upon
a showing that the petitioner has a substantial likelihood of success
and will suffer irreparable harm if the stay or injunction is not
granted.
(IV) Provided, however, that if a determination by a judicial
proceeding prevents the final consummation of the determination by the
superintendent that the association be dissolved, and if the amounts
required to be transferred and deposited from the association to the
miscellaneous special revenue fund pursuant to the requirements of
section five thousand five hundred sixteen-f of this article are not in
fact so transferred and deposited in the miscellaneous special revenue
fund, then the provisions of subsections (a) through (f) of section nine
thousand one hundred eleven-c of this chapter shall become operative and
the tax imposed by subsections (a) through (e) of such section shall be
imposed. Provided, further, however, that if there is thereafter a final
judicial determination that the final consummation of the dissolution of
the association may be effectuated, and the full transfer and deposit
shall be made to the miscellaneous special revenue fund, then in such
event the amount of the tax imposed and paid pursuant to the provisions
of subsections (a) through (e) of section nine thousand one hundred
eleven-c of this chapter shall be returned to the companies that paid
such assessment on a pro rata basis, in a manner consistent with the
procedures set forth in subsections (f) and (g) of section nine thousand
one hundred eleven-c of this chapter.
(D) Prior to July first, two thousand, the superintendent shall, after
a public hearing to be held not less than thirty days before such
promulgation, promulgate regulations prescribing a plan for the
equitable distribution to authorized medical malpractice insurers
writing such coverage in the state the insureds of the association and
health care practitioners and facilities which are otherwise unable to
secure coverage in the voluntary market following the dissolution of the
association. Such plan shall provide that upon initial distribution to
the voluntary market the insureds of the association receive policies in
the voluntary market with provisions and at a rate which are at least as
favorable to the insured as those which they would have received if they
were issued a renewal policy by the association. Such plan shall also
ensure that all health care practitioners or facilities have access to
medical malpractice insurance from an authorized insurer pursuant to the
provisions of this chapter. Such plan may also provide for, and the
superintendent may designate, in lieu of the plan for the equitable
distribution of policies from the association and the availability of
coverages to health care practitioners and facilities, a single entity
or entities to provide such coverages consistent with such a plan if the
superintendent determines that such entity or entities can provide the
coverages necessary to meet the purposes and objectives of an equitable
plan of distribution were it to have been effectuated. Notice of the
hearing required by this clause shall be no less than thirty days before
the date of the hearing and shall include a summary of the plan proposed
by the superintendent.
* NB The plan referred to herein is Title 11 NYCRR, Chapter XX, Part
430
(d) Upon dissolution, the association shall not resume underwriting
operations for physicians, dentists, podiatrists, certified
nurse-midwives, certified registered nurse anesthetists or for hospitals
respectively, until the superintendent, after consultation with the
commissioner of health, has determined that medical malpractice
insurance is not readily available for physicians, dentists,
podiatrists, certified nurse-midwives, certified registered nurse
anesthetists or for hospitals, as the case may be, in the voluntary
market and has approved or promulgated a new plan of operation. If the
superintendent determines during such period that insurance is readily
available for physicians, dentists, podiatrists, certified
nurse-midwives, certified registered nurse anesthetists or for
hospitals, as the case may be, in the voluntary market, the
superintendent shall not authorize its underwriting operations for the
respective categories.
(e) The association shall, pursuant to the provisions of this article
and the plan of operation with respect to medical malpractice insurance,
have the power:
(1) To issue, or to cause to be issued, policies of insurance to
physician, dentist and podiatrist applicants subject to primary limits
specified in the plan of operation not in excess of one million dollars
for each claimant under one policy and three million dollars for all
claimants under one policy in any one year, and excess coverage as
provided in this paragraph. Each applicant shall be entitled to
purchase a policy providing primary limits not to exceed one million
dollars for each claimant and three million dollars for all claimants in
any one year. In addition, any applicant insured by the association in
an amount equal to or greater than one million dollars for each
claimant and three million dollars for all claimants in any one year, or
any other applicant covered under a policy or policies providing such
primary levels of insurance against liability for medical, dental or
podiatric malpractice that is issued by an authorized insurer, shall be
entitled to purchase a policy from the association providing excess
coverage of at least one million dollars per claimant and three million
dollars for all claimants in any one year. The association shall,
subject to the approval of the superintendent, make available, and if
requested by the applicant, provide additional excess coverage in an
amount requested by such applicant. With respect to the coverage
required to be made available on and after July first, nineteen hundred
eighty-five by this paragraph, the superintendent shall establish and
promulgate rates to be charged for such excess coverage and additional
excess coverage and shall require that the association accept payment
for such coverage from the hospital excess liability pool pursuant to a
payment schedule that is consistent with the receipt of funds by such
pool from the hospital reimbursement system. Rates for excess coverage
and additional excess coverage shall not be subject to the
stabilization reserve fund charge established by section five thousand
five hundred nine of this article.
(2) To issue, or cause to be issued, policies of insurance, including
incidental liability coverages, to hospital applicants subject to limits
specified in the plan of operation with limits not in excess of one
million dollars for each claimant and ten million dollars for all
claimants in any one year; provided that policies for coverage in excess
of one million dollars for each claimant and three million dollars for
all claimants in any one year shall be issued only upon the obtaining of
reinsurance for such excess coverage for the term of the policy and the
excess coverage shall remain in effect only so long as reinsurance is in
effect. The association shall obtain such reinsurance, if available, for
coverage in excess of one million dollars for each claimant and three
million dollars for all claimants in any one year. If the association
fails to obtain such reinsurance, the superintendent may order it to do
so for the term of the policy from sources found by him to be available.
The rates charged by the association for coverage in excess of three
million dollars shall not be subject to prior approval by the
superintendent, and shall equal the charges to the association for such
reinsurance.
(3) To underwrite such insurance and to adjust and pay losses or to
appoint service companies to perform those functions.
(4) To assume reinsurance from its members.
(5) To cede reinsurance.
(6) To make the lump sum payments provided for in subdivision (b) of
section five thousand thirty-six of the civil practice law and rules
and receive the periodic payments due under the annuity contract
provided for therein.
S 5503. Plan of operation. (a) The association shall operate in
accordance with a plan of operation approved by the superintendent which
provides for economic, fair and non-discriminatory administration and
for the prompt and efficient provision of medical malpractice insurance.
(b) The plan shall contain other provisions including but not limited
to preliminary assessment of all members for initial expenses necessary
to commence operations, establishment of necessary facilities,
management of the association, assessment of members to defray losses
and expenses, service charges, acceptance and cession of reinsurance,
appointment of servicing carriers or other servicing arrangements and
procedures for determining amounts of insurance to be provided by the
association.
(c) Amendments to the plan of operation may be made by the board of
directors of the association, subject to the approval of the
superintendent, or shall be made at the direction of the superintendent.
(d) The association shall be subject to the provisions of this chapter
applicable to property/casualty insurers in the conduct of its business,
in order to provide for the fair treatment of policyholders and
claimants.
(e) The association shall make the lump sum payments provided for in
subdivision (b) of section five thousand thirty-six of the civil
practice law and rules and receive the periodic payments due under the
annuity contract provided for therein.
S 5504. Policies. (a) No policy form shall be used by the association
unless it has been filed with the superintendent and either he has
approved it, or thirty days have elapsed and he has not disapproved it
as misleading or violative of public policy.
(b) (1) Except as provided in paragraph two of this subsection, no
cancellation notice or nonrenewal notice shall be effective unless the
association at least forty-five days prior to the effective date of such
cancellation or the end of the policy period, as the case may be, mails
or delivers such notice to the insured at the address shown on the
policy and to such insured`s licensed representative.
(2) Where the cancellation is for nonpayment of premium or loss of
license to practice or, if the insured is a hospital, it no longer
possesses a valid operating certificate under section twenty-eight
hundred one-a of the public health law, such cancellation notice must be
mailed or delivered at least fifteen days prior to the effective date of
the cancellation.
(3) Upon written request by an insured or such insured`s licensed
representative, the association shall mail or deliver loss information
as provided in subsection (g) of section three thousand four hundred
twenty-six of this chapter to such insured or such insured`s licensed
representative within ten business days of such request.
(4) All cancellation notices or nonrenewal notices shall state the
grounds upon which the policy is cancelled or nonrenewed and that, upon
written request of an insured or such insured`s licensed representative,
the association will furnish the facts on which the cancellation or
nonrenewal is based. Grounds for nonrenewal shall be limited to the same
grounds as for cancellation. All cancellation notices or nonrenewal
notices shall also provide or be accompanied by a statement advising the
insured of the availability of the loss information specified in
subsection (g) of section three thousand four hundred twenty-six of this
chapter.
(c) A policy of insurance issued by the association may be terminated
other than for non-payment of premiums if the insured:
(1) Is not complying substantially with any term or condition of such
contract.
(2) Has knowingly made, or caused to be made, any false statement or
misrepresentation of a material fact for use in applying for insurance.
(3) Has failed to pay to the association all stabilization reserve
fund charges.
(d) Any termination shall apply to care or services provided after the
effective date of termination, except that insurance coverage may
continue for up to thirty days after termination with respect to care or
services to patients which are a continuation of a treatment begun prior
to the effective date of termination.
(e) Policies issued by the association shall provide at the insured`s
option for deductibles and for co-insurance. An applicant electing an
option for a deductible or for co-insurance shall have the right to
purchase an option under which the association shall not settle any
claim under the policy without the consent of the insured. Any policy
issued by the association without a deductible or co-insurance shall
provide that the association shall have the sole authority to settle any
claim up to policy limits without the consent of the insured.
(f) (1) The association shall issue or renew policies of medical
malpractice insurance for physicians on a claims-made or occurrence
basis, as prescribed by the superintendent by regulation.
(2) A claims-made policy shall contain the following provisions:
(A) if the insured has purchased a claims-made policy from an admitted
insurer or the association for a period of five or more consecutive
years and the insured, after attaining the age of sixty-five or older,
retires permanently and totally from the practice of medicine or if the
insured has purchased a claims-made policy for a period of ten or more
consecutive years and the insured, after attaining the age of fifty-five
or older, retires permanently and totally from the practice of medicine,
the association shall, without charging an additional premium therefor
at the time of, or subsequent to, such retirement, also cover all
occurrences between the inception date of the first such consecutive
policy from such association and such retirement date which, subsequent
to the termination date, are reported in accordance with statutory and
policy requirements;
(B) if the insured dies or becomes permanently disabled and unable to
practice medicine while covered by such policy the association shall,
without charging an additional premium therefor at the time of, or
subsequent to, such event, also cover all occurrences between the
inception date of the first such consecutive policy from such
association and the death or disability of the insured, and
(C) the association shall make available and shall advise the insured
of the availability and cost of coverage for occurrences between the
inception date of the first such consecutive policy from such
association and the termination of such policy which, subsequent to the
termination date, are reported in accordance with statutory and policy
requirements, pursuant to such terms and conditions as may be specified
by the superintendent by regulation. The insured shall have the option
of purchasing such coverage either in a single payment or in three
annual installments with an additional finance charge.
(3) Such regulation shall also provide that if the coverage of an
insured who continues to practice in this state is transferred from an
admitted insurer or the association to another admitted insurer or the
association without any gap in coverage, the former entity shall pay
over to the successor an actuarially appropriate dollar amount to
provide for the requirements of paragraph two of this subsection, and
the insured shall be entitled to the benefits of this provision as if
such insured had been continuously covered by the successor entity
during the entire period of consecutive years of coverage.
(4) Such regulation shall also provide that if the coverage of an
insured is transferred from the association, if the association is in
liquidation, to an admitted insurer not in liquidation without any gap
in coverage, then the successor entity shall accept the amounts payable
from the property-casualty insurance security fund as provided in
subparagraph (G) of paragraph one of subsection (a) of section seven
thousand six hundred three of this chapter, to provide for the
requirements of paragraphs two and three of this subsection, and the
insured shall be entitled to the benefits of such paragraphs as if such
insured had been continuously covered by the successor entity during the
entire period of consecutive years of coverage.
(5) The association may issue a claims-made policy with more liberal
policy provisions than are required in this subsection, subject to the
approval of the superintendent. Such liberal policy provisions may
include but shall not be limited to a provision which, for all of the
policyholders of the association, grants credits toward the cost of
coverage provided in paragraph two of this subsection in proportion to
the number of years the insured has purchased a claims-made policy.
S 5505. Rates. (a) The rates, rating plans, rating rules, rating
classifications, territories and statistics applicable to the insurance
written by the association shall be subject to article twenty-three of
this chapter, giving due consideration to the past and prospective loss
and expense experience for medical malpractice insurance written and to
be written in this state, trends in the frequency and severity of
losses, the investment income of the association, and such other
information as the superintendent may require.
(b) All rates shall be on an actuarially sound basis, be calculated to
be self-supporting, be based upon reasonable standards, and may give
consideration to such factors as the experience of the insured,
geographical area and specialties of practice. The superintendent shall
take all appropriate steps to make available to the association the loss
and expense experience of insurers previously writing medical
malpractice insurance in this state. The premiums shall be fixed at the
lowest possible rates consistent with the maintenance of solvency of the
association and of reasonable reserves and surplus therefor.
(c) The association`s rates, rating plans, rating rules and rating
classifications may provide for premium discounts for physicians,
dentists, certified nurse-midwives, certified registered nurse
anesthetists or podiatrists commencing practice or conducting a limited
practice as set forth in the plan of operation.
(d) In filing rates, the association may include in its experience the
annuity payments received, the then present value of annuity payments to
which it is entitled, and lump sum payments made by the association in
accordance with subdivision (b) of section five thousand thirty-six of
the civil practice law and rules.
S 5506. Procedures. (a) Any licensed physician, dentist, podiatrist,
certified nurse-midwife, certified registered nurse anesthetist or
hospital is entitled to apply to the association for coverage pursuant
to this article. Application may be made directly to the association by
the applicant, in which event no service fee shall be charged. If the
applicant authorizes a broker or agent to make the application, the only
charge for such service shall be a service fee as limited by the plan of
operation and in compliance with the procedure established in
subsections (c) and (d) of section two thousand one hundred nineteen of
this chapter.
(b) A policy shall be issued when the association determines that the
applicant is duly licensed and receives the premium or the portion
prescribed in the plan of operation.
S 5507. Participation. (a) Every member of the association shall
participate in its writings, expenses, servicing allowance, management
fees and losses in the proportion that the net direct premiums of the
member (excluding that portion of premiums attributable to the operation
of the association) written during the preceding calendar year bears to
the aggregate net direct premiums written in this state by all members
of the association. Each member`s participation in the association shall
be determined annually on the basis of such net direct premiums written
during the preceding calendar year, as reported in the annual statements
and other reports filed by the member with the superintendent.
(b) In the event that sufficient funds are not available for the
payment of losses and expenses incurred under policies issued by the
association, the board of directors may require all members to
contribute, on a temporary basis pending recoupment as provided in
subsection (c) of this section, to the financial requirements of the
association in the manner provided for in subsection (a) of this
section.
(c) Any contribution made by members pursuant to subsection (b) of
this section shall be reimbursed to them by payment from the
stabilization reserve fund pursuant to the plan of operation.
S 5508. Directors. (a) The association shall be governed by a board of
twenty-one directors. The superintendent or his duly authorized
representative shall serve as a non-voting director. Two directors shall
be appointed by the governor. Two directors shall be appointed by the
temporary president of the senate and two directors shall be appointed
by the speaker of the assembly. Eight directors shall be elected by
cumulative voting by the members of the association, whose votes in such
election shall be weighted in accordance with each member`s net direct
premiums written during the preceding calendar year. Four directors
shall be appointed by the superintendent as representatives of
physicians and hospitals. The superintendent shall also appoint two
directors as representatives of the public, who shall not be
representatives of physicians or hospitals, or representatives of
insurers or insurance producers. The eight member companies serving on
the board shall be elected annually at a meeting of the members.
(b) The directors shall serve without compensation but shall be
reimbursed for their actual and necessary expenses incurred in the
performance of their duties under this article.
S 5509. Stabilization reserve fund. (a) The association shall
maintain a stabilization reserve fund. The fund shall be used for
payment to the association of any deficit, or for reimbursement to the
association`s members for payment of any deficit arising out of the
operations of the association or for such other purposes as are provided
for in this section. Except in the case of a premium payment made
pursuant to subsection (c) of this section, a deficit shall exist
whenever the sum of the premiums collected by the association and the
investment income on policyholder supplied funds is exhausted in payment
of the association`s administrative expenses, reserves for loss, reserve
for loss adjustment expenses, loss and loss adjustment expenses, and
taxes.
(b) Each qualified health care provider policyholder shall annually
pay to the association a stabilization reserve fund charge in an amount
equal to twenty percent of the annual premium charge until the net value
of the fund exceeds fifty million dollars. Thereafter, such charges
shall be made only when the net value of the fund is less than
twenty-five million dollars and shall continue annually until the net
value of the fund exceeds fifty million dollars. There shall be no
stabilization reserve fund charge payable or receivable in connection
with determining the actuarially appropriate amounts for the provision
of coverage to comply with the transfer requirements of subsections (c)
and (d) of section three thousand four hundred thirty-six and paragraphs
three and four of subsection (f) of section five thousand five hundred
four of this chapter. There shall be no stabilization reserve fund
charge payable if the net value of the fund is less than fifty million
dollars due to a transfer pursuant to subsections (c) and (d) of this
section.
(c) In addition to those purposes provided for in subsection (a) of
this section, the stabilization reserve fund shall also be used for the
payment of premiums for excess or equivalent excess coverage provided
pursuant to the program established by chapter two hundred sixty-six of
the laws of nineteen hundred eighty-six, as amended, for the period of
coverage between July first, two thousand and June thirtieth, two
thousand one.
(d) The association and such officers and directors thereof
responsible for the custody and investment of the stabilization reserve
fund shall transfer from such fund and deposit to the hospital excess
liability pool created pursuant to section eighteen of chapter two
hundred sixty-six of the laws of nineteen hundred eighty-six such
amounts as directed by the superintendent for the purchase of excess or
equivalent excess coverage for eligible participating physicians and
dentists for the policy year July first, two thousand to June thirtieth,
two thousand one, and the cost of administering the hospital excess
liability pool for such applicable policy year, pursuant to the program
established in chapter two hundred sixty-six of the laws of nineteen
hundred eighty-six, as amended, no later than July fifteenth, two
thousand.
Notwithstanding any other provision of law, no director, officer, or
employee of the association, nor the association, nor any public officer
or employee, nor any actuary, attorney, or advisor to the association or
to the superintendent shall incur or suffer any liability whatsoever to
any person by reason of actions taken pursuant to this section. Any
action which could have been brought against any of the persons or
parties or entities noted herein, but for the provisions of this
section, shall be brought against the state.
(e) Upon termination of the association and the discharge of all of
its liabilities any excess funds remaining in the stabilization reserve
fund shall be distributed to the policyholders of the association in an
equitable manner as set forth in the plan of operation.
S 5510. Appeals. Any applicant to the association, any person insured
under this article, or their representatives, or any affected insurer,
may appeal to the superintendent within thirty days after any ruling,
action or decision by or on behalf of the association, with respect to
those items the plan of operation defines as appealable matters.
S 5511. Annual statement. (a) The association shall annually file a
statement in the office of the superintendent on or before the first day
of March. The statement shall be in a form approved by and contain
information prescribed by the superintendent with respect to its
transactions, condition, operations and affairs during the preceding
year.
(b) The superintendent may, at any time, require the association to
furnish additional information with respect to its transactions,
condition or any matter connected therewith which he considers to be
material and which will assist him in evaluating the scope, operation
and experience of the association.
(c) The association shall include as an asset the then present value
of annuity payments to which it is entitled in accordance with
subdivision (b) of section five thousand thirty-six of the civil
practice law and rules.
S 5512. Examinations. (a) The superintendent shall make an examination
into the affairs of the association at least annually. The examination
shall be conducted and the report filed in the manner prescribed in
article three of this chapter.
(b) The expenses of the examination shall be paid by the association
in the manner prescribed by section three hundred thirteen of this
chapter.
S 5513. Immunity. No liability or cause of action shall exist against
the association, its agents or employees, the superintendent or his
authorized representatives or any licensed agent or broker for any
statements made in good faith by them during any proceedings or
concerning any matters within the scope of this article.
S 5514. Evaluation. The superintendent shall from time to time report
to the governor and the legislature evaluating the operation of this
article.
S 5515. Federal program. In addition to any other powers conferred
upon him by this or any other law, the superintendent is authorized to
do all things necessary to enable this state, the association and
members and policyholders of the association to participate fully in any
federal program of reinsurance adopted for purposes similar to the
purposes of this article.
* S 5516. Transfer of association funds. (a) Notwithstanding any other
provision of law, the association and all officers and directors with
responsibility for custody or investment of the association`s assets are
authorized to transfer sixty million dollars to the general fund by May
first, nineteen hundred ninety-two.
(b) Notwithstanding any other provision of law, no director, officer
or employee of the association, nor the association, nor any public
officer or employee, nor any actuary, attorney, or advisor to the
association or to the superintendent shall incur or suffer any liability
whatsoever to any person by reason of actions taken pursuant to
authorizations or directions of the provisions of subsection (a) of this
section pursuant to which any of the moneys of the association are
transferred to the general fund. Any action which could have been
brought against such director, officer or employee, or against such
public officer or employee, or against such actuary, attorney or
advisor, or against the association shall be brought against the state.
(c) Notwithstanding any other provision of law, the superintendent
shall annually no later than January fifth submit to the director of the
budget a request for an appropriation of such principal amount of sixty
million dollars plus aggregate imputed earnings on such principal amount
less any moneys returned to the association from the general fund.
Aggregate imputed earnings shall be calculated by the superintendent at
the end of each calendar year at the average net rate of return earned
by the association on its remaining assets during that calendar year.
The governor shall annually include such amount in a budget bill for the
next state fiscal year. The state comptroller shall encumber the amount
so appropriated before the end of the fiscal year for which any such
appropriation is made. If for any fiscal year commencing on or after
April first, nineteen hundred ninety-three, the governor fails to submit
a budget bill containing an appropriation in the amount requested by the
superintendent or the legislature fails to appropriate the amount in a
budget bill submitted by the governor for such fiscal year, the amount
appropriated for and encumbered during the preceding fiscal year shall
be payable forthwith to the association, together with accrued aggregate
imputed earnings, on June first of such year. In no case shall the
liability of the state to the association exceed amount appropriated
therefor.
(d) Any appropriation made to the association pursuant to subsection
(c) of this section shall be deemed to be an admitted asset of the
association under section one thousand three hundred one of this chapter
and shall be included as an asset of the association in its annual
statement.
(e) The superintendent, on an actuarial basis, shall determine at
least annually the surplus of the association derived from the issuance
of policies of excess medical malpractice insurance under subdivision
one of section eighteen of chapter two hundred sixty-six of the laws of
nineteen hundred eighty-six, as amended. From such surplus the
superintendent shall deduct the appropriated and encumbered amount
required by subsection (c) of this section. If the resulting surplus is
less than the minimum surplus to policyholders that a stock
property/casualty insurance company licensed to write personal injury
liability insurance, as specified in paragraph thirteen of subsection
(a) of section one thousand one hundred thirteen of this chapter, is
required to maintain pursuant to section four thousand one hundred three
of this chapter, then that portion of such appropriated and encumbered
amount that the superintendent determines is necessary to comply with
such minimum requirement shall be paid to the association no later than
sixty days after such determination.
(f) No surcharge on excess medical malpractice insurance premiums
authorized by section forty of chapter two hundred sixty-six of the laws
of nineteen hundred eighty-six, as amended, shall be imposed until all
of the appropriated and encumbered amounts required by subsection (c) of
this section have been repaid to the association.
(g) No contributions from members of the association which are
authorized pursuant to section five thousand five hundred seven of this
article shall be required until all of the appropriated and encumbered
amounts required by subsection (c) of this section have been repaid to
the association.
* NB Repealed pursuant to ch. 407/99 Pt. JJ S 2 (see par. (2) of sbS
(c) of S 5502); T11NYCRR Pt. 430 not fully implemented, requires
certification from superintendent
* S 5516-a. Transfer of association funds. (a) Notwithstanding any
other provision of law, the association and all officers and directors
with responsibility for custody or investment of the association`s
assets are authorized and directed to transfer sixty million dollars to
the general fund by September first, nineteen hundred ninety-two.
(b) Notwithstanding any other provision of law, no director, officer
or employee of the association, nor the association, nor any public
officer or employee, nor any actuary, attorney, or advisor to the
association or to the superintendent shall incur or suffer any liability
whatsoever to any person by reason of actions taken pursuant to
authorizations or directions of the provisions of subsection (a) of this
section pursuant to which any of the moneys of the association are
transferred to the general fund. Any action which could have been
brought against such director, officer or employee, or against such
public officer or employee, or against such actuary, attorney or
advisor, or against the association shall be brought against the state.
(c) Notwithstanding any other provision of law to the contrary, the
superintendent shall annually no later than January fifth submit to the
director of the budget a request for an appropriation of such principal
amount of sixty million dollars plus aggregate imputed earnings on such
principal amount less any moneys returned to the association from the
general fund. Aggregate imputed earnings shall be calculated by the
superintendent at the end of each calendar year at the average net rate
of return earned by the association on its remaining assets during that
calendar year. The governor shall annually include such amount in a
budget bill for the next state fiscal year. The state comptroller shall
encumber the amount so appropriated before the end of the fiscal year
for which any such appropriation is made. If for any fiscal year
commencing on or after April first, nineteen hundred ninety-three, the
governor fails to submit a budget bill containing an appropriation in
the amount requested by the superintendent or the legislature fails to
appropriate the amount in a budget bill submitted by the governor for
such fiscal year, the amount appropriated for and encumbered during the
preceding fiscal year shall be payable forthwith to the association,
together with accrued aggregate imputed earnings, on June first of such
year. In no case shall the liability of the state to the association
exceed the amount appropriated therefore.
(d) Any appropriation made to the association pursuant to subsection
(c) of this section shall be deemed to be an admitted asset of the
association under section one thousand three hundred one of this chapter
and shall be included as an asset of the association in its annual
statement.
(e) The superintendent, on an actuarial basis, shall determine at
least annually the surplus of the association derived from the issuance
of policies of excess medical malpractice insurance under subdivision
one of section eighteen of chapter two hundred sixty-six of the laws of
nineteen hundred eighty-six, as amended. From such surplus the
superintendent shall deduct the appropriated and encumbered amount
required by subsection (c) of this section. If the resulting surplus is
less than the minimum surplus to policyholders that a stock
property/casualty insurance company licensed to write personal injury
liability insurance, as specified in paragraph thirteen of subsection
(a) of section one thousand one hundred thirteen of this chapter, is
required to maintain pursuant to section four thousand one hundred three
of this chapter, then that portion of such appropriated and encumbered
amount that the superintendent determines is necessary to comply with
such minimum requirement shall be paid to the association no later than
sixty days after such determination.
(f) No surcharge on excess medical malpractice insurance premiums
authorized by section forty of chapter two hundred sixty-six of the laws
of nineteen hundred eighty-six, as amended, shall be imposed until all
of the appropriated and encumbered amounts required by subsection (c) of
this section have been repaid to the association.
(g) No contributions from members of the association which are
authorized pursuant to section five thousand five hundred seven of this
article shall be required until all of the appropriated and encumbered
amounts required by subsection (c) of this section have been repaid to
the association.
* NB Repealed pursuant to ch. 407/99 Pt. JJ S 2 (see par. (2) of sbS
(c) of S 5502); T11NYCRR Pt. 430 not fully implemented, requires
certification from superintendent
* S 5516-b. Further transfer of association funds. (a) Notwithstanding
any other provision of law, the association and all officers and
directors with responsibility for custody or investment of the
association`s assets are authorized and directed to further transfer one
hundred fifty million dollars to the general fund by a date not later
than twenty-one days from the effective date of this section.
(b) Notwithstanding any other provision of law, no director, officer
or employee of the association, nor the association, nor any public
officer or employee, nor any actuary, attorney, or advisor to the
association or to the superintendent shall incur or suffer any liability
whatsoever to any person by reason of actions taken pursuant to
authorizations or directions of the provisions of subsection (a) of this
section pursuant to which any of the moneys of the association are
transferred to the general fund. Any action which could have been
brought against such director, officer or employee, or against such
public officer or employee, or against such actuary, attorney or
advisor, or against the association shall be brought against the state.
(c) Notwithstanding any other provision of law to the contrary, the
superintendent shall, no later than twenty days from the effective date
of this section and annually thereafter, submit to the director of the
budget a request for an appropriation of such principal amount of one
hundred fifty million dollars plus aggregate imputed earnings on such
principal amount less any moneys returned to the association from the
general fund. Aggregate imputed earnings shall be calculated by the
superintendent at the end of each calendar year at the average net rate
of return earned by the association on its remaining assets during that
calendar year. The governor shall annually include such amount in a
budget bill for the next state fiscal year. The state comptroller shall
encumber the amount so appropriated before the end of the fiscal year
for which any such appropriation is made. If for any fiscal year
commencing on or after April first, nineteen hundred ninety-three, the
governor fails to submit a budget bill containing an appropriation in
the amount requested by the superintendent or the legislature fails to
appropriate the amount in a budget bill submitted by the governor for
such fiscal year, the amount appropriated for and encumbered during the
preceding fiscal year shall be payable forthwith to the association,
together with accrued aggregate imputed earnings, on June first of such
year. In no case shall the liability of the state to the association
exceed the amount appropriated therefor.
(d) Any appropriation made to the association pursuant to subsection
(c) of this section shall be deemed to be an admitted asset of the
association under section one thousand three hundred one of this chapter
and shall be included as an asset of the association in its annual
statement.
(e) The superintendent, on an actuarial basis, shall determine at
least annually the surplus of the association derived from the issuance
of policies of excess medical malpractice insurance under subdivision
one of section eighteen of chapter two hundred sixty-six of the laws of
nineteen hundred eighty-six, as amended. From such surplus the
superintendent shall deduct the appropriated and encumbered amount
required by subsection (c) of this section and the appropriated and
encumbered amount required by subsection (c) of section five thousand
five hundred sixteen-a of this chapter. If the resulting surplus is less
than the minimum surplus to policyholders that a stock property/casualty
insurance company licensed to write personal injury liability insurance,
as specified in paragraph thirteen of subsection (a) of section one
thousand one hundred thirteen of this chapter, is required to maintain
pursuant to section four thousand one hundred three of this chapter,
then that portion of such appropriated and encumbered amount that the
superintendent determines is necessary to comply with such minimum
requirement shall be paid to the association no later than sixty days
after such determination.
(f) No surcharge on excess medical malpractice insurance premiums
authorized by section forty of chapter two hundred sixty-six of the laws
of nineteen hundred eighty-six, as amended, shall be imposed until all
of the appropriated and encumbered amounts required by subsection (c) of
this section have been repaid to the association.
(g) No contribution from members of the association which is
authorized pursuant to section five thousand five hundred seven of this
article shall be required until all of the appropriated and encumbered
amounts required by subsection (c) of this section have been repaid to
the association.
* NB Repealed pursuant to ch. 407/99 Pt. JJ S 2 (see par. (2) of sbS
(c) of S 5502); T11NYCRR Pt. 430 not fully implemented, requires
certification from superintendent
* S 5516-c. Further transfer of association funds. (a) Notwithstanding
any other provision of law, the association and all officers and
directors with responsibility for custody or investment of the
association`s assets are authorized to further transfer seven million
five hundred thousand dollars to the bad debt and charity care and
capital statewide pool created pursuant to subdivision eighteen of
section two thousand eight hundred seven-c of the public health law by
January first, nineteen hundred ninety-five and to make further
transfers of three million seven hundred fifty thousand dollars to such
pool by January first, nineteen hundred ninety-six and three million
seven hundred fifty thousand dollars to such pool by August first,
nineteen hundred ninety-six.
(b) Notwithstanding any other provision of law, no director, officer
or employee of the association, nor the association, nor any public
officer or employee, nor any actuary, attorney, or advisor to the
association or to the superintendent shall incur or suffer any liability
whatsoever to any person by reason of actions taken pursuant to
authorizations or directions of the provisions of subsection (a) of this
section pursuant to which any of the moneys of the association are
transferred to such bad debt and charity care and capital statewide
pool. Any action which could have been brought against such director,
officer or employee, or against such public officer or employee, or
against such actuary, attorney or advisor, or against the association
shall be brought against the state.
(c) The superintendent, on an actuarial basis, shall determine at
least annually the surplus of the association derived from the issuance
of policies of excess medical malpractice insurance under subdivision
one of section eighteen of chapter two hundred sixty-six of the laws of
nineteen hundred eighty-six, as amended.
(d) No surcharge on excess medical malpractice insurance premiums
authorized by section forty of chapter two hundred sixty-six of the laws
of nineteen hundred eighty-six, as amended, shall be imposed until all
the amounts transferred by subsection (a) of this section have been
repaid to the association.
(e) No contribution from members of the association which are
authorized pursuant to section five thousand five hundred seven of this
article shall be required until all of the transferred amounts required
by subsection (a) of this section have been repaid to the association.
* NB Repealed pursuant to ch. 407/99 Pt. JJ S 2 (see par. (2) of sbS
(c) of S 5502); T11NYCRR Pt. 430 not fully implemented, requires
certification from superintendent
S 5516-d. Further transfer of association funds. Notwithstanding any
other provision of law, the association and all officers and directors
with responsibility for custody or investment of the association`s
assets are authorized and directed to further transfer and deposit six
million dollars to the credit of the medical assistance program general
fund - local assistance account before January first, nineteen hundred
ninety-six.
* S 5516-e. Further transfer of association funds. (a) Notwithstanding
any other provision of law, the association and all officers and
directors with responsibility for custody or investment of the
association`s assets are authorized and directed to further transfer up
to four hundred eighty-one million dollars to the general fund. Such
transfers shall be made pursuant to a schedule or schedules submitted to
the association by the director of the division of the budget. Such
schedules may be amended from time to time as the budget director deems
necessary, provided, however, that such schedules shall not call for
transfers to be made from the association to the general fund during the
period from and including February first of any year to and including
March thirty-first of such year. Copies of such schedules and such
amendments shall be filed with the chairman of the senate finance
committee and the chairman of the assembly ways and means committee at
the time they are transmitted to the association.
(b) Notwithstanding any other provision of law, no director, officer
or employee of the association, nor the association, nor any public
officer or employee, nor any actuary, attorney, or advisor to the
association or to the superintendent shall incur or suffer any liability
whatsoever to any person by reason of actions taken pursuant to
authorizations or directions of the provisions of subsection (a) of this
section pursuant to which any of the moneys of the association are
transferred to the general fund. Any action which could have been
brought against such director, officer or employee, or against such
public officer or employee, or against such actuary, attorney or
advisor, or against the association shall be brought against the state.
(c) Notwithstanding any other provision of law to the contrary, the
superintendent shall, no later than November first, nineteen hundred
ninety-six and annually thereafter, submit to the director of the budget
a request for an appropriation of such portion of such principal amount
of four hundred eighty-one million dollars as either has or is expected
to be, pursuant to the schedules submitted by the director of the budget
pursuant to subsection (a) of this section, transferred to the general
fund, plus aggregate imputed earnings on such portion of such principal
amount, less any moneys returned to the association from the general
fund. Aggregate imputed earnings shall be calculated by the
superintendent at the end of each calendar year at the average net rate
of return earned by the association on its remaining assets during the
calendar year. The governor shall annually include such amount plus any
amount necessary to reflect actual transfers to the general fund that
exceed those included in the superintendent`s request in a budget bill
for the next state fiscal year. Of the amount so appropriated, the state
comptroller shall encumber an amount equal to the cumulative value of
actual transfers made to the general fund pursuant to this section plus
the amount of aggregate imputed earnings attributable to such amount
before the end of the fiscal year for which any such appropriation is
made. If for any fiscal year commencing on or after April first,
nineteen hundred ninety-seven, the governor fails to submit a budget
bill containing an appropriation in the amount requested by the
superintendent or the legislature fails to appropriate the amount in a
budget bill submitted by the governor for such fiscal year, the amount
of any appropriation encumbered during the preceding fiscal year shall
be payable forthwith to the association on July first of such year. In
no case shall the liability of the state to the association exceed the
amount appropriated and encumbered therefor.
(d) The encumbered portion of any appropriation made to the
association pursuant to subsection (c) of this section shall be deemed
to be an admitted asset of the association under section one thousand
three hundred one of this chapter and shall be included as an asset of
the association in its annual statement.
(e) The superintendent, on an actuarial basis, shall determine at
least annually the surplus of the association. From such surplus the
superintendent shall deduct the encumbered amount required by subsection
(c) of this section and the appropriated and encumbered amount required
by subsection (c) of section five thousand five hundred sixteen and by
subsection (c) of section five thousand five hundred sixteen-b, both of
this chapter. If the resulting surplus is less than the minimum surplus
to policyholders that a stock property/casualty insurance company
licensed to write personal injury liability insurance, as specified in
paragraph thirteen of subsection (a) of section one thousand one hundred
thirteen of this chapter, is required to maintain pursuant to section
four thousand one hundred three of this chapter, then that portion of
such appropriated and encumbered amount that the superintendent
determines is necessary to comply with such minimum requirement shall be
paid to the association no later than sixty days after such
determination.
(f) No surcharge on excess medical malpractice insurance premiums
authorized by section forty of chapter two hundred sixty-six of the laws
of nineteen hundred eighty-six, as amended, shall be imposed until all
of the encumbered amounts required by subsection (c) of this section
have been repaid to the association.
(g) No contribution from members of the association which is
authorized pursuant to section five thousand five hundred seven of this
article shall be required until all of the encumbered amounts required
by subsection (c) of this section have been repaid to the association.
* NB Repealed pursuant to ch. 407/99 Pt. JJ S 2 (see par. (2) of sbS
(c) of S 5502); T11NYCRR Pt. 430 not fully implemented, requires
certification from superintendent
S 5516-f. Further transfer of moneys of the association. (a)
Notwithstanding any other provision of law, the association and all
officers and directors with responsibility for custody or investment of
the association`s assets are authorized and directed to further transfer
and deposit two hundred fifty million dollars to the miscellaneous
special revenue fund on or before September thirtieth, nineteen hundred
ninety-nine.
(b) Notwithstanding any other provision of law, the association and
all officers and directors with responsibility for custody or investment
of the association`s assets are authorized and directed to further
transfer and deposit all revenues generated pursuant to the
association`s dissolution pursuant to paragraph two of subsection (c) of
section five thousand five hundred two of this article to the
miscellaneous special revenue fund on or before December thirtieth, two
thousand.
(c) Notwithstanding any other provision of law, no director, officer
or employee of the association, nor the association, nor any public
officer or employee, nor any actuary, attorney, or advisor to the
association or to the superintendent shall incur or suffer any liability
whatsoever to any person by reason of actions taken pursuant to
authorizations or directions of the provisions of subsections (a) or (b)
of this section pursuant to which any of the moneys of the association
are transferred to the miscellaneous special revenue fund. Any action
which could have been brought against any of the persons or parties or
entities noted herein, but for the provisions of this section, shall be
brought against the state.
S 5517. Transfer of association funds; reinsurance evaluation. (a) In
the event that the association has not caused the transfer of certain
assets on or before May first, nineteen hundred ninety-two, pursuant to
the provisions of section fifty-five hundred sixteen of this article,
the board shall undertake an evaluation of the procurement of
reinsurance, upon so much of its book of business as is attributable to
policies of excess coverage or equivalent excess coverage purchased on
behalf of physicians and dentists, as is authorized by paragraph five of
subsection (e) of section fifty-five hundred two of this article,
specifically assessing the ability of any such reinsurance program to
yield such funds as are necessary to effectuate the transfer of assets,
in the form and amount provided for in section fifty-five hundred
sixteen of this article.
(b) Any such plan of reinsurance developed pursuant to the evaluation
undertaken pursuant to subsection (a) of this section shall be subject
to the final, non-reviewable determination of the superintendent as to
its sufficiency in meeting the objectives provided for in section
fifty-five hundred sixteen of this article, that the plan of reinsurance
provides for the ceding of risks to one or more reinsurers approved by
the superintendent, that the plan of reinsurance in no way adversely
affects the solvency of the association, and that the plan of
reinsurance to be effectuated through the association`s engaging one or
more such reinsurers in a contract for the ceding of risk not later than
July first, nineteen hundred ninety-two.
(c) The amounts provided for in section fifty-five hundred sixteen of
this article, constituting the assets to be transferred, shall be
transferred not later than August first, nineteen hundred ninety-two and
only after actuarial certification that such assets constitute "surplus
surplus", or that portion of surplus not otherwise necessary for the
payment of claims. Upon such certification of such assets as "surplus
surplus", and not otherwise necessary for the payment of claims, such
assets shall be transferred not later than the date provided for herein.
Such transfer shall be deemed to be a transfer authorized by subsection
(a) of section five thousand five hundred sixteen of this article.
(d) In the event that the association has failed to comply with the
provisions of this section by the time periods provided for herein, the
association shall be prohibited from pursuing any such reinsurance plan
as a method of averting the imposition of the provisions of section
ninety-one hundred ten of this chapter.
S 5517-a. Return of association premium. (a) Notwithstanding any
inconsistent provision of this chapter or any other law to the contrary,
if the superintendent determines, for policies of excess coverage or
equivalent excess coverage issued by the association and purchased on
behalf of eligible participating physicians and dentists, that the rates
established pursuant to subdivision one of section forty of chapter two
hundred sixty-six of the laws of nineteen hundred eighty-six, as
amended, have produced premium amounts greater than required to satisfy
the standard that premiums shall be fixed at the lowest possible rates
consistent with the maintenance of solvency and of reasonable reserves
and surplus therefor, then the superintendent shall direct the
association and all officers and directors of the association with
responsibility for custody or investment of the association`s assets to
return a portion of such premium to the purchaser in an amount not less
than the estimated cost of all premiums necessary for the purchase of
excess or equivalent excess coverage for eligible participating
physicians and dentists for the policy year July first, nineteen hundred
ninety-seven to June thirtieth, nineteen hundred ninety-eight, for the
policy year July first, nineteen hundred ninety-eight to June thirtieth,
nineteen hundred ninety-nine, for the policy year July first, nineteen
hundred ninety-nine to June thirtieth, two thousand, and if the
superintendent deems it necessary, for the policy year July first, two
thousand to June thirtieth, two thousand one, and the cost of
administering the hospital excess liability pool for such applicable
policy year. Following such determination, the superintendent shall
deliver to the association a schedule providing payment in twelve
monthly installments for the return of such premium due for the policy
year July first, nineteen hundred ninety-seven to June thirtieth,
nineteen hundred ninety-eight, no later than September first, nineteen
hundred ninety-seven, for the return of such premium due for the policy
year July first, nineteen hundred ninety-eight to June thirtieth,
nineteen hundred ninety-nine, no later than September first, nineteen
hundred ninety-eight, and for the return of such premium due for the
policy year July first, nineteen hundred ninety-nine to June thirtieth,
two thousand, no later than September first, nineteen hundred
ninety-nine and for the policy year July first, two thousand to June
thirtieth, two thousand one, no later than September first, two
thousand. Payment to the purchaser for the policy year shall be made
prior to the end of the applicable policy year. Upon the association`s
receipt of notice of such determination and delivery of such schedule,
the association and all officers and directors of the association with
responsibility for custody or investment of the association`s assets are
hereby authorized and directed to return the portion of such premium
amounts to the purchaser according to such schedule. For policies of
excess or equivalent excess coverage provided pursuant to section
eighteen of chapter two hundred sixty-six of the laws of nineteen
hundred eighty-six, as amended, the hospital excess liability pool
created pursuant to subdivision five of section eighteen of such chapter
shall be deemed to be the purchaser. The premium levels for excess
coverage established by the superintendent shall, for the purpose of
determining any projected deficiency as the basis for imposing a
surcharge pursuant to subdivision one of section forty of such chapter
as amended, be modified to reflect any such return of premium directed
by the superintendent.
(b) Notwithstanding any other provision of law, no director, officer
or employee of the association, nor the association, nor any public
officer or employee, nor any actuary, attorney, or advisor to the
association or to the superintendent shall incur or suffer any liability
whatsoever to any person by reason of actions taken pursuant to this
section. Any action which could have been brought against such director,
officer or employee, or against such public officer or employee, or
against such actuary, attorney or advisor, or against the association,
but for the provisions of this section, shall be brought against the
state.