Bill S7552-2013

Relates to penalties for false representation and fraudulent practices; repealer

Relates to penalties for false representation and fraudulent practices; makes such provisions the same as those applicable to workers' compensation provisions.

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  • May 15, 2014: REFERRED TO LOCAL GOVERNMENT

Memo

BILL NUMBER:S7552

TITLE OF BILL: An act to amend the volunteer ambulance workers' benefit law and the volunteer firefighters' benefit law, in relation to penalties for false representation and to repeal certain provisions of such laws relating thereto

PURPOSE: The purpose of the legislation is to ensure that sections 114 and 114-a of the workers compensation law is applicable to volunteer firefighters and volunteer ambulance workers.

SUMMARY OF PROVISIONS: Section one repeals section 55 of the volunteer firefighters benefit law and replaces it with current sections 114 and 114-a of the workers' compensation law.

Section two repeals section 55 of the volunteer ambulance workers benefit law and replaces it with current sections 114 and 114-a of the workers' compensation law.

Section three provides for an immediate effective date.

JUSTIFICATION: Currently, a volunteer firefighter or ambulance worker who is injured in the line of duty is eligible for workers' compensation benefits if he or she can demonstrate a loss of earning capacity. Additionally, both the workers' compensation law and the volunteer firefighters benefits law (VBFL) provide for criminal penalties for offering fraudulent information in support of a claim. In 1996, the legislature amended the workers' compensation law to also include civil penalties for fraudulent claims by adding a new section 114-a.

Unfortunately, no corresponding amendment was made to either the VBFL or the volunteer ambulance workers benefits law (VAWBL).

The issue of the applicability of section 114-a to the to the VBFL was addressed before the New York State Workers Compensation Board and the Board determined that section 114-a was inapplicable to the VBFL. This issue was appealed to the Appellate Division, Third Department and in the case of Giello v. Providence Fire District, 869 N.Y.S.2d 676 (2008) the Appellate Division affirmed the Workers' Compensation Board's decision establishing that section 114-a which provides for a disqualification of benefits to a claimant for making false representations did not apply to benefits awarded pursuant to the VBFL on the basis that section 114-a was unambiguous and limited its application to wage replacement benefits under the workers' compensation law.

Under the circumstances, the issue of the applicability of section 114-a to the VBFL and VAWBL should be addressed by the legislature. It is only fair that civil penalties should be provided for fraudulent claims involving volunteer firefighters offering fraudulent information in support of a claim under the VBFL.

The VBFL and VAWBL provides cash benefits and/or medical care for volunteer members who are injured or become ill in the line of duty, and recognizes the unselfish service of volunteer firefighters and ambulance workers. The law was designed to protect these volunteers

who are injured in the line of duty. Similarly, the law should be amended to provide for civil penalties similar to section 114-a in keeping with the intent of the statute which was to protect volunteer firefighters and ambulance workers who provide unselfish service and provide for civil penalties for those who choose to take advantage of the statute by submitting fraudulent information in support of a claim under the VBFL and VAWBL.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: Immediately


Text

STATE OF NEW YORK ________________________________________________________________________ 7552 IN SENATE May 15, 2014 ___________
Introduced by Sen. SEWARD -- read twice and ordered printed, and when printed to be committed to the Committee on Local Government AN ACT to amend the volunteer ambulance workers' benefit law and the volunteer firefighters' benefit law, in relation to penalties for false representation and to repeal certain provisions of such laws relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 55 of the volunteer ambulance workers' benefit law is REPEALED and a new section 55 is added to read as follows: S 55. FRAUDULENT PRACTICES. 1. ANY PERSON WHO, KNOWINGLY AND WITH INTENT TO DEFRAUD PRESENTS, CAUSES TO BE PRESENTED, OR PREPARES WITH KNOWLEDGE OR BELIEF THAT IT WILL BE PRESENTED TO OR BY AN INSURER OR PURPORTED INSURER, OR ANY AGENT THEREOF, ANY WRITTEN STATEMENT AS PART OF, OR IN SUPPORT OF, AN APPLICATION FOR THE ISSUANCE OF OR THE RATING OF AN INSURANCE POLICY FOR COMPENSATION INSURANCE, OR A CLAIM FOR PAYMENT OR OTHER BENEFIT PURSUANT TO A COMPENSATION POLICY WHICH HE OR SHE KNOWS TO: (I) CONTAIN A FALSE STATEMENT OR REPRESENTATION CONCERNING ANY FACT MATERIAL THERETO; OR (II) OMITS ANY FACT MATERIAL THERETO, SHALL BE GUILTY OF A CLASS E FELONY. UPON CONVICTION, THE COURT IN ADDI- TION TO ANY OTHER AUTHORIZED SENTENCE, MAY ORDER FORFEITURE OF ALL RIGHTS TO COMPENSATION OR PAYMENTS OF ANY BENEFIT, AND MAY ALSO REQUIRE RESTITUTION OF ANY AMOUNT RECEIVED AS A RESULT OF A VIOLATION OF THIS SUBDIVISION. 2. AN EMPLOYER OR CARRIER, OR ANY EMPLOYEE, AGENT, OR PERSON ACTING ON BEHALF OF AN EMPLOYER OR CARRIER, WHO KNOWINGLY MAKES A FALSE STATEMENT OR REPRESENTATION AS TO A MATERIAL FACT IN THE COURSE OF REPORTING, INVESTIGATION OF, OR ADJUSTING A CLAIM FOR ANY BENEFIT OR PAYMENT UNDER THE WORKERS' COMPENSATION LAW FOR THE PURPOSE OF AVOIDING PROVISION OF SUCH PAYMENT OR BENEFIT SHALL BE GUILTY OF A CLASS E FELONY. 3. A PERSON WHO KNOWINGLY MAKES A FALSE STATEMENT OR REPRESENTATION AS TO A MATERIAL FACT FOR THE PURPOSE OF OBTAINING, MAINTAINING OR RENEWING INSURANCE UNDER THIS CHAPTER, WHETHER FOR HIMSELF OR HERSELF OR FOR ANY OTHER PERSON OR ENTITY OR FOR THE PURPOSE OF EVADING THE REQUIREMENTS OF
SECTION FIFTY OF THIS CHAPTER SHALL BE GUILTY OF A CLASS E FELONY. IN ADDITION TO ANY OTHER REMEDY, THE CARRIER PROVIDING INSURANCE SHALL BE ENTITLED TO RESTITUTION OF ANY AMOUNT OBTAINED OR WITHHELD AS A RESULT OF A VIOLATION OF THIS SUBDIVISION. 4. CONSISTENT WITH THE PROVISIONS OF THE CRIMINAL PROCEDURE LAW, IN ANY PROSECUTION ALLEGING A VIOLATION OF SUBDIVISION ONE, TWO OR THREE OF THIS SECTION, OR SECTIONS FIFTY-TWO AND ONE HUNDRED THIRTY-ONE OF THE WORKERS' COMPENSATION LAW, IN WHICH THE ACT OR ACTS ALLEGED MAY ALSO CONSTITUTE A VIOLATION OF THE PENAL OR OTHER LAW, THE PROSECUTING OFFI- CIAL MAY CHARGE A PERSON PURSUANT TO THE PROVISIONS OF THIS SECTION AND IN THE SAME ACCUSATORY INSTRUMENT WITH A VIOLATION OF SUCH OTHER LAW. 5. A PERSON (A) WHO IS CONVICTED OF A SECOND OR SUBSEQUENT OFFENSE UNDER THIS SECTION WITHIN TEN YEARS OF THE PRIOR CONVICTION, OR (B) WHO VIOLATES ANY PROVISION OF THIS SECTION CONCERNING TWO OR MORE CLAIMANTS, SHALL BE GUILTY OF A CLASS D FELONY. 6. IF FOR THE PURPOSE OF OBTAINING COMPENSATION PURSUANT TO SECTION FIFTEEN OF THE WORKERS' COMPENSATION LAW, OR FOR THE PURPOSE OF INFLU- ENCING ANY DETERMINATION REGARDING ANY SUCH PAYMENT, A CLAIMANT KNOWING- LY MAKES A FALSE STATEMENT OR REPRESENTATION AS TO A MATERIAL FACT, SUCH PERSON SHALL BE DISQUALIFIED FROM RECEIVING ANY COMPENSATION DIRECTLY ATTRIBUTABLE TO SUCH FALSE STATEMENT OR REPRESENTATION. IN ADDITION, AS DETERMINED BY THE WORKERS' COMPENSATION BOARD, THE CLAIMANT SHALL BE SUBJECT TO A DISQUALIFICATION OR AN ADDITIONAL PENALTY UP TO THE FOREGO- ING AMOUNT DIRECTLY ATTRIBUTABLE TO THE FALSE STATEMENT OR REPRESEN- TATION. ANY PENALTY MONIES SHALL BE PAID INTO THE STATE TREASURY. 7. IF WITH THE KNOWLEDGE OF A CLAIMANT, ANOTHER PERSON KNOWINGLY MAKES A FALSE STATEMENT OR REPRESENTATION AS TO A MATERIAL FACT FOR THE PURPOSE OF ASSISTING A CLAIMANT IN EITHER OBTAINING, OR INFLUENCING ANY DETERMINATION REGARDING COMPENSATION PURSUANT TO SECTION FIFTEEN OF THE WORKERS' COMPENSATION LAW, SUCH CLAIMANT MAY BE DISQUALIFIED FROM RECEIVING ANY COMPENSATION DIRECTLY ATTRIBUTABLE TO SUCH FALSE STATEMENT OR REPRESENTATION. IN ADDITION, AS DETERMINED BY THE WORKERS' COMPEN- SATION BOARD, THE CLAIMANT MAY BE SUBJECT TO A DISQUALIFICATION OR AN ADDITIONAL PENALTY UP TO THE FOREGOING AMOUNT DIRECTLY ATTRIBUTABLE TO THE FALSE STATEMENT OR REPRESENTATION. ANY PENALTY MONIES SHALL BE DEPOSITED TO THE CREDIT OF THE GENERAL FUND OF THE STATE. 8. IF THE WORKERS' COMPENSATION BOARD OR ANY COURT HAVING JURISDICTION OVER PROCEEDINGS IN RESPECT OF ANY CLAIM FOR COMPENSATION DETERMINES THAT THE PROCEEDINGS IN RESPECT OF SUCH CLAIM, INCLUDING ANY APPEALS, HAVE BEEN INSTITUTED OR CONTINUED WITHOUT REASONABLE GROUND: (I) THE COST OF SUCH PROCEEDINGS SHALL BE ASSESSED AGAINST THE PARTY WHO HAS SO INSTITUTED OR CONTINUED THE PROCEEDINGS, WHICH SHALL BE PAYA- BLE TO THE BOARD FOR ADMINISTRATIVE EXPENSES PURSUANT TO SECTION ONE HUNDRED FIFTY-ONE OF THE WORKERS' COMPENSATION LAW; (II) REASONABLE ATTORNEYS' FEES SHALL BE ASSESSED AGAINST AN ATTORNEY OR LICENSED REPRESENTATIVE WHO HAS INSTITUTED OR CONTINUED PROCEEDINGS WITHOUT REASONABLE GROUNDS, WHICH ASSESSMENT SHALL BE PAYABLE TO THE BOARD FOR ADMINISTRATIVE EXPENSES PURSUANT TO SECTION ONE HUNDRED FIFTY-ONE OF THE WORKERS' COMPENSATION LAW. FEES AWARDED UNDER THIS PROVISION MAY NOT BE RECOUPED FROM THE PARTY; AND (III) SUCH ASSESSMENTS SHALL BE IN ADDITION TO ANY OTHER PENALTY PERMITTED UNDER THE WORKERS' COMPENSATION LAW. S 2. Section 55 of the volunteer firefighters' benefit law is REPEALED and a new section 55 is added to read as follows: S 55. FRAUDULENT PRACTICES. 1. ANY PERSON WHO, KNOWINGLY AND WITH INTENT TO DEFRAUD PRESENTS, CAUSES TO BE PRESENTED, OR PREPARES WITH
KNOWLEDGE OR BELIEF THAT IT WILL BE PRESENTED TO OR BY AN INSURER OR PURPORTED INSURER, OR ANY AGENT THEREOF, ANY WRITTEN STATEMENT AS PART OF, OR IN SUPPORT OF, AN APPLICATION FOR THE ISSUANCE OF OR THE RATING OF AN INSURANCE POLICY FOR COMPENSATION INSURANCE, OR A CLAIM FOR PAYMENT OR OTHER BENEFIT PURSUANT TO A COMPENSATION POLICY WHICH HE OR SHE KNOWS TO: (I) CONTAIN A FALSE STATEMENT OR REPRESENTATION CONCERNING ANY FACT MATERIAL THERETO; OR (II) OMITS ANY FACT MATERIAL THERETO, SHALL BE GUILTY OF A CLASS E FELONY. UPON CONVICTION, THE COURT IN ADDI- TION TO ANY OTHER AUTHORIZED SENTENCE, MAY ORDER FORFEITURE OF ALL RIGHTS TO COMPENSATION OR PAYMENTS OF ANY BENEFIT, AND MAY ALSO REQUIRE RESTITUTION OF ANY AMOUNT RECEIVED AS A RESULT OF A VIOLATION OF THIS SUBDIVISION. 2. AN EMPLOYER OR CARRIER, OR ANY EMPLOYEE, AGENT, OR PERSON ACTING ON BEHALF OF AN EMPLOYER OR CARRIER, WHO KNOWINGLY MAKES A FALSE STATEMENT OR REPRESENTATION AS TO A MATERIAL FACT IN THE COURSE OF REPORTING, INVESTIGATION OF, OR ADJUSTING A CLAIM FOR ANY BENEFIT OR PAYMENT UNDER THE WORKERS' COMPENSATION LAW FOR THE PURPOSE OF AVOIDING PROVISION OF SUCH PAYMENT OR BENEFIT SHALL BE GUILTY OF A CLASS E FELONY. 3. A PERSON WHO KNOWINGLY MAKES A FALSE STATEMENT OR REPRESENTATION AS TO A MATERIAL FACT FOR THE PURPOSE OF OBTAINING, MAINTAINING OR RENEWING INSURANCE UNDER THIS CHAPTER, WHETHER FOR HIMSELF OR HERSELF OR FOR ANY OTHER PERSON OR ENTITY OR FOR THE PURPOSE OF EVADING THE REQUIREMENTS OF SECTION FIFTY OF THIS CHAPTER SHALL BE GUILTY OF A CLASS E FELONY. IN ADDITION TO ANY OTHER REMEDY, THE CARRIER PROVIDING INSURANCE SHALL BE ENTITLED TO RESTITUTION OF ANY AMOUNT OBTAINED OR WITHHELD AS A RESULT OF A VIOLATION OF THIS SUBDIVISION. 4. CONSISTENT WITH THE PROVISIONS OF THE CRIMINAL PROCEDURE LAW, IN ANY PROSECUTION ALLEGING A VIOLATION OF SUBDIVISION ONE, TWO OR THREE OF THIS SECTION, OR SECTIONS FIFTY-TWO AND ONE HUNDRED THIRTY-ONE OF THE WORKERS' COMPENSATION LAW, IN WHICH THE ACT OR ACTS ALLEGED MAY ALSO CONSTITUTE A VIOLATION OF THE PENAL OR OTHER LAW, THE PROSECUTING OFFI- CIAL MAY CHARGE A PERSON PURSUANT TO THE PROVISIONS OF THIS SECTION AND IN THE SAME ACCUSATORY INSTRUMENT WITH A VIOLATION OF SUCH OTHER LAW. 5. A PERSON (A) WHO IS CONVICTED OF A SECOND OR SUBSEQUENT OFFENSE UNDER THIS SECTION WITHIN TEN YEARS OF THE PRIOR CONVICTION, OR (B) WHO VIOLATES ANY PROVISION OF THIS SECTION CONCERNING TWO OR MORE CLAIMANTS, SHALL BE GUILTY OF A CLASS D FELONY. 6. IF FOR THE PURPOSE OF OBTAINING COMPENSATION PURSUANT TO SECTION FIFTEEN OF THE WORKERS' COMPENSATION LAW, OR FOR THE PURPOSE OF INFLU- ENCING ANY DETERMINATION REGARDING ANY SUCH PAYMENT, A CLAIMANT KNOWING- LY MAKES A FALSE STATEMENT OR REPRESENTATION AS TO A MATERIAL FACT, SUCH PERSON SHALL BE DISQUALIFIED FROM RECEIVING ANY COMPENSATION DIRECTLY ATTRIBUTABLE TO SUCH FALSE STATEMENT OR REPRESENTATION. IN ADDITION, AS DETERMINED BY THE WORKERS' COMPENSATION BOARD, THE CLAIMANT SHALL BE SUBJECT TO A DISQUALIFICATION OR AN ADDITIONAL PENALTY UP TO THE FOREGO- ING AMOUNT DIRECTLY ATTRIBUTABLE TO THE FALSE STATEMENT OR REPRESEN- TATION. ANY PENALTY MONIES SHALL BE PAID INTO THE STATE TREASURY. 7. IF WITH THE KNOWLEDGE OF A CLAIMANT, ANOTHER PERSON KNOWINGLY MAKES A FALSE STATEMENT OR REPRESENTATION AS TO A MATERIAL FACT FOR THE PURPOSE OF ASSISTING A CLAIMANT IN EITHER OBTAINING, OR INFLUENCING ANY DETERMINATION REGARDING COMPENSATION PURSUANT TO SECTION FIFTEEN OF THE WORKERS' COMPENSATION LAW, SUCH CLAIMANT MAY BE DISQUALIFIED FROM RECEIVING ANY COMPENSATION DIRECTLY ATTRIBUTABLE TO SUCH FALSE STATEMENT OR REPRESENTATION. IN ADDITION, AS DETERMINED BY THE WORKERS' COMPEN- SATION BOARD, THE CLAIMANT MAY BE SUBJECT TO A DISQUALIFICATION OR AN ADDITIONAL PENALTY UP TO THE FOREGOING AMOUNT DIRECTLY ATTRIBUTABLE TO
THE FALSE STATEMENT OR REPRESENTATION. ANY PENALTY MONIES SHALL BE DEPOSITED TO THE CREDIT OF THE GENERAL FUND OF THE STATE. 8. IF THE WORKERS' COMPENSATION BOARD OR ANY COURT HAVING JURISDICTION OVER PROCEEDINGS IN RESPECT OF ANY CLAIM FOR COMPENSATION DETERMINES THAT THE PROCEEDINGS IN RESPECT OF SUCH CLAIM, INCLUDING ANY APPEALS, HAVE BEEN INSTITUTED OR CONTINUED WITHOUT REASONABLE GROUND: (I) THE COST OF SUCH PROCEEDINGS SHALL BE ASSESSED AGAINST THE PARTY WHO HAS SO INSTITUTED OR CONTINUED THE PROCEEDINGS, WHICH SHALL BE PAYABLE TO THE BOARD FOR ADMINISTRATIVE EXPENSES PURSUANT TO SECTION ONE HUNDRED FIFTY-ONE OF THE WORKERS' COMPENSATION LAW; (II) REASONABLE ATTORNEYS' FEES SHALL BE ASSESSED AGAINST AN ATTORNEY OR LICENSED REPRESENTATIVE WHO HAS INSTITUTED OR CONTINUED PROCEEDINGS WITHOUT REASONABLE GROUNDS, WHICH ASSESSMENT SHALL BE PAYABLE TO THE BOARD FOR ADMINISTRATIVE EXPENSES PURSUANT TO SECTION ONE HUNDRED FIFTY-ONE OF THE WORKERS' COMPENSATION LAW. FEES AWARDED UNDER THIS PROVISION MAY NOT BE RECOUPED FROM THE PARTY; AND (III) SUCH ASSESSMENTS SHALL BE IN ADDITION TO ANY OTHER PENALTY PERMITTED UNDER THE WORKERS' COMPENSATION LAW. S 3. This act shall take effect immediately.

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