S T A T E   O F   N E W   Y O R K
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                                  2975

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 20, 2015
                               ___________

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:

  Section  1.  Section  5103 of the insurance law is amended by adding a
new subsection (i) to read as follows:
  (I) WITH REGARD TO ANY CLAIM FOR FIRST PARTY BENEFITS PURSUANT TO THIS
ARTICLE, THE EXAMINATION UNDER OATH OF A PERSON CLAIMING TO BE A COVERED
PERSON SHALL BE SCHEDULED BY THE INSURER  DIRECTLY  OR  BY  AN  ATTORNEY
APPOINTED  BY  THE  INSURER  FOR PURPOSES OF CONDUCTING SUCH EXAMINATION
UNDER OATH FOR WHOSE CONDUCT AND ACTIVITY THE INSURER SHALL BE  DIRECTLY
RESPONSIBLE.  THE  EXAMINATION  UNDER  OATH  OF  A CLAIMANT SHALL NOT BE
DEMANDED UNLESS AND UNTIL AN APPLICATION FOR FIRST  PARTY  BENEFITS  HAS
BEEN  RECEIVED BY THE INSURER. IN ANY EXAMINATION UNDER OATH, THE CLAIM-
ANT SHALL HAVE THE RIGHT TO BE REPRESENTED BY COUNSEL.  THE  EXAMINATION
SHALL  BE CONDUCTED UPON OATH OR AFFIRMATION. THE EXAMINATION UNDER OATH
SHALL BE CONDUCTED IN THE COUNTY WHERE THE CLAIMANT RESIDES OR,  AT  THE
CLAIMANT'S OPTION, IN THE OFFICE OF HIS OR HER REPRESENTATIVE UNLESS THE
CLAIMANT  OR  CLAIMANT'S REPRESENTATIVE AND THE INSURER AGREE OTHERWISE.
THE DAY AND TIME THAT THE EXAMINATION UNDER OATH IS SCHEDULED  SHALL  BE
AGREED  UPON  BY  THE  INSURER  AND THE CLAIMANT OR CLAIMANT'S REPRESEN-
TATIVE. A DEMAND FOR AN EXAMINATION UNDER OATH SHALL BE IN  WRITING  AND
SHALL  BE  SERVED PERSONALLY OR BY REGISTERED OR CERTIFIED MAIL UPON THE
CLAIMANT UNLESS THE CLAIMANT IS REPRESENTED  BY  AN  ATTORNEY,  WHEN  IT
SHALL  BE  SERVED  PERSONALLY  OR  BY MAIL UPON HIS OR HER ATTORNEY. THE
DEMAND SHALL STATE THE PERSON BEFORE WHOM THE EXAMINATION IS TO BE HELD,
THE TIME, PLACE AND SUBJECT MATTER THEREOF. WRITTEN NOTICE OF  AN  EXAM-
INATION UNDER OATH MUST BE RECEIVED BY THE CLAIMANT OR HIS OR HER REPRE-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03835-01-5
              

A. 2975                             2

SENTATIVE  NOT  LESS THAN FOURTEEN DAYS PRIOR TO THE EXAMINATION DATE TO
BE EFFECTIVE TO REQUIRE CLAIMANT TO APPEAR. THE NOTICE SHALL ADVISE  THE
CLAIMANT  OF THE RIGHT TO VIDEO OR OTHERWISE RECORD THE EXAMINATION. THE
CLAIMANT  SHALL  BE  ALLOWED  REASONABLE  ADJOURNMENTS  WHICH  SHALL  BE
ACCEPTED UP TO NO LESS THAN TWENTY-FOUR HOURS PRIOR TO THE  EXAMINATION.
IF THE CLAIMANT TO BE EXAMINED DOES NOT UNDERSTAND THE ENGLISH LANGUAGE,
UPON  REASONABLE  NOTICE  TO  THE  INSURER  SEEKING THE EXAMINATION, THE
INSURER SHALL, AT ITS OWN EXPENSE, PROVIDE A TRANSLATION  OF  ALL  QUES-
TIONS  AND  ANSWERS,  AND  MAY  USE THE SERVICES OF AN INTERPRETER WHOSE
COMPENSATION SHALL BE PAID BY THE INSURER SEEKING THE  EXAMINATION.  THE
EXAMINATION  UNDER  OATH  SHALL  BE  TRANSCRIBED  BEFORE A NOTARY PUBLIC
COMMISSIONED TO ADMINISTER OATHS IN THIS STATE.  ANY  EXAMINATION  UNDER
OATH  THAT  IS NOT SO TRANSCRIBED SHALL NOT BE CITED AS THE BASIS OF ANY
DENIAL OF A CLAIM FOR FIRST PARTY BENEFITS. THE TRANSCRIPT OF THE  EXAM-
INATION  SHALL  NOT  BE  SUBJECT  TO OR AVAILABLE FOR PUBLIC INSPECTION,
EXCEPT UPON COURT ORDER UPON GOOD CAUSE SHOWN, BUT SHALL BE FURNISHED TO
THE CLAIMANT OR HIS OR HER REPRESENTATIVE WITHIN SIXTY DAYS OF THE EXAM-
INATION. THE CONDUCT OF EXAMINATIONS UNDER OATH SHALL BE GOVERNED BY THE
UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS, PART 221  OF  THE  UNIFORM
RULES FOR THE NEW YORK STATE TRIAL COURTS.  AN EXAMINATION UNDER OATH OF
THE  CLAIMANT  MAY  BE  REQUESTED  WHERE  (1) THE INSURER SUSPECTS FRAUD
PERPETRATED BY THE CLAIMANT WHICH MUST BE CLEARLY CONVEYED TO THE CLAIM-
ANT OR CLAIMANT'S REPRESENTATIVE. THE INSURER SHALL SUPPLY THE  CLAIMANT
OR  CLAIMANT'S  REPRESENTATIVE  WITH ANY AND ALL EVIDENCE SUPPORTING ITS
CLAIM OF FRAUD NOT LESS THAN TEN DAYS PRIOR  TO  THE  EXAMINATION  UNDER
OATH  SO  AS  TO  PRESERVE  THE CLAIMANT'S FEDERAL FIFTH AMENDMENT RIGHT
AGAINST BEING COMPELLED TO TESTIFY AGAINST HIMSELF OR HERSELF;  (2)  THE
INSURER  SUSPECTS  THAT  THE CLAIMANT IS RECEIVING UNNECESSARY TREATMENT
WHICH SHALL BE CLEARLY CONVEYED TO THE CLAIMANT OR CLAIMANT'S  REPRESEN-
TATIVE.  THE  INSURER  SHALL SUPPLY THE CLAIMANT OR CLAIMANT'S REPRESEN-
TATIVE WITH ANY AND ALL EVIDENCE SUPPORTING ITS CLAIM THAT THE TREATMENT
IS UNNECESSARY, INCLUDING BUT NOT LIMITED TO, PEER REVIEWS NOT LESS THAN
TEN DAYS PRIOR TO THE EXAMINATION UNDER OATH; (3) THE  INSURER  SUSPECTS
THAT THE TREATING PROVIDER OR FACILITY IS BILLING FOR TREATMENT THAT THE
CLAIMANT  IS NOT RECEIVING WHICH SHALL BE CLEARLY CONVEYED TO THE CLAIM-
ANT OR CLAIMANT'S REPRESENTATIVE.  THE INSURER SHALL PROVIDE THE  CLAIM-
ANT  OR  CLAIMANT'S  REPRESENTATIVE WITH ANY AND ALL EVIDENCE SUPPORTING
ITS CLAIM THAT THE BILLING IS NOT COMMENSURATE WITH THE ACTUAL TREATMENT
RECEIVED, INCLUDING BUT NOT LIMITED  TO,  THE  BILLS  SUBMITTED  BY  THE
TREATING  PROVIDER NOT LESS THAN TEN DAYS PRIOR TO THE EXAMINATION UNDER
OATH; OR (4) THE INSURER HAS A SUSPICION THAT  THE  CLAIM  NEEDS  TO  BE
VERIFIED  FOR  A  REASON NOT ENUMERATED ABOVE. THE JUSTIFICATION MUST BE
RELEVANT TO THE VERIFICATION OF THE CLAIM AND THE REASON MUST BE CLEARLY
CONVEYED TO THE CLAIMANT OR CLAIMANT'S REPRESENTATIVE. THE INSURER SHALL
PROVIDE SUPPORTING EVIDENCE TO SUPPORT ITS  CLAIM  TO  THE  CLAIMANT  OR
CLAIMANT'S  REPRESENTATIVE  NOT LESS THAN TEN DAYS PRIOR TO THE EXAMINA-
TION UNDER OATH. IF THE CLAIMANT OR CLAIMANT'S REPRESENTATIVE WISHES  TO
CONTEST  THE  REQUEST  FOR AN EXAMINATION UNDER OATH BECAUSE CLAIMANT OR
CLAIMANT'S REPRESENTATIVE BELIEVES THE REQUEST  TO  BE  PRE-TEXTURAL  OR
SUSPECTS  ABUSE IN REQUESTING THE EXAMINATION, HE OR SHE SHALL SUBMIT AN
APPLICATION TO THE DEPARTMENT FOR REVIEW WITHIN FIVE  BUSINESS  DAYS  OF
RECEIPT OF THE WRITTEN REQUEST FROM THE INSURER. NO INSURER SHALL DENY A
CLAIM  BASED UPON A TREATING PROVIDER'S FAILURE TO APPEAR AT AN EXAMINA-
TION UNDER OATH OTHER THAN BILLS SUBMITTED BY SUCH PROVIDER,  NOR  SHALL
IT FORM THE BASIS OF ANY LIABILITY ON THE PART OF ANY PROVIDER OR CLAIM-
ANT  FOR  PAYMENT PREVIOUSLY MADE RELATING TO THE CLAIM IN QUESTION.  IF

A. 2975                             3

THE TREATING PROVIDER FAILS TO APPEAR AT AN EXAMINATION UNDER OATH,  THE
CLAIMANT  SHALL  NOT  BE  HELD  RESPONSIBLE TO THE PROVIDER FOR SERVICES
RENDERED BY THAT PROVIDER. WHEN AN INSURER REQUIRES AN EXAMINATION UNDER
OATH  OF  A CLAIMANT TO ESTABLISH PROOF OF CLAIM, SUCH REQUIREMENT SHALL
BE BASED ON THE APPLICATION OF OBJECTIVE  STANDARDS  SO  THAT  THERE  IS
SPECIFIC  JUSTIFICATION  FOR THE USE OF SUCH EXAMINATION. INSURER STAND-
ARDS SHALL BE AVAILABLE FOR REVIEW BY DEPARTMENT EXAMINERS, AS  WELL  AS
BY  THE  CLAIMANT AND HIS OR HER REPRESENTATIVE.  THE SCOPE OF THE EXAM-
INATION UNDER OATH SHALL BE NARROWLY TAILORED TO THE REASONS  OR  JUSTI-
FICATION FOR SEEKING THE EXAMINATION AS SET FORTH IN THE INSURER'S WRIT-
TEN  REQUEST. ANY QUESTION THAT GOES BEYOND THE SCOPE MAY BE OBJECTED TO
AND SUCH OBJECTED TO QUESTION SHALL BE SUBMITTED BY THE  INSURER  WITHIN
SEVEN  DAYS OF THE COMPLETION OF THE SCHEDULED AND CONDUCTED EXAMINATION
TO THE DEPARTMENT TO DETERMINE IF THE OBJECTED TO QUESTION IS BEYOND THE
SCOPE OF THE EXAMINATION. IF ANY QUESTION IS DETERMINED TO BE BEYOND THE
LEGITIMATE SCOPE OF THE EXAMINATION AND ITS ORIGINAL WRITTEN  JUSTIFICA-
TION  FOR THE SAME, THE CLAIMANT SHALL NOT BE REQUIRED TO RESPOND TO THE
QUESTION AND CANNOT FORM THE BASIS OF A DENIAL. IF THE OBJECTED TO QUES-
TION IS DETERMINED BY THE  DEPARTMENT  TO  BE  LEGITIMATE  AND  NARROWLY
TAILORED TO MEET THE OBJECTIVES CONTAINED IN THE WRITTEN REQUEST FOR THE
EXAMINATION  UNDER OATH INITIALLY GIVEN BY THE INSURER WHEN THE EXAMINA-
TION WAS SCHEDULED, THE EXAMINATION MAY BE RESCHEDULED IN THE MANNER SET
FORTH ABOVE FOR THE  LIMITED  PURPOSE  OF  RECEIVING  RESPONSES  TO  THE
IMPROPERLY  OBJECTED  TO QUESTIONS, AS DETERMINED BY THE DEPARTMENT, AND
RESPONSES TO OTHER QUESTIONS THAT MIGHT NATURALLY FLOW FROM  THE  CLAIM-
ANT'S  RESPONSES  THAT ARE LIKEWISE NARROWLY TAILORED TO INVESTIGATE THE
LEGITIMATE JUSTIFICATION FOR CONDUCTING THE  EXAMINATION  GIVEN  IN  THE
INSURER'S  ORIGINAL  WRITTEN REQUEST, WITH THE SAME RULES FOR OBJECTIONS
APPLYING AS SET FORTH ABOVE. AN INSURER SHALL NOT  DENY  A  CLAIM  BASED
UPON  AN  OBJECTION  AT  AN  EXAMINATION  UNDER  OATH UNLESS THE INSURER
COMPLETES THE ABOVE OBJECTION APPEALS PROCEDURE, WINS SAID  APPEAL,  AND
THE  CLAIMANT  THEREAFTER  FAILS TO COMPLY WITH THE DEMAND FOR A FURTHER
EXAMINATION UNDER OATH. EACH EXAMINATION UNDER  OATH  SHALL  NOT  EXCEED
THREE  HOURS  FROM  THE  TIME THE FIRST QUESTION IS ASKED UNTIL THE LAST
QUESTION IS  ASKED  UNLESS  REASONABLE  CAUSE  EXISTS.  FOR  EXAMINATION
CONSTRUCTED  WITH  THE  AID OF AN INTERPRETER, THE TIME SHALL NOT EXCEED
FOUR HOURS UNLESS REASONABLE CAUSE EXISTS. THE  CLAIMANT  OR  CLAIMANT'S
REPRESENTATIVE  SHALL  HAVE  THE RIGHT TO TERMINATE THE EXAMINATION UPON
THE PASSAGE OF THE ABOVE TIME LIMITS. THE CLAIM SHALL NOT BE  DENIED  IF
THE  CLAIMANT  OR  CLAIMANT'S  REPRESENTATIVE TERMINATES THE EXAMINATION
AFTER THE ALLOTTED TIME HAS EXPIRED. ISSUES OF LIABILITY RELATED TO  ANY
ONGOING  OR  POTENTIAL THIRD PARTY ACTION ARISING FROM THE SUBJECT CLAIM
MAY BE ADDRESSED AT THE EXAMINATION UNDER OATH.  THE  EXAMINATION  UNDER
OATH  AND  ANY  INVESTIGATION  RELATED THERETO SHALL BE CONFIDENTIAL AND
SHALL NOT BE SUBJECT TO DISCOVERY OR USE IN ANY THIRD PARTY ACTION ARIS-
ING OUT OF THE INCIDENT THAT SERVES AS THE BASIS OF THE CLAIM FOR  FIRST
PARTY  BENEFITS,  AND SHALL NOT BE USED AGAINST THE CLAIMANT IN ANY SUCH
THIRD PARTY ACTION.  ABSENT AN ADMISSION OF FRAUD BY A  CLAIMANT  DURING
THE  EXAMINATION  UNDER  OATH, OR ALLEGATION OF FRAUD PERPETRATED BY THE
CLAIMANT SUPPORTED BY THE TESTIMONY ELICITED  AT  THE  EXAMINATION,  THE
EXAMINATION  UNDER  OATH  ALONE  SHALL NOT FORM THE BASIS OF A DENIAL OF
FIRST PARTY BENEFITS. ANY DENIAL OF FIRST PARTY BENEFITS BASED  IN  PART
UPON  AN  EXAMINATION  UNDER  OATH,  INCLUDING ONE BASED ON FRAUD BY THE
CLAIMANT, SHALL BE ACCOMPANIED BY ANY OTHER WRITTEN  REPORTS,  INCLUDING
INVESTIGATIVE,  THAT  IN  WHOLE OR IN PART FORM THE BASIS OF THE DENIAL.
THE CLAIMANT AND HIS OR HER  REPRESENTATIVE  SHALL  HAVE  THE  RIGHT  TO

A. 2975                             4

CONDUCT  AN EXAMINATION UNDER OATH, UPON WRITTEN REQUEST TO THE INSURER,
OF ANY INDIVIDUAL,  INCLUDING  THE  PERSON  OR  ATTORNEY  CONDUCTING  OR
REVIEWING  THE  EXAMINATION, WHOSE REPORTS OR OPINIONS FORM THE BASIS OF
ANY  DENIAL  OF  FIRST  PARTY  BENEFITS BASED IN WHOLE OR IN PART ON THE
EXAMINATION. ONCE AN INSURER HAS DENIED FURTHER FIRST PARTY BENEFITS  TO
THE CLAIMANT FOR ANY REASON, IT SHALL BE BARRED FROM SEEKING ANY FURTHER
VERIFICATION  OF  THE  CLAIM  INCLUDING,  BUT NOT LIMITED TO, CONDUCTING
MEDICAL EXAMINATIONS AND/OR FURTHER EXAMINATIONS UNDER OATH. THE  DENIAL
OF  A CLAIM FOR FAILURE TO ATTEND AN EXAMINATION UNDER OATH SHALL NOT BE
RETROACTIVE TO THE DATE OF THE CLAIM,  BUT  SHALL  ONLY  RESULT  IN  THE
DENIAL  OF ALL BENEFITS RECEIVED AFTER THE DATE OF THE EXAMINATION UNDER
OATH.
  S 2. This act shall take effect immediately and  shall  apply  to  all
claims for first party benefits pending on or after such date.