S T A T E   O F   N E W   Y O R K
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                                   7328
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              April 24, 2017
                                ___________
 
 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.
              

                                                            LBD11031-01-7

 A. 7328                             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. 7328                             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. 7328                             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.
   § 2. This act shall take effect immediately and  shall  apply  to  all
 claims for first party benefits pending on or after such date.