Part 91 - Excess Liability Insurance Pool: Physicians And Dentists

Effective Date: 
Thursday, October 23, 1986
Doc Status: 
Complete
Statutory Authority: 
L. 1986, ch. 266, Section 18(8), L. 1991, ch. 266, L. 1992, ch. 277

Section 91.1 - Required excess malpractice coverage

Section 91.1 Required excess malpractice coverage.

(a) The provisions of this Part shall be contingent upon extension of L. 1986, c. 266, or upon enactment of permanent statutory authority. The provisions of this Part shall apply to excess insurance coverage for medical or dental malpractice occurrences during the period July 1, 1986 through June 30, 1987, and annual periods beginning July 1, thereafter. The Superintendent of Insurance and the Commissioner of Health shall create and oversee a hospital excess liability pool, and the Superintendent and Commissioner, or their designee, shall from funds available in such pool, purchase a policy or policies for excess insurance coverage or equivalent excess coverage in a form previously approved by the Superintendent of Insurance for medical or dental malpractice occurrences between July 1, 1986 and June 30, 1987, and annual periods beginning July 1, thereafter, for physicians or dentists certified eligible pursuant to this Part or reimburse the hospital where the hospital purchases equivalent excess coverage for medical or dental malpractice occurrences between July 1, 1987 and June 30, 1988, and annual periods beginning July 1, thereafter, for physicians or dentists certified eligible pursuant to this Part participating in a voluntary attending physician (channeling) program. Such physicians or dentists must have in force an individual policy, from an insurer licensed in the State, of primary malpractice coverage in amounts of no less than one million dollars for each claimant and three million dollars for all claimants under that policy during the period of such excess coverage for such occurrences or be endorsed as additional insureds under a hospital professional liability policy which is offered through a voluntary attending physician (channeling) program previously permitted by the Superintendent of Insurance during the period of such excess coverage for such occurrences. During this period, the policy for excess coverage shall, when combined with the physician's or dentist's primary malpractice insurance coverage or coverage provided through a voluntary attending physician (channeling) program total an aggregate level of two million dollars for each claimant and six million dollars for all claimants from all such policies in such years.
(b) Equivalent excess coverage.
(1) Equivalent excess coverage shall mean:
(i) a policy or policies of insurance, approved by the Superintendent of Insurance, or such other form of coverage previously permitted by the Superintendent of Insurance for voluntary attending physician ("channeling") programs insuring a physician or dentist against medical or dental malpractice with an aggregate level of coverage providing not less than two million dollars for each claimant and six million dollars for all claimants during the policy period. Such coverage limits shall be reduced by payments made on behalf of such physician or dentist under a hospital professional liability policy written pursuant to a voluntary attending physician ("channeling") program previously permitted by the Superintendent of Insurance, in an amount not to exceed two million dollars for each claimant and six million dollars for all claimants during such policy period for each such physician or dentist; or
(ii) an individual policy or policies of insurance, approved by the Superintendent of Insurance, or such other form of coverage previously approved by the Superintendent of Insurance for the purposes of providing equivalent excess coverage in accordance with section 19 of Chapter 294 of the laws of 1985 purchased by a hospital insuring a physician or dentist against medical or dental malpractice with an aggregate level of coverage providing not less than one million dollars for each claimant and three million dollars for all claimants during such policy period. Such coverage shall be in excess of primary malpractice coverage in effect on an individual policy written by an authorized insurer with limits of not less than one million dollars for each claimant and three million dollars for all claimants during such policy period.
(2) Every plan pursuant to subparagraph (1)(i) of this paragraph for such equivalent excess coverage shall provide for payment only after coverage available through the voluntary attending physician ("channeling") program has been exhausted during such policy period.

Effective Date: 
Wednesday, April 21, 1993
Doc Status: 
Complete

Section 91.2 - Reporting requirements

91.2 Reporting requirements.

(a) Physicians and dentists who have professional privileges in a general hospital providing emergency medical care and who, from time to time, provide emergency medical care in such hospital, and who wish to avail themselves of the excess malpractice insurance coverage or equivalent excess coverage, shall submit a request in writing to the hospital with which the physician or dentist is primarily affiliated, as determined pursuant to this section, by October 24, 1986 for the period July 1, 1986 through June 30, 1987 and in accordance with notices issued by the pool administrator for annual periods beginning July 1, thereafter, for certification of eligibility for purchase of excess malpractice insurance coverage or equivalent excess coverage as defined in section 91.1 of this Part. This request shall contain appropriate documentation and assurances that the required primary insurance is in force and will be maintained. This request shall set forth the number of admissions for each hospital where the physician or dentist has admitting privileges and the number of consultative visits for each hospital where he/she provides such services. If the physician or dentist has professional privileges in more than one general hospital, then the physician or dentist shall designate and submit the request for certification to the general hospital with which he/she is primarily affiliated. Primary affiliation shall be determined based on such factors as the number of hospital admissions or consultative services in the designated hospital in the immediate preceding fiscal year compared with hospital admissions and/or services for such period in other general hospitals in which the physician or dentist, from time to time, provides emergency medical or dental care to persons who require such care.

(b)(1) A physician or dentist should designate as his/her primary affiliation that facility where the practitioner has the majority of admissions and/or consultative services.

(2) A physician or dentist may, however, provide an alternative designation. If another facility is so designated, the physician or dentist shall provide a justification in the written request for certification of eligibility as to the reason for the alternative designation.

(c)(1) A hospital shall accept the designation or alternative designation of primary affiliation by a physician or dentist requesting such designation in accordance with paragraphs (1) and (2) of subdivision (b) of this section, unless it has knowledge and information requiring it to reject the designation or alternative designation.

(2) If the hospital rejects a designation or an alternative designation, then it must provide written justification and specific reasons for denying the request to the physician or dentist based upon the criteria set forth in subdivision (a) of this section, and considering any justification for an alternative designation provided by the physician or dentist in accordance with paragraph (2) of subdivision (b) of this section within five business days of receipt of the written request. If the hospital does not reject within five business days, the request for designation shall be deemed acceptable.

(d) All general hospitals providing emergency medical care shall certify in writing by November 7, 1986, for the period July 1, 1986 through June 30, 1987 and in accordance with notices issued by the pool administrator for annual periods beginning July 1, thereafter, on forms acceptable to the Superintendent of Insurance and the Commissioner of Health, those physicians and dentists who are eligible for excess medical malpractice coverage and the number of admissions and/or consultative visits for each hospital where such services are provided.

(e)(1) If a dispute arises, the hospital and physician or dentist shall have until the general hospital certification deadline established in subdivision (d) of this section in which they may resolve any differences regarding primary affiliation and provide the certification of eligibility to the Superintendent of Insurance and the Commissioner of Health.

(2) If a physician or dentist is not certified eligible based upon such differences, the physician or dentist may designate in accordance with subdivision (b) of this section and request certification of eligibility by another general hospital as his/her primary affiliation within seven days of the deadline established in subdivision (d) of this section. Such designation must be actually received by the alternate designated hospital within such seven-day period. Within seven days of the receipt of the designation and request for certification of eligibility, such general hospital shall submit a certification of eligibility to the Superintendent of Insurance and Commissioner of Health or reject such designation.

(f) Physicians and dentists eligible or applying for certification of eligibility for purchase or excess malpractice insurance coverage shall complete and submit such applications and forms approved by the Superintendent of Insurance as required by the excess liability insurance carrier(s) for purchase of the excess liability insurance. (g) All hospitals shall be required, on a form acceptable to the Superintendent of Insurance and the Commissioner of Health, to notify in writing every physician or dentist receiving new admitting privileges, who has not been certified eligible for excess malpractice insurance coverage pursuant to this Part at another general hospital, of the availability of excess malpractice insurance coverage under the criteria set forth in subdivision (a) of this section. Such physician or dentist may designate such general hospital and request certification of eligibility for purchase of excess malpractice insurance coverage in accordance with this section. Such physician or dentist certified eligible in accordance with this section may receive the excess malpractice insurance coverage prospectively from the date the requirements of the excess liability insurance carrier(s) are satisfied.

(h) Any physician or dentist who has not requested or received certification of eligibility for purchase with excess malpractice insurance coverage or who did not satisfy the requirements of the excess liability insurance carrier in accordance with subdivision (f) of this section may apply for designation, certification and purchase or such excess malpractice insurance coverage in accordance with this Part and may receive excess malpractice insurance coverage prospectively from the date the requirements of the excess liability insurance carrier are satisfied.
 

Effective Date: 
Wednesday, April 21, 1993
Doc Status: 
Complete

Section 91.3 - Determination of cost and reimbursement of excess medical malpractice coverage

91.3 Determination of cost and reimbursement of excess medical malpractice coverage.

(a) Based on the certification by general hospitals pursuant to section 91.2 of this Part of physicians and dentists eligible for excess coverage or equivalent excess coverage, the Superintendent of Insurance shall determine and certify to each general hospital and to the Commissioner of Health, and may amend such determination and certification as necessary, the cost of excess malpractice insurance or equivalent excess insurance, including an allocable share of pool administration costs, for medical and dental malpractice occurrences between July 1, 1986 and June 30, 1987, July 1, 1987 through December 31, 1987, and semi-annual periods beginning July 1 and January 1, thereafter.

(b)(1) The Commissioner of Health or his designee shall adjust the established inpatient rates of each general hospital (for rate periods during the periods July 1, 1986 through June 30, 1987, and annual periods beginning July 1, thereafter, excluding rates of payment for state governmental agencies for rate periods during the period July 1, 1991 through June 30, 1992, and annual periods beginning July 1, thereafter) proportionally, based upon the allocation of the general hospital's inpatient malpractice costs among rate payors and general hospital charge payors used in determining inpatient rates of payment and charges for 1986, and each annual period thereafter, for such general hospital pursuant to Subpart 86-1 of this Title, to reflect the cost of excess insurance coverage or equivalent excess coverage allocated to such general hospital pursuant to subdivision (a) of this section, for such rate periods, and shall adjust the determination of the general hospital's maximum inpatient charges. The Commissioner of Health shall further adjust such rates of payment (excluding rates applicable to state governmental agencies as of July 1, 1991) to reflect significant changes in volume of service. The adjustment shall be made for the periods July 1, 1986 through June 30, 1987, and semi-annual periods beginning July 1 and January 1, thereafter, and shall not be carried forward.

(2) In the event that rate of payment for persons eligible for payment pursuant to title XVIII of the federal social security act (Medicare) do not include the portion of such cost allocable to such patients, such portion of the cost shall for purposes of further adjustment be reallocated among payors whose rates of payment or charges are determined in accordance with Subpart 86-1 of this Title and rates of payment for such payors (excluding rates applicable to state governmental agencies as of July 1, 1991) shall be adjusted proportionally based upon the allocation of general hospital malpractice costs among such payors used in determining inpatient rates of payment and charges for 1986, and each respective annual rate period thereafter, for such general hospital pursuant to Subpart 86-1 of this Title and the determination of the general hospital's maximum inpatient charges shall be adjusted so that the costs of such excess insurance coverage or equivalent excess coverage excluding costs allocated or reallocated to rates applicable to state governmental agencies for periods on and after July 1, 1991, are fully reflected in hospital inpatient rates of reimbursement and maximum charges; provided, however, that if a general hospital's inpatient malpractice cost is allocated entirely to title XVIII of the federal social security act (Medicare) in determining rates and charges for 1986, and each respective annual rate period thereafter, in accordance with Subpart 86-1 of this Title, (excluding rates applicable to state governmental agencies on and after July 1, 1991) for purposes of further adjustment the cost of excess insurance coverage or equivalent excess coverage shall be reallocated among payors whose rates of payment or charges are determined in accordance with Subpart 86-1 of this Title based upon the statewide average general hospital malpractice cost allocation among such payors in each rate period. Such adjustments shall be made for the periods July 1, 1986 through June 30, 1987, and semi-annual periods beginning July 1 and January 1, thereafter, and shall not be carried forward.

(c) In rate periods commencing January 1, 1990 and thereafter, the Commissioner of Health or his designee shall adjust proportionally the established inpatient rates of each general hospital, excluding rates of payment applicable to State governmental agencies on and after July 1, 1991, based upon the allocation of the general hospital's inpatient malpractice costs among rate payors and general hospital charge payors used in determining inpatient rates of payment and charges for such general hospitals for such rate period pursuant to Subpart 86-1 of this Title, to reflect payments due to the hospital excess liability pool or refunds received from the hospital excess liability pool by the hospital pursuant to section 91.4(e) of this Part, and maximum inpatient charges of such general hospital computed in accordance with Subpart 86-1 of this Title shall be adjusted accordingly. Such adjustments in a rate period shall not be carried forward except that such adjustments shall be included in volume adjustments authorized for such hospital for such rate period.

Effective Date: 
Wednesday, April 21, 1993
Doc Status: 
Complete

Section 91.4 - Pool administration

91.4 Pool Administration.

(a) The Superintendent of Insurance and the Commissioner of Health shall establish and monitor the hospital excess liability pool consisting of funds made available from payments by or on behalf of general hospitals of a portion of general hospital inpatient rates and the amount allocated to charge payors determined in accordance with Section 91.3(b) of this Part and from payments by general hospitals determined in accordance with paragraph (e) of this subdivision to reflect the cost of excess malpractice insurance coverage or equivalent excess coverage and for malpractice premiums subsequent to July 1, 1991 including funds made available pursuant to statute (see Chapter 266 of the Laws of 1991 and any amendments thereto).

(b) The pool administrator(s) designated by the Superintendent of Insurance and the Commissioner of Health shall receive funds for the pool and purchase a policy or policies for excess malpractice insurance coverage or equivalent excess coverage for eligible physicians and dentists in accordance with this Part or reimburse the hospital where the hospital purchases equivalent excess coverage for eligible physicians or dentists participating in a voluntary attending physician (channeling) program. The pool administrator(s) shall be reimbursed for reasonable and necessary pool administration costs, as determined by the Superintendent of Insurance and Commissioner of Health, from pool funds including investment income of the pool.

(c)(1) Prior to July 1, 1991, each of the major third-party payors (Medicaid and Insurance Law article 43 and Public Health Law article 44 corporations) shall contribute monthly to the hospital excess liability pool based on their proportionate share of the costs of excess malpractice insurance coverage or equivalent excess coverage as determined in accordance with this Part.

(2) On and after July 1, 1991, Insurance Law Article 43 and Public Health Law Article 44 Corporations shall contribute montly to the hospital excess liability pool based on their proportionate share of the costs of excess malpractice insurance coverage or equivalent excess coverage as determined in accordance with this Part.

(d) Upon consultation with the Commissioner of Health or his designee, the Superintendent of Insurance or his designee shall notify general hospitals of payments to be made to the hospital excess liability pool by general hospitals for the amount allocated to charge payors reflecting the cost of excess insurance coverage or equivalent excess coverage certified to general hospitals pursuant to section 91.3 of this Part. Each general hospital shall, subject to the approval of the Superintendent of Insurance, submit a check on the first of the month to the designated pool administrator for one twelfth of the annual amount determined by the Superintendent of Insurance to be paid by the hospital, with the first payments to be submitted to the pool administrator no later than November 1, 1986 provided, however, that estimated payments of amounts due for patients discharged in a calendar month on or after October 1, 1991 must be made within 60 days of the end of each month unless payment of actual amounts due for such calendar months has been made within such 60 day period. The payments shall be based upon the general hospital's prior year costs, adjusted to actual cost upon determination of the amount allocated to charge payors in accordance with section 91.2 of this Part.

(e) The cost of excess insurance coverage or equivalent excess coverage for each of the periods commencing on or after January 1, 1988 certified to a general hospital in accordance with Section 91.3(a) of this Part, including costs of administering the pool for such periods, shall be compared to amounts paid or due by or on behalf of such general hospital to the pool for each such period in accordance with subdivisions (c) and (d) of this Section. For each such period, any remaining underpayment shall be paid by the general hospital to the pool and any overpayment shall be returned by the pool to the general hospital to be returned to each major third-party payor pursuant to subdivision (g) of this section. Payments to the pool shall be made in accordance with the schedule established by the pool administrator.

(1) Any insurer issuing policies of excess coverage whereby such insurer, notwithstanding any provisions of the insurance law, may return to the hospital excess liability pool, in whole or part, the moneys received from the hospital excess liability pool for specified policy periods, upon a certification to the insurer by the superintendent of insurance that such moneys will be derived from the surplus of the insurer.

(2) To the extent funds available to the hospital excess liability pool are insufficient to meet the costs of excess insurance coverage or equivalent excess coverage for coverage during the periods July 1, 1992 to June 30, 1993, and annual periods beginning July 1, thereafter, allocated or reallocated to rates of payment applicable to state government agencies, each physician or dentist for whom a policy for excess insurance coverage or equivalent excess coverage is purchased for such period shall be responsible for payment to the provider of excess coverage of an allocable share of such insufficiency, based on the ratio of the total cost of such coverage for such physician to the sum of the total cost of such coverage for all physicians applied to such insufficiency. (f) The Superintendent of Insurance and the Commissioner of Health shall conduct an annual audit of the receipt and distribution of pool funds.

(g) Any funds remaining in the pool after purchase of a policy or policies for excess insurance coverage or equivalent excess coverage shall be distributed proportionately to general hospitals on the basis of hospital contributions to the pool to be returned to each major third-party payor on the basis of its percentage of liability for the cost of excess insurance coverage or equivalent excess coverage.

(h) The pool shall be operated pursuant to a plan approved by the Superintendent of Insurance and the Commissioner of Health.

(i) If any hospital shall fail to timely submit checks in accordance with this section, the hospital shall have 30 days from date of receipt of notification to provide the required checks. Failure to submit the checks within this 30-day time period shall result in the withholding of 10 percent of the hospital's payments from all major third-party payors regulated pursuant to Subpart 86-1 of this Title until such time as the required checks are received by the pool administrator.
 

Effective Date: 
Wednesday, April 21, 1993
Doc Status: 
Complete

SubChapter O - Physician's Assistants; Prohibited Discrimination in Hospital Staff Appointments and Privileges

SUBCHAPTER O
Physician's Assistants; Prohibited Discrimination in Hospital Staff
Appointments and Privileges
PART 92 Infection Control Requirements 93 Improper Practices in Hospital Staff Appointments and Extension of Professional Privileges
94 Physician's Assistants and Specialist's Assistants
95 Discrimination in Physician Staff Appointments and Privileges Based on
Participation in a Medical Group Practice or Nonprofit Health Insurance Plan

Doc Status: 
Complete