Medical Indemnity Fund Frequently Asked Questions

This guidance is provided for informational purposes. Regulations will be issued by the Commissioner of Health. In the unlikely case of a conflict between this FAQ and any regulations issued by the Commissioner of Health, the regulations would prevail.

A. General Questions

1. What is the Medical Indemnity Fund and why was it created?

Chapter 59 of the Laws of 2011 amended Article 29–D of the Public Health Law to create the Medical Indemnity Fund ("Fund"). The Fund is designed to pay all future costs necessary to meet the health care needs of plaintiffs in medical malpractice actions who have received either court–approved settlements or judgments deeming the plaintiffs´ neurological impairments to be birth–related. The purpose of the Fund is two–fold: 1) to pay or reimburse costs necessary to meet the health care needs of a "qualified plaintiff" throughout his or her lifetime; and 2) to lower the expenses associated with medical malpractice litigation throughout the health care system.

2. Who is eligible for enrollment in the Fund?

Any person who has been deemed in a court–approved settlement or found in a judgment to have sustained a "birth–related neurological injury" as a result of medical malpractice or alleged medical malpractice is a "qualified plaintiff" for enrollment purposes.

3. What is a "birth–related neurological injury" for the purpose of the Fund?

For the purpose of the Fund, a "birth–related neurological injury" is an injury to the brain or spinal cord as the result of a deprivation of oxygen or mechanical injury that occurred in the course of labor, delivery or resuscitation, or by the provision or non–provision of other medical services during delivery admission.

4. What costs will the Fund pay or reimburse?

The Fund will pay or reimburse costs necessary to meet the health care needs of a "qualified plaintiff" as determined by a physician, physician assistant or nurse practitioner, and as otherwise defined by the Commissioner of Health in regulation, that are incurred for:

  • medical treatment
  • hospital–based care
  • surgical care
  • nursing care
  • dental care
  • rehabilitative care
  • custodial care
  • durable medical equipment
  • certain home modifications
  • assistive technology
  • certain vehicle modifications
  • prescription and non–prescription medications
  • other health care costs for services rendered to, and supplies utilized by, enrollees.
5. What happens if the "qualified plaintiff" has health insurance?

Any health insurance, excluding Medicaid and Medicare, available to a "qualified plaintiff" must be utilized for each claim before the Fund will become a payer.

6. What happens to "qualified plaintiffs" who become eligible for enrollment prior to October 1 when the Fund becomes operational?

"Qualified plaintiffs" who become eligible prior to October 1, 2011 must rely upon private health insurance or Medicaid to cover medical expenses. After October 1, 2011, when a "qualified plaintiff" is enrolled in the Fund, the Fund will reimburse all costs incurred to meet his or her health care needs between the date the court approves a settlement or judgment for the plaintiff and the date the "qualified plaintiff" is enrolled in the Fund.

B. Enrollment

1. Who can apply for enrollment into the Fund?

A "qualified plaintiff," anyone authorized to act on the plaintiff´s behalf or a defendant in the medical malpractice action that results in a court–approved settlement or judgment may apply to enroll the "qualified plaintiff" into the Fund.

2. What documentation is required as part of the application?

A party seeking to enroll a "qualified plaintiff" must submit the following:

  • a completed and accurate application form;
  • a copy of the court–approved settlement or judgment; and
  • any other information determined by the Fund Administrator to be necessary for the purposes of providing appropriate health care coverage to a "qualified plaintiff."

The Fund will provide assistance with the application process.

3. What information must be included in the court–approved settlement agreement or judgment in order for a "qualified plaintiff" to be eligible for enrollment into the Fund?

Every settlement agreement that provides for the payment of future medical expenses for the plaintiff or claimant must provide that all payments for future medical expenses will be paid in accordance with Title 4 of Article 29–D of the Public Health Law, in lieu of that portion of the settlement agreement that provides for payment of such expenses. When a settlement agreement does not so provide, the court shall direct the modification of the agreement to include such term as a condition of court approval.

In any case where the jury or court has made an award for future medical expenses, any party to the action, or person authorized to act on behalf of such party, may make an application to the court that the judgment reflect that, in lieu of that portion of the award that provides for payment of such expenses, the future medical expenses of the plaintiff shall be paid out of the Fund in accordance with Title 4 of Article 29–D of the Public Health Law. Upon a finding by the court that the applicant has made prima facie showing that the plaintiff is a qualified plaintiff, the court shall ensure that the judgment provides that future medical expenses shall be paid by the Fund.

4. Does the existence of the Fund have an effect on the amount of the settlement or judgment in a malpractice action?

No. The Fund has no impact on the amount of the settlement or judgment.

5. How long must a "qualified plaintiff" wait to be enrolled once an application to the Fund has been submitted?

A "qualified plaintiff" will be enrolled promptly following the submission of all documentation required as part of the application for enrollment – see response to question B–2.

6. What happens if an applicant is denied enrollment into the Fund?

The Fund intends to enroll all qualified plaintiffs who submit a completed application and accompanying documentation as required by the enrollment process.

7. What happens to enrollees in the Fund if enrollment is suspended?

Once enrolled, a "qualified plaintiff" will remain in the Fund for his or her lifetime, and will not be impacted by a suspension in enrollment. Such a suspension would only happen if the Fund´s estimated liabilities – the sum of the eligible costs for all enrollees in a given year – equal or exceed 80 percent of its assets. If this occurs, then enrollment into the Fund will be suspended until either an adequate deposit of funds is made, or an actuarial analysis determines that the Fund´s estimated liabilities are less than 80 percent of its assets and the Fund Administrator reinstates enrollment. The Fund Administrator will provide public notice upon any suspension or reinstatement of enrollment.

C. Operation of the Fund and Claims Information

1. Will the Fund provide assistance to help enrollees with the claims filing processes?

Yes, the Fund will provide assistance.

2. Must "qualified plaintiffs" be current or past New York residents?

Eligibility for or continued enrollment in the Fund is not dependent on the current or past residency of an individual.

3. How will qualifying health care costs be paid or reimbursed?

Regulations will be developed by the Commissioner of Health to provide for a claims submission and payment process. It is anticipated that the provider in most instances will submit claims, and that the provider will be paid directly by the Fund. The Fund Administrator will develop a process for reimbursement in instances where out–of–pocket costs are incurred by the enrollee.

4. What health care costs will require prior authorization?

The regulations being developed by the Commissioner of Health will specify, among other things:

  1. the types of health care costs that will require prior authorization;
  2. the standards that will govern prior authorization; and
  3. the manner in which prior authorization requests will be processed, including the timeframes within which initial decisions and administrative review decisions must be made.
5. Can providers balance bill enrollees?

No. All providers that render services to "qualified plaintiffs" are required to take an assignment of a "qualified plaintiff´s" claim for services provided; providers cannot balance bill "qualified plaintiffs" for any amount for which the Fund will not pay. Claims for any qualifying health care costs that are not covered by any health insurance, excluding Medicare and Medicaid, that accrue from the time an individual becomes a "qualified plaintiff" until the time that individual is enrolled in the Fund may be submitted to the Fund once enrollment has occurred.

If a provider has any reason to believe that the necessity of certain services, supplies, or equipment may be questioned when a claim is submitted, then the provider should contact the Fund for guidance before providing the service in question. In no event may a provider charge an enrollee or any person authorized to act on an enrollee´s behalf for a qualified health care cost in excess of the amount the Fund will pay for the qualified health care cost.

6. Is there any administrative review available if there is a denial of a claim?

Yes. The regulations being developed by the Commissioner of Health will establish an administrative review process.

7. If an enrollee pays a provider out–of–pocket and then submits a claim, how long, on average, will it take before a reimbursement check is issued?

Payment mechanisms will be established to provide for prompt turnaround from the time all necessary claims information is received by the Fund.