N.Y. Comp. Codes R. & Regs. tit. 12 § 452.2

Current through Register Vol. 46, No. 50, December 11, 2024

Section 452.2 - Procedure

(a)

(1) Within two weeks after The State Insurance Fund has, in writing, made known to the insured or potential insured the differential assigned to the insured's policy, or proposed to be assigned to a prospective policy, or within such additional time as The State Insurance Fund may allow in writing, the insured may protest such differential assignment by delivering to the executive director of The State Insurance Fund a written protest setting forth the basis for the insured's or prospective insured's challenge. Such written protest shall be accompanied by any documentation and sworn statements the insured desires to have considered in support of his challenge.

(2) The documents and statements so submitted by the insured or proposed insured shall specifically set forth the specific reasons upon which his challenge is based, and shall further set forth that charge which he contends would be a fair and reasonable differential charge, giving due regard to the nature and hazards of his business or operations, his prior loss experience, his prior and presently existing safety practices, his prior premium payment history, the number of persons he employes in such business or operations and the specific type of work they perform, his prior and current compliance with obligations imposed upon him by the Workers' Compensation Law and other laws which require premium or other payments by him on the basis of earnings and other remuneration earned by persons engaged in the furtherance of his enterprise or enterprises, statements of his prompt and complete reporting of accidents and claims, and such other factors as may be relevant to the appraisal of the insured or proposed insured as a risk in whole and in light of the accident and moral hazards involved. The failure to set forth any of such data shall go to the weight of the submission and, in an appropriate case, and in the exercise of discretion, such failure may be deemed a basis for rejection of the protest in toto.

(b) Upon receipt of such written protest and any accompanying documentation or statements, the executive director shall refer copies thereof to the chairman, to be designated by the executive director, of a three-member committee consisting of The State Insurance Fund's officers holding the following titles, or the immediate subordinate or designee of any such officer:

(1) The General Attorney;

(2) First Deputy Executive Director; and

(3) Director of Field Services.

(c) The chairman of such committee shall refer one copy of the insured's or prospective insured's protest and accompanying documents to the underwriting director of The State Insurance Fund, who shall himself or through the assistant underwriting director review the same in conjunction with pertinent State Fund files and documents and, within 10 business days, he shall advise the chairman in writing whether the differential as assigned should be continued, modified, or removed entirely, giving specific reasons for such recommendation. The original or copies of all documents upon which such recommendation is based shall be submitted to the chairman, who shall promptly make the same available for review by members of the committee, along with copies of the insured's or prospective insured's initial written protest.

(d) Within 10 business days after the submission, to the chairman, of the underwriting director's recommendations, the committee will meet, and on the basis of all papers and documents before them, after due deliberation, take either one of the following actions:

(1) in writing, confirm, modify, or entirely remove the differential originally assigned, or reject the submission as defective for reasons which shall be clearly specified; or

(2) in writing, request the insured or prospective insured either to furnish additional written information and/or to appear before the committee in person at a specified date, with such of the insured's or prospective insured's employees or independent professional assistants as the insured or prospective insured desires, to give additional or other information to the committee as might be specified. Within 10 days after such appearance, or within 10 days after the submission of any additional information or documentation called for by the committee, or within 10 days after the termination of any deadline specified by the committee for the submission of information, the committee shall in writing either confirm, modify, or entirely remove the differential originally assigned.

(e) Determinations by the committee shall take into account the factors mentioned in paragraph (a)(2) of this section and the candor and cooperation of the insured in disclosing to The State Insurance Fund all pertinent information relevant to the insured's business or operations.

(f) The concurrence of two or more members of the committee in the determination as to any issue before it shall be deemed the determination of the committee. Such determination shall be effective three business days following the filing of the written report thereof with the executive director and the underwriting director, provided that, within such three-day period, written notice thereof shall be given to the insured or prospective insured by regular mail.

(g) Such determination by the committee as to any such issue shall be the final determination of The State Insurance Fund and the rights of any insured or prospective insured to a further review of such determination shall be only by means of resort to judicial review, and to the extent permitted by article 78 of the Civil Practice Law and Rules.

(h)

(1) The procedures afforded insureds hereunder shall not be used as a device for delaying or avoiding payment of either deposit premiums or earned premiums. As a condition precedent to any insured seeking review of a differential assigned by the State Fund, such insured must have made full payment of any deposit and earned premiums billed, including payments for all periods of coverage prior to and subsequent to the period to which the protest relates.

(2) A challenge by an insured to a differential by the means herein specified will not be entertained if the insured is withholding payment to The State Insurance Fund of any deposit or earned premium billed or assessed. Nothing herein provided shall be deemed to prevent or stay the cancellation of a policy of insurance in case of a default in any payment required by an insured to be made to The State Insurance Fund.

(i) If any differential is either reduced or eliminated entirely by the committee, any premium payments which had been allocated to the differentials so reduced or eliminated shall be credited against any unpaid premium due to the State Fund by the insured or, if there be no such unpaid premium, the appropriate premium refund shall be made to the insured.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 452.2