Legal History of No-Fault Regulation 68
Department of Insurance Regulation 68, which implemented New York's No-Fault law, was first promulgated in 1974. A new revised Regulation 68 was filed August 2, 2001 with the Department of State and published in the State Register on August 22, 2001. By its terms, (new) Regulation 68 was to be effective as of September 1, 2001. The revised Regulation was divided into four different regulations that addressed four separate regulated aspects of the No-Fault reparations system (Prescribed Policy Endorsements, Rights and Liabilities of Self-Insurers, Claims for Personal Injury Protection Benefits and Arbitration).
On August 29, 2001, various plaintiffs filed a lawsuit in the New York State Supreme Court seeking a stay of enforcement of the revised regulation and challenging the authority of the Superintendent to promulgate the regulation. A temporary stay preventing the Department from implementing the revised regulation was issued on August 31, 2001.
Accordingly, from August 29, 2001 to April 4, 2002 (the period of the temporary stay) the prior version of Regulation 68 remained in effect, as modified by the emergency twenty-fourth amendment (which was filed and effective on September 18, 2001 and remained in effect on an emergency basis through April 4, 2002) and the emergency twenty-fifth amendment (which was filed and effective on December 31, 2001 and remained in effect on an emergency basis through April 4, 2002). These two amendments provided essential reforms to the No-Fault arbitration process; some of which took effect immediately and others took effect on March 1, 2002.
On February 19, 2002, Supreme Court Justice William Wetzel issued a decision upholding the State Insurance Department's promulgation of the revised Regulation 68 and denying a request that it be overturned. On April 4, 2002, the Appellate Division, First Department, unanimously denied petitioners’ motion seeking injunctive relief pending appeal of Justice Wetzel’s decision upholding the Department’s promulgation of revised Regulation 68 and also vacated the interim stay in effect against implementation of the revised regulation.
As a result of this decision, revised Regulation 68 (the Regulation as promulgated in August 2001 to be effective on September 1, 2001) was effective as of April 5, 2002.
On April 11, 2002 the Department promulgated, on an emergency basis, the First Amendment to Regulation No. 68-C (11 NYCRR 65) and the First Amendment to Regulation No. 68-D (11 NYCRR 65). These two emergency regulations amended the provisions of the revised Regulation 68 to conform it with the 25th Amendment to the old Regulation, and were finally adopted on April 5, 2003.
The Appellate Division, First Department, affirmed the decision of Acting Justice Wetzel, Matter of Medical Society of the State of New York, et al., Appellants, v. Gregory Serio, &c., et al , Respondents, N.Y. App. Div. 1st Dep't, Oct. 22, 2002). The Court of Appeals ultimately upheld the decision of the First Department and affirmed the promulgation of the revised amendment, 2003 N.Y. LEXIS 3314 (Court of Appeals decision dated October 21, 2003 (PDF)).
Subsequently, the Department promulgated both the Second and Third Amendments to Regulation 68-D (11NYCRR65) to take effect on February 4, 2004, updating section references and clarifying arbitrator disqualification procedural rule.
On April 30, 2004 the Department promulgated the Second Amendment to Regulation 68-C which resulted in the repeal and re-issuance of Appendix 13 to Regulation 68, which contains a complete set of the prescribed No-Fault claim forms.
On August 31, 2006 the Department promulgated, on an emergency basis, the Third Amendment to Regulation No. 68-C (11 NYCRR 65) and the Fourth Amendment to Regulation No. 68-D (11 NYCRR 65). These two amendments to Regulation 68 were finally adopted effective March 14, 2007, requiring insurers to issue no-fault denials with specific wording so that the applicants will be aware that they can apply for special expedited arbitration to resolve the issue of which eligible insurer is designated for first party benefits, and providing the procedures for administration of the special expedited arbitration for disputes regarding the designation of the insurer for first part benefits.
On April 26, 2011 the Department promulgated the First Amendment to Regulation 68-A and the First Amendment to Regulation 68-B implementing the amendment to section 5103(b)(2) of the New York Insurance Law (effective January 26, 2011) providing limited no-fault coverage to an applicant while intoxicated.
On April 1, 2013 the Fourth Amendment to Regulation 68-C became effective and established a new 120 calendar day time frame for an applicant to respond to a verification request from a no-fault insurer, and also established a rule to prevent an applicant from receiving reimbursement in excess of the fee schedules or for services not rendered due to a late denial by the insurer.
On June 1, 2013 the Fifth Amendment to Regulation 68-C (Consensus Amendment) became effective and resulted in the repeal and re-issuance of an updated prescribed No-Fault Denial of Claim Form (NYS Form NF-10) to Appendix 13.
On August 1, 2013 the consolidated amendment to multiple parts of 11 NYCRR took effect and resulted in the Second Amendment to Regulation 68-A, the Sixth Amendment to Regulation 68-C, the Fifth Amendment to Regulation 68-D, and the repeal and re-issuance of prescribed forms NF-1A, NF-1B, NF-4 and NF-5 of Appendix 13. The consolidated amendment revised references that were outdated as a result of the consolidation of the New York State Insurance and Banking Departments into a new Department of Financial Services.
On November 13, 2013, the final adoption of new subpart 65-5 (Insurance Regulation 68-E) took effect. The new subpart establishes standards and procedures for investigating and suspending or removing the authorization for providers of health services to demand or request payment upon findings of certain unlawful conduct reached after investigation, notice, and a hearing pursuant to 5109 of the NYIL.
On February 4, 2015, the Sixth Amendment to Regulation 68-D took effect revising the structure of fees that are awarded to attorneys who prevail in no-fault disputes on behalf of applicants - (1) eliminates the $60 minimum attorney’s fee; (2) eliminates the $60-or-$80 attorney-fee limit that applies during the conciliation phase of the arbitration process; and (3) increases the maximum fee to be awarded to an attorney who prevails in court or at arbitration to $1,360.
On January 10, 2017, the Seventh Amendment to Regulation 68-C took effect, resulting in the repeal and re-issuance of prescribed NYS Form NF-10 (Rev 1/2017) of Appendix 13. This amendment updates the address for the Department’s Nassau County Consumer Assistance Unit office.
On October 25, 2017, the final adoption of the Third Amendment to Regulation No. 68-A (11 NYCRR 65-1), the Eighth Amendment to Regulation No. 68-C (11 NYCRR 65-3), and the Seventh Amendment to Regulation 68-D (11 NYCRR 65-4) previously promulgated on an emergency basis took effect establishing the standards and procedures for providing coverage with respect to Transportation Network Companies (Ride Sharing) pursuant to Part AAA of Chapter 59 of the Laws of 2017 effective June 29, 2017.
Currently, Regulation 68 is divided into five different subparts with each addressing a separate regulated aspect of the No-Fault reparations system as follows: Regulation 68-A - Prescribed Policy Endorsements; Regulation 68-B - Rights and Liabilities of Self Insurers; Regulation 68-C - Claims for Personal Injury Protection Benefits; Regulation 68-D - No-Fault Arbitration; and Regulation 68-E - Unauthorized Providers of Health Services.