Section 2339. Charging or receiving of rates; deviations

(a) This section
  shall apply only to kinds of insurance the rates for which  are  subject
  to  prior  approval  pursuant  to subsection (b) of section two thousand
  three hundred five of this article.
    (b) No member of or subscriber to a rate service organization, and  no
  insurer which makes and files its own rates, shall charge or receive any
  rate  which  deviates  from  the  rates,  rating plans, classifications,
  schedules, rules and standards made  and  filed  by  such  rate  service
  organization,  or  by  such  insurer,  as  the  case  may  be, which are
  applicable to any kind or type  of  business  done  by  such  member  or
  subscriber, or by such insurer, except as provided in this article.
    (c)  Any  insurer which is a member of or subscriber to a rate service
  organization may make written  application  to  the  superintendent  for
  permission  to  deviate from the rates, schedules, rating plans or rules
  filed on its behalf by the rate service  organization.  The  application
  shall  specify  the  basis for the modification and a copy shall also be
  sent simultaneously to such rate service  organization.  In  considering
  the  application  to deviate the superintendent shall give consideration
  to the available statistics  and  the  principles  for  rate  making  as
  provided  in section two thousand three hundred four of this article. If
  the superintendent finds the deviation to be justified, he shall approve
  it to be effective for a period to be fixed by him, but in no event  for
  a  period  of  less  than  one  year,  unless  sooner  terminated by the
  applicant with the permission of the  superintendent  or  unless  sooner
  withdrawn  or  appropriately  adjusted by an order of the superintendent
  made in  accordance  with  the  provisions  of  this  article  generally
  applicable  to  rate  filings.  If  the  superintendent  finds  that the
  deviation applied for does not meet the requirements of this article, he
  shall  send  to  the  applicant  written  notice  of  his   disapproval,
  specifying  in  what respects he finds it fails to meet the requirements
  of this article.  The  superintendent  shall  inform  the  rate  service
  organization of his action upon the deviation application.
    (d) (1) Notwithstanding any other provision of law, except as provided
  in  paragraph  three  of this subsection, the state insurance fund shall
  not charge an insured any rate, or receive from an insured any  rate  in
  excess  of  the  total  of  (i) the applicable loss cost approved by the
  superintendent, (ii) the  applicable  expense  component  of  the  state
  insurance fund and (iii) a fair and reasonable differential charge which
  takes  into  consideration  the  nature  and  hazards  of  the insured's
  business  or  operations,  the  insured's  prior  loss  experience,  the
  insured's  prior  and presently existing safety practices, the insured's
  prior premium payment history, the number of persons the insured employs
  in such business or operations  and  the  specific  type  of  work  they
  perform,  the  insured's  prior  and current compliance with obligations
  imposed upon the insured by the workers' compensation law and other laws
  which require premium or other payments by the insured on the  basis  of
  earnings  and  other  remuneration  earned  by  persons  engaged  in the
  furtherance of the insured's enterprise or enterprises,  the  promptness
  and  completeness  of such reports as the insured has filed on 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.
    (2)  A  differential  charge  applied by the state insurance fund to a
  workers' compensation and employer's liability insurance policy  may  be
  challenged  by  the  insured by an appeal to the superintendent after an
  exhaustion by the insured of all internal review procedures of the state
  insurance fund as established by rules adopted by the  commissioners  of
  the state insurance fund and filed with the secretary of state; provided
  that a writing setting forth the grounds upon which such appeal is based

  is  served  and  filed with the superintendent and with the secretary to
  the board of commissioners of the state  insurance  fund  within  thirty
  days after a final determination by the state insurance fund. Appeals to
  the  superintendent  shall  be determined upon papers and documents that
  were before the state insurance fund in  connection  with  the  internal
  review  procedures,  the  writing  setting  forth  the  grounds  of  the
  insured's appeal and any answer to  such  appeal  served  by  the  state
  insurance fund upon the insured and filed with the superintendent within
  thirty days after the service of the insured's notice.
    (3) The provisions of this section shall not apply to a policy sold by
  the  state  insurance fund under article six-G of the executive law. The
  rate which the state insurance fund may charge under such article  shall
  be governed only by such regulations or guidelines as the superintendent
  may issue.