As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2017, which is no later than the 3rd year after the year in which this rule is being adopted.

The New York State Department of Financial Services (“Department”) received comments from an organization that represents the New York family planning provider network (“family planning organization”), an organization that represents people living with HIV/AIDS (“HIV organization”), an organization that works to defend constitutional rights (“civil liberties organization”), a trade organization that represents property/casualty insurers (“property/casualty trade organization”), and an organization that represents United States insurers (“insurer trade organization”), in response to its publication of the proposed rule in the New York State Register.

Comments on specific parts of the proposed rule are discussed below.

11 NYCRR 244.2 (“Definitions”)

Comment

The family planning organization, HIV organization, and civil liberties organization commented that the Department should expand the rule to apply to more than just domestic violence by defining “endanger” to encompass concerns that an insured individual’s privacy or confidentiality could be compromised if he or she did not receive communications and claim-related information at an alternate address. These organizations also commented that the Department should amend the definition of “requestor” to include a minor who is able to consent or has consented to health care services under the law.

Department’s Response

The Department believes that these comments are beyond the limited scope of the proposed rule. Therefore, the Department did not make any changes to the rule to address these comments.

11 NYCRR 244.3 (“Delivers”)

Comment

The insurer trade organization stated that consistent with statutory law, this section requires that the victim deliver to the insurer’s home office a valid order of protection issued by a court of competent jurisdiction in New York, and recommended clarifying that “deliver” does not require physical delivery to the insurer’s home office.

Department’s Response

This term comes directly from the statute. To effectuate the intent and goals of the statute, the Department construes the term broadly to mean delivery to the insurer by any means, including mail, email, or otherwise. Accordingly, the Department did not make any changes to the rule to address this comment.

11 NYCRR 244.3(a) (“Covered Services”)

Comment

The property/casualty trade organization and insurer trade organization noted that this provision requires insurers to keep certain information confidential for “a person providing covered services to the victim”, and commented that there is confusion as to what this might mean in the property/casualty insurance context. The organization suggested that the Department add clarifying language if this provision is not intended to apply to property/casualty insurers.

Department’s Response

The Department construes this to mean any benefit or service provided under the policy to the victim. For example, this could be information about a medical provider under a no-fault or workers’ compensation claim or the name and address of a body shop under an automobile claim. Accordingly, the Department did not make any changes to the rule to address this comment.

11 NYCRR 244.3(c) and (d) (“Contractor Notification”)

Comment

The insurer trade organization commented that the broad scope of these subdivisions was extremely troublesome because insurers contract with numerous vendors and many of these vendors are not in a position be to be able divulge any of the victim’s information or to change the address of the victim. The organization recommended revising these subdivisions to limit their applicability solely to employees and draft a new section that clearly outlines the responsibilities of and expectations for insurance producers.

Department’s Response

The Department revised a prior version of the emergency rule and the proposed rule to address this comment by adding language that makes it clear that the subdivisions apply to employees, agents, representatives, or persons who have or may have access to the information sought to be kept confidential.

11 NYCRR 244.3(c)(4) (“Personal Identifiers”)

Comment

The insurer trade organization noted that this paragraph requires an insurer’s written procedures to include the procedure for limiting or removing personal identifiers before information is used or disclosed, and commented that it is unclear what would constitute “limiting or removing personal identifiers.”

Department’s Response

The Department thinks that it is clear that limiting or removing personal identifiers means limiting or removing, such as by redacting, any information that could identify the victim or covered individual. Therefore, the Department did not make any changes to the rule to address this comment.

11 NYCRR 244.3(h) (“Hampering this Rule”)

Comment

The insurer trade organization noted that the rule contained language stating that an insurer or any person subject to the Insurance Law may not engage in any practice that would prevent or hamper the orderly working of the rule in accomplishing its intended purpose of protecting victims of domestic violence and covered individuals. The organization commented that it is unclear how a person would prevent or hamper the orderly working of the rule.

Department’s Response

The Department deleted this language in a prior version of the emergency rule and the proposed rule and relettered section 244.3 of the rule.

11 NYCRR 244.4 (“Notice”)

Comment

The insurer trade organization suggested that the Department amend the rule to require that an insurer include a simple disclosure on the “contact us” or privacy page of the insurer’s website rather than on the homepage of the insurer’s website.

Department’s Response

The rule requires an insurer to post on its website certain information. It does not require that information be posted on homepage of the insurer’s website. Therefore, the Department did not make any changes to the rule to address this comment.

Applicability to Property/Casualty Insurers

Comment

The property/casualty trade organization commented that there are a number of areas throughout the rule in which it is unclear whether the language applies to property/casualty insurers, and gave the example of where the rule refers to a “victim or covered individual.” The organization suggested that clarifying the rule’s applicability would reduce confusion and facilitate compliance.

Department’s Response

When the rule applies to all insurers, including property/casualty insurers, the rule uses the term “insurer” as defined in Insurance Law section 2612(c)(2). When the rule applies to just a health insurer, the rule uses that term (which Insurance Law section 2612(h)(1)(B) defines). In addition, the rule clearly defines “covered individual” as applying to an individual covered under a policy issued by a health insurer only. The rule also defines “victim” as having the meaning set forth in Social Services Law section 459-a(1), which applies generally and does not distinguish between kinds of insurance. Therefore, the Department did not make any changes to the rule to address this comment.

Comment

The insurer trade organization commented that the legislative history of Insurance Law section 2612 indicates a clear focus on medical information and health insurers and therefore, the rule should not apply to property/casualty insurance. The organization also suggested that if the rule applies to property/casualty insurance, then it should exclude certain commercial lines policies.

Department’s Response

Insurance Law section 2612(c)(2) defines “insurer” as an insurer, an Insurance Law Article 43 corporation, a municipal cooperative health benefit plan, a health maintenance organization, a provider issued a special certificate of authority pursuant to the Public Health Law, or an agent, representative, or designee thereof regulated pursuant to the Insurance Law. This definition is not limited to health insurers or personal lines insurance.

This rule merely implements Insurance Law section 2612 and cannot narrow its applicability. Therefore, the Department did not make any changes to the rule to address these comments. Moreover, medical information is often involved in property/casualty policies, such as under no-fault or workers’ compensation insurance, and is not limited to strictly health insurance or personal lines.

Alternate Contact Information

Comment

The insurer trade organization commented that it cannot find any statutory requirement that property/casualty insurers establish a procedure to accept an alternate address for domestic violence victims. However, the organization stated that it would be willing to have the rule establish an alternate contact information requirement for property/casualty medical claims payments to such victims.

Department’s Response

The requirement is implicit in the law. Insurance Law section 2612(f) and (g) state that if a person covered under an insurance policy delivers to an insurer an order of protection against the policyholder or another person covered under the policy, then the insurer may not disclose to the policyholder or other covered person the address or telephone number of the victim or of any person providing covered services to the victim. This language presumes that the victim already is using an alternate address or telephone number otherwise there would be no reason to keep it confidential from the policyholder or other covered person. Therefore, the Department did not make any changes to the rule to address this comment. Nor is there any basis in the law to limit the rule to medical claims.

Joint Policy Confidentiality

Comment

The property/casualty trade organization commented that it will be difficult, and in some cases potentially impossible, to keep information confidential where the victim and the person against whom the order of protection is issued on are on the same policy, such as in the homeowners’ insurance context where there is joint ownership of a home.

Department’s Response

As a preliminary matter, Insurance Law section 2612 requires an insurer to keep confidential certain information if the insurer receives an order of protection from an insured or other person covered under the insurance policy. This rule merely implements the legislative mandate that insurers must have confidentiality protocols in place. The association did not explain why it would be difficult or impossible to keep the victim’s address and telephone number confidential from another person covered under the policy. Therefore, the Department did not make any changes to the rule to address this comment.