The Oregon Administrative Rules contain OARs filed through November 15, 2015
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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
INSURANCE DIVISION
DIVISION 80
TRADE PRACTICES
Replacement of Life Insurance and Annuities
836-080-0001
Statutory Authority; Purpose; Applicability
(1) OAR 836-080-0001 to 836-080-0043 are adopted pursuant to the general rulemaking authority of the Director of the Department of Consumer and Business Services in ORS 731.244 and the specific authority in ORS 746.085(1), for the purpose of implementing ORS 746.085 and 746.240.
(2) The purpose of OAR 836-080-0001 to 836-080-0043 is to protect the insurance-buying public in insurance transactions involving the replacement of life insurance or annuities by:
(a) Regulating the activities of insurers and insurance producers with respect to the replacement of existing life insurance and annuities.
(b) Protecting the interests of life insurance and annuity purchasers by establishing minimum standards of conduct to be observed in replacement or financed purchase transactions. OAR 836-080-0001 to 836-080-0043 are intended to:
(A) Assure that a purchaser receives information with which a decision can be made in the purchaser's own best interest;
(B) Reduce the opportunity for misrepresentation and incomplete disclosure; and
(C) Establish penalties for failure to comply with requirements of OAR 836-080-0001 to 836-080-0043.
(3) In OAR 836-080-0001 to 836-080-0043 and the appendices thereto, for purposes of consistency with the Life Insurance and Annuities Replacement Model Regulation of the National Association of Insurance Commissioners dated July 2000, an annuity is referred to as a contract and a life insurance policy is referred to as a policy, and they are subject to OAR 836-080-0001 to 836-080-0043 on the basis of that terminology.
(4) Unless otherwise specifically included, OAR 836-080-0001 to 836-080-0043 do not apply to transactions involving:
(a) Credit life insurance;
(b) Group life insurance or group annuities, when there is no direct solicitation of individuals by an insurance producer. Direct solicitation does not include any group meeting held by an insurance producer solely for the purpose of educating or enrolling individuals or, when initiated by an individual member of the group, assisting with the selection of investment options offered by a single insurer in connection with enrolling that individual. Group life insurance or group annuity certificates marketed through direct response solicitation are subject to the provisions of OAR 836-080-0039;
(c) An application to the existing insurer that issued the existing policy or contract when a contractual change or a conversion privilege is being exercised; or, when the existing policy or contract is being replaced by the same insurer pursuant to a program filed with and approved by the Director;
(d) Proposed life insurance that is to replace life insurance under a binding or conditional receipt issued by the same insurer;
(e)(A) Policies or contracts used to fund any of the following:
(i) An employee pension or welfare benefit plan that is covered by the Employee Retirement and Income Security Act (ERISA);
(ii) A plan described by Section 401(a), 401(k) or 403(b) of the Internal Revenue Code, when the plan, for purposes of ERISA, is established or maintained by an employer;
(iii) A governmental or church plan defined in Section 414 of the Internal Revenue Code, a governmental or church welfare benefit plan, or a deferred compensation plan of a state or local government or tax exempt organization under Section 457 of the Internal Revenue Code; or
(iv) A nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor.
(B) Notwithstanding paragraph (A) of this subsection, OAR 836-080-0001 to 836-080-0043 apply to policies or contracts used to fund any plan or arrangement that is funded solely by contributions an employee elects to make, whether on a pre-tax or after-tax basis, and when the insurer has been notified that plan participants may choose from among two or more insurers and there is a direct solicitation of an individual employee by an insurance producer for the purchase of a contract or policy. As used in this subsection, direct solicitation does not include any group meeting held by an insurance producer solely for the purpose of educating individuals about the plan or arrangement or enrolling individuals in the plan or arrangement or, when initiated by an individual employee, assisting with the selection of investment options offered by a single insurer in connection with enrolling that individual employee;
(f) When new coverage is provided under a life insurance policy or contract and the cost is borne wholly by the insured's employer or by an association of which the insured is a member;
(g) Existing life insurance that is a non-convertible term life insurance policy that will expire in five years or less and cannot be renewed;
(h) Immediate annuities that are purchased with proceeds from an existing contract. Immediate annuities purchased with proceeds from an existing policy are not exempted from the requirements of OAR 836-080-0001 to 836-080-0043; or
(i) Structured settlements.
(5) Registered contracts are exempt from the requirements of OAR 836-080-0029(1)(b) and 836-080-0034(2) with respect to the provision of illustrations or policy summaries, but premium or contract contribution amounts and identification of the appropriate prospectus or offering circular shall be required instead.
Stat. Auth.: ORS 731.244 & 746.085
Stats. Implemented: ORS 746.085 & 746.240
Hist.: IC 8-1984, f. 10-26-84, ef. 12-1-84; ID 5-2001, f. 4-16-01, cert. ef. 11-1-01; ID 8-2005, f. 5-18-05, cert. ef. 8-1-05
836-080-0005
Definitions
(1) "Direct-response solicitation" means a solicitation through a sponsoring or endorsing entity or individually solely through mails, telephone, the Internet or other mass communication media.
(2) "Existing insurer" means the insurer whose policy or contract is or will be changed or affected in a manner described within the definition of "replacement".
(3) "Existing policy" means an individual life insurance policy or annuity policy in force, including a policy under a binding or conditional receipt or a policy that is within an unconditional refund period.
(4) "Financed purchase" means the purchase of a new policy involving the actual or intended use of funds obtained by the withdrawal or surrender of, or by borrowing from values of an existing policy to pay all or part of any premium due on the new policy. For purposes of a regulatory review of an individual transaction only, if a withdrawal, surrender or borrowing involving the policy values of an existing policy is used to pay premiums on a new policy owned by the same policyholder and issued by the same insurer within four months before or 13 months after the effective date of the new policy, it will be deemed prima facie evidence of the policyholder's intent to finance the purchase of the new policy with existing policy values. This prima facie standard is not intended to increase or decrease the monitoring obligations contained in OAR 836-080-0022(1)(e).
(5) "Illustration" means a presentation or depiction that includes non-guaranteed elements of a policy of life insurance over a period of years as defined in OAR 836-051-0500 to 836-051-0600.
(6) "Policy summary" has the following meanings:
(a) For policies or contracts other than universal life policies, the term means a written statement regarding a policy or contract that shall contain to the extent applicable, but need not be limited to, the following information: current death benefit; annual contract premium; current cash surrender value; current dividend; application of current dividend; and amount of outstanding loan.
(b) For universal life policies, the term means a written statement that shall contain at least the following information: the beginning and end date of the current report period; the policy value at the end of the previous report period and at the end of the current report period; the total amounts that have been credited or debited to the policy value during the current report period, identifying each by type (e.g., interest, mortality, expense and riders); the current death benefit at the end of the current report period on each life covered by the policy; the net cash surrender value of the policy as of the end of the current report period; and the amount of outstanding loans, if any, as of the end of the current report period.
(7) "Registered Contract" means a variable annuity contract or variable life insurance policy subject to the prospectus delivery requirements of the Securities Act of 1933.
(8) "Replacement" means a transaction in which a new policy or contract is to be purchased, and it is known or should be known to the proposing insurance producer, or to the proposing insurer if there is no insurance producer, that by reason of the transaction, an existing policy or contract has been or is to be:
(a) Lapsed, forfeited, surrendered or partially surrendered, assigned to the replacing insurer or otherwise terminated;
(b) Converted to reduced paid-up insurance, continued as extended term insurance, or otherwise reduced in value by the use of nonforfeiture benefits or other policy values;
(c) Amended so as to effect either a reduction in benefits or in the term for which coverage would otherwise remain in force or for which benefits would be paid;
(d) Reissued with any reduction in cash value; or
(e) Used in a financed purchase.
(9) "Replacing Insurer" means the insurer that issues or proposes to issue a new policy or contract that replaces an existing policy or contract or that is a financed purchase.
(10) "Sales material" means a sales illustration and any other written, printed or electronically presented information created, or completed or provided by the insurer or insurance producer and used in the presentation to the policyholder or contract owner related to the policy or contract purchased.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.085
Hist.: IC 39, f. 12-4-67, ef. 3-1-68; IC 8-1984, f. 10-26-84, ef. 12-1-84; ID 5-2001, f. 4-16-01, cert. ef. 11-1-01; ID 8-2005, f. 5-18-05, cert. ef. 8-1-05
836-080-0014
Duties of Agent
(1) An insurance producer who initiates an application shall submit to the insurer, with or as part of the application, a statement signed by both the applicant and the insurance producer as to whether the applicant has existing policies or contracts and, at the option of the insurer, as to whether the applicant is replacing any of the existing policies or contracts. If the first question is asked alone and the answer is "no," or if both questions are asked and the answer to the optional question is "no," the insurance producer's duties with respect to replacement are complete, except as provided in section (2) of this section.
(2) If the applicant answered "yes" to the question whether the applicant has existing coverage referred to in section (1) of this rule, and the question is asked alone, or if both questions are asked and the answer is "yes" to both, the insurance producer shall present and read to the applicant, not later than at the time of taking the application, a notice regarding replacements in the form as described in Appendix A to this rule or other substantially similar form approved by the Director. Approval is not required, however, when amendments to the notice are limited to the omission of references not applicable to the product being sold or replaced. The notice shall be signed by both the applicant and the insurance producer attesting that the notice has been read aloud by the insurance producer or that the applicant did not wish the notice to be read aloud (in which case the insurance producer need not have read the notice aloud) and left with the applicant.
(3) The notice under section (2) of this rule shall list all life insurance policies or annuities proposed to be replaced, properly identified by name of insurer, the insured or annuitant, and policy or contract number if available; and shall include a statement as to whether each policy or contract will be replaced or whether a policy will be used as a source of financing for the new policy or contract. If a policy or contract number has not been issued by the existing insurer, alternative identification, such as an application or receipt number, shall be listed.
(4) In connection with a replacement transaction an insurance producer shall leave with the applicant at the time an application for a new policy or contract is completed the original or a copy of all sales material. Electronically presented sales material shall be provided to the policy or contract owner in printed form not later than at the time of policy or contract delivery.
(5) Except as provided in OAR 836-080-0029(3), in connection with a replacement transaction an insurance producer shall submit to the insurer to which an application for a policy or contract is presented, a copy of each document required by this rule, a statement identifying any preprinted or electronically presented insurer-approved sales materials used, and copies of any individualized sales materials, including any illustrations related to the specific policy or contract purchased.
[ED. NOTE: Appendices referenced are available from the agency.]
Stat. Auth.: ORS 731.244 & 746.085
Stats. Implemented: ORS 746.085 & 746.240
Hist.: ID 5-2001, f. 4-16-01, cert. ef. 11-1-01; ID 8-2005, f. 5-18-05, cert. ef. 8-1-05
836-080-0022
Duties of Insurers that Use Agents Insurance Producers
Each insurer that uses an insurance producer shall:
(1) Maintain a system of supervision and control to insure compliance with the requirements of OAR 836-080-0001 to 836-080-0043. The system shall do at least the following:
(a) Inform its insurance producers of the requirements of OAR 836-080-0001 to 836-080-0043 and incorporate the requirements of 836-080-0001 to 836-080-0043 into all relevant insurance producer training manuals prepared by the insurer;
(b) Provide to each insurance producer a written statement of the insurer's position with respect to the acceptability of replacements, providing guidance to its insurance producer as to the appropriateness of these transactions;
(c) Include a system for reviewing the appropriateness of each replacement transaction that the insurance producer does not indicate is in accord with subsection (b) of this section;
(d) Include procedures that confirm the requirements of OAR 836-080-0001 to 836-080-0043 have been met; and
(e) Include procedures to detect transactions that are replacements of existing policies or contracts by the existing insurer, but that have not been reported as such by the applicant or insurance producer. Compliance with OAR 836-080-0001 to 836-080-0043 may include, but shall not be limited to, systematic customer surveys, interviews, confirmation letters or programs of internal monitoring;
(2) Have the capacity to monitor each insurance producer's life insurance policy and annuity contract replacements for that insurer, and shall produce, upon request, such records for and make such records available to, the Director. The capacity to monitor shall include the ability to produce records for the following with respect to each insurance producer:
(a) Life replacements, including financed purchases, as a percentage of the insurance producer's total annual sales for life insurance;
(b) Number of lapses of policies by the insurance producer as a percentage of the agent's total annual sales for life insurance;
(c) Annuity contract replacements as a percentage of the insurance producer's total annual annuity contract sales;
(d) Number of transactions that are unreported replacements of existing policies or contracts by the existing insurer detected by the insurer's monitoring system as required by subsection (1)(e) of this section; and
(e) Replacements, indexed by replacing insurance producer and existing insurer;
(3) Require with or as a part of each application for life insurance or an annuity a signed statement by both the applicant and the insurance producer as to whether the applicant has existing policies or contracts;
(4) Require with each application for life insurance or an annuity that indicates an existing policy or contract a completed notice regarding replacements as contained in Appendix A to this rule, unless the notice is not required under OAR 836-080-0014(1) and (2);
(5) When the applicant has existing policies or contracts, be able to produce copies of any sales material required by OAR 836-080-0014(5), the basic illustration and any supplemental illustrations related to the specific policy or contract that is purchased, and the insurance producer's and applicant's signed statements with respect to financing and replacement for at least five years after the termination or expiration of the proposed policy or contract;
(6) Ascertain that the sales material and illustrations required by OAR 836-080-0014(5) meet the requirements of 836-080-0001 to 836-080-0043 and are complete and accurate for the proposed policy or contract;
(7) If an application does not meet the requirements of OAR 836-080-0001 to 836-080-0043, notify the insurance producer and applicant and fulfill the outstanding requirements; and
(8) Maintain records in paper, photograph, microprocess, magnetic, mechanical or electronic media or by any process that accurately reproduces the actual document.
[ED. NOTE: Appendices referenced are available from the agency.]
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.085 & 746.240
Hist.: IC 8-1984, f. 10-26-84, ef. 12-1-84; ID 5-2001, f. 4-16-01, cert. ef. 11-1-01; ID 8-2005, f. 5-18-05, cert. ef. 8-1-05; ID 19-2006, f. & cert. ef. 9-26-06
836-080-0029
Duties of Replacing Insurers that Use Agents
(1) When a replacement is involved in the transaction, the replacing insurer shall:
(a) Verify that the required forms are received and are in compliance with OAR 836-080-0001 to 836-080-0043;
(b) Notify any other existing insurer that may be affected by the proposed replacement within five business days of receipt of a completed application indicating replacement or when the replacement is identified if not indicated on the application, and mail a copy of the available illustration or policy summary for the proposed policy or available disclosure document for the proposed contract within five business days of a request from an existing insurer;
(c) Be able to produce copies of the notification regarding replacement required in OAR 836-080-0014(2), indexed by insurance producer, for at least five years or until the next regular examination by the insurance department of the insurer's state of domicile, whichever is later; and
(d) Provide to the policyholder or contract owner notice of the right to return the policy or contract within 30 days of the delivery of the policy or contract and receive an unconditional full refund of all premiums or considerations paid on it, including any policy fees or charges or, in the case of a variable or market value adjustment policy or contract, a payment of the cash surrender value provided under the policy or contract plus the fees and other charges deducted from the gross premiums or considerations or imposed under such policy or contract. Notice required in this subsection may be included in Appendix A or C to this rule.
(2) In a transaction in which the replacing insurer and the existing insurer are the same or are subsidiaries or affiliates under common ownership or control, the replacing insurer shall allow credit for the period of time that has elapsed under the replaced policy's or contract's incontestability and suicide period up to the face amount of the existing policy or contract. With regard to a financed purchase the credit may be limited to the amount the face amount of the existing policy is reduced by the use of existing policy values to fund the new policy or contract.
(3) If an insurer prohibits the use of sales material other than that approved by the insurer, as an alternative to the requirements made of an insurer pursuant to OAR 836-080-0014(5), the insurer may:
(a) Require with each application a statement signed by the insurance producer that:
(A) Represents that the insurance producer used only insurer-approved sales material;
(B) States that copies of all sales material were left with the applicant in accordance with OAR 836-080-0014(4); and
(b) Within ten days of the issuance of the policy or contract:
(A) Notify the applicant by sending a letter or by verbal communication with the applicant by a person whose duties are separate from the marketing area of the insurer, that the insurance producer has represented that copies of all sales material have been left with the applicant in accordance with OAR 836-080-0014(4);
(B) Provide the applicant with a toll-free number to contact insurer personnel involved in the compliance function if the insurer cannot give the applicant the notice required in paragraph (A) of this subsection; and
(C) Stress the importance of retaining copies of the sales material for future reference.
(4) An insurer to whom section (3) of this rule applies shall maintain the ability to produce from the policy file a copy of the letter or other verification sent to an applicant under section (3) of this rule for at least five years after the termination or expiration of the policy or contract.
[ED. NOTE: Appendices referenced are available from the agency.]
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.085 & 746.240
Hist.: ID 5-2001, f. 4-16-01, cert. ef. 11-1-01; ID 8-2005, f. 5-18-05, cert. ef. 8-1-05
836-080-0034
Duties of the Existing Insurer
When a replacement is involved in a transaction, the existing insurer shall:
(1) Retain and be able to produce all replacement notifications received, indexed by replacing insurer, for at least five years or until the conclusion of the next regular examination conducted by the Insurance Department of its state of domicile, whichever is later.
(2) Send a letter to the policyholder or contract owner of the right to receive information regarding the existing policy or contract values including, if available, an in force illustration or policy summary if an in force illustration cannot be produced within five business days of receipt of a notice that an existing policy or contract is being replaced. The information shall be provided within five business days of receipt of the request from the policy or contract owner.
(3) Upon receipt of a request to borrow, surrender or withdraw any policy values, send a notice advising the policyholder that the release of policy values may affect the guaranteed elements, non-guaranteed elements, face amount or surrender value of the policy from which the values are released. The notice shall be sent separate from the check if the check is sent to anyone other than the policyholder. In the case of consecutive automatic premium loans, the insurer is required to send the notice only at the time of the first loan.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.085 & ORS 746.240
Hist.: ID 5-2001, f. 4-16-01, cert. ef. 11-1-01
836-080-0039
Duties of Insurers with Respect to Direct Response Solicitations
(1) In the case of an application that is initiated as a result of a direct response solicitation, the insurer shall require, with or as part of each completed application for a policy or contract, a statement asking whether the applicant, by applying for the proposed policy or contract, intends to replace, discontinue or change an existing policy or contract. If the applicant indicates a replacement or change is not intended or if the applicant fails to respond to the statement, the insurer shall send the applicant, with the policy or contract, a notice regarding replacement in Appendix B to this rule, or other substantially similar form approved by the Director.
(2) If the insurer has proposed the replacement or if the applicant indicates a replacement is intended and the insurer continues with the replacement, the insurer shall:
(a) Provide to the applicant or prospective applicant with the policy or contract a notice, as described in Appendix C to this rule, or other substantially similar form approved by the Director. In these instances the insurer may delete the references to the insurance producer, including the insurance producer's signature, and references not applicable to the product being sold or replaced, without having to obtain approval of the form from the Director. The insurer's obligation to obtain the applicant's signature shall be satisfied if it can demonstrate that it has made a diligent effort to secure a signed copy of the notice referred to in this subsection. The requirement to make a diligent effort shall be deemed satisfied if the insurer includes in the mailing a self-addressed postage prepaid envelope with instructions for the return of the signed notice referred to in this section; and
(b) Comply with the requirements of OAR 836-080-0029(1)(b), if the applicant furnishes the names of the existing insurers, and the requirements of OAR 836-080-0029(1)(c) and (d), and (2).
[ED. NOTE: Appendices referenced are available from the agency.]
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.085 & 746.240
Hist.: ID 5-2001, f. 4-16-01, cert. ef. 11-1-01; ID 8-2005, f. 5-18-05, cert. ef. 8-1-05
836-080-0043
Violations and Penalties
(1) Any failure to comply with OAR 836-080-0001 to 836-080-0043 shall be considered an unfair trade practice for purposes of ORS 746.240. Examples of violations include:
(a) Any deceptive or misleading information set forth in sales material;
(b) Failing to ask the applicant in completing the application the pertinent questions regarding the possibility of financing or replacement;
(c) The intentional incorrect recording of an answer;
(d) Advising an applicant to respond negatively to any question regarding replacement in order to prevent notice to the existing insurer; or
(e) Advising a policyholder or contract owner to write directly to the insurer in such a way as to attempt to obscure the identity of the replacing insurance producer or insurer.
(2) Policyholders and contract owners have the right to replace existing life insurance policies or annuity contracts after indicating in or as a part of applications for new coverage that replacement is not their intention; however, patterns of such action by policyholders or contract owners of the same insurance producer shall be deemed prima facie evidence of the insurance producer's knowledge that replacement was intended in connection with the identified transactions, and these patterns of action shall be deemed prima facie evidence of the insurance producer's intent to violate OAR 836-080-0001 to 836-080-0043.
(3) When it is determined that the requirements of OAR 836-080-0001 to 836-080-0043 have not been met, the replacing insurer shall provide to the policyholder or contract owner an in force illustration if available or policy summary for the replacement policy or available disclosure document for the replacement contract and the appropriate notice regarding replacements in Appendix A or C to this rule.
[ED. NOTE: Appendices referenced are available from the agency.]
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.085 & 746.240
Hist.: ID 5-2001, f. 4-16-01, cert. ef. 11-1-01; ID 8-2005, f. 5-18-05, cert. ef. 8-1-05
Unfair Discrimination Based on Sex, Sexual Orientation or Marital Status
836-080-0050
Authority; Purpose and Scope
OAR 836-080-0055 is issued under ORS
743.731 and the general rulemaking authority of the Director of the Department of
Consumer and Business Services set forth in ORS 731.244(2). The purpose of OAR 836-080-0055
is to identify particular insurance practices involving distinctions based on sexual
orientation and distinctions between men and women or between married and unmarried
individuals that constitute unfair discrimination in violation of ORS 746.015.
Stat. Auth.: ORS 731
Stats. Implemented: ORS 746.015(1)
Hist.: IC 61, f. 12-2-74,
ef. 1-1-75; ID 12-2013, f. 12-31-13, cert. ef. 1-1-14
836-080-0055
Unfair Discrimination Identified
Distinctions based on sex, sexual orientation
or marital status made in the following matters constitute unfair discrimination:
(1) The availability of a particular
insurance policy.
(2) The availability of a particular
amount of insurance or set of coverage delimiting factors.
(3) The availability of a particular
policy coverage or type of benefit, except for those relating to physical characteristics
unique to one sex.
(4) The premium for a particular
insurance policy other than an individual or small group health benefit plan, unless
the distinction is demonstrably based on reasonable supporting data.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.015(1)
Hist.: IC 61, f. 12-2-74,
ef. 1-1-75; ID 12-2013, f. 12-31-13, cert. ef. 1-1-14
Payment of Health Insurance Claims (Sampling Method)
836-080-0080
Definition, Claims Handling Services; Claims Procedures and Information
(1) As used in ORS 743.911 and 743.913:
(a) "Clean claim" means a
claim under a health benefit plan that has no defect, impropriety, lack of any required
substantiating documentation or particular circumstance requiring special treatment
that prevents timely payment.
(b) “Clean claim does
not mean a claim pended under 45 CFR 156.270(d)(1).
(2) For purposes of ORS 743.911
and 743.913, an insurer is considered to have received a claim when the claim is
received by the insurer itself or when the claim is received by a representative
of the insurer that performs claims handling on the sole behalf of the insurer,
whichever receipt date is earlier. A representative may include but is not limited
to a third party administrator, a claims service or a pricing service.
(3) For the purpose of communicating
the information necessary for claim form completion as required by ORS 743.911(3),
an insurer must include any specific description of standard supporting documentation,
information and data routinely required to be submitted with a claim form. Compliance
with the standard transaction requirements established under the federal Health
Insurance Portability and Accountability Act at 45 CFR parts 160 and 162 or OAR
836-100-0105 and 836-100-0110 constitutes compliance with this section.
Stat. Auth.: ORS 731.244 & 743.911
Stats. Implemented: ORS 743.911
& 743.913
Hist.: ID 1-2002, f. &
cert. ef. 1-15-02; ID 12-2013, f. 12-31-13, cert. ef. 1-1-14
836-080-0085
Annual Report; Sampling
(1) Each insurer shall report to the Director annually on its compliance with Section 2, Chapter 747, Oregon Laws 2001 (Enrolled Senate Bill 894), governing claims received by an insurer from a provider on behalf of an enrollee, according to the requirements of this rule.
(2) Not later than March 1 of each year, each insurer shall submit the following to the Director:
(a) A count of all claims for which final disposition has been made by the insurer during the immediately preceding calendar year.
(b) A count of all claims included in the count in subsection (a) of this section that were each finally disposed of later than the 30th day after the date on which the insurer received the claim.
(c) A data file that includes a population list with respect to the claims described in subsection (b) of this section, in the form and manner specified by the Director.
(3) The Director shall select a number of sample files from each insurer's data file submitted under section (2) of this rule, using a methodology determined by the Director to provide a representative and statistically valid sampling of the insurer's insured population and shall deliver to the insurer the file numbers and the format in which the information required under section (4) of this rule shall be captured and submitted to the Director.
(4) Each insurer shall examine each sample selected under section (3) of this rule against its records to determine information requested by the Director. The information shall include but not be limited to the following:
(a) The date on which the claim was received;
(b) The date on which the insurer requested additional information on the claim;
(c) The date on which the insurer received the additional information;
(d) The date on which the insurer paid or denied the claim.
(e) Whether interest was owed or paid on the claim under section 3, chapter 747, Oregon Laws 2001, or whether the insurer was not required to pay interest as provided in Section 3(2), Chapter 747, Oregon Laws 2001.
(f) Whether the claim was paid or denied. For the purpose of this subsection, a claim that is paid in part and denied in part shall be treated as a paid claim.
(5) Not later than the 60th day after the date on which an insurer receives the selection of sample files from the Director under section (3) of this rule, the insurer shall submit to the Director a report of its data determined under section (4) of this rule in the format prescribed by the Director.
(6) For the purpose of the annual report that is due for calendar year 2002, an insurer shall sample and count only those claims that were submitted to an insurer on or after January 1, 2002 and on or before December 31, 2002.
Stat. Auth.: ORS 731.244; Sec. 2 & 3, Ch. 747, OL 2001
Stats. Implemented: Sec. 2 & 3, Ch. 747, OL 2001
Hist.: ID 1-2002, f. & cert. ef. 1-15-02
Suitability
836-080-0090
Suitability in the Sale of Life Insurance
A person may not recommend to a consumer the purchase, sale or replacement of a life insurance policy, or any rider, endorsement or amendment to the policy, without reasonable grounds to believe that the recommendation or transaction is not unsuitable for the consumer based upon reasonable inquiry concerning the consumer's insurance objectives, financial situation and needs, age and other relevant information known by the person. For the purpose of this rule, when a person recommends a group life insurance policy, "consumer" refers to the intended group policyholder.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 6-2004, f. 8-26-04, cert. ef. 1-1-05; ID 2-2011, f. & cert. ef. 2-4-11
836-080-0095 [Renumbered to 836-080-0190]
General (ORS 746.005 to 746.270)
836-080-0105
Statutory Authority; Purpose; Effective Date
(1) OAR 836-080-0105 to 836-080-0155 are adopted pursuant to the general rulemaking authority of the Commissioner in ORS 731.244 to aid in the effectuation of ORS Chapter 746, especially the enforcement of 746.015, 746.075, 746.160(3), and 746.240, as well as the effectuation and enforcement of 737.205 to 737.348, 742.003, 742.005, 742.009 and other related provisions of the Oregon Insurance Code.
(2) The purpose of OAR 836-080-0105 to 836-080-0155 is to regulate the content and use of participation provisions in commercial lines of property and casualty insurance policies so as to prevent misrepresentations and other unfair practices relating to future dividends, to prevent unfair and coercive practices in the allocation and payment of dividends, and to effectuate the statutes governing ratemaking, classification of risks, and approval of policy forms, with respect to commercial lines of property and casualty insurance issued on the participating basis.
[Publications: Publications referenced are available from the agency.]
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746, ORS 746.015, ORS 746.075, ORS 746.160 & ORS 746.240
Hist.: IC 69, f. & ef. 7-20-76; ID 15-1996, f. & cert. ef. 11-12-96
836-080-0110
Applicability
OAR 836-080-0105 to 836-080-0155:
(1) Apply to all authorized insurers, whether stock, mutual, or reciprocal, and to the State Accident Insurance Fund.
(2) Apply to those forms of property and casualty insurance known by custom as "commercial lines"; and do not apply to other lines or forms of insurance.
Stat. Auth.: ORS 731 & ORS 746
Stats. Implemented: ORS 746.015(1), ORS 746.075, ORS 746.160(3) & ORS 746.240
Hist.: IC 69, f. & ef. 7-20-76
836-080-0115
Definitions
As used in OAR 836-080-0105 to 836-080-0155, unless the context requires otherwise:
(1) "Dividend statement" has the meaning given the term by OAR 836-080-0130.
(2) "Insurer" has the meaning given the term by ORS 731.106 and includes the State Accident Insurance Fund.
(3) "Issue" when referring to an insurance policy includes "renew" and "endorse."
(4) "Participating policy" means a policy that grants participation rights to the policyholder.
(5) "Participation" means the right of a policyholder to share in the distribution of profits or other assets of the insurer, whether or not the right is conditional or limited by other provisions.
(6) "Policy" has the meaning given the term by ORS 731.122, and the term includes endorsements and the agreements between the State Accident Insurance Fund and individual contributing employers by which the Fund provides workmen's compensation coverage.
(7) "Policyholder" means a person who owns or has an interest in a policy and the term includes a prospective policyholder.
(8) "Prospective policyholder" includes a policyholder who is considering the renewal or discontinuance of an existing policy.
Stat. Auth.: ORS 731 & ORS 746
Stats. Implemented: ORS 746.015(1), ORS 746.075, ORS 746.160(3) & ORS 746.240
Hist.: IC 69, f. & ef. 7-20-76
836-080-0120
Statement as to Participation Required Upon Request Before Delivery of Policy; Provision Required in Participating Policy; Contents of Provision
(1) Upon the request of a policy-holder to an insurer, the policyholder is entitled to receive a written statement, before the policy is delivered, specifying whether the policy is or is not a participating policy.
(2) If the insurer intends the policy to grant participation rights to policyholders, the policy shall contain a provision designated "Participation Provision." The participation provision shall include the following wording or substantially equivalent wording approved by the Commissioner: "It is unlawful in Oregon for an insurer to promise to pay policyholder dividends for any unexpired portion of the policy term or to misrepresent the conditions for dividend payment. Dividends will be due and payable only for a policy period that has expired, and only if declared by and under conditions prescribed by the Board of Directors of the Insurer."
Stat. Auth.: ORS 731 & ORS 746
Stats. Implemented: ORS 746.015(1), ORS 746.075, ORS 746.160(3) & ORS 746.240
Hist.: IC 69, f. 7-20-76, ef. as follows: Sec. (1), 7-20-76; Sec. (2), 1-1-77
836-080-0125
Prohibited Representations Regarding Participation Rights
Prior to the declaration of a dividend, an insurer shall not represent, orally or in writing, that the insurer agrees or will agree:
(1) To pay a specified amount as a dividend; or
(2) To a formula that fixes, or to factors that fix or can be used to fix:
(a) The amount of a dividend;
(b) The percentage of premium that will be paid as a dividend; or
(c) The amount or percentage of premium to be retained by the insurer after payment of dividends.
Stat. Auth.: ORS 731 & ORS 746
Stats. Implemented: ORS 746.015(1), ORS 746.075, ORS 746.160(3) & ORS 746.240
Hist.: IC 69, f. & ef. 7-20-76
836-080-0130
Dividend Statement Permitted; Required to Be Written; Prohibited and Permitted Advice
(1) An insurer may advise a policy holder of the kinds of information the insurer expects to take into consideration in determining whether to declare a dividend and the amount thereof. Any such advice is considered a "dividend statement" as the term is used in this section. A dividend statement shall not, however, be of such a nature as to make it possible to determine, directly or indirectly:
(a) The amount of a dividend;
(b) The percentage of premium that will be paid as a dividend; or
(c) The amount or percentage of premium to be retained by the insurer after payment of dividends.
(2) A dividend statement shall be in writing. It shall include a statement that is identical to the wording of the participation provision that OAR 836-080-0120 requires to be included in the policy. Such statement shall appear ahead of and have at least equal prominence with the advice regarding dividends permitted under section (1) of this rule. A dividend statement also shall contain with equal prominence the following wording or substantially equivalent wording approved by the Commissioner: "Furthermore, it is an unlawful rebate and a violation of the Oregon Insurance Code for an insured or a representative of an insured knowingly to accept a dividend pursuant to a promise to pay policyholder dividends if the promise is made before the policy is issued or if the promise is made for any unexpired portion of a policy period."
(3) A dividend statement may describe the rates or amounts of dividends previously declared or paid on similar policies, or the scales or schedules previously used to determine the rates or amounts of dividends. However, such a description shall also set forth the period covered by the policies on which such dividends were paid and state that past dividend performance is not a guarantee of future dividend performance.
(4) A dividend statement may set forth a time schedule according to which the insurer intends to declare or pay a dividend, if any.
[Publications: Publications referenced are available from the agency.]
Stat. Auth.: ORS 731 & ORS 746
Stats. Implemented: ORS 746.015(1), ORS 746.075, ORS 746.160(3) & ORS 746.240
Hist.: IC 69, f. 7-20-76, ef. 1-1-77
836-080-0135
Dividend Rights Accrue Upon Declaration of Dividends; Contents of Dividend Declaration Resolution
(1) The right of a policyholder to a dividend, or to a determination of whether any dividend will be paid to the policyholder or the amount of a dividend that will be paid to the policyholder, shall not accrue unless the board of directors or other governing body of the insurer:
(a) Determines that the insurer has a surplus from which the dividend may lawfully be paid; and
(b) Declares the dividend by resolution adopted after the expiration of the policy period for which the dividend was earned.
(2) The resolution declaring a policyholder dividend for a group of policies shall:
(a) Identify by policy inception or expiration dates the policies to which the declaration is applicable;
(b) Specify the policy period for which the dividend is payable; and
(c) Specify the dividend plans, scales, tables, formulas, schedules, and factors applied, or to be applied, to determine whether any dividends will be paid and the amounts of dividends to be allocated to individual policies.
Stat. Auth.: ORS 731 & ORS 746
Stats. Implemented: ORS 746.015(1), ORS 746.075, ORS 746.160(3) & ORS 746.240
Hist.: IC 69, f. & ef. 7-20-76
836-080-0140
Unfair Discrimination in Allocation of Dividends Prohibited; Criteria for Allocation; Prima Facie Evidence of Unfair Discrimination
(1) An insurer shall not unfairly discriminate in the allocation of dividends.
(2) The dividend plans, scales, tables, formulas, schedules and factors specified in the dividend declaration may provide for allocation of dividends at a fixed percentage of premiums, or may provide for variations in the percentage of premium paid as dividends or other variations in determining the amounts of dividends. The variations may be based on loss or expense factors, or on any other reasonable considerations, such as risk size, risk location, or industry or trade hazard classification, which have a probable effect on losses or expenses.
(3) Failure to apply in a consistent manner the plans, scales, tables, formulas, schedules, and factors adopted and specified in a dividend declaration is prima facie evidence of unfair discrimination. However, a variation from procedures set forth in a dividend statement that was provided to a policyholder prior to inception of the policy will not of itself be considered unfairly discriminatory.
Stat. Auth.: ORS 731 & ORS 746
Stats. Implemented: ORS 746.015(1), ORS 746.075, ORS 746.160(3) & ORS 746.240
Hist.: IC 69, f. & ef. 7-20-76
836-080-0145
Unfair Forfeiture of Dividend for Failure to Renew Prohibited
An insurer shall not reduce or deny a policyholder dividend because of the policy-holder's refusal to accept renewal of the policy or another policy from the same insurer. A reasonable change in the time schedule for computing or paying a policyholder dividend will not of itself be considered a reduction or denial of the dividend, or unfairly discriminatory, if:
(1) The change is applied uniformly to the policyholders in like circumstances; and
(2) The nature of the change is set forth in a dividend statement that was provided to the policyholder before the inception of the policy for which the change is made.
Stat. Auth.: ORS 731 & ORS 746
Stats. Implemented: ORS 746.015(1), ORS 746.075, ORS 746.160(3) & ORS 746.240
Hist.: IC 69, f. & ef. 7-20-76
836-080-0150
Policyholder Dividend Rights of Group Members and Dividend Group Policyholders; Reduction or Denial Without Prior Advice Prohibited; "Dividend Group" Defined; Standards for Dividend Groups
(1) When used in this section:
(a) "Group" means a collection of insurance buyers who are members of a common organization and who are treated collectively by an insurer for determining insurance dividends; and
(b) "Laws of the group" means the articles of incorporation, bylaws, agreements of association, rules, or regulations of the organization to which members of a group belong.
(2) An insurer shall not issue a policy to a group or to any members of a group, unless:
(a) The grouping has been approved by the Commissioner in accordance with ORS 746.145 or 746.150, whichever section applies; and
(b) The laws of the group comply with section (3) of this rule.
(3) The laws of the group shall provide that a distribution of funds derived from a policyholder dividend will not be reduced or denied to any member of the group:
(a) Except for reasons stated in the laws of the group; and
(b) Unless the insurer has given a copy of the stated reasons to the member or the policyholder before issuance of the policy for which the reduction or denial is made.
(4) The Commissioner will approve dividend groups of persons or risks covered by an insurer for insurance other than workers' compensation insurance only if:
(a) The grouping is made up of homogeneous risks;
(b) The grouping is made under the auspices of an organization which has existed for at least two years and was formed for purposes other than obtaining insurance;
(c) The grouping is likely to bring about substantial improvement in loss prevention or claims handling; and
(d) Information is filed with the Commissioner about eligibility for participation in the grouping and the system for allocating dividends among the participants.
(5) Within 60 days of receiving a group dividend proposal, the Commissioner shall notify the insurer whether the proposal has been approved or disapproved, stating the basis for such action.
Stat. Auth.: ORS 731.244 & ORS 746.145
Stats. Implemented: ORS 746.015(1), ORS 746.075, ORS 746.160(3) & ORS 746.240
Hist.: IC 69, f. 7-20-76, ef. 1-1-77; IC 1-1984, f. 1-18-84, ef. 2-1-84; ID 16-1990(Temp), f. & cert. ef. 7-3-90; ID 5-1991, f. & cert. ef. 4-25-91
836-080-0155
False or Deceptive Publications by Insurer Prohibited
An insurer shall not knowingly adopt, or cause or permit to be issued, circulated or used, any representation, plan, schedule, letter, or advertising material of any kind stating or implying that the insurer has acted or will in the future act in any manner at variance with OAR 836-080-0105 to 836-080-0155.
Stat. Auth.: ORS 731 & 746
Stats. Implemented: ORS 746.015(1), 746.075, 746.160(3) & 746.240
Hist.: IC 69, f. & ef. 7-20-76
836-080-0160
Use of Special Certifications and Professional Designations by Insurance Producers
(1) A person may not use a certification or designation that falsely indicates or implies that the person has special certification or training, in connection with the offer, sale or purchase of insurance or providing advice as to the value of or the advisability of purchasing insurance. The prohibition in this section applies to the use of such a certification or designation directly or indirectly, through a publication or writing, or by issuing or disseminating information relating to insurance. The prohibited use of a certification or designation includes but is not limited to the following activities:
(a) Use of a certification or professional designation by a person who has not actually earned or is otherwise ineligible to use the certification or designation.
(b) Use of a nonexistent or self-conferred certification or professional designation.
(c) Use of a certification or professional designation that indicates or implies a level of occupational qualifications obtained through education, training or experience that the person using the certification or professional designation does not have.
(d) Use of a certification or professional designation that falsely states or implies specialized knowledge of the insurance needs of a particular segment of the population or class of persons that the person using the certification or professional designation does not have. Examples of a particular segment of the population, or class of investors, include but are not limited to senior citizens, elderly or retired persons.
(e) Use of a certification or professional designation that was obtained from a designating or certifying organization that:
(A) Is primarily engaged in the business of instruction in sales or marketing, or both;
(B) Does not have reasonable standards or procedures for assuring the competency of its designees or certificants;
(C) Does not have reasonable standards or procedures for monitoring and disciplining its designees or certificants for improper or unethical conduct;
(D) Does not have reasonable continuing education requirements for its designees to maintain the designation or certificate; or
(E) Has not been certified or accredited by one of the following organizations or has been certified or accredited by one of the following organizations but the designation or credential issued from the organization primarily applies to sales or marketing, or both:
(i) The American National Standards Institute;
(ii) The National Commission for Certifying Agencies; or
(iii) An organization that is on the United States Department of Education’s list entitled “Accrediting Agencies Recognized for Title IV Purposes.”
(2) The Director recognizes a rebuttable presumption that a designating or certifying organization is not disqualified solely for purposes of section (1)(e) of this rule when the designation or credential does not primarily apply to sales or marketing or both, and when the organization is accredited by:
(a) The American National Standards Institute;
(b) The National Commission for Certifying Agencies; or
(c) An organization that is on the United States Department of Education’s list entitled “Accrediting Agencies Recognized for Title IV Purposes.”
(3) The Director shall consider at least the following factors in determining whether a combination of words or an acronym standing for a combination of words constitutes a certification or professional designation that could falsely indicate or imply that a person has special certification or training in advising or servicing a particular segment of the population or class of insurance consumers:
(a) The use of one or more words indicating specialized knowledge of a particular type of product or of the needs of a particular segment of the population including but not limited to “senior,” “elder,” “retired,” or “retirement,” or class of persons, combined with one or more words such as “certified,” “registered,” “chartered,” “adviser,” “specialist,” “consultant,” “planner,” or like words, in the name of the certification or professional designation; and
(b) The manner in which the words in subsection (a) of this section are combined.
(4) This rule does not apply to use of any of the following designations, titles, degrees or certifications by a person unless the facts and circumstances associated with the use of the designation, title, degree or certification indicate that the use suggests or implies a greater degree of certification or training than the person possesses or that the designation, title, degree or certification otherwise misleads consumers:
(a) A job title within an organization that is licensed, registered or authorized by a state or federal financial services regulatory agency, when that job title:
(A) Indicates seniority or standing within the organization; or
(B) Specifies an individual’s area of specialization within the organization;
(b) A degree, certificate or designation evidencing completion of an academic program at an institution of higher education that has been accredited by an organization that is on the United States Department of Education’s list entitled “Accrediting Agencies Recognized for Title IV Purposes;” or
(c) A certification or designation conferred by the Insurance Institute of America and the American Institute for Chartered Property and Casualty Underwriters.
(5) Violation of section (1) of this rule is an unfair trade practice for the purpose of ORS 746.240.
(6) The prohibitions in this rule and the remedies available to the Director do not limit the Director’s authority to enforce existing provisions of law or to apply existing remedies.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 744.074, 744.605, 746.110 & 746.240
Hist.: ID 9-2009, f. 10-30-09, cert. ef. 11-1-09
Sales of Individual Annuities
836-080-0165
Notice of Insurance Division Assistance
(1) An insurer shall include in an individual annuity contract and with any subsequent offer for sale of additional coverage in connection with the annuity a statement to the effect that the Insurance Division of the Department of Consumer and Business Services offers assistance to consumers in the event of a dispute with the insurer. When the statement appears in the contract, the statement must be displayed on the cover page, the first page of the annuity terms, the page that contains the names of the parties and basic coverage information or another prominent place. When the statement appears in an offer for sale of additional coverage, the statement must be displayed in a prominent place. The statement must include the telephone number and website information for contacting the Insurance Division for assistance.
(2) Violation of this rule is an unfair trade practice for the purpose of ORS 746.240.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 742.009 & 746.240
Hist.: ID 14-2008, f. & cert. ef. 8-15-08
Suitability in Annuity Transactions
836-080-0170
Statutory Authority; Purpose
(1) OAR 836-080-0170 to 836-080-0190 are issued under the general rulemaking authority of the director in ORS 731.244 to aid in the effectuation of ORS Chapter 746, especially the provisions of ORS 746.100, 746.110 and 746.240.
(2) The purpose of this rule is to require insurers to establish a system to supervise recommendations and to set forth standards and procedures for recommendations to consumers that result in transactions involving annuity products so that the insurance needs and financial objectives of consumers at the time of the transaction are appropriately addressed.
(3) Nothing in OAR 836-080-0170 to 836-080-0190 shall be construed to create or imply a private cause of action for a violation of OAR 836-080-0170 to 836-080-0190.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 2-2011, f. & cert. ef. 2-4-11
836-080-0172
Applicability
OAR 836-080-0170 to 836-080-0190 apply to any recommendation to purchase, exchange or replace an annuity made to a consumer by an insurance producer, or an insurer where no insurance producer is involved, that results in the purchase, exchange or replacement recommended.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 2-2011, f. & cert. ef. 2-4-11
836-080-0175
Exemptions
Unless otherwise specifically included, OAR 836-080-0170 to 836-080-0190 do not apply to transactions involving:
(1) Direct response solicitations where there is no recommendation based on information collected from the consumer pursuant to OAR 836-080-0170 to 836-080-0190;
(2) Contracts used to fund:
(a) An employee pension or welfare benefit plan that is covered by the federal Employee Retirement and Income Security Act as amended;
(b) A plan described by sections 401(a), 401(k), 403(b), 408(k) or 408(p) of the Internal Revenue Code, as amended, if established or maintained by an employer;
(c) A government or church plan defined in section 414 of the Internal Revenue Code, a government or church welfare benefit plan, or a deferred compensation plan of a state or local government or tax exempt organization under section 457 of the Internal Revenue Code;
(d) A nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor;
(e) Settlements of or assumptions of liabilities associated with personal injury litigation or any dispute or claim resolution process; or
(f) Formal prepaid funeral contracts.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 2-2011, f. & cert. ef. 2-4-11
836-080-0178
Definitions
(1) “Annuity” means an insurance product that is individually solicited, whether the product is classified as an individual or group annuity.
(2) “Insurer” means a company required to be licensed under the laws of this state to provide insurance products, including annuities.
(3) “Insurance producer” means a person required to be licensed under the laws of this state to sell, solicit or negotiate insurance, including annuities.
(4) “Recommendation” means advice provided by an insurance producer, or an insurer where no insurance producer is involved, to an individual consumer that results in a purchase, exchange or replacement of an annuity in accordance with that advice.
(5) “Replacement” has the meaning given in OAR 836-080-0005.
(6) “Suitability information” means information that is reasonably appropriate to determine the suitability of a recommendation, including the following:
(a) Age;
(b) Annual income;
(c) Financial situation and needs, including the financial resources used for the funding of the annuity;
(d) Financial experience;
(e) Financial objectives;
(f) Intended use of the annuity;
(g) Financial time horizon;
(i) Existing assets, including investment and life insurance holdings;
(j) Liquidity needs;
(k) Liquid net worth;
(l) Risk tolerance; and
(m) Tax status.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 2-2011, f. & cert. ef. 2-4-11
836-080-0180
Duties of Insurers and of Insurance Producers
(1) As used in this rule, “FINRA” means the Financial Industry Regulatory Authority or a succeeding agency.
(2) In addition to the disclosure requirements of OAR 836-051-0900 to 836-051-0925, in recommending to a consumer the purchase of an annuity or the exchange of an annuity that results in another insurance transaction or series of insurance transactions, the insurance producer, or the insurer where no insurance producer is involved, shall have reasonable grounds for believing that the recommendation is suitable for the consumer on the basis of the facts disclosed by the consumer as to his or her investments and other insurance products and as to his or her financial situation and needs, including the consumer’s suitability information, and that there is a reasonable basis to believe all of the following:
(a) The consumer has been reasonably informed of various features of the annuity, such as the potential surrender period and surrender charge, potential tax penalty if the consumer sells, exchanges, surrenders or annuitizes the annuity, mortality and expense fees, investment advisory fees, potential charges for and features of riders, limitations on interest returns, insurance and investment components and market risk;
(b) The consumer would benefit from certain features of the annuity, such as tax deferred growth, annuitization or death or living benefit;
(c) The particular annuity as a whole, the underlying subaccounts to which funds are allocated at the time of purchase or exchange of the annuity, and riders and similar product enhancements, if any, are suitable (and in the case of an exchange or replacement, the transaction as a whole is suitable) for the particular consumer based on his or her suitability information; and
(d) In the case of an exchange or replacement of an annuity, the exchange or replacement is suitable including taking into consideration whether:
(A) The consumer will incur a surrender charge, be subject to the commencement of a new surrender period, lose existing benefits (such as death, living or other contractual benefits), or be subject to increased fees, investment advisory fees or charges for riders and similar product enhancements;
(B) The consumer would benefit from product enhancements and improvements; and
(C) The consumer has had another annuity exchange or replacement and, in particular, an exchange or replacement within the preceding 36 months.
(3) Prior to the execution of a purchase, exchange or replacement of an annuity resulting from a recommendation, an insurance producer, or an insurer where no insurance producer is involved, shall make reasonable efforts to obtain the consumer’s suitability information
(4) Except as permitted under section (3) of this rule, an insurer shall not issue an annuity recommended to a consumer unless there is a reasonable basis to believe the annuity is suitable based on the consumer’s suitability information.
(5) (a) Except as provided under subsection (b) of this section, neither an insurance producer, nor an insurer, shall have any obligation to a consumer under subsection A or C related to any annuity transaction if:
(A) No recommendation is made;
(B) A recommendation was made and was later found to have been prepared based on materially inaccurate information provided by the consumer;
(C) A consumer refuses to provide relevant suitability information and the annuity transaction is not recommended; or
(D) A consumer decides to enter into an annuity transaction that is not based on a recommendation of the insurer or the insurance producer.
(b) An insurer’s issuance of an annuity subject to subsection (a) of this section shall be reasonable under all the circumstances actually known to the insurer at the time the annuity is issued.
(6) An insurance producer or, where no insurance producer is involved, the responsible insurer representative, shall at the time of sale:
(a) Make a record of any recommendation subject to section (2) of this rule;
(b) Obtain a customer signed statement documenting a customer’s refusal to provide suitability information, if any; and
(c) Obtain a customer signed statement acknowledging that an annuity transaction is not recommended if a customer decides to enter into an annuity transaction that is not based on the insurance producer’s or insurer’s recommendation.
(7) (a) An insurer shall establish a supervision system that is reasonably designed to achieve the insurer’s and its insurance producers’ compliance with OAR 836-080-0170 to 836-080-0190. The supervision system must include but need not be limited to, the following:
(A) The insurer shall maintain reasonable procedures to inform its insurance producers of the requirements of OAR 836-080-0170 to 836-080-0190 and shall incorporate the requirements of OAR 836-080-0170 to 836-080-0190 into relevant insurance producer training manuals;
(B) The insurer shall establish standards for insurance producer product training and shall maintain reasonable procedures to require its insurance producers to comply with the requirements of OAR 836-080-0185;
(C) The insurer shall provide product-specific training and training materials that explain all material features of its annuity products to its insurance producers;
(D) The insurer shall maintain procedures to review each recommendation prior to issuance of an annuity that are designed to ensure that there is a reasonable basis to determine that a recommendation is suitable. The review procedures may apply a screening system for the purpose of identifying selected transactions for additional review and may be accomplished electronically or through other means including, but not limited to, physical review. An electronic or other system may be designed to require additional review only of those transactions identified for additional review by the selection criteria;
(E) The insurer shall maintain a reasonable procedure to detect recommendations that are not suitable. The procedure may include, but need not be limited to, confirmation of consumer suitability information, systematic customer surveys, interviews, confirmation letters and programs of internal monitoring. Nothing in this paragraph prevents an insurer from complying with this paragraph by applying sampling procedures, or by confirming suitability information after issuance or delivery of the annuity; and
(F) The insurer annually shall provide a report to senior management, including to the senior manager responsible for audit functions, which details a review, with appropriate testing, reasonably designed to determine the effectiveness of the supervision system, the exceptions found, and corrective action taken or recommended, if any.
(b)(A) Nothing in this section restricts an insurer from contracting for performance of a function (including maintenance of procedures) required under subsection (a) of this section. An insurer is responsible for taking appropriate corrective action and may be subject to sanctions and penalties under OAR 836-080-0185 regardless of whether the insurer contracts for performance of a function and regardless of the insurer’s compliance with subparagraph (B) of this paragraph.
(B) An insurer’s supervision system under subsection (a) of this section shall include supervision of contractual performance under this subsection. The supervision must include, but is not limited to, the following:
(i) Monitoring and, as appropriate, conducting audits to assure that the contracted function is properly performed; and
(ii) Annually obtaining a certification from a senior manager who has responsibility for the contracted function that the manager has a reasonable basis to represent, and does represent, that the function is properly performed.
(C) An insurer is not required to include in its system of supervision an insurance producer’s recommendations to consumers of products other than the annuities offered by the insurer.
(8)An insurance producer shall not dissuade, or attempt to dissuade, a consumer from:
(a) Truthfully responding to an insurer’s request for confirmation of suitability information;
(b) Filing a complaint; or
(c) Cooperating with the investigation of a complaint.
(8) (a) Sales made in compliance with FINRA requirements pertaining to suitability and supervision of annuity transactions shall satisfy the requirements under OAR 836-080-0170 to 836-080-0190. This subsection applies to FINRA broker-dealer sales of variable annuities and fixed annuities if the suitability and supervision is similar to those applied to variable annuity sales. However, nothing in this subsection shall limit the director’s ability to investigate and enforce the provisions of OAR 836-080-0170 to 836-080-0190.
(b) In order for subsection (b) to apply, an insurer shall:
(A) Monitor the FINRA member broker-dealer using information collected in the normal course of an insurer’s business; and
(B) Provide to the FINRA member broker-dealer information and reports that are reasonably appropriate to assist the FINRA member broker-dealer to maintain its supervision system.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 2-2011, f. & cert. ef. 2-4-11
836-080-0183
Insurance Producer Training
(1) An insurance producer shall not solicit the sale of an annuity product unless the insurance producer has adequate knowledge of the product to recommend the annuity and the insurance producer is in compliance with the insurer’s standards for product training. An insurance producer may rely on insurer-provided product-specific training standards and materials to comply with this section.
(2)(a)(A) An insurance producer who engages in the sale of annuity products shall complete a one-time four credit training course provided by a continuing education provider registered with the department.
(B) Individuals who obtain a life insurance line of authority on or after the effective date of OAR 836-080-0170 to 836-080-0190 may not engage in the sale of annuities until the insurance producer completes the annuity training course required under this section.
(b) The minimum length of the training required under this section shall be sufficient to qualify for at least four continuing education credits, but may be longer.
(c) The training required under this subsection shall include information on the following topics:
(A) The types of annuities and various classifications of annuities;
(B) Identification of the parties to an annuity;
(C) How fixed, variable and indexed annuity contract provisions affect consumers;
(D) The application of income taxation of qualified and non-qualified annuities;
(E) The primary uses of annuities; and
(F) Appropriate sales practices, replacement and disclosure requirements.
(d) Providers of courses intended to comply with this subsection shall cover all topics listed in the prescribed outline and may not present any marketing information or provide training on sales techniques or provide specific information about a particular insurer’s products. Additional topics may be offered in conjunction with and in addition to the required outline.
(e) A provider of an annuity training course intended to comply with this section shall register as a continuing education provider in this state and comply with the rules and guidelines applicable to insurance producer continuing education courses as set forth in ORS 744.072 and OAR 836-071-0180 to 836-071-0250.
(f) Annuity training courses may be conducted and completed by classroom or self-study methods in accordance with ORS 744.072 and OAR 836-071-0180 to 836-071-0250.
(g) Providers of annuity training shall comply with the reporting requirements and shall issue certificates of completion in accordance with OAR 836-071-0180 to 836-071-0250.
(h) The satisfaction of the training requirements of another state that are substantially similar to the provisions of this subsection shall be deemed to satisfy the training requirements of this section in this state.
(i) An insurer shall verify that an insurance producer has completed the annuity training course required under this section before allowing the insurance producer to sell an annuity product for that insurer. An insurer may satisfy its responsibility under this section by obtaining certificates of completion of the training course or obtaining reports provided from a reasonably reliable commercial database vendor that has a reporting arrangement with approved insurance continuing education providers.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 2-2011, f. & cert. ef. 2-4-11
836-080-0185
Compliance Mitigation; Penalties
(1) An insurer is responsible for compliance with OAR 836-080-0170 to 836-080-0190. If a violation occurs, either because of the action or inaction of the insurer or its insurance producer, the director may order:
(a) An insurer to take reasonably appropriate corrective action for any consumer harmed by violation of OAR 836-080-0170 to 836-080-0190 by the insurer, or by the insurer’s producer;
(b) A general agency, independent agency or the insurance producer to take reasonably appropriate corrective action for any consumer harmed by the insurance producer’s violation of OAR 836-080-0170 to 836-080-0190; and
(c) Appropriate penalties and sanctions.
(2) Violation of any provision of OAR 836-080-0170 to 836-080-0190 is an unfair trade practice under ORS 746.240.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 2-2011, f. & cert. ef. 2-4-11
836-080-0188
Recordkeeping
(1) Insurers, general agents, independent agencies and insurance producers shall maintain or be able to make available to the Director records of the information collected from the consumer and other information used in making the recommendations that were the basis for insurance transactions for three years after the insurance transaction is completed by the insurer. An insurer is permitted, but shall not be required, to maintain documentation on behalf of an insurance producer.
(2) Records required to be maintained by under section (1) of this rule may be maintained in paper, photographic, micro-process, magnetic, mechanical or electronic media or by any process that accurately reproduces the actual document.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 2-2011, f. & cert. ef. 2-4-11
836-080-0190
Annuity Sales; Disclosure Not a Defense
The fact that a person made a disclosure to a consumer about the nature of an annuity in connection with the sale of the annuity to the consumer is not a defense by itself to a determination by the Director under OAR 836-080-0170 to 836-080-0188 that the sale was unsuitable with respect to the consumer.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 14-2008, f. & cert. ef. 8-15-08, Renumbered from 836-080-0095, ID 2-2011, f. & cert. ef. 2-4-11
836-080-0193
Effective Date and Operative Date
(1) OAR 836-080-0170 to 836-080-0190 and the amendments to OAR 836-080-0090 become operative on July 1, 2011, except that the requirement under OAR 836-080-0183 (2) shall become operative on August 1, 2011 or six months after the director determines that the requisite training is available.
(2) Insurance producers who hold a life insurance line of authority on the effective date of OAR 836-080-0170 to 836-080-0190 and who desire to sell annuities shall complete the requirements of OAR 836-080-0183 within six months after July 1, 2011.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.100, 746.110 & 746.240
Hist.: ID 2-2011, f. & cert. ef. 2-4-11
836-080-0200
Electronic Payment of Claims
(1) An insurer may pay claim proceeds
through a prepaid card, direct deposit system, automated teller machine card or
debit card, or other means of electronic transfer if the claimant elects payment
by one of those methods and specifies the method of electronic payment agreed upon.
The consent of the recipient of claim proceeds must be obtained prior to initiating
electronic payments and may be written or verbal. The insurer must provide the recipient
a written confirmation when consent is obtained verbally. Proof of mailing will
act as proof of providing written notice. The recipient may discontinue receiving
electronic payments by notifying the insurer in writing.
(2) The recipient of claim
proceeds must receive a copy of the cardholder agreement clearly outlining the terms
and conditions under which a prepaid card, an automated teller machine card or debit
card has been issued prior to or at the time the initial electronic payment is made.
(3) The instrument of payment
must be negotiable and payable to the recipient for the full amount due, without
cost to the recipient. The recipient must be able to make an initial withdrawal
of the entire amount due without delay or cost to the recipient.
Stat. Auth: ORS 731.244
Stats. Implemented: ORS 746.230
Hist.: ID 15-2014, f. &
cert. ef. 8-15-14
836-080-0205
Statutory Authority, Purpose, and Applicability
(1) OAR 836-080-0205 to 836-080-0250 are adopted by the Director of the Department of Consumer and Business Services pursuant to the director’s general rulemaking authority in ORS 731.244, to aid in the proper effectuation of 746.230.
(2) The purpose of OAR 836-080-0205 to 836-080-0250 is to define certain minimum standards the violation of which will be considered to constitute unfair claims settlement practices within the purview of ORS 746.230.
(3) OAR 836-080-0205 to 836-080-0250:
(a) Apply with respect to all insurance except fidelity and surety bonds;
(b) Apply to workers' compensation insurance only as provided in OAR 836-080-0250; and (c) Are not exclusive, and the Director may also consider other acts not herein specified to be violations of ORS 746.230.
(4) OAR 836-080-0205 to 836-080-0250 do not in any way expand or limit or otherwise change the procedural or substantive rights, or both, of claimants as provided in the Oregon Revised Statutes.
(5) The amendments to OAR 836-080-0210 and 836-080-0235 apply only to claims submitted to a title insurer on or after August 17, 2010.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.230
Hist.: IC 2-1980, f. 5-8-80, ef. 6-1-80; ID 12-1992, f. & cert. ef. 7-1-92; ID 20-1998, f. 12-2-98, cert. ef. 2-1-99; ID 16-2010, f. & cert. ef. 8-19-10
836-080-0210
Definitions
As used in OAR 836-080-0205 to 836-080-0240, unless the context requires otherwise:
(1) "Claim file" includes, but is not limited to, microfilm files, computer information systems and other types of files, containing information on individual claims without necessarily containing hard copies of documents.
(2) "Claimant" includes any first party claimant and any third party claimant, the designated legal representative of any such claimants and any members of a claimant's immediate family who are designated for this purpose by the claimant.
(3) "First party claimant" means a person asserting a right to payment under an insurance policy arising out of the occurrence of the contingency or loss covered by the policy.
(4) "Insurer" includes any person authorized to represent the insurer with respect to a claim who is acting within the scope of the person's authority.
(5) "Investigation" means the activities of an insurer directly or indirectly related to the determination of liabilities under coverages provided by an insurance policy.
(6) "Notification of claim" means any notification, whether in writing or other means acceptable under the terms of an insurance policy, to an insurer by a claimant that reasonably apprises the insurer of the facts pertinent to the claim.
(7) "Third party claimant" means any person asserting a claim against any person insured under an insurance policy.
(8) "Crash parts" are motor vehicle replacement parts, sheet metal or plastic, that constitute the visible exterior of the vehicle, including inner and outer panels, and are generally repaired or replaced as the result of a collision.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.230
Hist.: IC 2-1980, f. 5-8-80, ef. 6-1-80; IC 8-1986, f. & ef. 12-30-86; ID 20-1998, f. 12-2-98, cert. ef. 2-1-99
836-080-0215
Claim Files
An insurer's claim files shall contain the information pertaining to each claim in sufficient detail that pertinent events and their dates can be reconstructed.
Stat. Auth.: ORS 731
Stats. Implemented: ORS 746.230(1)(d)
Hist.: IC 2-1980, f. 5-8-80, ef. 6-1-80
836-080-0220
Misrepresentation and Other Prohibited Claim Practices
An insurer shall not:
(1) Fail to fully disclose to a first party claimant all pertinent benefits, coverages and other provisions of an insurance policy under which the claim is asserted.
(2) Conceal from a first party claimant any insurance policy benefits, coverages or other provisions that are pertinent to the claim.
(3) Deny a claim on the grounds of the claimant's failure to exhibit the relevant property without proof of the insurer's demand and the claimant's unfounded refusal.
(4) Except where there is such time limit specified in the policy, make statements, written or otherwise, that require a claimant to give written notice of loss or proof of loss within a specified time and that seek to relieve the insurer of its obligations if the time limit is not complied with, unless the failure to comply with the specified time limit prejudices the insurer's rights.
(5) Request a first party claimant to sign a release that extends beyond the subject matter that gave rise to the claim payment.
(6) Issue checks or drafts in partial settlement of a loss or claim under a specific policy coverage that contain language releasing the insurer or its insured from its total liability.
Stat. Auth.: ORS 731
Stats. Implemented: ORS 746.230(1)(a), ORS 746.230(f), ORS 746.230(j) & ORS 746.230(m)
Hist.: IC 2-1980, f. 5-8-80, ef. 6-1-80
836-080-0225
Required Claim Communication Practices
An insurer shall:
(1) Not later than the 30th day after receipt of notification of claim, acknowledge the notification or pay the claim. An appropriate and dated notation of the acknowledgment shall be included in the insurer's claim file.
(2) Not later than the 21st day after receipt of an inquiry from the Director about a claim, furnish the Director with an adequate response.
(3) Make an appropriate reply, not later than the 30th day after receipt, to all other pertinent communications about a claim from a claimant that reasonably indicate a response is expected.
(4) Upon receiving notification of claim from a first party claimant, promptly provide necessary claim forms, instructions and assistance that is reasonable in the light of the information possessed by the insurer, so that the claimant can comply with the policy conditions and the insurer's reasonable requirements. Compliance with this section not later than the 30th day after receipt of notification of a claim constitutes compliance with section (1) of this rule.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.230
Hist.: IC 2-1980, f. 5-8-80, ef. 6-1-80; ID 3-1998, f. & cert. ef. 2-10-98
836-080-0230
Standard for Prompt Claim Investigation
An insurer shall complete its claim investigation not later than the 45th day after its receipt of notification of claim, unless the investigation cannot reasonably be completed within that time.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.230
Hist.: IC 2-1980, f. 5-8-80, ef. 6-1-80; ID 3-1998, f. & cert. ef. 2-10-98
836-080-0235
Standards for Prompt and Fair Settlements — Generally
(1) An insurer shall, not later than the 30th day after its receipt of properly executed proofs of loss from a first party claimant, advise the claimant of the acceptance or denial of the claim. An insurer shall not deny a claim on the grounds of a specific policy provision, condition or exclusion unless the denial includes reference to the provision, condition or exclusion. A claim denial must be in writing, with either a copy or the capability of reproducing its text included in the insurer's claim file.
(2) If a claim is made on a health insurance policy and the claim involves a coordination of benefits issue to which OAR 836-020-0700 to 836-020-0765 apply, the time allowed in 836-020-0740 to an insurer for applying a coordination of benefit provision shall be added to the time period provided in section (1) of this rule.
(3) If a claim is denied for reasons other than those described in section (1) of this rule and is made by any other means than in writing, an appropriate notation shall be made in the insurer's claim file.
(4) If an insurer needs more time to determine whether the claim of a first party claimant should be accepted or denied, it shall so notify the claimant not later than the 30th day after receipt of the proofs of loss, giving the reason more time is needed. Forty-five days from the date of such initial notification and every 45 days thereafter while the investigation remains incomplete, the insurer shall notify the claimant in writing of the reason additional time is needed for investigation.
(5) An insurer shall not fail to settle claims of first party claimants on the grounds that responsibility for payment should be assumed by others, except as may be provided otherwise by the provisions of the insurance policy issued by the insurer.
(6) If an insurer continues negotiations for settlement of a claim directly with a claimant who is neither an attorney nor represented by an attorney until the claimant's rights may be affected by a statute of limitations or policy time limit, the insurer shall give the claimant written notice that the time limit may be expiring and may affect the claimant's rights. The notice shall be given to first party claimants not less than 30 days before, and to third party claimants not less than 60 days before, the date on which the insurer believes the time limit may expire.
(7) An insurer shall not make a statement that indicates that the rights of a third party claimant may be impaired if a form or release is not completed within a given period of time, unless the statement is given for the purpose of notifying the third party claimant of the provision of a relevant statute of limitations.
(8) Notwithstanding section (4) of this rule, for title insurance:
(a) The requirements in section (4) of this rule are suspended from the date the insurer arranges or agrees to legal representation of the insured, for the term of that representation, with respect to:
(A) A matter for which the insurer accepts a tender of defense; or
(B) A matter for which the insurer prosecutes an action or proceeding or does, or causes to be done, any other act to establish the title as insured or to prevent or reduce loss or damage to the insured.
(b) When an insurer initially notifies the claimant that more time is needed, the insurer:
(A) May specify a date later than 45 days but not later than 90 days for the next and any successive notification; and
(B) Shall notify the claimant in writing by the date specified whether additional time is needed and give the reason additional time is needed.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.230(1) & 746.240
Hist.: IC 2-1980, f. 5-8-80, ef. 6-1-80; ID 3-1998, f. & cert. ef. 2-10-98; ID 19-2006, f. & cert. ef. 9-26-06; ID 16-2010, f. & cert. ef. 8-19-10
836-080-0240
Standards for Prompt and Fair Total Loss Settlements — Automobile Insurance
(1) When an automobile insurance policy provides for the adjustment and settlement of collision or comprehensive coverage total losses on the basis of actual cash value or replacement with another comparable automobile or one of like kind and quality, the insurer shall adjust and settle the claim as provided in this rule.
(2) The insurer may elect to offer a replacement automobile that is at least comparable to the insured automobile. A replacement automobile is at least comparable if it is the same make, is of the same or a newer year, is of a similar body style, has similar options and mileage as the insured automobile, is in as good or better overall condition and is available for inspection within a reasonable distance of the insured's residence. The insurer shall pay all applicable taxes, license fees and other fees incident to the transfer of evidence of ownership of the automobile at no cost other than any deductible provided in the policy. The offer and any rejection thereof must be documented in the claim file.
(3) The insurer may elect to make a cash settlement, less any deductible provided in the policy, but including all applicable taxes, license fees and other fees incident to transfer of ownership of another comparable automobile. When an insurer makes a cash settlement, the insurer shall furnish the insured copies of the information used by the insurer for the purpose of determining the amount of the cash settlement. The insurer shall comply with the provisions of the Uniform Electronic Transactions Act (ORS 84.001 to 84.061) and ORS 84.070 if the insurer provides this information electronically. If the information includes documentation of a specific and comparable automobile that the insurer intends to rely upon to preclude reopening the claim file under section (6) of this rule, the insurer shall prominently disclose that intention. The value of the automobile for purposes of a cash settlement may be based upon one of the following standards:
(a) A valuation obtained from a computerized database source that produces statistically valid and fair market values for automobiles, on the basis of the following criteria:
(A) The source shall produce values for at least 85 percent of all makes and models of private passenger automobiles for the last 15 model years;
(B) The source shall rely upon values of vehicles that are currently available or were available within the last 90 days from the date of loss for all vehicles and shall apply appropriate standards of comparability;
(C) For all vehicles of five model years or less of age, the values must be derived primarily from verifiable data or inventory from licensed dealers;
(D) The source shall monitor the average retail price of private passenger automobiles when there is insufficient data or inventory from licensed dealers to ensure statistically valid market area values;
(E) The source shall give primary consideration to the values of vehicles in the local market area and may consider data on vehicles outside the area; and
(F) The source shall produce fair market values based on current data available from the area surrounding the location where the insured vehicle was principally garaged or a necessary expansion of parameters, such as time and area, to assure statistical validity.
(b) The actual cost to purchase the automobile identified by the insurer as a replacement automobile that is at least comparable to the insured automobile as determined pursuant to section (2) of this rule, including all applicable taxes, license fees and other fees incident to purchase of the automobile other than any deductible provided in the policy; or
(c) An alternative that deviates from the methods described in subsections (a) and (b) of this section and is allowable under the policy, as long as documentation in the claim file supports the deviation and gives particulars of the pre-loss condition of the automobile. Any deductions from the cost, including deduction for salvage if the salvage is retained by the claimant, must be measurable, discernible, itemized and specified as to dollar amount and must be appropriate in amount. The basis for a settlement under this subsection must be fully explained in writing, supplied to the claimant and maintained in the claim file.
(4) When an insurer elects to make a cash settlement, the insurer shall provide the insured or third-party claimant with the written statement set forth in Exhibit 1 of this rule. The insurer shall comply with the provisions of the Uniform Electronic Transactions Act (ORS 84.001 to 84.061) and 84.070 if the insurer provides this written statement electronically.
(5) If an insurer and the insured or third-party claimant are unable to agree on the value of the automobile, an insurer shall pay the insured or third-party claimant the amount of the automobile’s value that is not in dispute as provided in section 3, chapter 65, Oregon Laws 2009. An insurer is not obligated to pay the undisputed amount until the insured or third-party owner of the automobile:
(a) Agrees to execute documents sufficient to transfer ownership of the automobile to the insurer; and
(b) Authorizes the insurer, at the insurer’s expense, to move the automobile to a disclosed location selected by the insurer, where the automobile will remain available for inspection and evaluation for not fewer than 14 calendar days. After the expiration of the 14-day period, the insurer may proceed with the salvage sale of the automobile.
(6) If the insured notifies the insurer within 35 days of the receipt of the claim draft that the insured cannot purchase an automobile for the market value as determined in section (3) of this rule, the insurer shall reopen its claim file and the following procedures shall apply:
(a) The insurer may locate an automobile that is at least comparable to the insured automobile as determined pursuant to section (2) of this rule, and that is currently available for the market value determined by the insurer at the time of settlement;
(b) The insurer may either pay the insured the difference between the market value before applicable deductions and the cost of the comparable automobile of like kind and quality that the insured has located, or negotiate and effect the purchase of the automobile for the insured;
(c) The insurer may elect to offer a replacement automobile in accordance with the provisions set forth in section (2) of this rule; or
(d) The insurer may conclude the loss settlement in the manner provided in the appraisal section of the insurance policy in force at the time of the loss. The insurer shall reimburse the insured for the reasonable appraisal costs as provided in ORS 742.466.
(7) The right of the insured to have a claim reopened under section (6) of this rule applies only to first party claims of the insured under the policy. The insurer is not required to take action under section (6) of this rule if its documentation to the insured at the time of settlement includes written notification of the availability and location of a specified automobile that is at least comparable to the insured automobile as determined pursuant to section (2) of this rule, that could have been purchased for the market value determined by the insurer before applicable deductions. The documentation shall include the vehicle identification number or another specific vehicle identifier.
(8) When the issue of liability is reasonably clear, an insurer shall not recommend that a third party claimant make claim under the claimant's own insurance policy solely for the recommending insurer to avoid paying a claim.
(9) An insurer shall not require unreasonable travel of a claimant to inspect a replacement automobile, to obtain a repair estimate or to have the automobile repaired at a repair shop.
(10) An insurer shall, upon a first party claimant's request, include the claimant's deductible in the insurer's demands under its subrogation rights. Subrogation recoveries shall be shared at least on a proportionate basis with the first party claimant, unless the deductible amount has been otherwise recovered by the claimant. No deduction for expenses may be made from the deductible recovery unless an outside attorney is retained to collect such recovery, in which case deduction may be made only for a pro rata share of the cost of retaining the attorney.
(11) If an insurer or body shop prepares an estimate of the cost of automobile repairs, the estimate shall be in the amount for which the damage may reasonably be expected to be satisfactorily repaired. If crash parts manufactured by anyone other than the original manufacturer are to be supplied or installed, the estimate shall identify each such part in a clearly understandable manner. The insurer or body shop shall give a copy of the written estimate to the claimant.
(12) As provided in ORS 746.280, an insurer shall not require that a particular person make the repairs to the first party claimant's automobile as a condition for recovery under the claimant's policy. An insurer shall not make such a requirement for the repair of a third party claimant's automobile as a condition for claim payment.
(13) When the amount claimed as automobile damage is reduced because of betterment or depreciation, all information used as the basis for the reduction shall be contained in the insurer’s claim file. Such deductions shall be itemized and specified as to dollar amount and shall be appropriate for the amount of betterment or depreciation.
(14) Sections (3), (4), (5), (8), and (12) of this rule also apply to third party claimants.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 742.466, 746.230, 746.240, 746.280 & 2009 OL Ch. 65, sec. 2 & 3
Hist.: IC 2-1980, f. 5-8-80, ef. 6-1-80; IC 8-1986, f. & ef. 12-30-86; ID 20-1998, f. 12-2-98, cert. ef. 2-1-99; ID 2-2001(Temp), f. & cert. ef. 3-15-01 thru 9-7-01; Administrative correction 11-20-01; ID 12-2002, f. & cert. ef. 5-10-02; ID 14-2009, f. 12-23-09, cert. ef. 1-1-10
836-080-0250
Workers' Compensation Insurance Unfair Claim Settlement Practices Standards
For the purposes of ORS 746.230(1)(d), the following applies to a workers' compensation insurer:
(1) The insurer is required to conduct a "reasonable" investigation based on all available information in ascertaining whether to deny a claim. A reasonable investigation is whatever steps a reasonably prudent person with knowledge of the legal standards for determining compensbility would take in a good faith effort to ascertain the facts underlying a claim, giving due consideration to the cost of the investigation and the likely value of the claim.
(2) In determining whether an investigation is reasonable, the Director will only look at information contained in the claim record at the time of denial. The insurer may not relay on any fact not documented in the claim record at the time of denial to establish that an investigation was reasonable.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.230(1)(d)
Hist.: ID 12-1992, f. & cert. ef. 7-1-92
836-080-0305
Statutory Authority; Purpose; Applicability
(1) OAR 836-080-0305 to 836-080-0370 are adopted by the Director of the Department of Consumer and Business Services pursuant to the general rulemaking authority in ORS 731.244, to aid in the effectuation of 746.045, 746.055, 746.160, and 746.240.
(2) The purpose of these rules is to define certain fair trade practice standards for title companies, the violation of which will be considered to constitute a practice prohibited by ORS 746.045, 746.055, 746.160(3), or 746.240.
(3) These rules are intended to regulate the marketing activities of title companies involving only intermediaries. These rules do not limit the Director's authority to determine that other activities of title companies with any person constitute violations of ORS 746.045, 746.055, 746.160(3), or 746.240.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: IC 3-1980, f. 7-7-80, ef. 8-1-80; ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0310
Definitions
As used in OAR 836-080-0305 to 836-080-0370, unless the context requires otherwise:
(1) A person "affiliated" with a title company means a person who controls, is controlled by, or is under common control with the title company; or a person who is an owner, director, officer or employee of such a person and acts in such representative capacity. As used in this section, an owner is a person who owns or controls a ten percent or more interest.
(2) "Intermediary" means:
(a) A person who is engaged to any extent in any of the following business activities, other than a title company or a person affiliated with the title company giving the thing of value:
(A) Acting as an agent, broker, representative or attorney in fact or at law of a person who buys or sells an interest in real property, or who lends or borrows money secured by an interest in real property;
(B) Buying, selling or exchanging interests in real property;
(C) Developing or subdividing real property;
(D) Building residential or commercial structures on real property;
(E) Making loans secured by interests in real property;
(F) Auctioning the sale of real property;
(G) Accommodating or facilitating exchanges in real property; or
(H) Providing real property transaction settlement services.
(b) A person who is an owner, director, officer or employee of a person described in subsection (2)(a) of this rule;
(c) A individual who resides in the same household of an individual described in subsection (2)(a) of this rule; or
(d) A trade association of persons described in subsection (2)(a) of this rule.
(3) "Give" means to transfer to another person; or cause another person to receive, retain, use or otherwise benefit from; without receiving equivalent consideration in return.
(4) "Net cost to the title company" means the actual costs directly incurred by the title company to give a thing of value to an intermediary, less any money received by the title company from an intermediary as payment or reimbursement for the thing of value within 30 calendar days after the intermediary received the thing of value, except for the following costs:
(a) Fixed operating costs:
(b) Labor costs; and
(c) Reasonable compensation for the use of an employee's private motor vehicle.
(5) "Thing of value" means anything that has a monetary value including but not limited to any of the following:
(a) An advertisement, which for purposes of this section, without limitation:
(A) Means a representation about any product, service, equipment, facility or activity or any person who makes, distributes, sells, rents, leases or otherwise makes available such a product, service, equipment, facility or activity, when the representation:
(i) Is communicated to a person that, to any extent, by content or context, informs the recipient about such a product, service, equipment, facility or activity;
(ii) Recognizes, honors or otherwise promotes such a product, service, equipment, facility or activity; or
(iii) Invites, advises, recommends or otherwise solicits a person to participate in, inquire about, purchase, lease, rent or use such a product, service, equipment, facility or activity.
(B) Includes a representation promoting only an intermediary, promoting only a title company through the use of a testimony or endorsement by an intermediary, or promoting both an intermediary and a title company; and
(C) Includes a display of pictures of intermediaries purporting to identify intermediaries that have referred clients to the title company;
(b) The creation of a compensating balance, which for purposes of this section means the depositing of funds in a financial institution for the purpose of inducing the institution to extend credit or loan funds to any person other than the depositor;
(c) An extension of a line of credit, which for purposes of this section means the extension of any credit outside of an open account for the ordinary services of a title company, but does not include the acceptance of an indemnity as to unfiled construction liens that are insured against under a title insurance policy;
(d) A monetary advance, which for purposes of this section means the advance of funds for the purpose of paying an obligation of an intermediary or an obligation that a financial institution requires to be paid, other than payment of governmental recording, search or filing fees, and payment at the request of the escrow agent or financial institution of taxes and assessments prior to the completion of the related sale, lease or loan transaction;
(e) A product;
(f) A service; or
(g) The use of a facility.
(6) "Trade association" means an association of persons, a majority of whom are intermediaries. The term does not include a chamber of commerce or an economic development association.
(7) "Title company" means:
(a) A title insurer;
(b) A title insurance agent; or
(c) A person who is an owner, director, officer, or employee of a title insurer or title insurance agent and acts in such representative capacity. As used in this subsection, an owner means a person who owns or controls a ten percent or more interest in the title insurer or title insurance agent.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: IC 3-1980, f. 7-7-80, ef. 8-1-80; ID 11-1988, f. & cert. ef. 6-14-88; ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0315
Providing Things of Value to Intermediaries Generally Prohibited
(1) A title company shall not, directly or indirectly, give or attempt to give any thing of value to an intermediary unless permitted by OAR 836-080-0320 to 836-080-0340. If more than one provision of OAR 836-080-0320 to 836-080-0340 applies, a title company may give a thing of value to an intermediary pursuant to only one provision.
(2) A title company shall also be considered to give a thing of value to an intermediary when the thing of value is given by a person affiliated with the title company.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: IC 3-1980, f. 7-7-80, ef. 8-1-80; IC 3-1983, f. 5-10-83, ef. 6-1-83; ID 11-1988, f. & cert. ef. 6-14-88; ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0320
Miscellaneous Things of Value
A title company may give a thing of value, except money, to an intermediary if the net cost to the title company is $2 or less per thing of value or individual receiving the thing of value, whichever is applicable, and if the thing of value is used only by the intermediary and not further distributed to other persons, except that the intermediary may distribute the thing of value to other persons if the thing of value is:
(1) Printed information about the title company or a person affiliated with the title company;
(2) Any service or product offered by the title company or a person affiliated with the title company; or
(3) Any business activity of the title company or a person affiliated with the title company.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: IC 3-1980, f. 7-7-80, ef. 8-1-80; ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0325
Business Development Activities
(1) A title company may give a thing of value to an intermediary in connection with an activity sponsored only by the title company if the net cost to the title company is $75 or less per individual attending, when five or fewer individuals actually attend and when one of the individuals is an employee of the title company.
(2) A title company may give a thing of value to an intermediary in connection with an activity sponsored only by the title company if the net cost to the title company is $10 or less per individual reasonably expected to attend, when six or more individuals actually attend and when one of the individuals is an employee of the title company.
(3) A title company may give a thing of value to an intermediary in connection with an activity sponsored only by the title company if the activity occurs at the title company's new or substantially remodeled office and the net cost to the title company is $25 or less per individual reasonably expected to attend. The title company shall notify the Director in writing at least 30 calendar days before the activity occurs that it intends to sponsor the activity, a description of the new office or extent of any remodeling, the number of individuals invited and reasonably expected to attend and the expected cost of the activity.
(4) A title company may give a thing of value to an intermediary in connection with an activity sponsored only by the title company if the activity occurs within 90 calendar days before or after the title company's first and each tenth anniversary of commencing title insurance or escrow business and the net cost to the title company is $25 or less per individual reasonably expected to attend. The title company shall notify the Director in writing at least 30 calendar days before the activity occurs that it intends to sponsor the activity, an explanation of when the title company commenced business, the number of individuals invited and reasonably expected to attend and the expected cost of the activity.
(5) A title company may give a thing of value to a trade association in response to a general solicitation of the entire membership of the trade association if the net cost to the title company is $50 or less.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: IC 3-1980, f. 7-7-80, ef. 8-1-80; IC 6-1984, f. 10-15-84, ef. 11-1-84; ID 11-1988, f. & cert. ef. 6-14-88; ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0335
Gifts
(1) A title company may give a plant or flowers to an intermediary in connection with an open house of a new or substantially remodeled office of the intermediary if the net cost to the title company is $50 or less.
(2) A title company may give a thing of value to an intermediary as a condolence if the net cost to the title company is $50 or less.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: IC 3-1980, f. 7-7-80, ef. 8-1-80; ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0337
Real Property Information
(1) A title company may give
to an intermediary information that relates to a specific parcel of real property
located in this state if the cost to the title company, including but not limited
to labor and materials, is $15 or less per request.
(2) A title company may distribute
the information described in section (1) of this rule in any form and in any manner.
(3) This rule does not apply
when a title company provides real property information in connection with a title
insurance policy according to the title company’s filed rating plan approved
by the Director pursuant to ORS 737.320.
(4) Nothing in this rule allows
a title company to provide:
(a) The means of access to the
real property information to an intermediary for less than reasonably equivalent
consideration; or
(b) Any other thing of value
in connection with the information described in section (1) of this rule including
but not limited to packaging such as binders, dividers, folders, page protectors
or compact disc cases.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045,
746.055, 746.160 & 746.240
Hist.: ID 9-1996, f. 6-25-96,
cert. ef. 7-1-96; ID 10-2012, f. & cert. ef. 6-7-12
836-080-0340
Assistance in Qualifying a Subdivision
(1) A title company may do the following things for an intermediary that is a subdivider or developer to help qualify a subdivision for approval by a state or local government:
(a) Advance the normal county recording and filing fees;
(b) Help the subdivider or developer obtain the information necessary to complete the forms required by the state or local government;
(c) Help a subdivider or developer obtain the signatures necessary to file or record the subdivision plat with the state or local government; and
(d) Forward an item to the state or local government after the title company receives the item.
(2) As used in section (1) of this rule:
(a) "Developer" means a person who is a developer as defined in ORS 92.305 or 94.004, or a person who engages in the development of more than one commercial or industrial real property construction projects; and
(b) "Subdivider" means a person who is a subdivider as defined in ORS 92.305, or a person who acquires five or more unimproved lots or tracts of a filed subdivision for the purpose of resale or lease.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: IC 3-1980, f. 7-7-80, ef. 8-1-80; ID 11-1988, f. & cert. ef. 6-14-88; ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0345
Automatic Change in Monetary Limits
All monetary limits in OAR 836-080-0305 to 836-080-0337 will automatically change, without the necessity of amending such rules, by the percentage change from year to year in the Portland Standard Statistical Metropolitan Area Consumer Price Index for all urban consumers, all items (Base 1982=100), or its equivalent as determined by the Director. The Director shall calculate the changes and notify each title company of such changes by December 1 of each year. The changes shall be effective on January 1 of the immediately following year.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: IC 3-1980, f. 7-7-80, ef. 8-1-80; ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0355
Title Insurer Responsible for Violations by Agent
A title insurer also violates OAR 836-080-0315 when a title insurance agent of the title insurer engages in conduct that violates 836-080-0315, the title insurer knows that the conduct violates 836-080-0315, the title insurer knows that the conduct is occurring or is about to occur, and the title insurer fails to request, in writing within 10 calendar days after first knowing that the conduct is occurring or is about to occur, that the title insurance agent immediately discontinue the conduct.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0360
Use by Title Company of an Intermediary's Office
A title company shall not have an employee work in a workspace owned, leased or
rented by an intermediary unless all of the following apply with respect to the space:
(1) The space is separate from and can be secured against access by other occupants of the premises.
(2) The consideration paid, if any, for the space is not more than the prevailing rate for similar space in the market area.
(3) The space is open to the conduct of business with all persons.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: IC 3-1980, f. 7-7-80, ef. 8-1-80; ID 9-1996, f. 6-25-96, cert. ef. 7-1-96; Renumbered from 836-080-0330
836-080-0365
Filing Escrow Rates Required
A title company shall file with the Director in writing each rate to be charged for escrow services and the effective date of such rate before the date the title company uses such rate. A title company shall also file a list of all escrow rates to be charged when it files a new or changed escrow rate.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
836-080-0370
Instruction of Title Company Employees About Rules Required
(1) A title company shall give a copy of OAR 836-080-0305 to 836-080-0370 to each employee who markets or performs any service offered by the title company.
(2) A title company shall instruct each employee described in section (1) of this rule about the content of the rules as follows:
(a) In the case of each employee employed on the effective date of OAR 836-080-0305 to 836-080-0370, within 60 calendar days after that date; and
(b) In the case of each employee employed after the effective date of OAR 836-080-0305 to 836-080-0370, within 30 calendar days after the date the employee commences work.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.045, 746.055, 746.160 & 746.240
Hist.: ID 9-1996, f. 6-25-96, cert. ef. 7-1-96
Use of Insurance Scores and Credit History
836-080-0425
Applicability; Definitions
(1) OAR 836-080-0425 to 836-080-0440 apply to personal insurance as defined in ORS 746.600.
(2) "Application" means an action by a prospective insured that, if accepted by the insurer, would establish a contract of insurance.
(3) "Consumer," "consumer reporting agency," "credit history" and "insurance score" have the meanings given those terms in ORS 746.600.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.015 & 746.240
Hist.: ID 25-2002, f. 12-17-02, cert. ef. 6-1-03; ID 7-2004, f. & cert. ef. 10-5-04
836-080-0430
Disclosure of Use of Credit History or Insurance Scores
(1) Before an insurer or its insurance producer may obtain the credit history or insurance score of a consumer in response to a request by the consumer relating to insurance coverage, the insurer or insurance producer shall notify the consumer that the insurer or insurance producer will check the credit history or insurance score of the consumer. The notice may be oral, in writing or in the same medium as the medium in which communication between the consumer and the insurer or insurance producer is conducted.
(2) An insurance producer need provide only one notice under section (1) of this rule to a consumer for the inquiry or inquiries that the insurance producer makes to one or more insurers in response to the request by the consumer.
(3) An insurer who uses credit histories or insurance scores for underwriting or rating coverage shall instruct each of its insurance producer that before an insurance producer may obtain a consumer's credit history or insurance score, the insurance producer must notify the consumer that the consumer's credit history or insurance score of the consumer will be checked.
(4) An insurer that uses the credit history or insurance score of a consumer when considering the consumer's application for insurance must notify the consumer during the application process that the consumer may request a written statement describing its use of credit histories or insurance scores. The notice to the consumer may be either in writing or in the same medium as the medium in which the application is made. The statement must address the following items:
(a) Why the insurer uses credit history or insurance scores.
(b) How the insurer uses credit histories or insurance scores.
(c) What kinds of credit information are used by the insurer.
(d) Whether a consumer's lack of credit history will affect the insurer's consideration of an application.
(e) Where the consumer may go with questions.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.015, 746.240, 746.661 & 746.663
Hist.: ID 25-2002, f. 12-17-02, cert. ef. 6-1-03; ID 7-2004, f. & cert. ef. 10-5-04; ID 8-2005, f. 5-18-05, cert. ef. 8-1-05; ID 11-2005(Temp), f. & cert. ef. 9-15-05 thru 3-6-06; ID 4-2006, f. 3-9-06, cert. ef. 3-10-06
836-080-0435
Policies Governing Credit Histories and Insurance Scores
Each insurer that uses credit histories or insurance scores in the rating or underwriting, or both, of prospective applicants, applicants or policyholders for personal insurance shall establish a written policy that includes at least the following:
(1) An explanation of credit histories or insurance scores, or an explanation of both if the insurer uses both, and the insurer's standards governing their use.
(2) Rating and underwriting protocols, rules and instructions relating to credit histories or insurance scores. The protocols, rules and instructions shall include an explanation of the insurer's consideration and treatment, for underwriting purposes and for rating purposes, of:
(a) A consumer for whom the insurer or provider of credit scoring information has found no credit records (a "no hit"), and whether the insurer may make exceptions.
(b) A consumer for whom the insurer or provider of credit history or insurance score information has found a credit record but insufficient credit activity for creating a credit score (a "no score"), and whether the insurer may make exceptions.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.015 & 746.240
Hist.: ID 25-2002, f. 12-17-02, cert. ef. 6-1-03; ID 7-2004, f. & cert. ef. 10-5-04
836-080-0436
Absence of or Inability to Determine Credit History; Relation to Risk to Insurer
An insurer may use the category of absence of a credit history ("no hit") or the category of inability to determine a consumer's credit history ("no score") under ORS 746.661(1)(c) according to the separate risk profiles for the two categories, and any relevant subcategories, demonstrated by actuarial data that the insurer has submitted to the Director of the Department of Consumer and Business Services.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.650
Hist.: ID 7-2004, f. & cert. ef. 10-5-04
836-080-0438
Definition of Adverse Underwriting Decision; Notice
(1) For the purpose of the notice required by ORS 746.650(5), an adverse underwriting decision as defined in 746.600(1)(a)(G)(iii) occurs when an insurer accepting an application for insurance would have given the consumer a lower rate if the consumer's credit history or the credit factors in the consumer's insurance score were more favorable.
(2) An insurer shall include in a notice of adverse underwriting decision required by ORS 746.650(5) an explanation of the consumer's right to request, no more than once annually, that the insurer rerate the consumer, and of potential negative consequences of rerating, if any.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.600 & 746.650
Hist.: ID 7-2004, f. & cert. ef. 10-5-04; ID 11-2005(Temp), f. & cert. ef. 9-15-05 thru 3-6-06; ID 4-2006, f. 3-9-06, cert. ef. 3-10-06
836-080-0440
Unfair Insurance Trade Practice
Violation of any provision of OAR 836-080-0425 to 836-080-0440 is an unfair trade practice for purposes of ORS 746.240.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.240
Hist.: ID 25-2002, f. 12-17-02, cert. ef. 6-1-03
Privacy of Personal Information (ORS 746.600 to 746.690)
836-080-0501
Authority; Rule of Construction; Applicability
(1) OAR 836-080-0501 to 836-080-0551 are adopted under the authority of ORS 731.244 and 746.620 for the purpose of implementing 746.600, 746.620, 746.630 and 746.665.
(2) The examples in OAR 836-080-0501 to 836-080-0551 are not exclusive. Compliance with an example in 836-080-0501 to 836-080-0551 constitutes compliance with the statute to which the example applies.
(3) OAR 836-080-0501 to 836-080-0551 have the same scope of applicability as ORS 746.600, 746.620, 746.630 and 746.665, applying to insurance activities of a licensee and not to noninsurance activities.
(4) The applicability of the exemptions in ORS 746.665(1)(b) and (c) includes but is not limited to a licensee's transactions described in 746.665(1)(b) and (c) with a reinsurer or with an insurer with respect to stop loss or excess loss insurance.
Stat. Auth.: ORS 731.244, 746.600 & 746.620
Stat. Implemented: ORS 746.600, 746.620, 746.630 & 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02; ID 11-2006, f. & cert. ef. 6-26-06; ID 19-2006, f. & cert. ef. 9-26-06
836-080-0506
Definitions and Examples
The following definitions and examples of definitions apply to the following terms as they are defined or used in ORS 746.600 and used in 746.620, 746.630 and 746.665 or as they are defined or used in OAR 836-080-0501 to 836-080-0551:
(1) "Clear and conspicuous" means that a notice under ORS 746.620 or a disclosure authorization form under 746.630 is reasonably understandable and designed to call attention to the nature and significance of the information in the notice or disclosure authorization form. The following are applicable examples:
(a) Examples of "reasonably understandable." A licensee makes its notice or disclosure authorization form reasonably understandable if it:
(A) Presents the information in the notice or disclosure authorization form in clear, concise sentences, paragraphs and sections;
(B) Uses short explanatory sentences or bullet lists whenever possible;
(C) Uses definite, concrete, everyday words and active voice whenever possible;
(D) Avoids multiple negatives;
(E) Avoids legal and highly technical business terminology whenever possible; and
(F) Avoids explanations that are imprecise and readily subject to different interpretations.
(b) Designed to call attention. A licensee designs its notice or disclosure authorization form to call attention to the nature and significance of the information in it if the licensee:
(A) Uses a plain-language heading to call attention to the notice or disclosure authorization form;
(B) Uses a typeface and type size that are easy to read;
(C) Provides wide margins and ample line spacing;
(D) Uses boldface or italics for key words; and
(E) Uses distinctive type size, style and graphic devices, such as shading or sidebars, when a form combines the licensee's notice or disclosure authorization form with other information.
(c) Notices on web sites. If a licensee provides a notice on a web page, the licensee designs its notice to call attention to the nature and significance of the information in it if the licensee uses text or visual cues to encourage scrolling down the page if necessary to view the entire notice and ensures that other elements on the web site, such as text, graphics, hyperlinks or sound, do not distract attention from the notice, and the licensee either:
(A) Places the notice on a screen that consumers frequently access, such as a page on which transactions are conducted; or
(B) Places a link on a screen that consumers frequently access, such as a page on which transactions are conducted, that connects directly to the notice and is labeled appropriately to convey the importance, nature and relevance of the notice.
(2) "Collect" means to obtain information that the licensee organizes or can retrieve by the name of an individual or by identifying number, symbol or other identifying particular assigned to the individual, irrespective of the source of the underlying information.
(3) The following examples apply to the term "consumer" as it is defined in the definition of "individual" in ORS 746.600 and as it is used in 746.620, 746.630 and 746.665:
(a) An individual who provides personal information to a licensee in connection with obtaining or seeking to obtain financial, investment or economic advisory services relating to an insurance product or service is a consumer regardless of whether the licensee establishes an ongoing advisory relationship.
(b) An applicant for insurance prior to the inception of insurance coverage is a licensee's consumer.
(c) An individual who is a consumer of another financial institution is not a licensee's consumer solely because the licensee is acting as agent for, or provides processing or other services to, that financial institution.
(d) An individual is a licensee's consumer if the licensee discloses personal information about the individual to a nonaffiliated third party other than as permitted under ORS 746.665(1)(a) to (j) or (m) to (q), and:
(A) The individual is a beneficiary of a life insurance policy underwritten by the licensee;
(B) The individual is a claimant under an insurance policy issued by the licensee;
(C) The individual is an insured or an annuitant under an insurance policy or an annuity, respectively, issued by the licensee; or
(D) The individual is a mortgagor of a mortgage covered under a mortgage insurance policy.
(e) If the licensee provides the initial, annual and revised notices under ORS 746.620 to the plan sponsor, group or blanket insurance policyholder or group annuity contract holder, and if the licensee does not disclose personal information about such an individual to a nonaffiliated third party other than as permitted under 746.665(1)(a) to (j) and (m) to (q), an individual is not the consumer of the licensee solely because the individual is:
(A) A participant or a beneficiary of an employee benefit plan that the licensee administers or sponsors or for which the licensee acts as a trustee, insurer or fiduciary; or
(B) Covered under a group or blanket insurance policy or group annuity contract issued by the licensee.
(f) Individuals described in paragraphs (A) and (B) of subsection (e) of this section are consumers of a licensee if the licensee does not meet all of the conditions of subsection (e) of this section. The individuals are not customers for purposes of ORS 746.600, 746.620, 746.630 or 746.665 solely because of their status described in paragraphs (A) and (B) of subsection (e) of this section.
(4) The following examples that indicate whether a continuing relationship exists apply to the term "customer" as it is defined in the definition of "individual" in ORS 746.600:
(a) A consumer has a continuing relationship with a licensee if:
(A) The consumer is a current policyholder of an insurance product issued by or through the licensee; or
(B) The consumer obtains financial, investment or economic advisory services relating to an insurance product or service from the licensee for a fee.
(b) A consumer does not have a continuing relationship with a licensee if:
(A) The consumer applies for insurance but does not purchase the insurance;
(B) The licensee sells the consumer airline travel insurance in an isolated transaction;
(C) The individual is no longer a current policyholder of an insurance product or no longer obtains insurance services with or through the licensee;
(D) The consumer is a beneficiary or claimant under a policy and has submitted a claim under a policy choosing a settlement option involving an ongoing relationship with the licensee.
(E) The consumer is a beneficiary or a claimant under a policy and has submitted a claim under that policy choosing a lump sum settlement option;
(F) The customer's policy is lapsed, expired or otherwise inactive or dormant under the licensee's business practices, and the licensee has not communicated with the customer about the relationship for a period of 12 consecutive months, other than for annual privacy notices, material required by law or rule, communication at the direction of a state or federal authority, or promotional materials.
(G) The individual is an insured or an annuitant under an insurance policy or annuity, respectively, but is not the policyholder or owner of the insurance policy or annuity; or
(H) For the purposes of this rule, the individual's last known address according to the licensee's records is deemed invalid. An address of record is deemed invalid if mail sent to that address by the licensee has been returned by the postal authorities as undeliverable and if subsequent attempts by the licensee to obtain a current valid address for the individual have been unsuccessful.
(5) "Financial institution" means any institution the business of which is engaging in activities that are financial in nature or incidental to such financial activities as described in section 4(k) of the Bank Holding Company Act of 1956 (12 USC 1843(k)). "Financial institution" does not include:
(a) Any person or entity with respect to any financial activity that is subject to the jurisdiction of the Commodity Futures Trading Commission under the Commodity Exchange Act (7 USC 1 et seq.).
(b) The Federal Agricultural Mortgage Corporation or any entity charged and operating under the Farm Credit Act of 1971 (12 USC 2001 et seq.); or
(c) Institutions chartered by Congress specifically to engage in securitizations, secondary market sales, including sales of servicing rights or similar transactions related to a transaction of a consumer, as long as the institutions do not sell or transfer nonpublic personal information to a nonaffiliated third party.
(6) "Financial product or service" means any product or service that a financial holding company could offer by engaging in an activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 (12 USC 1843(k)). The term includes a financial institution's evaluation or brokerage of information that the financial institution collects in connection with a request or an application from a consumer for a financial product or service.
(7) The term "licensee" as defined in ORS 746.600 also includes an unauthorized insurer that accepts business placed through a licensed surplus lines agent in this state, but only with regard to the surplus lines placements placed pursuant to 735.400 to 735.495.
(8) The term "nonaffiliated third party" as defined in ORS 746.600 also includes any company that is an affiliate solely because of the direct or indirect ownership or control of the company by the licensee or its affiliate in conducting merchant banking or investment banking activities of the type described in section 4(k)(4)(H) or insurance company investment activities of the type described in section 4(k)(4)(I) of the federal Bank Holding Company Act (12 USC 1843(k)(4)(H) and (I)).
(9) "Personal financial information" is the category of personal information that does not include medical record information but includes any of the following information:
(a) Information that a consumer provides to a licensee to obtain an insurance product or service from the licensee.
(b) Information about a consumer resulting from a transaction involving an insurance product or service between a licensee and a consumer.
(c) Information that the licensee otherwise obtains about a consumer in connection with providing an insurance product or service to the consumer.
(d) Any list, description or other grouping of consumers, and publicly available information pertaining to those consumers, that is derived using any personal financial information that is not publicly available.
(10) The definition of "personal information" in ORS 746.600 provides that "'Personal information' does not include information that a licensee has a reasonable basis to believe is lawfully made available to the general public from federal, state or local government records, widely distributed media or disclosures to the public that are required by federal, state or local law." For purposes of this exemption:
(a) A licensee has a reasonable basis to believe the information is lawfully made available to the general public if the licensee has taken steps to determine:
(A) That the information is of the type that is available to the general public; and
(B) Whether an individual can direct that the information not be made available to the general public and, if so, that the licensee's consumer has not done so.
(b) The following are examples:
(A) Government records. Information in government records that is not "personal information" includes information in government real estate records and security interest filings.
(B) Widely distributed media. Information from widely distributed media that is not "personal information" includes information from a telephone book, a television or radio program, a newspaper or a web site that is available to the general public on an unrestricted basis. A web site is not restricted merely because an Internet service provider or a site operator requires a fee or a password, so long as access is available to the general public.
(C) Reasonable basis examples:
(i) A licensee has a reasonable basis to believe that mortgage information is lawfully made available to the general public if the licensee has determined that the information is of the type included on the public record in the jurisdiction where the mortgage would be recorded.
(ii) A licensee has a reasonable basis to believe that an individual's telephone number is lawfully made available to the general public if the licensee has located the telephone number in the telephone book or the consumer has informed the licensee that the telephone number is not unlisted.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
836-080-0511
Application of Notice Requirements
(1) A licensee is not subject to the requirements stated in ORS 746.620 if the licensee is an employee or other representative of another licensee who is the principal in the relationship and the principal otherwise complies with the requirements of 746.620, 746.630 and 746.665, and:
(a) If the licensee is an insurance producer, the licensee acts in accordance with the requirements of ORS 746.620(8); and
(b) If the licensee is other than an insurance producer, the licensee does not disclose any personal information to any person other than to the principal or its affiliate as provided in ORS 746.665(1)(a) to (j) or (m) to (q), or under 746.665(1)(L) in connection with an audit.
(2) A surplus lines licensee or surplus lines insurer is deemed to be in compliance with ORS 746.620 if:
(a) The licensee or insurer does not disclose personal information of a consumer or a customer to nonaffiliated third parties for any purpose, except as permitted by ORS 746.665(1)(a) to (j) and (L) to (q); and
(b) The licensee or insurer delivers a notice to the consumer at the time a customer relationship is established on which the following is printed in 16-point type:
PRIVACY NOTICE
NEITHER THE U.S. BROKERS THAT HANDLED THIS INSURANCE
NOR THE INSURERS THAT HAVE UNDERWRITTEN THIS INSURANCE
WILL DISCLOSE NONPUBLIC PERSONAL INFORMATION
CONCERNING THE BUYER TO NONAFFILIATES OF THE
BROKERS OR INSURERS EXCEPT AS PERMITTED BY LAW.
Stat. Auth.: ORS 731.244, 746.600 & 746.620
Stats. Implemented: ORS 746.600, 746.620, 746.630 & 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02; ID 8-2005, f. 5-18-05, cert. ef. 8-1-05
836-080-0516
Initial Notice to Consumers
(1) A licensee shall provide an initial notice as provided in ORS 746.620(1) and also subsequently when further information is collected in connection with a renewal or reinstatement of an insurance policy.
(2) A licensee is not required to provide an initial notice to a consumer for purposes of ORS 746.620 if any of the following circumstances applies:
(a) If the licensee does not disclose any personal information about the consumer to any nonaffiliated third party other than as authorized by ORS 746.665(1)(a) to (j) or (m) to (q) and the licensee does not have a customer relationship with the consumer.
(b) If the licensee has a customer relationship with the consumer and the consumer consents to the licensee's searching for insurance coverage to replace existing coverage or to perform another insurance service for the consumer, and if disclosure of personal information of the consumer meets the conditions specified in ORS 746.665(1)(c)(B).
(c) If a notice has been provided by an affiliated licensee, as long as the notice clearly identifies all licensees to whom the notice applies and is accurate with respect to the licensee and the other institutions.
(3) For the purpose of the notice requirement of ORS 746.620(1), pursuant to which a licensee shall provide notice of information practices to a consumer who becomes a customer of the licensee not later than the date that the licensee establishes a continuing relationship with the consumer, a continuing relationship between a licensee and consumer is established when the consumer, as shown in the following examples:
(a) Becomes a policyholder of a licensee that is an insurer, when the insurer delivers an insurance policy or contract to the consumer, or in the case of a licensee that is an agent, obtains insurance through that licensee; or
(b) Agrees to obtain financial, economic or investment advisory services relating to insurance products or services for a fee from the licensee.
(4) When an existing customer obtains a new insurance product or service from a licensee that is to be used primarily for personal, family or household purposes, either of the following provisions may apply to a licensee regarding the initial notice requirements of ORS 746.620:
(a) The licensee may provide a revised policy notice as provided in OAR 836-080-0531; or
(b) If the initial, revised or annual notice that the licensee most recently provided to that customer was accurate with respect to the new insurance product or service, the licensee does not need to provide a new privacy notice under ORS 746.620.
(5) A licensee may provide the initial notice required by ORS 746.620 within a reasonable time after the licensee establishes a customer relationship if establishing the customer relationship is not at the customer's election or if providing notice not later than when the licensee establishes a customer relationship would substantially delay the customer's transaction and the customer agrees to receive the notice at a later time. The following are examples of exceptions for purposes of this section:
(a) Not at the customer's election: Establishing a customer relationship is not at the customer's election if a licensee acquires or is assigned a customer's policy from another financial institution or residual market mechanism and the customer does not have a choice about the licensee's acquisition or assignment.
(b) Substantial delay of a customer's transaction: Providing notice not later than when a licensee establishes a customer relationship would substantially delay the customer's transaction when the licensee and the individual agree over the telephone to enter into a customer relationship involving prompt delivery of the insurance product or service.
(c) No substantial delay of a customer's transaction: Providing notice not later than when a licensee establishes a customer relationship would not substantially delay the customer's transaction when the relationship is initiated in person at the licensee's office or through other means by which the customer may view the notice, such as on a website.
(6) When a licensee is required to deliver an initial privacy notice by ORS 746.620, the licensee shall deliver it according to OAR 836-080-0536. If the licensee uses an abbreviated notice according to ORS 746.620, the licensee may deliver the privacy notice as provided in OAR 836-080-0519(8).
(7) A licensee that uses a standard privacy notice to comply with the requirements of the federal Gramm-Leach-Bliley Act of 1999 and its implementing regulations for its business as a financial institution or that uses such a standard privacy notice for its insurance business in two or more states may comply with the initial privacy notice requirement by using either of the following options:
(a) By using the standard privacy notice and another supplementary privacy notice that includes the elements required by ORS 746.620 and OAR 836-080-0519 that are not contained in the standard privacy notice. The supplementary privacy notice must prominently and clearly state that any rights an individual may have as described in that notice are not abridged or limited by the standard privacy notice that the individual may receive separately.
(b) By using a single Oregon-specific privacy notice that complies in its entirety with ORS 746.620.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
836-080-0519
Information to be Included in Initial Privacy Notice
(1) This rule implements the requirement of the initial notice under ORS 746.620, describes the contents of the initial notice and provides examples of categories of information required in the notice.
(2) The following are examples of categories of personal information collected by a licensee. A licensee satisfies the requirement of categorizing the personal information it collects if the licensee categorizes it according to the source of the information, including, for example:
(a) Information from the consumer;
(b) Information about the consumer's transactions with the licensee or its affiliates;
(c) Information about the consumer's transactions with nonaffiliated third parties; and
(d) Information from an insurance support organization.
(3) The following are examples of categories of personal information disclosed by a licensee:
(a) A licensee satisfies the requirement of categorizing personal information it discloses if the licensee categorizes the information according to source, as described in section (2) of this rule, as applicable, and provides a few examples to illustrate the types of information in each category. These may include:
(A) Information from the consumer, including application information such as assets and income and identifying information such as name, address and social security number;
(B) Transaction information, such as information about balances, payment history and parties to the transaction; and
(C) Information from consumer reporting agencies, such as a consumer's creditworthiness and credit history.
(b) A licensee does not adequately categorize the information that it discloses if the licensee uses only general terms, such as transaction information about the consumer.
(c) If a licensee may disclose all of the personal information about consumers that it collects, the licensee may simply state that fact without describing the categories or examples of personal information that the licensee discloses.
(4) The following are examples for describing categories of affiliated and nonaffiliated third parties to which a licensee discloses information:
(a) A licensee satisfies the requirement of categorizing the affiliates and nonaffiliated third parties to which the licensee discloses personal information about consumers if the licensee identifies the types of business in which they engage.
(b) Types of businesses may be described by general terms only if the licensee uses a few illustrative examples of significant lines of business. For example, a licensee may use the term financial products or services if it includes appropriate examples of significant lines of businesses, such as life insurer, automobile insurer, consumer banking or securities brokerage.
(c) A licensee may also categorize the affiliates and nonaffiliated third parties to which it discloses personal information about consumers using more detailed categories.
(5) A privacy notice shall include an explanation of the consumer's right under ORS 746.665(1)(k) to opt out of the disclosure of personal information to nonaffiliated third parties, including the method by which the consumer may exercise that right at that time. The following are examples of disclosures under the exception for joint marketers under 746.665(1)(k). If a licensee discloses personal information under the exception in 746.665(1)(k) to a nonaffiliated third party to market products or services that it offers alone or jointly with another financial institution, the licensee satisfies the applicable disclosure requirement of this rule if the licensee:
(a) Lists the categories of personal information it discloses, using the same categories and examples the licensee used to meet the requirements of section (1) of this rule.
(b) States whether the third party is:
(A) A service provider that performs marketing services on the licensee's behalf or on behalf of the licensee and another financial institution; or
(B) A financial institution with whom the licensee has a joint marketing agreement.
(6) If a licensee does not disclose personal information about customers or former customers to affiliates or nonaffiliated third parties except as authorized under ORS 746.665(1)(a) to (k) and (m) to (q), and under 746.665(1)(L) in connection with an audit, the licensee may simply state that fact, in addition to the information it is required to provide under 746.620(3)(a), (h), (i) and (j) and (4).
(7) A licensee describes its policies and practices relating to protection of the confidentiality and security of personal information if it does both of the following:
(a) Describes in general terms who is authorized to have access to the information; and
(b) States whether the licensee has security practices and procedures in place to ensure the confidentiality of the information in accordance with the licensee's policy. The licensee is not required to describe technical information about the safeguards it uses.
(8) An abbreviated notice authorized by ORS 746.620(5) must include in full the elements of the notice required by the federal Gramm-Leach-Bliley Act of 1999 for the purpose of compliance with that law and shall also include the information referred to in section (5) of this rule and in 746.620(5). The licensee shall deliver its abbreviated notice according to OAR 836-080-0536. The licensee is not required to deliver its privacy notice with its abbreviated notice. The licensee instead may provide the consumer a reasonable means to obtain its privacy notice as described in 836-080-0536(9). If a consumer who receives the licensee's abbreviated notice requests the licensee's privacy notice, the licensee shall deliver its privacy notice according to 836-080-0536.
(9) A licensee's initial privacy notice may include any of the following:
(a) Categories of personal information that the licensee reserves the right to disclose in the future but does not currently disclose; and
(b) Categories of affiliates or nonaffiliated third parties to whom the licensee reserves the right in the future to disclose, but to whom the licensee does not currently disclose, personal information.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
836-080-0523
Annual Notice
(1) The personal information to which a licensee must refer in the annual notice need include only personal financial information. A licensee provides the notice annually if it defines the 12-consecutive-month period as a calendar year and provides the annual notice to the customer once in each calendar year following the calendar year in which the licensee provided the initial notice. For example, if a customer opens an account on any day of year 1, the licensee shall provide an annual notice to that customer by December 31 of year 2.
(2) Termination of customer relationship: A licensee is not required to provide an annual notice to a former customer. A former customer is an individual with whom a licensee no longer has a continuing relationship. The following are examples in which a continuing relationship no longer exists:
(a) A licensee no longer has a continuing relationship with an individual if the individual no longer is a current policyholder of an insurance product or no longer obtains services with or through the licensee.
(b) A licensee no longer has a continuing relationship with an individual if the individual's policy is lapsed, expired or otherwise inactive or dormant under the licensee's business practices, and the licensee has not communicated with the customer about the relationship for a period of 12 consecutive months, other than to provide annual privacy notices, material required by law or regulation or promotional materials.
(c) For the purpose of this rule, a licensee no longer has a continuing relationship with an individual if the individual's last known address according to the licensee's records is deemed invalid. An address of record is deemed invalid if mail sent to that address by the licensee has been returned by the postal authorities as undeliverable and if subsequent attempts by the licensee to obtain a current valid address for the individual have been unsuccessful.
(d) A licensee no longer has a continuing relationship with a customer in the case of providing real estate settlement purposes, at the time the customer completes execution of all documents related to the real estate closing, payment for those services has been received or the licensee has completed all of its responsibilities with respect to the settlement, including filing documents on the public record, whichever is later.
(3) When a licensee is required by this rule to deliver an annual privacy notice, the licensee shall deliver it according to OAR 836-080-0536.
(4) An insurer issuing a title insurance policy is not required to give the annual notice required by ORS 746.620(2) to the policyholder.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
836-080-0526
Information to be Included in Annual Notice
(1) This rule implements the requirement of the annual notice under ORS 746.620, describes the contents of the annual notice and provides examples of categories of information required in the annual notice.
(2) The following are examples of categories of personal financial information collected by a licensee. A licensee satisfies the requirement of categorizing the personal financial information it collects if the licensee categorizes it according to the source of the information, as applicable:
(a) Information from the consumer;
(b) Information about the consumer's transactions with the licensee or its affiliates;
(c) Information about the consumer's transactions with nonaffiliated third parties; and
(d) Information from an insurance support organization.
(3) The following are examples of categories of personal financial information disclosed by a licensee:
(a) A licensee satisfies the requirement of categorizing personal financial information it discloses if the licensee categorizes the information according to source, as described in section (2) of this rule, as applicable, and provides a few examples to illustrate the types of information in each category. These may include:
(A) Information from the consumer, including application information such as assets and income and identifying information such as name, address and social security number;
(B) Transaction information, such as information about balances, payment history and parties to the transaction; and
(C) Information from consumer reporting agencies, such as a consumer's creditworthiness and credit history.
(b) A licensee does not adequately categorize the information that it discloses if the licensee uses only general terms, such as transaction information about the consumer.
(c) If a licensee may disclose all of the personal financial information about consumers that it collects, the licensee may simply state that fact without describing the categories or examples of personal financial information that the licensee discloses.
(4) The following are examples for describing categories of affiliated and nonaffiliated third parties to which a licensee discloses information:
(a) A licensee satisfies the requirement of categorizing the affiliates and nonaffiliated third parties to which the licensee discloses personal financial information about consumers if the licensee identifies the types of business in which they engage.
(b) Types of businesses may be described by general terms only if the licensee uses a few illustrative examples of significant lines of business. For example, a licensee may use the term financial products or services if it includes appropriate examples of significant lines of businesses, such as life insurer, automobile insurer, consumer banking or securities brokerage.
(c) A licensee may also categorize the affiliates and nonaffiliated third parties to which it discloses personal financial information about consumers using more detailed categories.
(5) An annual notice shall include an explanation of the consumer's right under ORS 746.665(1)(k) to opt out of the disclosure of personal financial information to nonaffiliated third parties, including the method by which the consumer may exercise the right at that time. An annual notice that contains such an explanation satisfies the requirement of 746.620(3)(f). If a licensee discloses personal financial information under the exception in 746.665(1)(k) to a nonaffiliated third party to market products or services that it offers alone or jointly with another financial institution, the licensee satisfies the applicable disclosure requirement of this rule if the licensee:
(a) Lists the categories of personal financial information it discloses, using the same categories and examples the licensee used to meet the requirements of section (1) of this rule.
(b) States whether the third party is:
(A) A service provider that performs marketing services on the licensee's behalf or on behalf of the licensee and another financial institution; or
(B) A financial institution with whom the licensee has a joint marketing agreement.
(6) If a licensee does not disclose personal financial information about customers or former customers to affiliates or nonaffiliated third parties except as authorized under ORS 746.665(1)(a) to (j) and (m) to (q), and under 746.665(1)(L) in connection with an audit, the licensee may state that fact, in addition to the information it is required to provide under 746.620(3)(a), (h) and (i), and (4).
(7) A licensee describes its policies and practices relating to protection of the confidentiality and security of personal financial information if it does both of the following:
(a) Describes in general terms who is authorized to have access to the information; and
(b) States whether the licensee has security practices and procedures in place to ensure the confidentiality of the information in accordance with the licensee's policy. The licensee is not required to describe technical information about the safeguards it uses.
(8) A licensee's notice may include any of the following:
(a) Categories of personal financial information that the licensee reserves the right to disclose in the future but does not currently disclose; and
(b) Categories of affiliates or nonaffiliated third parties to whom the licensee reserves the right in the future to disclose, but to whom the licensee does not currently disclose, personal financial information.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
836-080-0531
Revised Privacy Notices
(1) Except as otherwise authorized in OAR 836-080-0501 to 836-080-0551, a licensee shall not, directly or through an affiliate, disclose any personal financial information about a consumer to a nonaffiliated third party under ORS 746.665(1)(k) other than as described in the initial notice that the licensee provided to the consumer under 746.620 and OAR 836-080-0501 to 836-080-0551, unless:
(a) The licensee has provided to the consumer a clear and conspicuous revised notice that accurately describes its policies and practices;
(b) The licensee has given the consumer a reasonable opportunity, before the licensee discloses personal financial information to the nonaffiliated third party, to opt out of the disclosure; and
(c) The consumer does not opt out.
(2) Except as otherwise allowed by ORS 746.665(1)(a) to (j) and (m) to (q), a licensee shall provide a revised notice to the consumer under section (1) of this rule before the licensee, for example:
(a) Discloses a new category of personal financial information to a nonaffiliated third party;
(b) Discloses personal financial information to a new category of nonaffiliated third party; or
(c) Discloses personal financial information about a former customer to a nonaffiliated third party, if that former customer has not had the opportunity to indicate that the former customer does not want disclosure.
(3) A revised privacy notice under this rule shall be delivered according to OAR 836-080-0536.
(4) The prohibition in section (1) of this rule and the requirements of section (2) of this rule do not apply with respect to a revision of an initial notice, the sole purpose of which is to incorporate a notice of a disclosure of personal information for which authorization is not required by ORS 746.665.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
836-080-0536
Delivery
(1) A licensee shall provide any notices required by ORS 746.620 and OAR 836-080-0501 to 836-080-0551 so that each consumer can be reasonably expected to receive actual notice in writing or, if the consumer agrees, electronically.
(2) The following are examples of reasonable expectation of actual notice. A licensee may reasonably expect that a consumer will receive actual notice if the licensee:
(a) Hand-delivers a printed copy of the notice to the consumer;
(b) Mails a printed copy of the notice to the last known address of the consumer separately, or in a policy, billing or other written communication;
(c) For a consumer who conducts transactions electronically, posts the notice on the electronic site and requires the consumer to acknowledge receipt of the notice as a necessary step to obtaining a particular insurance product or service;
(d) For an isolated transaction with a consumer, such as the licensee providing an insurance quote or selling the consumer travel insurance, posts the notice and requires the consumer to acknowledge receipt of the notice as a necessary step to obtaining the particular insurance product or service.
(3) The following are examples of unreasonable expectations of actual notice. A licensee may not reasonably expect that a consumer will receive actual notice of its privacy policies and practices if the licensee:
(a) Posts only a sign in its office or generally publishes advertisements of its privacy policies and practices; or
(b) Sends the notice by electronic mail to a consumer who does not obtain an insurance product or service from the licensee electronically.
(4) A licensee may reasonably expect that a customer will receive actual notice of the licensee's annual privacy notice if:
(a) The customer uses the licensee's web site to access insurance products and services electronically and agrees to receive notices at the web site and the licensee posts its current privacy notice continuously in a clear and conspicuous manner on the web site; or
(b) The customer has requested that the licensee refrain from sending any information regarding the customer relationship, and the licensee's current privacy notice remains available to the customer upon request.
(5) A licensee may not provide any notice required by ORS 746.620 and OAR 836-080-0501 to 836-080-0551 solely by orally explaining the notice, either in person or over the telephone.
(6) For customers only, a licensee shall provide the initial notice, annual notice and revised notice required by ORS 746.620 and OAR 836-080-0501 to 836-080-0551 so that the customer can retain them or obtain them later in writing or, if the customer agrees, electronically. The following are examples of retention and accessibility of notices. A licensee provides a privacy notice to a customer so that the customer can retain it or obtain it later if the licensee:
(a) Hand-delivers a printed copy of the notice to the customer;
(b) Mails a printed copy of the notice to the last known address of the customer; or
(c) Makes its current privacy notice available on a web site or a link to another web site for the customer who obtains an insurance product or services electronically and agrees to receive the notice at the web site.
(7) A licensee may provide a joint notice from the licensee and one or more of its affiliates or other financial institutions, as identified in the notice, as long as the notice is accurate with respect to the licensee and the other institutions. A licensee may also provide a notice on behalf of another financial institution.
(8) If two or more consumers jointly obtain an insurance product or service from a licensee, the licensee may satisfy the initial, annual and revised notice requirements by providing one notice to those consumers jointly.
(9) A licensee provides a reasonable means by which a consumer may obtain a copy of its privacy notice for the purpose of OAR 836-080-0519(8) if the licensee:
(A) Provides a toll-free telephone number that the consumer may call to request the notice; or
(B) For a consumer who conducts business in person at the licensee's office, maintains copies of the notice on hand and provides a copy to the consumer immediately upon request.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
836-080-0541
Opt in Notice; Form of Opt Out Notice to Consumers and Opt Out Methods for Purpose of ORS 746.665(1)(k)
(1) Form of opt in notice. The form of the disclosure authorization (the opt in form) is governed by ORS 746.630, and is used with respect to disclosures of personal information that do not meet one or more of the conditions specified in 746.665(1).
(2) Form of opt out notice. Sections (2) to (10) of this rule govern the form of and requirements applicable to an opt out notice when the notice is required by ORS 746.665(1)(k). If a licensee is required to provide an opt out notice by ORS 746.665(1)(k), the licensee shall accurately explain the right to opt out under that provision. The notice shall state:
(a) That the licensee discloses or reserves the right to disclose personal financial information about its consumer to a nonaffiliated third party;
(b) That the consumer has the right to opt out of that disclosure; and
(c) A reasonable means by which the consumer may exercise the opt out right.
(3) The following are examples for purposes of section (2) of this rule:
(a) Adequate opt out notice. A licensee provides adequate notice that the consumer may opt out of the disclosure of personal financial information to a nonaffiliated third party if the licensee:
(A) Identifies all of the categories of personal financial information that it discloses or reserves the right to disclose, and all of the categories of nonaffiliated third parties to which the licensee discloses the information as permitted by ORS 746.665(1)(k), and states that the consumer may opt out of the disclosure of that information; and
(B) Identifies the insurance products or services that the consumer obtains from the licensee, either singly or jointly, to which the opt out direction would apply.
(b) Reasonable opt out means. A licensee provides a reasonable means to exercise an opt out right if it:
(A) Designates check-off boxes in a prominent position on the relevant forms with the opt out notice;
(B) Includes a reply form together with the opt out notice;
(C) Provides an electronic means to opt out, such as a form that can be sent by electronic mail or a process at the licensee's web site, if the consumer agrees to the electronic delivery of information; or
(D) Provides a toll-free telephone number that the consumers may call to opt out.
(c) Unreasonable opt out means. A licensee does not provide a reasonable means of opting out if:
(A) The only means of opting out is for the consumer to write the consumer's own letter to exercise that opt out right; or
(B) The only means of opting out as described in any notice subsequent to the initial notice is to use a check-off box that the licensee provided with the initial notice but did not include with the subsequent notice.
(d) Specific opt out means. A licensee may require each consumer to opt out through a specific means, as long as that means is reasonable for that consumer.
(4) Same form as initial notice permitted. A licensee may provide the opt out notice for purposes of ORS 746.665(1)(k) together with or on the same written or electronic form as the initial notice the licensee provides in accordance with OAR 836-080-0516.
(5) Initial notice required when opt out notice delivered subsequent to initial notice. If a licensee provides the opt out notice later than required for the initial notice in accordance with OAR 836-080-0516, the licensee shall also include a copy of the initial notice with the opt out notice in writing or, if the consumer agrees, electronically.
(6) The following governs joint relationships:
(a) If two or more consumers jointly obtain an insurance product or service from a licensee, the licensee may provide a single opt out notice. The licensee's opt out notice shall explain how the licensee will treat an opt out direction by a joint consumer as explained in subsection (e) of this section.
(b) Any of the joint consumers may exercise the right to opt out. The licensee may either:
(A) Treat an opt out direction by a joint consumer as applying to all of the associated joint consumers; or
(B) Permit each joint consumer to opt out separately.
(c) If a licensee permits each joint consumer to opt out separately, the licensee shall permit one of the joint consumers to opt out on behalf of all of the joint consumers.
(d) A licensee may not require all joint consumers to opt out before the licensee implements any opt out direction.
(e) The following is an example for purposes of this section. If John and Mary are both named policyholders on a homeowner's insurance policy issued by a licensee and the licensee sends policy statements to John's address, the licensee may do any of the following, but the licensee shall explain in the opt out notice of notice of the licensee which opt out policy the licensee will follow:
(A) Send a single opt out notice to John's address, but the licensee shall except an opt out direction from either John or Mary.
(B) Treat an opt out direction by either John or Mary as applying to the entire policy. If the licensee does so and John opts out, the licensee may not require Mary to opt out as well before implementing John's opt out direction.
(C) Permit John and Mary to make different opt out directions. If the licensee does no:
(i) The licensee shall permit John and Mary to opt out for each other;
(ii) If both opt out, the licensee shall permit both of them to notify the licensee in a single response, such as on a form or through a telephone call; and
(iii) If John opts out and Mary does not, the licensee may disclose personal financial information only about Mary but not about John, and not about John and Mary jointly.
(7) Time to comply with opt out. A licensee shall comply with a consumer's opt out direction as soon as reasonably practicable after the licensee receives the direction.
(8) Continuing right to opt out. A consumer may exercise the right to opt out at any time.
(9) The duration of a consumer's opt out direction is governed as follows:
(a) A consumer's direction to opt out under this rule is effective until the consumer revokes it in writing or, if the consumer agrees, electronically.
(b) When a customer relationship terminates, the customer's opt out direction continues to apply to the personal financial information that the licensee collected during or related to that relationship. If the individual subsequently establishes a new customer relationship with the licensee, the opt out direction that applied to the former relationship does not apply to the new relationship.
(10) Delivery. When a licensee is required to deliver an opt out notice by this rule, the licensee shall deliver it according to OAR 836-080-0536.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
836-080-0546
Limits on Sharing Account Number Information for Marketing Purposes
(1) General prohibition on disclosure of account numbers. A licensee shall not, directly or through an affiliate, disclose, other than to a consumer reporting agency, a policy number or similar form of access number or access code for a consumer's policy or transaction account to any nonaffiliated third party for use in telemarketing, direct mail marketing or other marketing through electronic mail to the consumer.
(2) Exceptions. Section (1) of this rule does not apply if a licensee discloses a policy number or similar form of access number or access code:
(a) To the licensee's service provider solely in order to perform marketing for the licensee's own products or services, as long as the service provider is not authorized to dir3eectly initiate charges to the account;
(b) To a licensee who is a producer solely in order to perform marketing for the licensee's own products or services; or
(c) To a participant in an affinity or similar program when the participants in the program are identified to the customer when the customer enters into the program.
(3) The following are examples for purposes of this rule:(a) Policy number. A policy number, or similar form of access number or access code, does not include a number or code in an encrypted form, as long as the licensee does not provide the recipient with a means to decode the number or code.
(b) Policy or transaction account. For the purpose of this rule, a policy or transaction account is an account other than a deposit account or a credit card account. A policy or transaction account does not include an account to which third parties cannot initiate charges.
(4) Violation of this section is an unfair trade practice for purposes of ORS 746.240.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
836-080-0551
Authorization Request Delivery
A request for authorization and an authorization form may be delivered to a consumer or a customer as part of a notice under ORS 746.620 if the request and the authorization form are clear and conspicuous.
Stat. Auth.: ORS 731.244, ORS 746.600 & ORS 746.620
Stats. Implemented: ORS 746.600, ORS 746.620, ORS 746.630 & ORS 746.665
Hist.: ID 8-2002, f. & cert. ef. 2-15-02
Privacy of Health Insurance-Related Information
Generally
836-080-0600
Authority; Rule of Construction; Applicability
(1) OAR 836-080-0600 to 836-080-0700 are adopted under the authority of ORS 731.244 and 746.608, for the purpose of implementing 746.600 and 746.607 with respect to licensees transacting health insurance.
(2) The examples in OAR 836-080-0600 to 836-080-0700 are not exclusive. Compliance with an example in 836-080-0600 to 836-080-0700 constitutes compliance with the rule to which the example applies.
(3) OAR 836-080-0600 to 836-080-0700 apply to health insurance activities of a licensee and not to noninsurance activities.
(4) The applicability of the exemptions in OAR 836-080-0670(1)(a) and (b) includes but is not limited to a licensee's transactions described in 836-080-0670(1)(a) and (b) with a reinsurer or with an insurer with respect to stop loss or excess loss insurance.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 and 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0610
Definitions and Examples
The following definitions and examples of definitions apply to the following terms as they are defined or used in OAR 836-080-0600 to 836-080-0700:
(1) "Clear and conspicuous" means that a notice under OAR 836-080-0615 or 836-080-0620 or a disclosure authorization form under 836-080-0665 is reasonably understandable and designed to call attention to the nature and significance of the information in the notice or disclosure authorization form. The following are applicable examples:
(a) Examples of "reasonably understandable." A licensee makes its notice or disclosure authorization form reasonably understandable if it:
(A) Presents the information in the notice or disclosure authorization form in clear, concise sentences, paragraphs and sections;
(B) Uses short explanatory sentences or bullet lists whenever possible;
(C) Uses definite, concrete, everyday words and active voice whenever possible;
(D) Avoids multiple negatives;
(E) Avoids legal and highly technical business terminology whenever possible; and
(F) Avoids explanations that are imprecise and readily subject to different interpretations.
(b) Designed to call attention. A licensee designs its notice or disclosure authorization form to call attention to the nature and significance of the information in it if the licensee:
(A) Uses a plain-language heading to call attention to the notice or disclosure authorization form;
(B) Uses a typeface and type size that are easy to read;
(C) Provides wide margins and ample line spacing;
(D) Uses boldface or italics for key words; and
(E) Uses distinctive type size, style and graphic devices, such as shading or sidebars, when a form combines the licensee's notice or disclosure authorization form with other information.
(c) Notices on web sites. If a licensee provides a notice on a web page, the licensee designs its notice to call attention to the nature and significance of the information in it if the licensee uses text or visual cues to encourage scrolling down the page if necessary to view the entire notice and ensures that other elements on the web site, such as text, graphics, hyperlinks or sound, do not distract attention from the notice, and the licensee either:
(A) Places the notice on a screen that consumers frequently access, such as a page on which transactions are conducted; or
(B) Places a link on a screen that consumers frequently access, such as a page on which transactions are conducted, that connects directly to the notice and is labeled appropriately to convey the importance, nature and relevance of the notice.
(2) "Collect" means to obtain information that the licensee organizes or can retrieve by the name of an individual or by identifying number, symbol or other identifying particular assigned to the individual, irrespective of the source of the underlying information.
(3) The following examples apply to the term "consumer" as it is defined in ORS 746.600 and used in OAR 836-080-0600 to 836-080-0700:
(a) An individual who provides personal information to a licensee in connection with obtaining or seeking to obtain financial, investment or economic advisory services relating to a health insurance product or service is a consumer regardless of whether the licensee establishes an ongoing advisory relationship.
(b) An applicant for health insurance prior to the inception of health insurance coverage is a licensee's consumer.
(c) An individual who is a consumer of another financial institution is not a licensee's consumer solely because the licensee is acting as agent for, or provides processing or other services to, that financial institution.
(d) An individual is a licensee's consumer if the licensee discloses personal information about the individual to a nonaffiliated third party other than as permitted under OAR 836-080-0670 or 836-080-0675 and the individual is a claimant under a health insurance policy issued by the licensee.
(e) If the licensee provides the initial, annual and revised notices under OAR 836-080-0615 or 836-080-0620 to the plan sponsor or group or blanket insurance policyholder, and if the licensee does not disclose personal information about such an individual to a nonaffiliated third party other than as permitted under OAR 836-080-0670 or 836-080-0675, an individual is not the consumer of the licensee solely because the individual is:
(A) A participant or a beneficiary of an employee benefit plan that the licensee administers or sponsors or for which the licensee acts as a trustee, insurer or fiduciary; or
(B) Covered under a group or blanket health insurance policy issued by the licensee.
(f) Individuals described in paragraphs (A) and (B) of subsection (e) of this section are consumers of a licensee if the licensee does not meet all of the conditions of subsection (e) of this section. The individuals are not customers for purposes of ORS 746.600 or this rule, or OAR 836-080-0615, 836-080-0620, 836-080-0665, 836-080-0670 or 836-080-0675, solely because of their status described in paragraphs (A) and (B) of subsection (e) of this section.
(4) The following examples that indicate whether a continuing relationship exists apply to the term "customer" as it is defined in ORS 746.600 and used in OAR 836-080-0600 to 836-080-0700:
(a) A consumer has a continuing relationship with a licensee if:
(A) The consumer is a current policyholder of a health insurance product issued by or through the licensee; or
(B) The consumer obtains financial, investment or economic advisory services relating to a health insurance product or service from the licensee for a fee.
(b) A consumer does not have a continuing relationship with a licensee if:
(A) The consumer applies for health insurance but does not purchase the health insurance;
(B) The individual is no longer a current policyholder of a health insurance product or no longer obtains health insurance services with or through the licensee;
(C) The consumer is a beneficiary or claimant under a health insurance policy and has submitted a claim under a health insurance policy choosing a settlement option involving an ongoing relationship with the licensee.
(D) The consumer is a beneficiary or a claimant under a health insurance policy and has submitted a claim under that policy choosing a lump sum settlement option;
(E) The customer's health insurance policy is lapsed, expired or otherwise inactive or dormant under the licensee's business practices, and the licensee has not communicated with the customer about the relationship for a period of 12 consecutive months, other than for annual privacy notices, material required by law or rule, communication at the direction of a state or federal authority, or promotional materials.
(F) The individual is an insured under a health insurance policy, but is not the policyholder or owner of the insurance policy; or
(G) For the purposes of this rule, the individual's last known address according to the licensee's records is deemed invalid. An address of record is deemed invalid if mail sent to that address by the licensee has been returned by the postal authorities as undeliverable and if subsequent attempts by the licensee to obtain a current valid address for the individual have been unsuccessful.
(5) "Financial institution" means any institution the business of which is engaging in activities that are financial in nature or incidental to such financial activities as described in section 4(k) of the Bank Holding Company Act of 1956 (12 USC 1843(k)). "Financial institution" does not include:
(a) Any person or entity with respect to any financial activity that is subject to the jurisdiction of the Commodity Futures Trading Commission under the Commodity Exchange Act (7 USC 1 et seq.).
(b) The Federal Agricultural Mortgage Corporation or any entity charged and operating under the Farm Credit Act of 1971 (12 USC 2001 et seq.); or
(c) Institutions chartered by Congress specifically to engage in securitizations, secondary market sales, including sales of servicing rights or similar transactions related to a transaction of a consumer, as long as the institutions do not sell or transfer nonpublic personal information to a nonaffiliated third party.
(6) "Financial product or service" means any product or service that a financial holding company could offer by engaging in an activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 (12 USC 1843(k)). The term includes a financial institution's evaluation or brokerage of information that the financial institution collects in connection with a request or an application from a consumer for a financial product or service.
(7) The term "nonaffiliated third party" as defined in ORS 746.600 also includes any company that is an affiliate solely because of the direct or indirect ownership or control of the company by the licensee or its affiliate in conducting merchant banking or investment banking activities of the type described in section 4(k)(4)(H) or insurance company investment activities of the type described in section 4(k)(4)(I) of the federal Bank Holding Company Act (12 USC 1843(k)(4)(H) and (I)).
(8) "Personal financial information" is the category of personal information that includes any of the following information:
(a) Information that a consumer provides to a licensee to obtain a health insurance product or service from the licensee.
(b) Information about a consumer resulting from a transaction involving a health insurance product or service between a licensee and a consumer.
(c) Information that the licensee otherwise obtains about a consumer in connection with providing a health insurance product or service to the consumer.
(d) Any list, description or other grouping of consumers, and publicly available information pertaining to those consumers, that is derived using any personal financial information that is not publicly available.
(9) For purposes of the part of the definition of "personal information" in ORS 746.600 that provides that "'Personal information' does not include information that a licensee has a reasonable basis to believe is lawfully made available to the general public from federal, state or local government records, widely distributed media or disclosures to the public that are required by federal, state or local law":
(a) A licensee has a reasonable basis to believe the information is lawfully made available to the general public if the licensee has taken steps to determine:
(A) That the information is of the type that is available to the general public; and
(B) Whether an individual can direct that the information not be made available to the general public and, if so, that the licensee's consumer has not done so.
(b) The following are examples:
(A) Government records. Information in government records that is not "personal information" includes information in government real estate records and security interest filings.
(B) Widely distributed media. Information from widely distributed media that is not "personal information" includes information from a telephone book, a television or radio program, a newspaper or a web site that is available to the general public on an unrestricted basis. A web site is not restricted merely because an Internet service provider or a site operator requires a fee or a password, so long as access is available to the general public.
(C) Reasonable basis example: A licensee has a reasonable basis to believe that an individual's telephone number is lawfully made available to the general public if the licensee has located the telephone number in the telephone book or the consumer has informed the licensee that the telephone number is not unlisted.
(10) Statutory definitions of terms used in OAR 836-080-0600 to 836-080-0700, including but not limited to "insurance producer," "insurance support organization" and "privileged information," are found in ORS 746.600.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
Notice of Information Practices
836-080-0615
Personal Information Notice
(1) This rule governs the notice to be given by a licensee to an individual that informs the individual about a licensee's treatment of personal information concerning the individual when the licensee and the individual are engaging in a transaction of health insurance. A licensee shall provide a clear and conspicuous notice of information practices to individuals in connection with a transaction of health insurance under the circumstances and at the times as follows:
(a) In the case of an application for health insurance, a notice shall be provided no later than:
(A) At the time of delivery of the health insurance policy or certificate, when personal information is collected only from the applicant or from public records; or
(B) At the time the collection of personal information is initiated, when personal information is collected from a source other than the applicant or public records.
(b) In the case of a health insurance policy renewal, a notice shall be provided no later than the policy renewal date, except that a notice shall not be required in connection with a policy renewal if:
(A) Personal information is collected only from the policyholder or from public records; or
(B) A notice meeting the requirements of this rule has been given within the previous 24 months.
(c) In the case of a policy reinstatement or change in health insurance benefits by an insurer, a notice shall be provided no later than the time a request for the policy reinstatement or change in insurance benefits is received by the insurer, except that a notice shall not be required if personal information is collected only from the policyholder or from public records.
(2) The notice required by section (1) of this rule shall be in writing or, if the individual agrees, in an electronic format and shall include all of the following items:
(a) Whether personal information may be collected from persons other than the individual or individuals proposed for coverage.
(b) The types of personal information that may be collected and the types of sources and investigative techniques that may be used to collect the information.
(c) The types of disclosures identified in OAR 836-080-0670 or 836-080-0675 and the circumstances under which the disclosures may be made without prior authorization. The only circumstances that need be described, however, are those that occur with such frequency as to indicate a general business practice.
(d) A description of the rights established under OAR 836-080-0695 and 836-080-0700 and the manner in which the rights may be exercised.
(e) That information obtained from a report prepared by an insurance-support organization may be retained by the insurance-support organization and disclosed to other persons.
(3) In lieu of the notice required in section (2) of this rule, an insurer or insurance producer may provide an abbreviated notice in writing or, if the individual agrees, in electronic format, informing the individual that:
(a) Personal information may be collected from persons other than the individual or individuals proposed for coverage;
(b) Personal information collected under subsection (a) of this section as well as other personal or privileged information subsequently collected by the licensee may be disclosed in certain circumstances to third parties without authorization;
(c) A right of access and correction exists with respect to all personal information collected; and
(d) The notice required in section (2) of this rule will be furnished to the individual upon request.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0620
Notice of Personal Financial Information Practices
(1) This rule governs the notice to be given by a licensee to an individual, in fulfillment of requirements of the federal Gramm-Leach-Bliley Act (P.L. 106-102), that informs the individual about the licensee's treatment of personal financial information concerning the individual in the course of the ongoing financial relationship between the licensee and the individual, in connection with a health insurance policy. A licensee shall provide a clear and conspicuous notice of its personal financial information practices to individuals under the circumstances and at the times as follows:
(a) Except as provided in this subsection, to a consumer who becomes a customer of the licensee, not later than the date that the licensee establishes a continuing relationship under which the licensee provides one or more health insurance products or services to the consumer that are to be used primarily for personal, family or household purposes. A licensee may provide the notice within a reasonable time after the date the licensee establishes a customer relationship if:
(A) Establishing the customer relationship is not at the customer's election; or
(B) Providing notice not later than the date that the licensee establishes a customer relationship would substantially delay the customer's transaction and the customer agrees to receive the notice at a later time.
(b) To a consumer before any personal financial information about that individual is disclosed to a nonaffiliate of the licensee, if the disclosure is made other than as permitted under OAR 836-080-0665, 836-080-0670 or 836-080-0675.
(2) A licensee shall provide a clear and conspicuous notice to a customer that accurately reflects the privacy policies and practices of the licensee not less than once in any period of 12 consecutive months during which the relationship described in section (1)(a) of this rule exists. A licensee may define the period of 12 consecutive months, but the licensee must apply the period to the customer on a consistent basis.
(3) The notice required by sections (1) and (2) of this rule shall be in writing, except that the notice may be provided in electronic form if the recipient agrees. In addition to any other information the licensee wishes to provide, the notice shall include the following items of information that apply to the licensee and to the individuals to whom the licensee sends the notice:
(a) The policy and practices of the licensee with respect to disclosing personal financial information to nonaffiliated parties other than agents of the licensee, including the categories of persons to whom the information is or may be disclosed, other than the persons to whom the information may be provided pursuant to OAR 836-080-0675, and the policies and practices with respect to disclosing personal financial information of persons who have ceased to be customers of the licensees.
(b) The categories of personal financial information that the licensee collects.
(c) The policies the licensee maintains to protect the confidentiality and security of personal financial information.
(4) A licensee that does not disclose personal financial information about customers or former customers to affiliates or nonaffiliates except as authorized in OAR 836-080-0670 or 836-080-0675, and does not wish to reserve the right to do so may satisfy the requirements of this rule by providing a customer a notice that so states and that also includes:
(a) The information described in section (3)(b) and (c) of this rule; and
(b) A statement that the licensee makes disclosures to other affiliated or nonaffiliated third parties, as applicable, as permitted by law.
(5) Before a licensee discloses personal financial information to a nonaffiliated third party other than as described in the notice required in section (1) of this rule, the licensee shall send a revised notice that accurately describes its information collection and disclosure practices. The revised notice must comply with the requirements of section (3) of this rule.
(6) For purposes of this rule and OAR 836-080-0670 and 836-080-0675, an individual is not the consumer of a licensee solely because the individual is covered under a group life or health insurance policy issued by the licensee or is a participant or beneficiary of an employee benefit plan that the licensee administers or sponsors or for which the licensee acts as a trustee, insurer or fiduciary, if:
(a) The licensee provides to the policyholder the initial, annual and revised notices under this rule; and
(b) The licensee does not disclose to a nonaffiliated third party personal information about the individual other than as permitted by OAR 836-080-0675.
(7) When an individual becomes a consumer of a licensee under section (6) of this rule, then this rule and OAR 836-080-0670 and 836-080-0675 apply to the licensee with respect to the individual.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0625
Alternative Procedures
A licensee may satisfy the notice requirements of OAR 836-080-0615 and 836-080-0620 by either of the following alternative means:
(1) By providing separate notices or a single notice combining the requirements of both rules.
(2) By providing a single notice if two or more individuals jointly obtain or apply for an insurance product.
(3) The obligations imposed by OAR 836-080-0615 and by 836-080-0620 upon a licensee may be satisfied, either together or separately, by another licensee or another financial institution or agent authorized to act on its behalf. A licensee may provide a joint notice from the licensee and one or more of its affiliates or other financial institutions, as identified in the notice, as long as the notice is accurate with respect to the licensee and the other institutions.
(4) Except as otherwise prohibited or limited by the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191):
(a) A licensee may include any notice required pursuant to the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) with a notice provided under OAR 836-080-0615 or 836-080-0620 or under an alternative means allowed in section (1) of this rule.
(b) Notice obligations imposed by the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) upon a licensee may be satisfied together with the obligations imposed by OAR 836-080-0615 and by 836-080-0620 upon the licensee as provided in section (2) of this rule.
(5) An insurance producer is not subject to the requirements of OAR 836-080-0615 or 836-080-0620 when the insurer on whose behalf the insurance producer acts otherwise complies with the same requirements and the insurance producer does not disclose any personal information to any person other than the insurer or its affiliate, or as otherwise authorized by law.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0630
Application of Notice Requirements
A licensee is not subject to the requirements stated in OAR 836-080-0615 or 836-080-0620 if the licensee is an employee or other representative of another licensee who is the principal in the relationship and the principal otherwise complies with the requirements of OAR 836-080-0615, 836-080-0620, 836-080-0625, 836-080-0665, 836-080-0670 and 836-080-0675 and:
(1) If the licensee is an insurance producer, the licensee acts in accordance with the requirements of OAR 836-080-0625(4); and
(2) If the licensee is other than an insurance producer, the licensee does not disclose any personal information to any person other than to the principal or its affiliate as provided in OAR 836-080-0670 or 836-080-0675.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0635
Initial Notice to Consumers
(1) A licensee shall provide an initial notice as provided in OAR 836-080-0620(1) and also subsequently when further personal financial information is collected in connection with a renewal or reinstatement of a health insurance policy.
(2) A licensee is not required to provide an initial notice to a consumer for purposes of OAR 836-080-0620 if any of the following circumstances applies:
(a) If the licensee does not disclose any nonpublic personal financial information about the consumer to any nonaffiliated third party other than as authorized by OAR 836-080-0670 and 836-080-0675 and the licensee does not have a customer relationship with the consumer.
(b) If the licensee has a customer relationship with the consumer and the consumer consents to the licensee's searching for health insurance coverage to replace existing coverage or to perform another health insurance service for the consumer, and if disclosure of personal financial information of the consumer meets the conditions specified in OAR 836-080-0670.
(c) If a notice has been provided by an affiliated licensee, as long as the notice clearly identifies all licensees to whom the notice applies and is accurate with respect to the licensee and the other institutions.
(3) For the purpose of the notice requirement of OAR 836-080-0620, pursuant to which a licensee shall provide notice of personal financial information practices to a consumer who becomes a customer of the licensee not later than the date that the licensee establishes a continuing relationship with the consumer, a continuing relationship between a licensee and consumer is established when the consumer, as shown in the following examples:
(a) Becomes a health insurance policyholder of a licensee that is an insurer, when the insurer delivers a health insurance policy or contract to the consumer, or in the case of a licensee that is an insurance producer, obtains health insurance through that licensee; or
(b) Agrees to obtain financial, economic or investment advisory services relating to health insurance products or services for a fee from the licensee.
(4) When an existing customer obtains a new health insurance product or service from a licensee that is to be used primarily for personal, family or household purposes, either of the following provisions may apply to a licensee regarding the initial notice requirements of OAR 836-080-0620 and:
(a) The licensee may provide a revised policy notice as provided in OAR 836-080-0655; or
(b) If the initial, revised or annual notice that the licensee most recently provided to that customer was accurate with respect to the new health insurance product or service, the licensee does not need to provide a new privacy notice under OAR 836-080-0620.
(5) A licensee may provide the initial notice required by OAR 836-080-0620 within a reasonable time after the licensee establishes a customer relationship if establishing the customer relationship is not at the customer's election or if providing notice not later than when the licensee establishes a customer relationship would substantially delay the customer's transaction and the customer agrees to receive the notice at a later time. The following are examples of exceptions for purposes of this section:
(a) Not at the customer's election: Establishing a customer relationship is not at the customer's election if a licensee acquires or is assigned a customer's health insurance policy from another financial institution or residual market mechanism and the customer does not have a choice about the licensee's acquisition or assignment.
(b) Substantial delay of a customer's transaction: Providing notice not later than when a licensee establishes a customer relationship would substantially delay the customer's transaction when the licensee and the individual agree over the telephone to enter into a customer relationship involving prompt delivery of the health insurance product or service.
(c) No substantial delay of a customer's transaction: Providing notice not later than when a licensee establishes a customer relationship would not substantially delay the customer's transaction when the relationship is initiated in person at the licensee's office or through other means by which the customer may view the notice, such as on a website.
(6) When a licensee is required to deliver an initial privacy notice by OAR 836-080-0620, the licensee shall deliver it according to 836-080-0660. If the licensee uses an abbreviated notice according to 836-080-0620, the licensee may deliver the privacy notice as provided in 836-080-0640(8).
(7) A licensee that uses a standard privacy notice to comply with the requirements of the federal Gramm-Leach-Bliley Act of 1999 and its implementing regulations for its business as a financial institution or that uses such a standard privacy notice for its health insurance business in two or more states may comply with the initial privacy notice requirement by using either of the following options:
(a) By using the standard privacy notice and another supplementary privacy notice that includes the elements required by OAR 836-080-0615, 836-080-0620 and 836-080-0650 that are not contained in the standard privacy notice. The supplementary privacy notice must prominently and clearly state that any rights an individual may have as described in that notice are not abridged or limited by the standard privacy notice that the individual may receive separately.
(b) By using a single Oregon-specific privacy notice that complies in its entirety with OAR 836-080-0615 and 836-080-0620, if allowed under federal law.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0640
Information to Be Included in Initial Privacy Notice
(1) This rule implements the requirement of the initial notice under OAR 836-080-0620, describes the contents of the initial notice and provides examples of categories of information required in the notice.
(2) The following are examples of categories of nonpublic personal financial information collected by a licensee. A licensee satisfies the requirement of categorizing the nonpublic personal financial information it collects if the licensee categorizes it according to the source of the information, including, for example:
(a) Information from the consumer;
(b) Information about the consumer's transactions with the licensee or its affiliates;
(c) Information about the consumer's transactions with nonaffiliated third parties; and
(d) Information from an insurance support organization.
(3) The following are examples of categories of nonpublic personal financial information disclosed by a licensee:
(a) A licensee satisfies the requirement of categorizing nonpublic personal financial information it discloses if the licensee categorizes the information according to source, as described in section (2) of this rule, as applicable, and provides a few examples to illustrate the types of information in each category. These may include:
(A) Information from the consumer, including application information such as assets and income and identifying information such as name, address and social security number;
(B) Transaction information, such as information about balances, payment history and parties to the transaction; and
(C) Information from consumer reporting agencies, such as a consumer's creditworthiness and credit history.
(b) A licensee does not adequately categorize the information that it discloses if the licensee uses only general terms, such as transaction information about the consumer.
(c) If a licensee reserves the right to disclose all of the nonpublic personal financial information about consumers that it collects, the licensee may simply state that fact without describing the categories or examples of nonpublic personal financial information that the licensee discloses.
(4) The following are examples for describing categories of affiliated and nonaffiliated third parties to which a licensee discloses nonpublic personal financial information:
(a) A licensee satisfies the requirement of categorizing the affiliates and nonaffiliated third parties to which the licensee discloses nonpublic personal financial information about consumers if the licensee identifies the types of business in which the affiliates and nonaffiliated third parties engage.
(b) Types of businesses may be described by general terms only if the licensee uses a few illustrative examples of significant lines of business. For example, a licensee may use the term financial products or services if it includes appropriate examples of significant lines of businesses, such as life insurer, automobile insurer, consumer banking or securities brokerage.
(c) A licensee may also categorize the affiliates and nonaffiliated third parties to which it discloses nonpublic personal financial information about consumers using more detailed categories.
(5) A privacy notice shall include an explanation of the consumer's right under OAR 836-080-0675 to opt out of the disclosure of nonpublic personal financial information to nonaffiliated third parties, including the method by which the consumer may exercise that right at that time. The following are examples of disclosures under the exception for joint marketers under 836-080-0675. If a licensee discloses nonpublic personal financial information under the exception in 836-080-0675 to a nonaffiliated third party to market products or services that it offers alone or jointly with another financial institution, the licensee satisfies the applicable disclosure requirement of this rule if the licensee:
(a) Lists the categories of nonpublic personal financial information it discloses, using the same categories and examples the licensee used to meet the requirements of section (1) of this rule.
(b) States whether the third party is:
(A) A service provider that performs marketing services on the licensee's behalf or on behalf of the licensee and another financial institution; or
(B) A financial institution with whom the licensee has a joint marketing agreement.
(6) If a licensee does not disclose nonpublic personal financial information about customers or former customers to affiliates or nonaffiliated third parties except as authorized under OAR 836-080-0670 and 836-080-0675, the licensee may simply state that fact, in addition to the information it is required to provide under 836-080-0615(3) (a), (h), (i) and (j) and (4).
(7) A licensee describes its policies and practices relating to protection of the confidentiality and security of personal information if it does both of the following:
(a) Describes in general terms who is authorized to have access to the information; and
(b) States whether the licensee has security practices and procedures in place to ensure the confidentiality of the information in accordance with the licensee's policy. The licensee is not required to describe technical information about the safeguards it uses.
(8) An abbreviated notice authorized by OAR 836-080-0615(3) must include in full the elements of the notice required by the federal Gramm-Leach-Bliley Act of 1999 for the purpose of compliance with that law and shall also include the information referred to in section (5) of this rule and in 836-080-0615(3). The licensee shall deliver its abbreviated notice according to 836-080-0660. The licensee is not required to deliver its privacy notice with its abbreviated notice. The licensee instead may provide the consumer a reasonable means to obtain its privacy notice as described in 836-080-0660. If a consumer who receives the licensee's abbreviated notice requests the licensee's privacy notice, the licensee shall deliver its privacy notice according to 836-080-0660.
(9) A licensee's initial privacy notice may include any of the following:
(a) Categories of nonpublic personal financial information that the licensee reserves the right to disclose in the future but does not currently disclose; and
(b) Categories of affiliates or nonaffiliated third parties to whom the licensee reserves the right in the future to disclose, but to whom the licensee does not currently disclose, nonpublic personal financial information.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0645
Annual Notice
(1) The personal information to which a licensee must refer in the annual notice need include only personal financial information. A licensee provides the notice annually if it defines the 12-consecutive-month period as a calendar year and provides the annual notice to the customer once in each calendar year following the calendar year in which the licensee provided the initial notice. For example, if a customer opens an account on any day of year 1, the licensee shall provide an annual notice to that customer by December 31 of year 2.
(2) Termination of customer relationship: A licensee is not required to provide an annual notice to a former customer. A former customer is an individual with whom a licensee no longer has a continuing relationship. The following are examples in which a continuing relationship no longer exists:
(a) A licensee no longer has a continuing relationship with an individual if the individual no longer is a current policyholder of an insurance product or no longer obtains services with or through the licensee.
(b) A licensee no longer has a continuing relationship with an individual if the individual's policy is lapsed, expired or otherwise inactive or dormant under the licensee's business practices, and the licensee has not communicated with the customer about the relationship for a period of 12 consecutive months, other than to provide annual privacy notices, material required by law or regulation or promotional materials.
(c) A licensee no longer has a continuing relationship with an individual if the individual's last known address according to the licensee's records is deemed invalid. An address of record is deemed invalid if mail sent to that address by the licensee has been returned by the postal authorities as undeliverable and if subsequent attempts by the licensee to obtain a current valid address for the individual have been unsuccessful.
(3) When a licensee is required by this rule to deliver an annual privacy notice, the licensee shall deliver it according to OAR 836-080-0660.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0650
Information to Be Included in Annual Notice
(1) This rule implements the requirement of the annual notice under OAR 836-080-0645, describes the contents of the annual notice and provides examples of categories of nonpublic personal financial information required in the annual notice.
(2) The following are examples of categories of nonpublic personal financial information collected by a licensee. A licensee satisfies the requirement of categorizing the nonpublic personal financial information it collects if the licensee categorizes it according to the source of the information, as applicable:
(a) Information from the consumer;
(b) Information about the consumer's transactions with the licensee or its affiliates;
(c) Information about the consumer's transactions with nonaffiliated third parties; and
(d) Information from an insurance support organization.
(3) The following are examples of categories of nonpublic personal financial information disclosed by a licensee:
(a) A licensee satisfies the requirement of categorizing nonpublic personal financial information it discloses if the licensee categorizes the information according to source, as described in section (2) of this rule, as applicable, and provides a few examples to illustrate the types of information in each category. These may include:
(A) Information from the consumer, including application information such as assets and income and identifying information such as name, address and social security number;
(B) Transaction information, such as information about balances, payment history and parties to the transaction; and
(C) Information from consumer reporting agencies, such as a consumer's creditworthiness and credit history.
(b) A licensee does not adequately categorize the information that it discloses if the licensee uses only general terms, such as transaction information about the consumer.
(c) If a licensee may disclose all of the nonpublic personal financial information about consumers that it collects, the licensee may simply state that fact without describing the categories or examples of nonpublic personal financial information that the licensee discloses.
(4) The following are examples for describing categories of affiliated and nonaffiliated third parties to which a licensee discloses information:
(a) A licensee satisfies the requirement of categorizing the affiliates and nonaffiliated third parties to which the licensee discloses nonpublic personal financial information about consumers if the licensee identifies the types of business in which they engage.
(b) Types of businesses may be described by general terms only if the licensee uses a few illustrative examples of significant lines of business. For example, a licensee may use the term financial products or services if it includes appropriate examples of significant lines of businesses, such as life insurer, automobile insurer, consumer banking or securities brokerage.
(c) A licensee may also categorize the affiliates and nonaffiliated third parties to which it discloses nonpublic personal financial information about consumers using more detailed categories.
(5) An annual notice shall include an explanation of the consumer's right under OAR 836-080-0675 to opt out of the disclosure of nonpublic personal financial information to nonaffiliated third parties, including the method by which the consumer may exercise the right at that time. An annual notice that contains such an explanation satisfies the requirement of 836-080-0615. If a licensee discloses nonpublic personal financial information under the exception in 836-080-0675 to a nonaffiliated third party to market products or services that it offers alone or jointly with another financial institution, the licensee satisfies the applicable disclosure requirement of this rule if the licensee:
(a) Lists the categories of nonpublic personal financial information it discloses, using the same categories and examples the licensee used to meet the requirements of section (1) of this rule.
(b) States whether the third party is:
(A) A service provider that performs marketing services on the licensee's behalf or on behalf of the licensee and another financial institution; or
(B) A financial institution with whom the licensee has a joint marketing agreement.
(6) If a licensee does not disclose nonpublic personal financial information about customers or former customers to affiliates or nonaffiliated third parties except as authorized under OAR 836-080-0670(1), the licensee may state that fact, in addition to the information it is required to provide under 836-080-0615(4).
(7) A licensee describes its policies and practices relating to protection of the confidentiality and security of nonpublic personal financial information if it does both of the following:
(a) Describes in general terms who is authorized to have access to the information; and
(b) States whether the licensee has security practices and procedures in place to ensure the confidentiality of the information in accordance with the licensee's policy. The licensee is not required to describe technical information about the safeguards it uses.
(8) A licensee's notice may include any of the following:
(a) Categories of nonpublic personal financial information that the licensee reserves the right to disclose in the future but does not currently disclose; and
(b) Categories of affiliates or nonaffiliated third parties to whom the licensee reserves the right in the future to disclose, but to whom the licensee does not currently disclose, nonpublic personal financial information.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0655
Revised Privacy Notices
(1) Except as otherwise authorized in OAR 836-080-0600 to 836-080-0700, a licensee shall not, directly or through an affiliate, disclose any personal financial information about a consumer to a nonaffiliated third party under 836-080-0675 other than as described in the initial notice that the licensee provided to the consumer under 836-080-0620, unless:
(a) The licensee has provided to the consumer a clear and conspicuous revised notice that accurately describes its policies and practices;
(b) The licensee has given the consumer a reasonable opportunity, before the licensee discloses personal financial information to the nonaffiliated third party, to opt out of the disclosure; and
(c) The consumer does not opt out.
(2) Except as otherwise allowed by OAR 836-080-0670, a licensee shall provide a revised notice to the consumer under section (1) of this rule before the licensee, for example:
(a) Discloses a new category of personal financial information to a nonaffiliated third party;
(b) Discloses personal financial information to a new category of nonaffiliated third party; or
(c) Discloses personal financial information about a former customer to a nonaffiliated third party, if that former customer has not had the opportunity to indicate that the former customer does not want disclosure.
(3) A revised privacy notice under this rule shall be delivered according to OAR 836-080-0660.
(4) The prohibition in section (1) of this rule and the requirements of section (2) of this rule do not apply with respect to a revision of an initial notice, the sole purpose of which is to incorporate a notice of a disclosure of personal information for which authorization is not required by OAR 836-080-0670 or 836-080-0675.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0660
Delivery
(1) A licensee shall provide any notices required by OAR 836-080-0600 to 836-080-0700 so that each consumer can be reasonably expected to receive actual notice in writing or, if the consumer agrees, electronically.
(2) The following are examples of reasonable expectation of actual notice. A licensee may reasonably expect that a consumer will receive actual notice if the licensee:
(a) Hand-delivers a printed copy of the notice to the consumer;
(b) Mails a printed copy of the notice to the last known address of the consumer separately, or in a policy, billing or other written communication;
(c) For a consumer who conducts transactions electronically, posts the notice on the electronic site and requires the consumer to acknowledge receipt of the notice as a necessary step to obtaining a particular insurance product or service;
(d) For an isolated transaction with a consumer, such as the licensee providing an insurance quote, posts the notice and requires the consumer to acknowledge receipt of the notice as a necessary step to obtaining the particular insurance product or service.
(3) The following are examples of unreasonable expectations of actual notice. A licensee may not reasonably expect that a consumer will receive actual notice of its privacy policies and practices if the licensee:
(a) Posts only a sign in its office or generally publishes advertisements of its privacy policies and practices; or
(b) Sends the notice by electronic mail to a consumer who does not obtain an insurance product or service from the licensee electronically.
(4) A licensee may reasonably expect that a customer will receive actual notice of the licensee's annual privacy notice if:
(a) The customer uses the licensee's web site to access insurance products and services electronically and agrees to receive notices at the web site and the licensee posts its current privacy notice continuously in a clear and conspicuous manner on the web site; or
(b) The customer has requested that the licensee refrain from sending any information regarding the customer relationship, and the licensee's current privacy notice remains available to the customer upon request.
(5) For customers only, a licensee shall provide the initial notice, annual notice and revised notice required by OAR 836-080-0600 to 836-080-0700 so that the customer can retain them or obtain them later in writing or, if the customer agrees, electronically. The following are examples of retention and accessibility of notices. A licensee provides a privacy notice to a customer so that the customer can retain it or obtain it later if the licensee:
(a) Hand-delivers a printed copy of the notice to the customer;
(b) Mails a printed copy of the notice to the last known address of the customer; or
(c) Makes its current privacy notice available on a web site or a link to another web site for the customer who obtains an insurance product or services electronically and agrees to receive the notice at the web site.
(6) If two or more consumers jointly obtain a health insurance product or service from a licensee, the licensee may satisfy the initial, annual and revised notice requirements by providing one notice to those consumers jointly.
(7) A licensee provides a reasonable means by which a consumer may obtain a copy of its privacy notice for the purpose of OAR 836-080-0640(8) if the licensee:
(a) Provides a toll-free telephone number that the consumer may call to request the notice; or
(b) For a consumer who conducts business in person at the licensee's office, maintains copies of the notice on hand and provides a copy to the consumer immediately upon request.
(8) A licensee may provide a joint notice from the licensee and one or more of its affiliates or other financial institutions, as identified in the notice, as long as the notice is accurate with respect to the licensee and the other institutions. A licensee may also provide a notice on behalf of another financial institution.
(9) A licensee may not provide any notice required by OAR 836-080-0600 to 836-080-0700 solely by orally explaining the notice, either in person or over the telephone.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
Disclosure of Personal, Privileged Information
836-080-0665
Authorization
(1) Except as provided in OAR 836-080-0670 and 836-080-0675, a licensee or insurance-support organization may not disclose any personal or privileged information about an individual collected or received in connection with an insurance transaction unless the disclosure is with the written authorization of the individual, and:
(a) If the authorization is submitted by another licensee or insurance-support organization, the authorization meets the requirements of this rule; or
(b) If the authorization is submitted by a person other than a licensee or insurance-support organization, the authorization is:
(A) Dated;
(B) Signed by the individual; and
(C) Obtained one year or less prior to the date a disclosure is sought pursuant to this subsection.
(2) A licensee or insurance-support organization may not use as its disclosure authorization form in connection with health insurance transactions a form or statement that authorizes the disclosure of personal or privileged information about an individual to the licensee or insurance-support organization unless the form or statement is clear and conspicuous, and contains all of the following:
(a) The identity of the individual who is the subject of the personal information.
(b) A general description of the categories of personal information to be disclosed.
(c) The signature of the individual who is the subject of the personal information or the individual who is legally empowered to grant authority and the date signed.
(3) An authorization may not remain valid for more than 24 months.
(4) An individual who is the subject of personal information may revoke an authorization provided pursuant to this rule at any time, subject to the rights of any individual who acted in reliance on the authorization prior to notice of the revocation.
(5) A licensee shall retain the authorization of an individual or a copy thereof in the record of the individual who is the subject of the personal information.
(6) This rule does not authorize the disclosure of personal or privileged information that is also individually identifiable health information when disclosure of the individually identifiable health information is prohibited or is otherwise regulated under the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191).
(7) A licensee is not required to comply with this rule with respect to a disclosure of personal information for which the licensee has obtained an authorization under the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191).
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0670
Authorization Exemptions
(1) A licensee or insurance-support organization may disclose personal or privileged information about an individual collected or received in connection with a health insurance transaction without obtaining the written authorization required by OAR 836-080-0665 if the disclosure meets one or more of the following conditions, in which a disclosure:
(a) Is reasonably necessary to enable a person other than the licensee or insurance support organization to:
(A) Perform a business, professional or insurance function for the disclosing licensee or insurance-support organization and the person agrees not to disclose the information further without the individual's written authorization unless the further disclosure:
(i) Would otherwise be permitted by this rule if made by a licensee or insurance-support organization; or
(ii) Is reasonably necessary for the person to perform its function for the disclosing licensee or insurance-support organization.
(B) Provide information to the disclosing licensee or insurance-support organization for the purpose of:
(i) Determining an individual's eligibility for a health insurance benefit or payment; or
(ii) Detecting or preventing criminal activity, fraud, material misrepresentation or material nondisclosure in connection with a health insurance transaction.
(b) Is to a licensee, insurance-support organization or self-insurer, if the information disclosed is limited to that which is reasonably necessary:
(A) To detect or prevent criminal activity, fraud, material misrepresentation or material nondisclosure in connection with an insurance transaction; or
(B) For either the disclosing or receiving licensee or insurance-support organization to perform its function in connection with an insurance transaction involving the individual.
(c) Is to a medical care institution or medical professional and discloses only such information as is reasonably necessary to accomplish one or more of the following purposes:
(A) Verifying insurance coverage or benefits.
(B) Informing an individual of a medical problem of the individual, of which the individual may not be aware.
(C) Conducting an operations or services audit.
(d) Is required or authorized for compliance with federal, state or local laws, rules or other applicable legal requirements.
(e) Is required for compliance with a properly authorized civil, criminal or regulatory investigation or a subpoena or summons by a federal, state or local authority.
(f) Is required for response to judicial process or a government regulatory authority having jurisdiction over a licensee for examination, compliance or other purposes as authorized by law.
(g) Is required for protection of the confidentiality or security of a licensee's records pertaining to the individual, service, product or transaction.
(h) Is required for institutional risk control or for resolving disputes or inquiries relating to the individual.
(i) Is to a person holding a legal or beneficial interest relating to the individual.
(j) Is to a person acting in a fiduciary or representative capacity on behalf of the individual.
(k) Is to provide information to an insurance rate advisory organization, a guaranty fund or agency, an agency that is rating a licensee, a person that is assessing the licensee's compliance with industry standards, or the licensee's attorneys, accountants and auditors.
(l) Is allowed or required under other provisions of law and in accordance with the federal Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 et seq.) to law enforcement agencies, but only to the extent that disclosure is specifically allowed or required, including the Federal Reserve Board, Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, Office of Thrift Supervision, National Credit Union Administration, the Securities and Exchange Commission, the Secretary of the Treasury, with respect to 31 U.S.C. (Chapter 53, Subchapter II (Records and Reports on Monetary Instruments and transactions) and 12 U.S.C. Chapter 21 (Financial record-keeping), a state insurance authority, and the federal Trade Commission), a self-regulatory organization or for an investigation on a matter related to public safety, or is otherwise specifically permitted or required by law.
(m) Meets any of the following conditions:
(A) It is necessary to effect, administer or enforce a transaction that an individual requests or authorizes, in that the disclosure is required or is a usual, appropriate or acceptable method of handling the transaction. The condition in this subparagraph has the meaning given in section 509 of the federal Gramm-Leach-Bliley Act (P.L. 106-102).
(B) It is in connection with treatment, payment or health care operations.
(C) It is in connection with servicing or processing an insurance product or service that an individual requests or authorizes.
(D) It is in connection with maintaining or servicing an individual's account with the licensee, a proposed or actual securitization, secondary market sale or similar transaction related a transaction of the individual.
(n) Is made for the purpose of conducting actuarial or research studies, if:
(A) No individual may be identified in any resulting actuarial or research report;
(B) Materials allowing the individual to be identified are returned or destroyed as soon as they are no longer needed; and
(C) The actuarial or research organization agrees not to disclose the information unless the disclosure would otherwise be permitted by this section if made by a licensee or insurance-support organization.
(o) Is to a party or a representative of a party to a proposed or consummated sale, transfer, merger or consolidation of all or part of the business of the licensee or insurance-support organization.
(p) Is to an affiliate whose only use of the information will be in connection with an audit of the licensee.
(q) Is to a consumer reporting agency in accordance with the federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) or from a consumer report prepared by a consumer reporting agency.
(r) Is to a group policyholder for the purpose of reporting claims experience or conducting an audit of the licensee's operations or services, and the information disclosed is reasonably necessary for the group policyholder to conduct the review or audit.
(s) Is to a licensee for purposes related to replacement of a group benefit plan, a group health plan or a group welfare plan.
(t) Is to a professional peer review organization for the purpose of reviewing the service or conduct of a medical care institution or medical professional.
(u) Is to a governmental authority for the purpose of determining the individual's eligibility for health benefits for which the governmental authority may be liable.
(v) Is to a policyholder or certificate holder, or an agent or other representative thereof, for the purpose of providing information regarding the status of a health insurance transaction.
(2) A licensee may disclose personal or privileged information to an affiliate in connection with the marketing of a financial product or service if the affiliate agrees not to disclose the information for any other purpose or to an unaffiliated persons except as authorized in section (1) of this rule. If a disclosure under this section is made for marketing a product or service other than the product or service of the disclosing licensee, individually identifiable health information may not be disclosed without the authorization required by OAR 836-080-0665.
(3) A licensee may disclose personal or privileged information to a nonaffiliated third party whose only use of the information will be pursuant to a joint marketing agreement for marketing of a product or service. As used in this subsection, "joint marketing agreement" means a formal written contract pursuant to which an insurer jointly offers, endorses or sponsors a financial product or service with a financial institution. Information that may be disclosed under this subsection does not include individually identifiable health information, privileged information or personal information relating to an individual's character, personal habits, mode of living or general reputation, or any classification derived from such information, except as authorized in section (1) of this rule.
(4) A licensee or insurance support organization shall not disclose an access number or access code for an individual's policy or transaction account, whether directly or through an affiliate, to any nonaffiliate for use in telemarketing, direct mail marketing or other marketing through electronic mail to an individual, other than to a consumer reporting agency. This section does not apply if a licensee or insurance support organization discloses an access number or access code:
(a) To its service provider solely in order to perform marketing for its own products or services, as long as the service provider is not authorized to directly initiate charges to the account;
(b) To an insurance producer solely in order to perform marketing for its own products or services; or
(c) To a participant in an affinity or similar program where the participants in the program are identified to the individual when the individual enters into the program. An access number or access code does not include a number or code in an encrypted form, as long as the licensee or insurance support organization does not provide the recipient with a means to decode the number or code. For purposes of this subsection, a policy or transaction account is an account other than a deposit account or a credit card account. A policy or transaction account does not include an account to which third parties cannot initiate charges.
(5) Personal or privileged information may be acquired by a group practice prepayment health care service contractor from providers that contract with the health care service contractor and may be transferred among providers that contract with the health care service contractor for the purpose of administering plans offered by the health care service contractor. The information may not be disclosed otherwise by the health care service contractor except in accordance with OAR 836-080-0670 or 836-080-0675.
(6) This rule does not authorize the disclosure of personal or privileged information that is also individually identifiable health information when disclosure of the individually identifiable health information is prohibited or is otherwise regulated under the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191).
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0675
Disclosure Without Authorization
Unless disclosure is otherwise permitted pursuant to OAR 836-080-0665 or 836-080-0670, a licensee may disclose personal financial information about an individual to a nonaffiliated third party without obtaining the written authorization required by 836-080-0665 only if all of the following conditions are met:
(1) The nonaffiliated third party's only use of the information will be in connection with the marketing of a product or service.
(2) No information relating to an individual's character, personal habits, mode of living or general reputation may be disclosed, and no classification derived from such information may be disclosed.
(3) Prior to disclosure, the individual must have been given the notice described in OAR 836-080-0620 and, at the same time, an opportunity to decide whether to allow disclosure of the information by means of a clear and conspicuous notice that provides the following:
(a) That the licensee discloses or reserves the right to disclose personal financial information about the individual to a nonaffiliated third party;
(b) That the individual has the right to opt out of that disclosure; and
(c) A reasonable means by which the individual may exercise the opt out right.
(4) Disclosure of personal financial information that is also individually identifiable health information is not prohibited or otherwise regulated under the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191).
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0680
Opt in Notice; Form of Opt Out Notice to Consumers and Opt Out Methods for Purpose of OAR 836-080-0675
(1) Form of opt in notice. The form of the disclosure authorization (the opt in form) is governed by OAR 836-080-0665 and is used with respect to disclosures of personal information that do not meet one or more of the conditions specified in 836-080-0670 or 836-080-0675.
(2) Form of opt out notice. Sections (2) to (10) of this rule govern the form of and requirements applicable to an opt out notice when the notice is required by OAR 836-080-0675. If a licensee is required to provide an opt out notice by 836-080-0675, the licensee shall accurately explain the right to opt out under that provision. The notice shall state:
(a) That the licensee discloses or reserves the right to disclose personal financial information about its consumer to a nonaffiliated third party;
(b) That the consumer has the right to opt out of that disclosure; and
(c) A reasonable means by which the consumer may exercise the opt out right.
(3) The following are examples for purposes of section (2) of this rule:
(a) Adequate opt out notice. A licensee provides adequate notice that the consumer may opt out of the disclosure of personal financial information to a nonaffiliated third party if the licensee:
(A) Identifies all of the categories of personal financial information that it discloses or reserves the right to disclose, and all of the categories of nonaffiliated third parties to which the licensee discloses the information as permitted by OAR 836-080-0675, and states that the consumer may opt out of the disclosure of that information; and
(B) Identifies the health insurance products or services that the consumer obtains from the licensee, either singly or jointly, to which the opt out direction would apply.
(b) Reasonable opt out means. A licensee provides a reasonable means to exercise an opt out right if it:
(A) Designates check-off boxes in a prominent position on the relevant forms with the opt out notice;
(B) Includes a reply form together with the opt out notice;
(C) Provides an electronic means to opt out, such as a form that can be sent by electronic mail or a process at the licensee's web site, if the consumer agrees to the electronic delivery of information; or
(D) Provides a toll-free telephone number that the consumers may call to opt out.
(c) Unreasonable opt out means. A licensee does not provide a reasonable means of opting out if:
(A) The only means of opting out is for the consumer to write the consumer's own letter to exercise that opt out right; or
(B) The only means of opting out as described in any notice subsequent to the initial notice is to use a check-off box that the licensee provided with the initial notice but did not include with the subsequent notice.
(d) Specific opt out means. A licensee may require each consumer to opt out through a specific means, as long as that means is reasonable for that consumer.
(4) Same form as initial notice permitted. A licensee may provide the opt out notice for purposes of OAR 836-080-0675 together with or on the same written or electronic form as the initial notice the licensee provides in accordance with OAR 836-080-0636.
(5) Initial notice required when opt out notice delivered subsequent to initial notice. If a licensee provides the opt out notice later than required for the initial notice in accordance with OAR 836-080-0636, the licensee shall also include a copy of the initial notice with the opt out notice in writing or, if the consumer agrees, electronically.
(6) The following provisions of this section govern joint relationships:
(a) If two or more consumers jointly obtain a health insurance product or service from a licensee, the licensee may provide a single opt out notice. The licensee's opt out notice shall explain how the licensee will treat an opt out direction by a joint consumer as explained in subsection (e) of this section.
(b) Any of the joint consumers may exercise the right to opt out. The licensee may either:
(A) Treat an opt out direction by a joint consumer as applying to all of the associated joint consumers; or
(B) Permit each joint consumer to opt out separately.
(c) If a licensee permits each joint consumer to opt out separately, the licensee shall permit one of the joint consumers to opt out on behalf of all of the joint consumers.
(d) A licensee may not require all joint consumers to opt out before the licensee implements any opt out direction.
(e) The following is an example for purposes of this section. If John and Mary are both named policyholders on a health insurance policy issued by a licensee and the licensee sends policy statements to John's address, the licensee may do any of the following, but the licensee shall explain in the opt out notice of notice of the licensee which opt out policy the licensee will follow:
(A) Send a single opt out notice to John's address, but the licensee shall accept an opt out direction from either John or Mary.
(B) Treat an opt out direction by either John or Mary as applying to the entire policy. If the licensee does so and John opts out, the licensee may not require Mary to opt out as well before implementing John's opt out direction.
(C) Permit John and Mary to make different opt out directions. If the licensee does so:
(i) The licensee shall permit John and Mary to opt out for each other;
(ii) If both opt out, the licensee shall permit both of them to notify the licensee in a single response, such as on a form or through a telephone call; and
(iii) If John opts out and Mary does not, the licensee may disclose personal financial information only about Mary but not about John, and not about John and Mary jointly.
(7) Time to comply with opt out. A licensee shall comply with a consumer's opt out direction as soon as reasonably practicable after the licensee receives the direction.
(8) Continuing right to opt out. A consumer may exercise the right to opt out at any time.
(9) The duration of a consumer's opt out direction is governed as follows:
(a) A consumer's direction to opt out under this rule is effective until the consumer revokes it in writing or, if the consumer agrees, electronically.
(b) When a customer relationship terminates, the customer's opt out direction continues to apply to the personal financial information that the licensee collected during or related to that relationship. If the individual subsequently establishes a new customer relationship with the licensee, the opt out direction that applied to the former relationship does not apply to the new relationship.
(10) Delivery. When a licensee is required to deliver an opt out notice by this rule, the licensee shall deliver it according to OAR 836-080-0660.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0685
Limits on Sharing Account Number Information for Marketing Purposes
(1) General prohibition on disclosure of account numbers. A licensee shall not, directly or through an affiliate, other than to a consumer reporting agency, disclose a policy number or similar form of access number or access code for a consumer's policy or transaction account to any nonaffiliated third party for use in telemarketing, direct mail marketing or other marketing through electronic mail to the consumer.
(2) Exceptions. Section (1) of this rule does not apply if a licensee discloses a policy number or similar form of access number or access code:
(a) To the licensee's service provider solely in order to perform marketing for the licensee's own products or services, as long as the service provider is not authorized to directly initiate charges to the account;
(b) To a licensee who is an insurance producer solely in order to perform marketing for the licensee's own products or services; or
(c) To a participant in an affinity or similar program when the participants in the program are identified to the customer when the customer enters into the program.
(3) The following are examples for purposes of this rule:
(a) Policy number. A policy number, or similar form of access number or access code, does not include a number or code in an encrypted form, as long as the licensee does not provide the recipient with a means to decode the number or code.
(b) Policy or transaction account. For the purpose of this rule, a policy or transaction account is an account other than a deposit account or a credit card account. A policy or transaction account does not include an account to which third parties cannot initiate charges.
(4) Violation of this section is an unfair trade practice for purposes of ORS 746.240.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600, 746.240 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0690
Authorization Request Delivery
A request for authorization and an authorization form may be delivered to a consumer or a customer as part of a notice under OAR 836-080-0615, 836-080-0620 or 836-080-0625 if the request and the authorization form are clear and conspicuous.
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0695
Access to Recorded Personal Information
(1) If an individual or personal representative of an individual, after proper identification, submits a written request to an insurer, insurance producer or insurance-support organization for access to recorded personal information about the individual that is reasonably described by the individual and reasonably locatable and retrievable by the insurer, insurance producer or insurance-support organization, the insurer, insurance producer or insurance-support organization within 30 business days from the date the request is received shall:
(a) Inform the individual of the nature and substance of the recorded personal information in writing, by telephone or by other oral communication, whichever the insurer, insurance producer or insurance-support organization prefers;
(b) Permit access to inspect or obtain a copy of the individual's personal financial information or protected health information that is maintained in a designated record set about the individual; and
(c) Provide the individual with a summary of the procedures by which the individual may request correction, amendment or deletion of recorded personal information.
(2) Any personal information provided pursuant to this section must identify the source of the information if the source is an institutional source.
(3) If an individual requests individually identifiable health information supplied by a health care provider, the insurer, insurance producer or insurance-support organization shall provide the information, including the identity of the health care provider either directly to the individual or to a health care provider designated by the individual and licensed to provide health care with respect to the condition to which the information relates, whichever the insurer, insurance producer or insurance-support organization prefers. If the insurer, insurance producer or insurance-support organization elects to disclose the information to a health care provider designated by the individual, the insurer, insurance producer or insurance-support organization shall notify the individual, at the time of the disclosure, that the insurer, insurance producer or insurance-support organization has provided the information to the health care provider.
(4) Except for personal information provided under ORS 746.650, an insurer, insurance producer or insurance-support organization may charge a reasonable fee to cover the costs incurred in providing a copy of recorded personal information to an individual.
(5) The obligations imposed by this rule upon an insurer or insurance producer may be satisfied by another insurer or insurance producer authorized to act on its behalf. With respect to the copying and disclosure of recorded personal information pursuant to a request under this rule, an insurer, insurance producer or insurance-support organization may make arrangements with an insurance-support organization or a consumer reporting agency to copy and disclose recorded personal information on its behalf.
(6) The rights granted to individuals by this rule shall extend to all natural persons to the extent information about them is collected and maintained by an insurer, insurance producer or insurance-support organization in connection with an insurance transaction. The rights granted to all natural persons by this section does not extend to information about them that relates to and is collected in connection with or in reasonable anticipation of a claim or a civil or criminal proceeding involving them.
(7) This rule does not authorize the disclosure of individually identifiable health information when the disclosure is prohibited or is otherwise regulated under the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191).
(8) For purposes of this rule, the term ' insurance-support organization' does not include 'consumer reporting agency.'
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
836-080-0700
Correction, Amendment or Deletion of Recorded Personal Information
(1) Within 30 business days from the date of receipt of a written request from an individual to correct, amend or delete any recorded personal information about the individual within its possession, an insurer, insurance producer or insurance-support organization shall either:
(a) Correct, amend or delete the portion of the recorded personal information in dispute; or
(b) Notify the individual of:
(A) Its refusal to make the correction, amendment or deletion;
(B) The reasons for the refusal; and
(C) The individual's right to file a statement as provided in subsection (3) of this section.
(2) If the insurer, insurance producer or insurance-support organization corrects, amends or deletes recorded personal information in accordance with section (1) of this rule, the insurer, insurance producer or insurance-support organization shall so notify the individual in writing and furnish the correction, amendment or fact of deletion to:
(a) Each person specifically designated by the individual who may have, within the preceding two years, received the recorded personal information;
(b) Each insurance-support organization whose primary source of personal information is insurers, if the insurance-support organization has systematically received recorded personal information from the insurer within the preceding seven years. However, the correction, amendment or fact of deletion need not be furnished if the insurance-support organization no longer maintains recorded personal information about the individual; and
(c) Each insurance-support organization that furnished the recorded personal information that has been corrected, amended or deleted.
(3) Whenever an individual disagrees with an insurer's, insurance producer's or insurance-support organization's refusal to correct, amend or delete recorded personal information, the individual shall be permitted to file with the insurer, insurance producer or insurance-support organization:
(a) A concise statement setting forth what the individual thinks is the correct, relevant or fair information; and
(b) A concise statement of the reasons why the individual disagrees with the insurer's, insurance producer's or insurance-support organization's refusal to correct, amend or delete recorded personal information.
(4) In the event an individual files either or both of the statements described in section (3) of this rule, the insurer, insurance producer or insurance-support organization shall:
(a) File the statements with the disputed personal information and provide a means by which anyone reviewing the disputed personal information will be made aware of the individual's statements and have access to them;
(b) In any subsequent disclosure by the insurer, insurance producer or insurance-support organization of the recorded personal information that is the subject of the disagreement, clearly identify the matter or matters in dispute and provide the individual's statements along with the recorded personal information being disclosed; and
(c) Furnish the statements to the persons and in the manner specified in section (2) of this rule.
(5) The rights granted to individuals by this rule extends to all natural persons to the extent information about them is collected and maintained by an insurer, insurance producer or insurance-support organization in connection with an insurance transaction. The rights granted to all natural persons by this rule does not extend to information about them that relates to and is collected in connection with or in reasonable anticipation of a claim or a civil or criminal proceeding involving them.
(6) For purposes of this rule, the term "insurance-support organization" does not include "consumer reporting agency."
Stat. Auth.: ORS 731.244 & 746.608
Stats. Implemented: ORS 746.600 & 746.607
Hist.: ID 4-2005, f. & cert. ef. 4-1-05
Military Sales Practices
836-080-0750
Purpose; Statutory Authority
(1) OAR 836-080-0750 to 836-080-0775 establish standards for protecting active duty service members of the United States Armed Forces from dishonest and predatory insurance sales practices by declaring certain identified practices to be false, misleading, deceptive or unfair.
(2) OAR 836-080-0750 to 836-080-0775 are adopted pursuant to the authority of ORS 731.244 for the purpose of implementing 746.075, 746.110 and 746.240.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.075, 746.110, 746.240
Hist.: ID 7-2007, f. 9-14-07, cert. ef. 1-1-08
836-080-0755
Application of OAR 836-080-0750 to 836-080-0775
(1) OAR 836-080-0750 to 836-080-0775 apply only to the solicitation or sale of any life insurance or annuity product by an insurer or insurance producer to an active duty service member of the United States Armed Forces.
(2) OAR 836-080-0750 to 836-080-0775 do not apply to solicitations or sales involving:
(a) Credit insurance;
(b) Group life insurance or group annuities when there is no in-person, face-to-face solicitation of individuals by an insurance producer or when the policy or certificate does not include a side fund;
(c) An application to the existing insurer that issued the existing policy or contract when a contractual change or a conversion privilege is being exercised; or, when the existing policy or contract is being replaced by the same insurer pursuant to a program filed with and approved by the Director; or, when a term conversion privilege is exercised among corporate affiliates;
(d) Individual stand-alone health policies, including disability income policies;
(e) Contracts offered by Servicemembers' Group Life Insurance (SGLI) or Veteran's Group Life Insurance (VGLI), as authorized by 38 U.S.C. Section 1965 et seq.;
(f) Contracts offered by State Sponsored Life Insurance (SSLI), as authorized by Public Law 93-289, Title 37 U.S.C., sec. 707 et seq;
(g) Life insurance contracts offered through or by a non-profit military association, qualifying under Section 501 (c) (23) of the Internal Revenue Code (IRS), and which are not underwritten by an insurer; or
(h) Contracts used to fund:
(A) An employee pension or welfare benefit plan that is covered by the Employee Retirement and Income Security Act (ERISA);
(B) A plan described by Sections 401(a), 401(k), 403(b), 408(k), or 408(p) of the IRC, as amended, if established or maintained by an employer;
(C) A government or church plan defined in Section 414 of the IRS, a government or church welfare benefit plan, or a deferred compensation plan of a state or local government or tax exempt organization under Section 457 of the IRS;
(D) A nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor;
(E) Settlements of or assumptions of liabilities associated with personal injury litigation or any dispute or claim resolution process; or
(F) Prearranged funeral contracts.
(3) Nothing in this rule shall be construed to abrogate the ability of nonprofit organizations (or other organizations) to educate members of the United States Armed Forces in accordance with Department of Defense DoD Instruction 1344.07 -- PERSONAL COMMERCIAL SOLICITATION ON DoD INSTALLATIONS or successor directive.
(4) For purposes of OAR 836-080-0750 to 836-080-0775, general advertisements, direct mail, and internet marketing do not constitute "solicitation." Telephone marketing does not constitute "soliciting" provided the caller explicitly and conspicuously discloses that the product concerned is life insurance and makes no statements that avoid a clear and unequivocal statement that life insurance is the subject matter of the solicitation. Nothing in this section, however, shall be construed to exempt an insurer or insurance producer from OAR 836-080-0750 to 836-080-0775 in any in-person, face-to-face meeting established as a result of the "solicitation" exemptions identified in this section.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.075, 746.110, 746.240
Hist.: ID 7-2007, f. 9-14-07, cert. ef. 1-1-08
836-080-0760
Definitions for OAR 836-080-0750 to 836-080-0775
The following definitions apply to OAR 836-080-0750 to 836-080-0775:
(1) "Active Duty" means full-time duty in the active military service of the United States and includes members of the reserve component (National Guard and Reserve) while serving under published orders for active duty or full-time training. The term does not include members of the reserve component who are performing active duty or active duty for training under military calls or orders specifying periods of less than 31 calendar days.
(2) "Department of Defense (DoD) Personnel" means all active duty service members and all civilian employees, including nonappropriated fund employees and special government employees, of the Department of Defense.
(3) "Door to Door" means a solicitation or sales method whereby an insurance producer proceeds randomly or selectively from household to household without prior specific appointment.
(4) "General Advertisement" means an advertisement having as its sole purpose the promotion of the reader's or viewer's interest in the concept of insurance, or the promotion of the insurer or the insurance producer.
(5) "Insurer" means an insurance company required to be licensed under the laws of this state to provide life insurance products, including annuities.
(6) "Insurance producer" means a person required to be licensed under the laws of this state to sell, solicit, or negotiate life insurance, including annuities.
(7) "Known" or "knowingly" means, depending on its use in OAR 836-080-0750 to 836-080-0775, the insurance producer or insurer had actual awareness, or in the exercise of ordinary care should have know, at the time of the act or practice complained of, that the person solicited:
(a) Is a service member; or
(b) Is a service member with a pay grade of E-4 or below.
(8) "Life insurance" means insurance coverage on human lives, including benefits of endowment and annuities, and may include benefits in the event of death or dismemberment by accident and benefits for disability income and unless otherwise specifically excluded, includes individually issued annuities.
(9) "Military installation" means any federally owned, leased, or operated base, reservation, post, camp, building, or other facility to which service members are assigned for duty, including barracks, transient housing, and family quarters.
(10) "MyPay" is a Defense Finance and Accounting Service (DFAS) web-based system that enables service members to process certain discretionary pay transactions or provide updates to personal information data elements without using paper forms.
(11) "Service member" means any active duty officer (commissioner and warrant) or enlisted member of the United States Armed Forces.
(12) "Side fund" means a fund or reserve that is part of or otherwise attached to a life insurance policy (excluding individually issued annuities) by rider, endorsement, or other mechanism which accumulates premium or deposits with interest or by other means. The term does not include:
(a) Accumulated value or cash value or secondary guarantees provided by a universal life policy;
(b) Cash values provided by a whole life policy that are subject to standard nonforfeiture law for life insurance; or
(c) A premium deposit fund that:
(A) Contains only premiums paid in advance that accumulate at interest;
(B) Imposes no penalty for withdrawal;
(C) Does not permit funding beyond future required premiums;
(D) Is not marketed or intended as an investment; and
(E) Does not carry a commission, either paid or calculated.
(13) "Specific appointment" means a prearranged appointment agreed upon by both parties and definite as to place and time.
(14) "United States Armed Forces" means all components of the Army, Navy, Air Force, Marines Corps, and Coast Guard.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.075, 746.110, 746.240
Hist.: ID 7-2007, f. 9-14-07, cert. ef. 1-1-08
836-080-0765
Practices Declared False, Misleading, Deceptive or Unfair on a Military Installation
(1) The following acts or practices when committed on a military installation by an insurer or insurance producer with respect to the in-person, face-to-face solicitation of life insurance are declared to be false, misleading, deceptive or unfair:
(a) Knowingly soliciting the purchase of any life insurance product "door to door" or without first establishing a specific appointment for each meeting with the prospective purchaser.
(b) Soliciting service members in a group or "mass" audience or in a "captive" audience when attendance is not voluntary.
(c) Knowingly making appointments with or soliciting service members during their normally scheduled duty hours.
(d) Making appointments with or soliciting service members in barracks, day rooms, unit areas, or transient personnel housing or other areas in which the installation commander has prohibited solicitation.
(e) Soliciting the sale of life insurance without first obtaining permission from the installation commander or the commander's designee.
(f) Posting unauthorized bulletins notices or advertisements.
(g) Failing to present DD Form 2885, "Personal Commercial Solicitation Evaluation, to service members solicited or encouraging service members solicited not to complete or submit a DD Form 2885.
(h) Knowingly accepting an application for life insurance or issuing a policy of life insurance on the life of an enlisted member of the United States Armed Forces without first obtaining for the insurer's files a completed copy of any required form that confirms that the applicant has received counseling or fulfilled any other similar requirement for the sale of life insurance established by regulations, directives or rules of the DoD or any branch of the Armed Forces.
(2) The following acts or practices when committed on a military installation by an insurer or insurance producer constitute corrupt practices, improper influences or inducements and are declared to be false, misleading, deceptive or unfair:
(a) Using DoD personnel, directly or indirectly, as a representative or agent in any official or business capacity with or without compensation with respect to the solicitation or sale of life insurance to service members.
(b) Using an insurance producer to participate in any United States Armed Forces sponsored education or orientation program.
Stat. Auth: ORS 731.244
Stats. Implemented: ORS 746.075, 746.110, 746.240
Hist.: ID 7-2007, f. 9-14-07, cert. ef. 1-1-08
836-080-0770
Practices Declared False, Misleading, Deceptive or Unfair, Regardless of Location
(1) The following acts or practices by an insurer or insurance producer constitute corrupt practices, improper influences or inducements and are declared to be false, misleading, deceptive or unfair:
(a) Submitting, processing or assisting in the submission or processing of any allotment form or similar device used by the United States Armed Forces to direct a service member's pay to a third party for the purchase of life insurance. The acts or practices described in this subsection include, but are not limited to, using or assisting in using a service member's "MyPay" account or other similar Internet or electronic medium for such purposes. This subsection does not prohibit assisting a service member by providing insurer or premium information necessary to complete any allotment form.
(b) Knowingly receiving funds from a service member for the payment of premium from a depository institution with which the service member has no formal banking relationship. For purposes of this rule, a formal banking relationship is established when the depository institution:
(A) Provides the service member a deposit agreement and periodic statements and makes the disclosures required by the Truth in Savings Act, 12 U.S.C. § 4301 et seq. and the regulations promulgated thereunder; and
(B) Permits the service member to make deposits and withdrawals unrelated to the payment or processing of insurance premiums.
(c) Employing any device or method or entering into any agreement in which funds received from a service member by allotment for the payment of insurance premiums are identified on the service member's Leave and Earnings Statement or equivalent or successor form as "Savings" or "Checking" and when the service member has no formal banking relationship as defined in section (1)(b) of this rule.
(d) Entering into any agreement with a depository institution for the purpose of receiving funds from a service member in which the depository institution, with or without compensation, agrees to accept direct deposits from a service member with whom it has not formal banking relationship.
(e) Using DoD personnel, directly or indirectly, as a representative or agent in any official or unofficial capacity with or without compensation with respect to the solicitation or sale of life insurance to service members who are junior in rank or grade, or to the family members of such personnel.
(f) Offering or giving anything of value, directly or indirectly, to DoD personnel to procure their assistance in encouraging, assisting or facilitating the solicitation or sale of life insurance to another service member.
(g) Knowingly offering or giving anything of value to a service member with a pay grade of E-4 or below for the service member's attendance to any event in which an application for life insurance is solicited.
(h) Advising a service member with a pay grade of E-4 or below to change the service member's income tax withholding or State of legal residence for the sole purpose of increasing disposable income to purchase life insurance.
(2) The following acts or practices by an insurer or insurance producer lead to confusion regarding source, sponsorship, approval or affiliation and are declared to be false, misleading, deceptive or unfair:
(a) Making any representation, or using any device, title, descriptive name or identifier that has the tendency or capacity to confuse or mislead a service member into believing that the insurer, insurance producer or product offered is affiliated, connected or associated with, endorsed, sponsored, sanctioned or recommended by the U.S. Government, the United States Armed Forces or any state or federal agency or government entity. Examples of prohibited insurance producer titles include, but are not limited to, "Battalion Insurance Counselor," "Unit Insurance Advisor," "Servicemen's Group Life Insurance Conversion Consultant" or "Veteran's Benefits Counselor." Nothing in this subsection shall be construed to prohibit a person from using a professional designation awarded after the successful completion of a course of instruction in the business of insurance by an accredited institution of higher learning. Such designations include, but are not limited to, Chartered Life Underwriter (CLU), Chartered Financial Consultant (ChFC), Certified Financial Planner (CFP), Master of Science In Financial Services (MSFS) or Masters of Science Financial Planning (MS).
(b) Soliciting the purchase of any life insurance product through the use of or in conjunction with any third party organization that promotes the welfare of or assists members of the United States Armed Forces in a manner that has the tendency or capacity to confuse or mislead a service member into believing that either the insurer, insurance producer, or insurance product is affiliated, connected or associated with, endorsed, sponsored, sanctioned or recommended by the U.S. Government, or the United States Armed Forces.
(3) The following acts or practices by an insurer or insurance producer lead to confusion regarding premiums, cost or investment returned and are declared to be false, misleading, deceptive or unfair:
(a) Using or describing credited interest rate on a life insurance policy in a manner that implies that the credited interest rate is a net return on all premium paid.
(b) Excluding individually issued annuities, misrepresenting the mortality costs of a life insurance product, including stating or implying that the product "costs nothing" or is "free."
(4) The following acts or practices by an insurer or insurance producer regarding SGLI, VGLI or SSLI are declared to be false, misleading, deceptive or unfair:
(a) Making any representation regarding the availability, suitability, amount, cost, exclusions or limitations to coverage provided to a service member or dependents by SGLI, VGLI or SSLI, that is false, misleading or deceptive.
(b) Making any representation regarding conversion requirements, including the costs of coverage, or exclusions or limitations to coverage of SGLI, VGLI or SSLI to private insurers that is false, misleading, or deceptive.
(c) Suggesting, recommending or encouraging a service member to cancel or terminate the service member's SGLI or SSLI policy or issuing a life insurance policy that replaces an existing SGLI or SSLI policy unless the replacement takes effect upon or after the service member's separation from the United States Armed Forces.
(5) The following acts or practices by an insurer or insurance producer regarding disclosure are declared to be false, misleading, deceptive or unfair:
(a) Deploying, using or contracting for any lead generating materials designed exclusively for use with service members that do not clearly and conspicuously disclose that the recipient will be contacted by an insurance producer, if that is the case, for the purpose of soliciting the purchase of life insurance.
(b) Failing to disclose that a solicitation for the sale of life insurance will be made when establishing a specific appointment for an in-person, face-to-face meeting with a prospective purchaser.
(c) Excluding individually issued annuities, failing to clearly and conspicuously disclose the fact that the product being sold is life insurance.
(d) Failing to make, at the time of sale or offer to an individual known to be a service member, the written disclosures required by Section of the "Military Personnel Financial Services Protection Act," Pub. L. No. 109-209, p.16.
(e) Excluding individually issued annuities, when the sale is conducted in-person, face-to-face with an individual known to be a service member, failing to provide the applicant at the time the application is taken:
(A) An explanation of any free look period with instructions on how to cancel if a policy is issued; and
(B) Either a copy of the application or a written disclosure. The copy of the application or the written disclosure shall clearly and concisely set out the type of life insurance, the death benefit applied for an its expected first year cost. A basic illustration that meets the requirements of OAR 836-051-0500 to 836-051-0600 or the NAIC Life Insurance Buyer's Guide shall be deemed sufficient to meet this requirement for a written disclosure.
(6) The following acts or practices by an insurer or insurance producer with respect to the sale of certain life insurance products are declared to be false, misleading, deceptive or unfair:
(a) Excluding individually issued annuities, recommending the purchase of any life insurance product that includes a side fund to a service member in pay grades E-4 and below unless the insurer has reasonable grounds for believing that the life insurance death benefit, standing along, is suitable.
(b) Offering for sale or selling a life insurance product that includes a side fund to a service member in pay grades E-4 and below who is currently enrolled in SGLI or SSLI, is presumed unsuitable unless, after the completion of a needs assessment, the insurer demonstrates that the applicant's SGLI or SSLI death benefit, together with any other military survivor benefits, savings and investments, survivor income, and other life insurance are insufficient to meet the applicant's insurance needs for life insurance. For the purpose of this subsection:
(A) "Insurance needs" are the risks associated with premature death taking into consideration the financial obligations and immediate and future cash needs of the applicant's estate or survivors or dependents, or both the estate and the survivors or dependents.
(B) "Other military survivor benefits" include, but are not limited to: the Death Gratuity, Funeral Reimbursement, Transition Assistance, Survivor and Dependents' Educational Assistance, Dependency and Indemnity Compensation, TRICARE Healthcare benefits, Survivor Housing Benefits and Allowances, Federal Income Tax Forgiveness, and Social Security Survivor Benefits.
(c) Excluding individually issued annuities, offering for sale or selling any life insurance contract that includes a side fund:
(A) Unless interest credited accrues from the date of deposit to the death of withdrawal and permits withdrawals without limit or penalty;
(B) Unless the applicant has been provided with a schedule of effective rates of return based upon cash flows of the combined product. For this disclosure, the effective rate of return will consider all premiums and cash contributions made by the policyholder and all cash accumulations and cash surrender values available to the policyholder in addition to life insurance coverage. This schedule will be provided for at least each policy year from one (1) to ten (10) and every fifth policy year thereafter ending at age 100, policy maturity, or final expiration; and
(C) That by default diverts or transfers funds accumulated in the side fund to pay, reduce, or offset any premiums due.
(d) Excluding individually issued annuities, offering for sale or selling any life insurance contract that after considering all policy benefits, including but not limited to endowment, return of premium or persistency, does not comply with the standard nonforfeiture law for life insurance.
(e) Selling any life insurance product to an individual known to be a service member that excludes coverage if the insured's death is related to war, declared or undeclared, or any act related to military service save and except for an accidental death coverage, e.g., double indemnity, which may be excluded.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.075, 746.110, 746.240
Hist.: ID 7-2007, f. 9-14-07, cert. ef. 1-1-08
836-080-0775
Severability
If any provisions of OAR 836-080-0750 to 836-080-0775 or their application to any person or circumstance is held invalid for any reason, the invalidity shall not affect the other provisions or any other application of OAR 836-080-0750 to 836-080-0775 that can be given effect without the invalid provisions or applicant. To this end all provisions of OAR 836-080-0750 to 836-080-0775 are declared to be severable.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.075, 746.110, 746.240
Hist.: ID 7-2007, f. 9-14-07, cert. ef. 1-1-08
Commercial Loss Runs
836-080-0800
Definitions
As used in OAR 836-080-0800 to 836-080-0810, “loss runs” means information about a current or prior commercial policyholder’s reported losses, including paid amounts on all reported claims. Such losses shall be valued as of the insurer’s most current valuation date, but not more than 90 days prior to the date of the request for loss runs.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.160 & 746.240
Hist.: ID 24-2010, f. 12-30-10, cert. ef. 3-1-11
836-080-0805
Statutory Authority, Purpose, and Applicability
(1) OAR 836-080-0800 to 836-080-0810 are adopted by the Director of the Department of Consumer and Business Services pursuant to the Director’s general rulemaking authority in ORS 731.244.
(2) The purpose of OAR 836-080-0800 to 836-080-0810 is to require certain property and casualty insurers or their appointed producers of record to provide loss runs on a timely basis to current and prior commercial policyholders, upon request by the policyholder to the insurer or its appointed producer of record.
(3)(a) Except as provided in subsection (b) of this section, OAR 836-080-0800 to 836-080-0810 apply with respect to all commercial property, commercial liability including umbrella or excess policies, and commercial automobile insurance except title and surety insurance.
(b) OAR 836-080-0810(2) applies only to workers’ compensation insurance.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.160 & 746.240
Hist.: ID 24-2010, f. 12-30-10, cert. ef. 3-1-11
836-080-0810
Provision of Commercial Loss Runs
(1) Property and casualty insurers or their appointed producers of record shall make loss runs available to current and prior commercial policyholders within 15 calendar days upon request by the policyholder to the insurer or its appointed producer of record. The insurer shall provide five years of loss runs, or, if the commercial policyholder has been insured with that insurer for less than five years, for the entire period the policyholder has been insured with that insurer.
(2) Loss runs related to workers’ compensation insurance shall not include confidential worker medical and vocational claim records pursuant to ORS 656.360 and 656.362.
(3) Violation of this rule is an unfair trade practice for the purpose of ORS 746.240.
Stat. Auth.: ORS 731.244
Stats. Implemented: ORS 746.160 & 746.240
Hist.: ID 24-2010, f. 12-30-10, cert. ef. 3-1-11
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