New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

The Office of General Counsel issued the following informal opinion on March 7, 2001, representing the position of the New York State Insurance Department.

Re: Viatical Settlement Companies and Brokers, and Regulation 169

Question Presented:

Do viatical settlement companies and viatical settlement brokers come within the purview of N.Y. Comp. Codes R. & Regs. tit. 11 §§420.0 – 420.24 (2001) (Reg. 169)?

Conclusion:

The definition of licensee in N.Y. Comp. Codes R. & Regs. tit. 11 §420.3(p)(1) (2001) (Reg. 169) currently includes both viatical settlement companies and viatical settlement brokers but will be modified in the final adoption of the regulation to exclude both.

Facts:

The Department was asked whether it intended to include both viatical settlement companies and viatical settlement brokers in the definition of licensee under N.Y. Comp. Codes R. & Regs. tit. 11 §420.3(p)(1) (2001) (Reg. 169).

Analysis:

N.Y. Comp. Codes R. & Regs. tit. 11 §§420.0 – 420.24 (2001) (Reg. 169) is currently in effect as an emergency adoption. A licensee is defined in N.Y. Comp. Codes R. & Regs. tit. 11 §420.3(p)(1) as meaning:

a person licensed, or required to be licensed, or authorized, or required to be authorized, or registered, or required to be registered pursuant to the Insurance Law of this State; a health maintenance organization holding, or required to hold, a certificate of authority pursuant to Article 44 of the Public Health Law; or an unauthorized insurer in regard to the excess line

business conducted pursuant to section 2118 of the Insurance Law and Part 27 of this Title (Regulation 41).

Pursuant to this definition, both viatical settlement companies and viatical settlement brokers would be subject to this regulation.

However, the Office of General Counsel examined N.Y. Ins. Law §§ 7801 - 7810 (2000), particularly the provisions of N. Y. Ins. Law § 7808 (McKinney 2000), which provide in pertinent part:

(b) All medical information solicited or obtained by any licensee shall be subject to the provisions applicable to health care providers under the public health law and common law relating to confidentiality of medical information.

(c) Viatical settlement companies and brokers licensed hereunder shall not:

(4) disclose medical, financial or other personal information obtained from the viator to any other person or entity without the viator’s specific written consent. All medical information solicited or obtained by any licensee shall be subject to the provisions applicable to health care providers under the public health law and common law relating to confidentiality of medical information.

It is the conclusion of this Office that the above cited provisions control the treatment of nonpublic personal information by viatical settlement companies and viatical settlement brokers and consequently, these licensees should be excluded from the coverage of the regulation. Accordingly, language will be included in the final adoption of the regulation to make this clear.

For further information you may contact Associate Attorney Joan Siegel at the New York City Office.