DFS has developed a draft pre-proposal notice regarding proposed amendments to 11 NYCRR 52 (Insurance Regulation 62) which, if adopted, would amend the minimum standards for form, content, and sale of health insurance in New York. The proposal also modifies standards for policyholder disclosures. The proposal applies to both Article 43 and Article 44 “insurers”, which means both accident and health insurers and HMOs. The proposal, if adopted, would require that insurers request information regarding an insured’s and covered dependent’s race, ethnicity, preferred language, sexual orientation and gender identity or expression for all insureds and dependents covered under a comprehensive health insurance policy, subject to certain conditions on the nature and form of request.
The insurer would be required to request such information via a separate and supplemental questionnaire. The timing of submission to the insured is critical to assuring that the questions and responses are not used in the underwriting process so as to avoid unfair or unlawful discrimination under the laws, including, but not limited to, Insurance Law Sections 2606 and 2607. More specifically, the regulations would prohibit discrimination in eligibility, rating, and refusal by an insured to respond (not mandatory under the proposal) may not be used in future underwriting or rating setting either. To assure that these standards are satisfied, the questionnaire may not be issued until after an applicant has completed an application for a comprehensive health insurance policy. Further, with respect to insureds and dependents already covered under a policy for whom the insurer does not have such information, the questions cannot be posed until the time of the next policy renewal that is at least 90 days after the effective date of the proposed regulations.
An insurer shall not sell to any third-party any information requested, including any information that has been de-identified; and insurers would further be prohibited from sharing with any third-party, or allowing any third party to collect on its behalf, any information requested, including any information that has been de-identified, unless the third party agrees not to sell or share the information, except when required by law, and the third-party agrees to keep the information confidential.
Insurers could not use the information gleaned from responses to the questionnaire for marketing purposes, except for preferred language.
Finally, the proposal would require each insurer to clearly and conspicuously disclose in the separate supplemental questionnaire discussed above that:
- an insured or a covered dependent may refuse to provide any information requested in the demographics questionnaire; and
- the insurer may not use the information for any underwriting determinations, including eligibility determinations, or for rating purposes, and an insurer may not base any decision relating to such underwriting or rating on an individual’s refusal to provide a response to such a request;
- the insurer is prohibited from using the information provided in response to a request made in a manner that would constitute unfair or unlawful discrimination under the New York Law, including, but not limited to, Insurance Law sections 2606 and 2607;
- any information provided in response to a request made will be maintained as confidential consistent with applicable Federal and State statutes and regulations; and
- the insurer is requesting information from insureds and covered dependents to support efforts to promote health equity.
If proposed and adopted, all insurers would be required to provide to the superintendent, upon the superintendent’s request, and in a format specified by the superintendent, all demographic information collected pursuant to the questionnaire.
The proposal also contains certain filing and electronic attestation obligations. In connection with any rate filing or rate manual submission, if the draft were proposed and adopted, each insurer would be required to electronically file with the superintendent, a document signed by an actuary or other executive having responsibility for oversight of rates attesting that the information collected pursuant to the questionnaire is not used in underwriting, including eligibility determinations, for rating, or otherwise used in a manner that would constitute unfair or unlawful discrimination. The electronic filing requirement could be waived by the superintendent as otherwise set forth in the New York Insurance laws.
The draft proposal is linked here: https://www.dfs.ny.gov/system/files/documents/2024/09/draft-pre-proposed-reg62-amend67.pdf
Questions and comments regarding this proposal can be directed to Cynthia Borrelli.