Current through all regulations passed and filed through September 16, 2024
(A) Purpose
This rule is to regulate employee access to the confidential
personal information that the department of insurance (department) keeps. This
rule applies to both electronic records and records kept on paper.
(B) Authority
This rule is promulgated under the authority of division (B) of
section
1347.15
of the Revised Code that requires each state agency to adopt rules under
Chapter 119. of the Revised Code to regulate access to confidential personal
information. Section
3901.041
of the Revised Code provides that the superintendent of insurance
(superintendent) shall adopt, amend and rescind rules to discharge the
superintendent's duties and exercise the superintendent's
powers.
(C) Definitions
For the purpose of this rule promulgated in accordance with
section
1347.15
of the Revised Code, the following definitions, as set out by the department of
administrative services in rule
123:3-2-01
of the Administrative Code, apply:
(1)
"Access" as a noun means an instance of copying, viewing, or otherwise
perceiving whereas "access" as a verb means to copy, view, or otherwise
perceive.
(2) "Acquisition of a new
computer system" means the purchase of a "computer system," as defined in this
rule, that is not a computer system currently in place nor one for which the
acquisition process has been initiated as of the effective date of the agency
rule addressing requirements in section
1347.15
of the Revised Code.
(3) "Computer
system" means a "system," as defined by section
1347.01
of the Revised Code, that stores, maintains, or retrieves personal information
using electronic data processing equipment.
(4) "Confidential personal information" (CPI)
has the meaning as defined by division (A)(1) of section
1347.15
of the Revised Code and identified by rules promulgated by the agency in
accordance with division (B)(3) of section
1347.15
of the Revised Code that reference the federal or state statutes or
administrative rules that make personal information maintained by the agency
confidential.
(5) "Employee of the
state agency" means each employee of a state agency regardless of whether he or
she holds an elected or appointed office or position within the state agency.
"Employee of the state agency" is limited to the specific employing state
agency.
(6) "Incidental contact"
means contact with the information that is secondary or tangential to the
primary purpose of the activity that resulted in the contact.
(7) "Individual" means a natural person or
the natural person's authorized representative, legal counsel, legal custodian,
or legal guardian.
(8) "Information
owner" means the individual appointed in accordance with division (A) of
section
1347.05
of the Revised Code to be directly responsible for a system.
(9) "Person" means a natural
person.
(10) "Personal information"
has the same meaning as defined in division (E) of section
1347.01
of the Revised Code.
(11) "Personal
information system" means a "system" that "maintains" "personal information" as
those terms are defined in section
1347.01
of the Revised Code. "System" includes manual and computer systems.
(12) "Research" means a methodical
investigation into a subject.
(13)
"Routine" means commonplace, regular, habitual, or ordinary.
(14) "Routine information that is maintained
for the purpose of internal office administration, the use of which would not
adversely affect a person" as that phrase is used in division (F) of section
1347.01
of the Revised Code means personal information relating to employees and
maintained by the agency for internal administrative and human resource
purposes.
(15) "System" has the
same meaning as defined by division (F) of section
1347.01
of the Revised Code.
(16) "Upgrade"
means a substantial redesign of an existing computer system for the purpose of
providing a substantial amount of new application functionality, or application
modifications that would involve substantial administrative or fiscal resources
to implement, but would not include maintenance, minor updates and patches, or
modifications that entail a limited addition of functionality due to changes in
business or legal requirements.
(D) Procedures for accessing confidential
personal information (as required by divisions (B)(1) and (B)(5) to (B)(8) of
section
1347.15
of the Revised Code).
For personal information systems, whether manual or computer
systems, which contain confidential personal information, the department shall
do the following:
(1) Criteria for
accessing confidential personal information
Personal information systems of the department are managed on a
"need-to-know" basis whereby the information owner determines the level of
access required for an employee of the department to fulfill his or her job
duties. The determination of access to confidential personal information shall
be approved by the employee's supervisor and the information owner prior to
providing the employee with access to confidential personal information within
a personal information system. The department shall establish procedures for
determining a revision to an employee's access to confidential personal
information upon a change to that employee's job duties including, but not
limited to, transfer or termination. Whenever an employee's job duties no
longer require access to confidential personal information in a personal
information system, the employee's access to confidential personal information
shall be removed.
(2)
Individual's request for a list of confidential personal information
Upon the signed written request of any individual for a list of
confidential personal information about the individual maintained by the
department, the department shall do all of the following:
(a) Verify the identity of the individual by
a method that provides safeguards commensurate with the risk associated with
the confidential personal information;
(b) Provide to the individual the list of
confidential personal information that does not relate to an investigation
about the individual or is otherwise not excluded from the scope of Chapter
1347. of the Revised Code; and
(c)
If all information relates to an investigation about that individual, inform
the individual that the agency has no confidential personal information about
the individual that is responsive to the individual's request.
(3) Notice of invalid access
(a) Upon discovery or notification that
confidential personal information of a person has been accessed by an employee
for an invalid reason, the department shall notify the person whose information
was invalidly accessed as soon as practical and to the extent known at the
time. However, the department shall delay notification for a period of time
necessary to ensure that the notification would not delay or impede an
investigation or jeopardize homeland or national security. Additionally, the
department may delay the notification consistent with any measures necessary to
determine the scope of the invalid access, including which individuals'
confidential personal information invalidly was accessed, and to restore the
reasonable integrity of the system.
"Investigation" as used in this paragraph means the
investigation of the circumstances and involvement of an employee surrounding
the invalid access of the confidential personal information. Once the
department determines that notification would not delay or impede an
investigation, the department shall disclose the access to confidential
personal information made for an invalid reason to the person.
(b) Notification provided by the
department shall inform the person of the type of confidential personal
information accessed and the date(s) of the invalid access.
(c) Notification may be made by any method
reasonably designed to accurately inform the person of the invalid access,
including written, electronic or telephone notice.
(4) Appointment of a data privacy point of
contact
The superintendent shall designate an employee of the
department to serve as the data privacy point of contact. The data privacy
point of contact shall work with the chief privacy officer within the office of
information technology to assist the department with both the implementation of
privacy protections for the confidential personal information that the
department maintains and compliance with section
1347.15
of the Revised Code and the rules adopted pursuant to the authority provided by
that chapter.
(5) Completion
of a privacy impact assessment
The superintendent shall designate an employee of the
department to serve as the data privacy point of contact who shall timely
complete the privacy impact assessment form developed by the office of
information technology.
(E) Valid reasons for accessing confidential
personal information (as required by division (B)(2) of section
1347.15
of the Revised Code) Pursuant to the requirements of division (B)(2) of section
1347.15
of the Revised Code, this rule contains a list of valid reasons, directly
related to the department's exercise of its powers or duties, for which only
employees of the department may access confidential personal information
regardless of whether the personal information system is a manual system or
computer system.
Performing the following functions constitute valid reasons for
authorized employees of the department to access confidential personal
information:
(1) Responding to a
public records request;
(2)
Responding to a request from an individual for the list of confidential
personal information the department maintains on that individual;
(3) Administering a constitutional provision
or duty;
(4) Administering a
statutory provision or duty;
(5)
Administering an administrative rule provision or duty;
(6) Complying with any state or federal
program requirements;
(7)
Processing or payment of claims or otherwise administering a program with
individual participants or beneficiaries;
(8) Auditing purposes;
(9) Licensure processes;
(10) Investigation or law enforcement
purposes;
(11) Administrative
hearings;
(12) Litigation,
complying with an order of the court, or subpoena;
(13) Human resource matters (e.g., hiring,
promotion, demotion, discharge, salary and compensation issues, leave requests
and issues, time card approvals and issues);
(14) Complying with an executive order or
policy;
(15) Complying with a
department policy or a state administrative policy issued by the department of
administrative services, the office of budget and management or other similar
state agency; or
(16) Complying
with a collective bargaining agreement provision.
(F) Confidentiality statutes (as required by
division (B)(3) of section
1347.15
of the Revised Code)
The following federal statutes or regulations or state statutes
and administrative rules make personal information maintained by the department
confidential and identify the confidential personal information within the
scope of rules promulgated by the department in accordance with section
1347.15
of the Revised Code:
(1) Social
security numbers:
5 U.S.C. section
552a; "State ex rel. Beacon Journal
Publishing Co. v. City of Akron, 70 Ohio St.3d 605 (1994)."
(2) Consumer credit reporting information:
limits the use that can be made of consumer credit reports:
15 U.S.C. section
1681b.
(3) Federal tax returns and return
information:
26
U.S.C. section
6103(a).
(4) Medical records pertaining to an eligible
person under the American with Disabilities Act:
42 U.S.C. section
12112(d)(3)(B).
(5) Bureau of criminal identification and
investigation records: division (H) of section
109.57
of the Revised Code and section
4776.04
of the Revised Code.
(6) Public
employees retirement system (PERS) information (the individual's statement of
previous service, amount of a monthly allowance or benefit paid to an
individual and the individual's personal history record that includes address,
telephone number, social security number, record of contributions,
correspondence with the public employees retirement system or other information
determined by the public employees retirement board to be confidential):
division (A) of section
145.27
of the Revised Code.
(7) Medical
reports and recommendations required by the public employees retirement system:
division (B) of section
145.27
of the Revised Code.
(8) Deferred
compensation program participant information: divisions (A) and (B) of section
148.05
of the Revised Code.
(9) Medical
records: division (A)(1)(a) of section
149.43
of the Revised Code.
(10)
Confidential law enforcement investigatory records: division (A)(1)(h) of
section
149.43
of the Revised Code.
(11) Security
and infrastructure records: section
149.433
of the Revised Code.
(12) Health
insuring corporation complaint and response documents and information that
contain medical records provided to the superintendent: division (C) of section
1751.19 of the
Revised Code.
(13) Any data or
information pertaining to the diagnosis, treatment, or health of any enrollee
or applicant for enrollment that is obtained by the health insuring corporation
from the enrollee or applicant, or from any health care facility or provider:
division (B) of section
1751.52
of the Revised Code.
(14) Peer
review committee records: sections
1751.21 and
2305.252
of the Revised Code.
(15) Medical
records; doctor patient communications: division (B) of section
2317.02
of the Revised Code; "TBC Westlake, Inc. v. Hamilton Cty. Bd. of Revision, 81
Ohio St.3d 58, 62 (1998)."
(16)
Identity of an individual on whom an HIV test is performed, the results of the
test and the identity of any individual diagnosed as having AIDS or an
AIDS-related condition: section
3701.243
of the Revised Code.
(17) Records
pertaining to an insurance fraud investigation are confidential law enforcement
investigatory records (CLEIR) and are protected to the extent of the CLEIR
exemption from section
149.43
of the Revised Code until the expiration of all applicable federal and state
statutes of limitation: section
3901.44
of the Revised Code.
(18) Applicant
HIV test results required by insurers when underwriting fraternal policies:
section
3901.46 of
the Revised Code.
(19) Records and
information pertaining to an investigation of a license applicant or of an
agent, solicitor, broker or a person licensed under the code sections covering
public insurance adjusters and third party administrators until notice and
opportunity for hearing is given or until three years have passed since the
close of the investigation: section
3905.24
of the Revised Code.
(20) All
medical information solicited or obtained by any viatical settlement licensee:
division (G) of section
3916.07
of the Revised Code.
(21) Names and
individual identification data for all viators: division (D)(1) of section
3916.11 of
the Revised Code.
(22) All
proprietary information of a viatical settlement licensee, all individual
transaction data regarding the business of viatical settlements and data that
could compromise the privacy of personal, financial and health information of
the viator or insured: division (E) of section
3916.12
of the Revised Code.
(23) With
certain specified exceptions, identity as a viator or a viatical settlement
insured, including the viator's or the insured's name and individual
identification data, or the viator or the insured's financial or medical
information: section
3916.13 of
the Revised Code.
(24) Documents
and evidence provided to or obtained by the superintendent in an investigation
of any suspected or actual fraudulent viatical settlement acts or fraudulent
insurance acts: division (E)(1) of section
3916.18
of the Revised Code.
(25) Records
containing information pertaining to the medical history, diagnosis, prognosis
or medical condition of a covered person pursuant to the external review laws
under Chapter 3922. of the Revised Code and sections
1751.77
to
1751.87
of the Revised Code: section
3922.21 of the
Revised Code.
(26) Medical claims
data required to be reported to the superintendent by section
3929.302
of the Revised Code: division (G) of section
3929.302
of the Revised Code.
(27) Driver's
license number or state identification card number: section
4501.27 of the
Revised Code and
18
U.S.C. sections 2721 and
2725.
(28) Law enforcement automated data system
(LEADS) information: section
5503.10
of the Revised Code and rule
4501:2-10-06
of the Administrative Code.
(29)
Any information gained as the result of returns, investigations, hearings, or
verifications required or authorized by Chapter 5747. of the Revised Code on
income tax: section
5747.18
of the Revised Code.
(30)
Personal information: division (A)(1)(dd) of section
149.43
of the Revised Code, based on the definitions in division (A)(1) of section
149.45
of the Revised Code.
(31)
Records and documents relating to certifications,
recertifications or medical histories of employees' family members, created for
purposes of the Family and Medical Leave Act:
29 C.F.R. section
825.500(g).
As statutes are enacted or amended and rules are promulgated or
revised, the list of confidentiality provisions provided in this rule may be
subject to change. Any changes that occur before the time of the five-year rule
review process for this rule shall be available to any requester by making a
request to the department's office of legal services.
(G) Restricting and logging access
to confidential personal information in computerized personal information
systems (as required by divisions (B)(4) and (B)(9) of section
1347.15
of the Revised Code)
For personal information systems that are computer systems and
contain confidential personal information, the department shall do the
following:
(1) Access restrictions
Access to confidential personal information that is kept
electronically shall require a password or other authentication measure.
(2) Acquisition of a new computer
system
When the department acquires a new computer system that stores,
manages or contains confidential personal information, the department shall
include a mechanism for recording specific access by employees of the
department to confidential personal information in the system.
(3) Upgrading existing computer
systems
When the department modifies an existing computer system that
stores, manages or contains confidential personal information, the department
shall make a determination whether the modification constitutes an upgrade. Any
upgrades to a computer system shall include a mechanism for recording specific
access by employees of the department to confidential personal information in
the system.
(4) Logging
requirements regarding confidential personal information in existing computer
systems
(a) The department shall require
employees of the department who access confidential personal information within
computer systems to maintain a log that records that access.
(b) Access to confidential personal
information is not required to be entered into the log under the following
circumstances:
(i) The employee of the
department is accessing confidential personal information for official
department purposes, including research, and the access is not specifically
directed toward a specifically named individual or a group of specifically
named individuals.
(ii) The
employee of the department is accessing confidential personal information for
routine office procedures and the access is not specifically directed toward a
specifically named individual or a group of specifically named
individuals.
(iii) The employee of
the department comes into incidental contact with confidential personal
information and the access of the information is not specifically directed
toward a specifically named individual or a group of specifically named
individuals.
(iv) The employee of
the department accesses confidential personal information about an individual
based upon a request made under either of the following circumstances:
(a) The individual requests confidential
personal information about himself or herself.
(b) The individual makes a request that the
department takes some action on that individual's behalf and accessing the
confidential personal information is required in order to consider or process
that request.
(c) For purposes of this paragraph, the
department may choose the form or forms of logging, whether in electronic or
paper formats.
(5) Log
management
The department shall issue a policy that specifies the
following:
(a) Who shall maintain the
log;
(b) What information shall be
captured in the log;
(c) How the
log is to be stored; and
(d) How
long information kept in the log is to be retained.
Nothing in this rule limits the department from requiring
logging in any circumstance that the department deems necessary.
(H)
Severability
If any paragraph, term or provision of this rule is adjudged
invalid for any reason, the judgment shall not affect, impair or invalidate any
other paragraph, term or provision of this rule, but the remaining paragraphs,
terms and provisions shall be and continue in full force and effect.
