Current through Register Vol. 63, No. 9, September 1, 2024
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
