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MIB Authorization Changes

As some of you may know, the MIB has recently published a requirement to change the MIB Authorization. While the requirement to the Authorization was published previously, I received notice today that a deadline has now been set: By January 1, 2013, all MIB Members must include language in the MIB Authorization “that elicits an applicant’s express written consent to report information to MIB.” The following language or language substantially similar is to be used:

“I authorize XYZ Insurance Company, or its reinsurers, to make a brief report of my personal health information to MIB.”

The guidance issued by MIB indicates that it is also permissible to refer to “Protected Health Information” in the authorization.

The change is intended to be consistent with the Health Insurance Portability and Accountability Act (“HIPAA”), as amended by Health Information Technology for Economic and Clinical Health Act (“HITECH”), and other state and federal laws of the United States as well as Canadian privacy laws. MIB has determined that reliance on implied consent, based on the Pre-Notice, is “no longer tenable for the conduct of the MIB information exchange.” For those who are members, MIB has FAQs and a Whitepaper explaining the rationale in more detail on their Member Compliance microsite.

MIB also included in the announcement of the change to the Authorization requirement that both NY and NJ had created specific filing exemptions for these changes. New York issued filing guidance, stating:

The MIB, Inc. authorization generally appears in a policy form as defined in Section 3201(a) of the Insurance Law. Any policy form revised solely to comply with the exact language in the MIB, Inc. request, as set forth above, is not required to be submitted to the Department for review and approval provided that the member companies making the requested change to a policy form send a letter to the Department identifying, by form number, the policy forms that will be revised to make the change, confirmation that this is the only change being made to the policy form and confirmation that upon the next revision of the policy form submitted for approval the authorization language will be incorporated into the policy form.

The contact in the NYDFS Life Bureau is Kathleen Nelligan, Chief Insurance Attorney, and in the NYDFS Health Bureau it is Austin Rinella, Supervising Attorney.