Ken, you may be right - it's possible that some states may license such "underwriting" agents as insurance issuers. I'd thought that mainly occurred with respect to property and casualty agents, but it could happen in the health insurance industry. If I were with an agent trade association, it would be worth checking out with the NAIC. We, too, do not give underwriting authority to our external field force.
If a state does not license an underwriting agent as an insurance issuer, they agent would simply be a business associate for the health insurer, with the duty of receiving PHI for the purpose of underwriting coverage for the issuing carrier. I have been wondering what types of problems health insurers will run into, if agents/brokers/producers believe they are covered health plan entities. Judi -----Original Message----- From: Fody, Kenneth W. [mailto:[EMAIL PROTECTED]] Sent: Thursday, March 28, 2002 9:29 AM To: 'Langer, Judi'; [EMAIL PROTECTED] Subject: RE: Agent's Rights to PHI Judi: I agree with your point of view. The only thing I can suggest for some to consider is that some agents/brokers do have the authority to "underwrite" coverage for a carrier. This is known as having "the power of the pen." In these situations if the agent/broker commits a carrier to providing coverage, that carrier is legally bound to providing coverage. We do not allow agents and brokers that authority at our company. Such power is a little different than the average agent/broker who is just an extension of our Marketing Department and might raise the agent to a higher level. I do not know if that was what the entity writing the opinion intended though. Ken Fody -----Original Message----- From: Langer, Judi [mailto:[EMAIL PROTECTED]] Sent: Wednesday, March 27, 2002 1:44 PM To: [EMAIL PROTECTED] Subject: RE: Agent's Rights to PHI Many of you are interested in CIAB's argument, so I'm posting it to the list. The actual paper was sent to me via hardcopy by a colleague who works for a brokerage. I couldn't access it electronically since I am not a member of CIAB. It is supposed to be posted on their website. Should you happen to be a member, the CIAB website URL is: http://www.ciab.com/index.jsp Their argument, which consists of barely half a page in the paper, goes like this: 1. The definition of "health plan" includes a "health insurance issuer." 160.103. 2. The definition of "health insurance issuer" includes an "insurance service or insurance organization . . . that is licensed to engage in the business of insurance in a state and is subject to state law that regulates insurance." 160.103. 3. Agents and brokers are either "insurance service" or "insurance organizations" that are subject to state law. 4. Hence, agents and brokers are "health plans," and therefore covered entities under the HIPAA Privacy Rules. In their analysis, they skip over the element of "licensed to engage in the business of insurance." Obviously, there is a difference under state law between having a license to MARKET insurance lines, and having a license to ISSUE insurance lines. The term itself, "health insurance issuer" connotes *issuing*, not marketing, insurance. I'm of the opinion that if DHHS intended to include agents/brokers/producers as covered health plans, then at the very least, somewhere in the Preamble they would have made mention of that. I haven't seen it. It puzzles me why agents would want to assume a legal duty that is not clearly theirs under the HIPAA Privacy Rules. My colleague explained it as "wanting to do things right." I'm not sure she knows what she is getting herself in for! Judith A. Langer, Attorney HIPAA Project Director Legal Department Cobalt Corporation -----Original Message----- From: Langer, Judi [mailto:[EMAIL PROTECTED]] Sent: Wednesday, March 27, 2002 8:37 AM To: [EMAIL PROTECTED] Subject: RE: Agent's Rights to PHI We have analyzed it the way Beth has. Regarding the perspective of agent trade organizations, I have a paper from the Council of Independent Agents and Brokers that is of the opinion that agents/brokers/producers are actually covered entities (health plans). If anyone on the list is interested, I will summarize their argument. I do not agree with their analysis. I have not yet found out what position NAHU takes. Judith A. Langer, Attorney HIPAA Project Director Cobalt Corporation (Blue Cross & Blue Shield United of Wisconsin) -----Original Message----- From: Beth Kranda [mailto:[EMAIL PROTECTED]] Sent: Wednesday, March 27, 2002 8:16 AM To: [EMAIL PROTECTED] Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED] Subject: Re: Agent's Rights to PHI There is a position paper present in the Privacy Policies & Procedures whitepaper on Brokers and Agents. I agree with Bill - that Agent is either 1 - a Business Associate of the Health Plan subject to the rights and restrictions in his BA contract with me 2 - a Business Associate of the Employer/ERISA Plan subject to the same restrictions as that Employer 3 - none of the above and has no rights unless I have an Authorization or Personal Representative Form on file from the member. -Beth Kranda Bill Bernath wrote: > Cathy, we've be wrestling with this for a bit. I wish it was as simple as it sounds, but we see the agent falling into a couple of categories - one that works directly for us, that is, a paid employee of BCBSNC. We'll assume that this agent is representing our interests. The other category is agents that are not employees, but instead are representing either the member or the group health plan. For either category, but especially for the non-employees, we are leaning towards absolutely no disclosure of PHI (without proper signed authorization on file, of course). So far, we have not been able to come up with instances where an agent would 'need' PHI. If someone in the group can make a case for it, I'd be glad to put it in our mix for further consideration - thx- b > > Bill Bernath > Blue Cross Blue Shield of North Carolina > Privacy Office > (919) 765-7006 > [EMAIL PROTECTED] > > >>> <[EMAIL PROTECTED]> 03/26/02 08:05PM >>> > Does anyone in the WEDI SNIP Privacy Workgroup know the > industry's perspective and the Agents perspective on whether > Agents should have rights to PHI. I would really appreciate > your input on this. > > Thank you. > > Cathy Kiaha > Manager, Education and Communications > HIPAA PMO > > PHONE: (818) 234-3154 > FAX: (818) 234-3841 > E-MAIL: [EMAIL PROTECTED] > > ********************************************************************** > To be removed from this list, go to: http://snip.wedi.org/unsubscribe.cfm?list=privacy > and enter your email address. > > ********************************************************************** > To be removed from this list, go to: http://snip.wedi.org/unsubscribe.cfm?list=privacy > and enter your email address. ********************************************************************** To be removed from this list, go to: http://snip.wedi.org/unsubscribe.cfm?list=privacy and enter your email address. ********************************************************************** To be removed from this list, go to: http://snip.wedi.org/unsubscribe.cfm?list=privacy and enter your email address. ********************************************************************** To be removed from this list, go to: http://snip.wedi.org/unsubscribe.cfm?list=privacy and enter your email address. 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