§639.  Confidentiality; prohibition on announcements; prohibition on use in ratemaking

A.  All risk-based capital reports, to the extent the information is not required to be set forth in a publicly available annual statement schedule, and risk-based capital plans, including the results or report of any examination or analysis of a health organization performed pursuant to this Subpart and any corrective order issued by the commissioner pursuant to examination or analysis, with respect to a domestic health organization or foreign health organization that are in the possession or control of the Department of Insurance shall be confidential by law and privileged, shall not be subject to Chapter 1 of Title 44 of the Louisiana Revised Statutes of 1950, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action.  However, the commissioner is authorized to use the documents, materials, or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties.

B.  Neither the commissioner nor any person who received documents, materials, or other information while acting under the authority of the commissioner shall be permitted or required to testify in any private civil action concerning any confidential documents, materials, or information subject to Subsection A of this Section.

C.  In order to assist in the performance of the commissioner's duties, the commissioner may do any of the following:

(1)  Share documents, materials, or other information, including the confidential and privileged documents, materials, or information subject to Subsection A of this Section, with other state, federal, and international regulatory agencies, with the National Association of Insurance Commissioners and its affiliates and subsidiaries, and with state, federal, and international law enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material, or other information.

(2)  Receive documents, materials, or information, including otherwise confidential and privileged documents, materials, or information, from the National Association of Insurance Commissioners and its affiliates and subsidiaries, and from regulatory and law enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material, or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material, or information.

(3)  Enter into agreements governing sharing and use of information consistent with this Subsection.

D.  No waiver of any applicable privilege or claim of confidentiality in the documents, materials, or information shall occur as a result of disclosure to the commissioner under this Section or as a result of sharing as authorized in Paragraph (3) of Subsection C of this Section.

E.  It is the judgment of the legislature that the comparison of a health organization's total adjusted capital to any of its risk-based capital levels is a regulatory tool which may indicate the need for corrective action with respect to the health organization and is not intended as a means to rank health organizations generally.  Therefore, except as otherwise required under the provisions of this Subpart, the making, publishing, disseminating, circulating, or placing before the public, or causing, directly or indirectly to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or over a radio or television station, or in any other way, an advertisement, announcement, or statement containing an assertion, representation, or statement with regard to the risk-based capital levels of any health organization, or of any component derived in the calculation, by any health organization, provider, broker, or other person engaged in any manner in the insurance business would be misleading and is therefore prohibited.  However, if any materially false statement with respect to the comparison regarding a health organization's total adjusted capital to its risk-based capital levels, or any of them, or an inappropriate comparison of any other amount to the health organizations' risk-based capital levels is published in any written publication and the health organization is able to demonstrate to the commissioner with substantial proof the falsity of the statement, or the inappropriateness, as the case may be, then the health organization may publish an announcement in a written publication if the sole purpose of the announcement is to rebut the materially false statement.

F.  It is the further judgment of the legislature that an excess of capital (i.e., net worth) over the amount produced by the risk-based capital requirements contained in this Subpart and the formulas, schedules, and instructions referenced in this Subpart are desirable in the business of health insurance.  Accordingly, health organizations should seek to maintain capital above the risk-based capital levels required by this Subpart.  Additional capital is used and useful in the insurance business and helps to secure a health organization against various risks inherent in or affecting the business of insurance and not accounted for or only partially measured by the risk-based capital requirements contained in this Subpart.

Acts 2003, No. 1106, §1, eff. Dec. 31, 2003; Redesignated from R.S. 22:2036.9 by Acts 2008, No. 415, §1, eff. Jan. 1, 2009.

NOTE:  Former R.S. 22:639 redesignated as R.S. 22:1262 by Acts 2008, No. 415, §1, eff. Jan. 1, 2009.