OGC Op. No. 08-07-08

The Office of General Counsel issued the following opinion on July 15, 2008 representing the position of the New York State Insurance Department.

RE: Health Information Privacy


May an insurer retain health information that is submitted to it in error?


While use and retention of protected health information is primarily regulated by the United States Department of Health & Human Services (HHS) pursuant to a regulation promulgated by that agency, 45 CFR § 160.100-160.552 (2001), HHS has allowed for complementary state regulation. However, because the inquirer purchased her policy while a resident of Massachusetts, that commonwealth retains jurisdiction over the policy.


The inquirer reports that, while she was a resident of Massachusetts, she purchased an individual disability income from [Direct Insurer]. Subsequently, she relocated to New York, and [Administrating Insurer] assumed administration of the policy. After becoming disabled, she submitted a claim under the policy.

She further reports that one of her health care providers provided to [Administrating Insurer] health information that she and [Administrating Insurer] agree was not relevant to the claim. Nevertheless, [Administrating Insurer] has refused, despite requests, to return the originals and any copies of the information in question.


As required by the Health Insurance Portability and Accountability Act, codified as a Note to 42 U.S.C. § 320d-2 (West 2002), HHS promulgated a Privacy Rule. The Privacy Rule specifically preserves state privacy regulation, see 45 CFR 160.203(b), if it is more protective of health information privacy than the federal Privacy Rule itself.

N.Y Ins. Law § 3103(b) (McKinney 2006) provides that health insurance policies issued in New York remain subject to New York’s jurisdiction, even if the insured subsequently relocates to another jurisdiction. This Department has been informed by the Massachusetts Division of Insurance that a similar rule obtains in that commonwealth. Accordingly, future queries should be addressed to the Massachusetts Division of Insurance.

For further information you may contact Principal Attorney Alan Rachlin at the New York City Office.