NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[32 Pa.B. 2728] Section 5(d) of the Regulatory Review Act (71 P. S. § 745.5(d)) provides that the designated standing Committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (Commission) may issue comments within 10 days of the close of the Committee comment period. The Commission comments are based upon the criteria contained in section 5.1(h) and (i) of the Act (71 P. S. § 745.5a(h) and (i)).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public
Comment PeriodIRRC Comments Issued 11-209 Insurance Department 4/15/02 5/16/02 Privacy of Consumer Health Information (32 Pa.B. 1406 (March 16, 2002)) 18-372 Department of Transportation 4/15/02 5/16/02 School Buses (32 Pa.B. 1396 (March 16, 2002))
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Insurance Department Regulation No. 11-209
Privacy of Consumer Health Information
May 16, 2002We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Insurance Department (Department) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
Section 146b.2. Definitions.--Clarity.
Licensee
The definition of this term excludes governmental health insurance programs. We request the Department clarify whether or not a licensee that administers a governmental health insurance program is bound by the requirements in this regulation.
Nonpublic personal health information
In its comments, the American Insurance Association (AIA) notes that the wording of subparagraph (i)(B) is not parallel to subparagraph (i)(A), and suggests revised language to make the two provisions parallel. We agree that AIA's suggested revisions would add clarity.
Section 146b.11. Authorization required for disclosure of nonpublic personal health information.--Statutory Authority; Clarity.
Subsection (b)
This subsection allows disclosure of nonpublic personal health information ''to the extent that the disclosure of nonpublic personal health information is necessary for the performance of . . . insurance functions . . . .'' This provision differs from the corresponding provision in the National Association of Insurance Commissioners (NAIC) model regulation. We have two concerns. First, for clarity, the Department should either delete the phrase ''to the extent that the disclosure of nonpublic personal health information is necessary'' in this section, or specify the criteria used to determine when disclosure is ''necessary.''
Second, the regulation is silent regarding when, and by whom, the ''necessary'' disclosure determination is made. We request the Department explain how this provision will be implemented.
Subsection (b)(23) lists ''reporting'' as an insurance function which may be exempt from the requirement to obtain authorization from the consumer prior to disclosing nonpublic personal health information. Clarity would be improved by listing examples of the types of ''reporting'' included in this exemption.
Subsection (c)
This subsection allows an insurer to ''disclose nonpublic personal health information to a third party not licensed by the Department provided that the licensee enters into an agreement with the third party that prohibits the third party from disclosing or using the . . . information for a purpose other than to carry out . . . insurance functions . . . .'' Commentators note that this provision is not included in the NAIC model and question the Department's authority to impose requirements on third parities that are not licensed by the Department.
We request that the Department explain how it will enforce this requirement. Specifically, what enforcement authority will the Department have if a third party violates the terms of an agreement? If the Department intends to hold the licensee responsible for the acts of a third party, the regulation should specify the licensee's responsibilities and the consequences for not meeting those responsibilities.
Subsection (d)
This subsection provides that the Insurance Commissioner may add insurance functions to the list found in subsection (b) by publication of a notice in the Pennsylvania Bulletin. Substantive amendments to the regulation may only be made in compliance the Commonwealth Documents Law, the Commonwealth Attorneys Act and the Regulatory Review Act. Therefore, any future additions to the list in subsection (b) must be made through the rulemaking process.
Section 146b.12. Authorizations.--Need; Reasonableness.
Subsection (d) requires licensees to retain authorizations and revocations of authorization for 6 years. Given that an authorization is valid for no more than 2 years, why is it necessary to require a 6-year record retention period?
Section 146b.24. Compliance dates.--Consistency with Statute; Clarity.
We have three concerns in regard to this section. First, subsections (a) and (b) refer to licensees' annual ''receipts.'' A commentator questioned if the term ''receipts'' means premiums. For clarity, we suggest the final-form regulation include a definition of ''receipts'' in § 146b.2.
Definitions.
Second, subsection (a) lists the compliance date for licensees with $5 million or more in annual receipts, while subsection (b) lists the compliance date for licensees with $5 million or less in annual receipts. The final-form regulation should be revised to reflect one compliance date for receipts that amount to $5 million.
Third, the regulation lists compliance dates of April 14, 2003, and April 14, 2004. These dates are consistent with the implementation dates for the Federal Health Insurance Portability and Accountability Act (HIPAA) privacy regulation. However, commentators have expressed concerns that the compliance dates for the HIPAA regulation could change after the promulgation of this regulation. This concern is due to the issuance of a Federal Notice of Proposed Rulemaking which could delay the HIPAA compliance dates relating to the requirement for agreements between licensees and third parties.
We understand that the Department intends for the compliance dates for this regulation to be consistent with HIPAA. Therefore, the Department should consider adding language which would clarify that compliance with this regulation will be required on the same dates that compliance with the HIPAA regulation is required.
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Department of Transportation Regulation No. 18-372
School Buses
May 16, 2002We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Department of Transportation (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 71.3. Physical examination.--Clarity.
Subsection (b) includes standards and procedures relating to physical qualifications for driving a school bus. Subsection (b)(2) states that a person is physically qualified when he or she ''has no loss of a foot, a leg, a hand, or an arm; or has been granted a waiver by the Department after competency has been demonstrated through a driving examination.'' Subsections (b)(2), (4)(i) and (ii), (5)(i) and (10)(i) identify conditions under which the Department may grant waivers. Subsection (b)(5)(i)(B) uses acronyms such as ''METS'' and ''EKG.'' We have three concerns.
First, the Department should add a cross-reference in subsection (b)(2) to its requirements for a driving examination. This comment also applies to the driving examination referred to in existing subsection (b)(3)(ii)(C).
Second, it is not clear how a prospective driver would apply for a waiver. The Department should consider adding information describing the waiver process as well as how an applicant applies for a waiver or how the Department notifies an applicant or driver that they need a waiver.
Third, to enhance the readability of this regulation, the acronyms in subsection (b)(5)(i)(B) should either be defined or replaced with the words that form the acronyms.
2. Sections 171.47; 171.55. Color; Identification.--Public safety.
Section 171.47 states: ''The roof of the school bus may be painted white.'' Representative Jess M. Stairs suggested a provision requiring that the school bus identification number be displayed prominently on the roof. He also suggested specific standards for the size of the letters and numbers in the identification number. This requirement would allow for quick identification of a bus involved in an accident, stolen, hijacked or lost. The Department should consider the addition of this provision to §§ 171.47 and 171.55.
3. Section 171.52. First aid.--Clarity.
In the existing regulation, subsection (c) reads: ''Body fluid clean-up kit. Every school bus shall have a removable and moisture proof body fluid clean-up kit. It shall be securely placed or mounted in an easily accessible location and labeled as a body fluid clean-up kit.'' What are the content requirements for a ''body fluid clean-up kit''? This question also applies to subsection (c) in §§ 171.123 and 171.133.
4. Section 171.74a. Crossing control arm.--Clarity.
This section requires school buses to be equipped with a crossing control arm consistent with the provisions contained in Act 151 of December 21, 1998. The regulation should reference the criteria found in section 4552(b.2) of the Vehicle Code (75 Pa.C.S. § 4552(b.2)) requiring the crossing control arm to be ''automatically activated whenever the bus is stopped with the red visual signals in use.''
5. Section 171.123. First aid.--Clarity.
The amendments to subsection (b)(2)--(5) and (8), relating to the contents of the first aid kit, replace specific numbers of items including sterile gauze pads, adhesive bandages and compresses, with the term ''one package'' of each item. This could lead to confusion regarding the required contents of ''one package.'' In the final-form regulation, the Department should specify the minimum number of items that are to be included in the package.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 02-965. Filed for public inspection May 31, 2002, 9:00 a.m.]
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