Full Text of SB1412 98th General Assembly
SB1412sam001 98TH GENERAL ASSEMBLY | Sen. William R. Haine Filed: 3/13/2013
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| 1 | | AMENDMENT TO SENATE BILL 1412
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1412 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. If and only if House Bill 2290 becomes law, the | 5 | | Freedom of Information Act is amended by changing Section 7.5 | 6 | | as follows: | 7 | | (5 ILCS 140/7.5) | 8 | | Sec. 7.5. Statutory Exemptions. To the extent provided for | 9 | | by the statutes referenced below, the following shall be exempt | 10 | | from inspection and copying: | 11 | | (a) All information determined to be confidential under | 12 | | Section 4002 of the Technology Advancement and Development Act. | 13 | | (b) Library circulation and order records identifying | 14 | | library users with specific materials under the Library Records | 15 | | Confidentiality Act. | 16 | | (c) Applications, related documents, and medical records |
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| 1 | | received by the Experimental Organ Transplantation Procedures | 2 | | Board and any and all documents or other records prepared by | 3 | | the Experimental Organ Transplantation Procedures Board or its | 4 | | staff relating to applications it has received. | 5 | | (d) Information and records held by the Department of | 6 | | Public Health and its authorized representatives relating to | 7 | | known or suspected cases of sexually transmissible disease or | 8 | | any information the disclosure of which is restricted under the | 9 | | Illinois Sexually Transmissible Disease Control Act. | 10 | | (e) Information the disclosure of which is exempted under | 11 | | Section 30 of the Radon Industry Licensing Act. | 12 | | (f) Firm performance evaluations under Section 55 of the | 13 | | Architectural, Engineering, and Land Surveying Qualifications | 14 | | Based Selection Act. | 15 | | (g) Information the disclosure of which is restricted and | 16 | | exempted under Section 50 of the Illinois Prepaid Tuition Act. | 17 | | (h) Information the disclosure of which is exempted under | 18 | | the State Officials and Employees Ethics Act, and records of | 19 | | any lawfully created State or local inspector general's office | 20 | | that would be exempt if created or obtained by an Executive | 21 | | Inspector General's office under that Act. | 22 | | (i) Information contained in a local emergency energy plan | 23 | | submitted to a municipality in accordance with a local | 24 | | emergency energy plan ordinance that is adopted under Section | 25 | | 11-21.5-5 of the Illinois Municipal Code. | 26 | | (j) Information and data concerning the distribution of |
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| 1 | | surcharge moneys collected and remitted by wireless carriers | 2 | | under the Wireless Emergency Telephone Safety Act. | 3 | | (k) Law enforcement officer identification information or | 4 | | driver identification information compiled by a law | 5 | | enforcement agency or the Department of Transportation under | 6 | | Section 11-212 of the Illinois Vehicle Code. | 7 | | (l) Records and information provided to a residential | 8 | | health care facility resident sexual assault and death review | 9 | | team or the Executive Council under the Abuse Prevention Review | 10 | | Team Act. | 11 | | (m) Information provided to the predatory lending database | 12 | | created pursuant to Article 3 of the Residential Real Property | 13 | | Disclosure Act, except to the extent authorized under that | 14 | | Article. | 15 | | (n) Defense budgets and petitions for certification of | 16 | | compensation and expenses for court appointed trial counsel as | 17 | | provided under Sections 10 and 15 of the Capital Crimes | 18 | | Litigation Act. This subsection (n) shall apply until the | 19 | | conclusion of the trial of the case, even if the prosecution | 20 | | chooses not to pursue the death penalty prior to trial or | 21 | | sentencing. | 22 | | (o) Information that is prohibited from being disclosed | 23 | | under Section 4 of the Illinois Health and Hazardous Substances | 24 | | Registry Act. | 25 | | (p) Security portions of system safety program plans, | 26 | | investigation reports, surveys, schedules, lists, data, or |
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| 1 | | information compiled, collected, or prepared by or for the | 2 | | Regional Transportation Authority under Section 2.11 of the | 3 | | Regional Transportation Authority Act or the St. Clair County | 4 | | Transit District under the Bi-State Transit Safety Act. | 5 | | (q) Information prohibited from being disclosed by the | 6 | | Personnel Records Review Act. | 7 | | (r) Information prohibited from being disclosed by the | 8 | | Illinois School Student Records Act. | 9 | | (s) Information the disclosure of which is restricted under | 10 | | Section 5-108 of the Public Utilities Act.
| 11 | | (t) All identified or deidentified health information in | 12 | | the form of health data or medical records contained in, stored | 13 | | in, submitted to, transferred by, or released from the Illinois | 14 | | Health Information Exchange, and identified or deidentified | 15 | | health information in the form of health data and medical | 16 | | records of the Illinois Health Information Exchange in the | 17 | | possession of the Illinois Health Information Exchange | 18 | | Authority due to its administration of the Illinois Health | 19 | | Information Exchange. The terms "identified" and | 20 | | "deidentified" shall be given the same meaning as in the Health | 21 | | Insurance Accountability and Portability Act of 1996, Public | 22 | | Law 104-191, or any subsequent amendments thereto, and any | 23 | | regulations promulgated thereunder. | 24 | | (u) Records and information provided to an independent team | 25 | | of experts under Brian's Law. | 26 | | (v) Names and information of people who have applied for or |
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| 1 | | received Firearm Owner's Identification Cards under the | 2 | | Firearm Owners Identification Card Act. | 3 | | (w) Personally identifiable information which is exempted | 4 | | from disclosure under subsection (g) of Section 19.1 of the | 5 | | Toll Highway Act. | 6 | | (x) Information which is exempted from disclosure under | 7 | | Section 5-1014.3 of the Counties Code or Section 8-11-21 of the | 8 | | Illinois Municipal Code. | 9 | | (y) Information that is exempted from disclosure under | 10 | | Section 129.8 of the Illinois Insurance Code. | 11 | | (Source: P.A. 96-542, eff. 1-1-10; 96-1235, eff. 1-1-11; | 12 | | 96-1331, eff. 7-27-10; 97-80, eff. 7-5-11; 97-333, eff. | 13 | | 8-12-11; 97-342, eff. 8-12-11; 97-813, eff. 7-13-12; 97-976, | 14 | | eff. 1-1-13.) | 15 | | Section 10. If and only if House Bill 2290 becomes law, the | 16 | | Illinois Insurance Code is amended by adding Article VIII 1/4 | 17 | | as follows: | 18 | | (215 ILCS 5/Art. VIII 1/4 heading new) | 19 | | ARTICLE VIII 1/4. RISK MANAGEMENT AND | 20 | | OWN RISK AND SOLVENCY ASSESSMENT | 21 | | (215 ILCS 5/129 new) | 22 | | Sec. 129. Short title. This Article may be cited as the | 23 | | Risk Management and Own Risk and Solvency Assessment Law. |
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| 1 | | (215 ILCS 5/129.1 new) | 2 | | Sec. 129.1. Purpose and scope. The purpose of this Article | 3 | | is to provide the requirements for maintaining a risk | 4 | | management framework and completing an own risk and solvency | 5 | | assessment (ORSA) and provide guidance and instructions for | 6 | | filing an ORSA summary report with the Director. | 7 | | The requirements of this Article shall apply to all | 8 | | insurers domiciled in this State unless exempt pursuant to | 9 | | Section 129.7. | 10 | | The General Assembly finds and declares that an ORSA | 11 | | summary report will contain confidential and sensitive | 12 | | information related to an insurer or insurance group's | 13 | | identification of risks material and relevant to the insurer or | 14 | | insurance group filing the report. This information will | 15 | | include proprietary and trade secret information that has the | 16 | | potential for harm and competitive disadvantage to the insurer | 17 | | or insurance group if the information is made public. It is the | 18 | | intent of this General Assembly that the ORSA summary report | 19 | | shall be a confidential document filed with the Director, that | 20 | | the ORSA summary report shall be shared only as stated herein | 21 | | and to assist the Director in the performance of his or her | 22 | | duties, and that in no event shall an ORSA summary report be | 23 | | subject to public disclosure. | 24 | | (215 ILCS 5/129.2 new) |
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| 1 | | Sec. 129.2. Definitions. In this Article: | 2 | | "Insurance group", for the purpose of conducting an ORSA, | 3 | | means those insurers and affiliates included within an | 4 | | insurance holding company system as defined in Section 131.1 of | 5 | | this Code. | 6 | | "Insurer" has the same meaning as set forth in Section 2 of | 7 | | this Code, except that it shall not include agencies, | 8 | | authorities, or instrumentalities of the United States or its | 9 | | possessions or territories, the Commonwealth of Puerto Rico, | 10 | | the District of Columbia, or a state or political subdivision | 11 | | of a state. | 12 | | "Own risk and solvency assessment" or "ORSA" means a | 13 | | confidential internal assessment, appropriate to the nature, | 14 | | scale, and complexity of an insurer or insurance group, | 15 | | conducted by that insurer or insurance group of the material | 16 | | and relevant risks associated with the insurer or insurance | 17 | | group's current business plan, and the sufficiency of capital | 18 | | resources to support those risks. | 19 | | "ORSA Guidance Manual" means the current version of the Own | 20 | | Risk and Solvency Assessment Guidance Manual developed and | 21 | | adopted by the National Association of Insurance Commissioners | 22 | | (NAIC) and as amended from time to time. A change in the ORSA | 23 | | Guidance Manual shall be effective on the January 1 following | 24 | | the calendar year in which the changes have been adopted by the | 25 | | NAIC. | 26 | | "ORSA summary report" means a confidential high-level |
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| 1 | | summary of an insurer or insurance group's ORSA. | 2 | | (215 ILCS 5/129.3 new) | 3 | | Sec. 129.3. Risk management framework. An insurer shall | 4 | | maintain a risk management framework to assist the insurer with | 5 | | identifying, assessing, monitoring, managing, and reporting on | 6 | | its material and relevant risks. The requirement of this | 7 | | Section may be satisfied if the insurance group of which the | 8 | | insurer is a member maintains a risk management framework | 9 | | applicable to the operations of the insurer. | 10 | | (215 ILCS 5/129.4 new) | 11 | | Sec. 129.4. ORSA requirement. Subject to Section 129.7 of | 12 | | this Code, an insurer, or the insurance group of which the | 13 | | insurer is a member, shall regularly conduct an ORSA consistent | 14 | | with a process comparable to the ORSA Guidance Manual. The ORSA | 15 | | shall be conducted no less than annually but also at any time | 16 | | when there are significant changes to the risk profile of the | 17 | | insurer or the insurance group of which the insurer is a | 18 | | member. | 19 | | (215 ILCS 5/129.5 new) | 20 | | Sec. 129.5. ORSA summary report. | 21 | | (a) Upon the Director's request, and no more than once each | 22 | | year, an insurer shall submit to the Director an ORSA summary | 23 | | report or any combination of reports that together contain the |
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| 1 | | information described in the ORSA Guidance Manual, applicable | 2 | | to the insurer and the insurance group of which it is a member. | 3 | | Notwithstanding any request from the Director, if the insurer | 4 | | is a member of an insurance group, the insurer shall submit the | 5 | | report or reports required by this subsection (a) if the | 6 | | Director is the lead state commissioner of the insurance group | 7 | | as determined by the procedures within the Financial Analysis | 8 | | Handbook adopted by the National Association of Insurance | 9 | | Commissioners. | 10 | | (b) The report or reports shall include a signature of the | 11 | | insurer or insurance group's chief risk officer or other | 12 | | executive having responsibility for the oversight of the | 13 | | insurer's enterprise risk management process attesting to the | 14 | | best of his or her belief and knowledge that the insurer | 15 | | applies the enterprise risk management process described in the | 16 | | ORSA summary report and that a copy of the report has been | 17 | | provided to the insurer's board of directors or the appropriate | 18 | | committee thereof. | 19 | | (c) An insurer may comply with subsection (a) of this | 20 | | Section by providing the most recent and substantially similar | 21 | | report or reports provided by the insurer or another member of | 22 | | an insurance group of which the insurer is a member to the | 23 | | commissioner of another state or to a supervisor or regulator | 24 | | of a foreign jurisdiction, if that report provides information | 25 | | that is comparable to the information described in the ORSA | 26 | | Guidance Manual. Any such report in a language other than |
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| 1 | | English must be accompanied by a translation of that report | 2 | | into the English language. | 3 | | (d) The first filing of the ORSA summary report shall be in | 4 | | 2015. | 5 | | (215 ILCS 5/129.6 new) | 6 | | Sec. 129.6. Contents of ORSA summary report. | 7 | | (a) The ORSA summary report shall be prepared consistent | 8 | | with the ORSA Guidance Manual, subject to the requirements of | 9 | | subsection (b) of this Section. Documentation and supporting | 10 | | information shall be maintained and made available upon | 11 | | examination or upon the request of the Director. | 12 | | (b) The review of the ORSA summary report, and any | 13 | | additional requests for information, shall be made using | 14 | | similar procedures currently used in the analysis and | 15 | | examination of multi-state or global insurers and insurance | 16 | | groups. | 17 | | (215 ILCS 5/129.7 new) | 18 | | Sec. 129.7. Exemption. | 19 | | (a) An insurer shall be exempt from the requirements of | 20 | | this Article if: | 21 | | (1) the insurer has annual direct written and | 22 | | unaffiliated assumed premium, including international | 23 | | direct and assumed premium, but excluding premiums | 24 | | reinsured with the Federal Crop Insurance Corporation and |
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| 1 | | Federal Flood Program, less than $500,000,000; and | 2 | | (2) the insurance group of which the insurer is a | 3 | | member has annual direct written and unaffiliated assumed | 4 | | premium, including international direct and assumed | 5 | | premium, but excluding premiums reinsured with the Federal | 6 | | Crop Insurance Corporation and Federal Flood Program, less | 7 | | than $1,000,000,000. | 8 | | (b) If an insurer qualifies for exemption pursuant to item | 9 | | (1) of subsection (a) of this Section, but the insurance group | 10 | | of which the insurer is a member does not qualify for exemption | 11 | | pursuant to item (2) of subsection (a) of this Section, then | 12 | | the ORSA summary report that may be required pursuant to | 13 | | Section 129.5 of this Code shall include every insurer within | 14 | | the insurance group. This requirement may be satisfied by the | 15 | | submission of more than one ORSA summary report for any | 16 | | combination of insurers, provided any combination of reports | 17 | | includes every insurer within the insurance group. | 18 | | (c) If an insurer does not qualify for exemption pursuant | 19 | | to item (1) of subsection (a) of this Section, but the | 20 | | insurance group of which it is a member qualifies for exemption | 21 | | pursuant to item (2) of subsection (a) of this Section, then | 22 | | the only ORSA summary report that may be required pursuant to | 23 | | Section 129.5 shall be the report applicable to that insurer. | 24 | | (d) An insurer that does not qualify for exemption pursuant | 25 | | to subsection (a) of this Section may apply to the Director for | 26 | | a waiver from the requirements of this Article based upon |
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| 1 | | unique circumstances. In deciding whether to grant the | 2 | | insurer's request for waiver, the Director may consider the | 3 | | type and volume of business written, ownership and | 4 | | organizational structure, and any other factor the Director | 5 | | considers relevant to the insurer or insurance group of which | 6 | | the insurer is a member. If the insurer is part of an insurance | 7 | | group with insurers domiciled in more than one state, the | 8 | | Director shall coordinate with the lead state commissioner and | 9 | | with the other domiciliary commissioners in considering | 10 | | whether to grant the insurer's request for a waiver. | 11 | | (e) Notwithstanding the exemptions stated in this Section,
| 12 | | the following provisions shall apply: | 13 | | (1) The Director may require that an insurer maintain a | 14 | | risk management framework, conduct an ORSA, and file an | 15 | | ORSA summary report based on unique circumstances, | 16 | | including, but not limited to, the type and volume of | 17 | | business written, ownership and organizational structure, | 18 | | federal agency requests, and international supervisor | 19 | | requests. | 20 | | (2) The Director may require that an insurer maintain a | 21 | | risk management framework, conduct an ORSA, and file an | 22 | | ORSA summary report if the insurer has risk-based capital | 23 | | for a company action level event as set forth in Section | 24 | | 35A-15 of this Code, meets one or more of the standards of | 25 | | an insurer deemed to be in hazardous financial condition as | 26 | | defined in Section 186.1 of this Code, or otherwise |
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| 1 | | exhibits qualities of a troubled insurer as determined by | 2 | | the Director. | 3 | | (f) If an insurer that qualifies for an exemption pursuant | 4 | | to subsection (a) of this Section subsequently no longer | 5 | | qualifies for that exemption due to changes in premium as | 6 | | reflected in the insurer's most recent annual statement or in | 7 | | the most recent annual statements of the insurers within the | 8 | | insurance group of which the insurer is a member, the insurer | 9 | | shall have one year following the year the threshold is | 10 | | exceeded to comply with the requirements of this Article. | 11 | | (215 ILCS 5/129.8 new) | 12 | | Sec. 129.8. Confidentiality. | 13 | | (a) Documents, materials, or other information, including | 14 | | the ORSA summary report, in the possession or control of the | 15 | | Department that are obtained by, created by, or disclosed to | 16 | | the Director or any other person under this Article, is | 17 | | recognized by this State as being proprietary and to contain | 18 | | trade secrets. All such documents, materials, or other | 19 | | information shall be confidential by law and privileged, shall | 20 | | not be subject to the Freedom of Information Act, shall not be | 21 | | subject to subpoena, and shall not be subject to discovery or | 22 | | admissible in evidence in any private civil action. However, | 23 | | the Director is authorized to use the documents, materials, or | 24 | | other information in the furtherance of any regulatory or legal | 25 | | action brought as a part of the Director's official duties. The |
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| 1 | | Director shall not otherwise make the documents, materials, or | 2 | | other information public without the prior written consent of | 3 | | the insurer. | 4 | | (b) Neither the Director nor any person who received | 5 | | documents, materials, or other ORSA-related information, | 6 | | through examination or otherwise, while acting under the | 7 | | authority of the Director or with whom such documents, | 8 | | materials, or other information are shared pursuant to this | 9 | | Article shall be permitted or required to testify in any | 10 | | private civil action concerning any confidential documents, | 11 | | materials, or information subject to subsection (a) of this | 12 | | Section. | 13 | | (c) In order to assist in the performance of regulatory | 14 | | duties, the Director may: | 15 | | (1) upon request, share documents, materials, or other | 16 | | ORSA-related information, including the confidential and | 17 | | privileged documents, materials, or information subject to | 18 | | subsection (a) of this Section, including proprietary and | 19 | | trade secret documents and materials with other state, | 20 | | federal, and international financial regulatory agencies, | 21 | | including members of any supervisory college as defined in | 22 | | the Section 131.20c of this Code, with the NAIC, and with | 23 | | any third-party consultants designated by the Director, | 24 | | provided that the recipient agrees in writing to maintain | 25 | | the confidentiality and privileged status of the | 26 | | ORSA-related documents, materials, or other information |
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| 1 | | and has verified in writing the legal authority to maintain | 2 | | confidentiality; and | 3 | | (2) receive documents, materials, or other | 4 | | ORSA-related information, including otherwise confidential | 5 | | and privileged documents, materials, or information, | 6 | | including proprietary and trade-secret information or | 7 | | documents, from regulatory officials of other foreign or | 8 | | domestic jurisdictions, including members of any | 9 | | supervisory college as defined in the Section 131.20c of | 10 | | this Code, and from the NAIC, and shall maintain as | 11 | | confidential or privileged any documents, materials, or | 12 | | information received with notice or the understanding that | 13 | | it is confidential or privileged under the laws of the | 14 | | jurisdiction that is the source of the document, material, | 15 | | or information. | 16 | | (d) The Director shall enter into a written agreement with | 17 | | the NAIC or a third-party consultant governing sharing and use | 18 | | of information provided pursuant to this Article, consistent | 19 | | with this Section that shall: | 20 | | (1) specify procedures and protocols regarding the | 21 | | confidentiality and security of information shared with | 22 | | the NAIC or a third-party consultant pursuant to this | 23 | | Article, including procedures and protocols for sharing by | 24 | | the NAIC with other state regulators from states in which | 25 | | the insurance group has domiciled insurers; the agreement | 26 | | shall provide that the recipient agrees in writing to |
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| 1 | | maintain the confidentiality and privileged status of the | 2 | | ORSA-related documents, materials, or other information | 3 | | and has verified in writing the legal authority to maintain | 4 | | confidentiality; | 5 | | (2) specify that ownership of information shared with | 6 | | the NAIC or a third-party consultant pursuant to this | 7 | | Article remains with the Director and the NAIC's or a | 8 | | third-party consultant's use of the information is subject | 9 | | to the direction of the Director; | 10 | | (3) prohibit the NAIC or third-party consultant from | 11 | | storing the information shared pursuant to this Article in | 12 | | a permanent database after the underlying analysis is | 13 | | completed; | 14 | | (4) require prompt notice to be given to an insurer | 15 | | whose confidential information in the possession of the | 16 | | NAIC or a third-party consultant pursuant to this Article | 17 | | is subject to a request or subpoena to the NAIC or a | 18 | | third-party consultant for disclosure or production; | 19 | | (5) require the NAIC or a third-party consultant to | 20 | | consent to intervention by an insurer in any judicial or | 21 | | administrative action in which the NAIC or a third-party | 22 | | consultant may be required to disclose confidential | 23 | | information about the insurer shared with the NAIC or a | 24 | | third-party consultant pursuant to this Article; and | 25 | | (6) in the case of an agreement involving a third-party | 26 | | consultant, provide for the insurer's written consent. |
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| 1 | | (e) The sharing of information and documents by the | 2 | | Director pursuant to this Article shall not constitute a | 3 | | delegation of regulatory authority or rulemaking, and the | 4 | | Director is solely responsible for the administration, | 5 | | execution, and enforcement of the provisions of this Article. | 6 | | (f) No waiver of any applicable privilege or claim of | 7 | | confidentiality in the documents, proprietary and trade-secret | 8 | | materials, or other ORSA-related information shall occur as a | 9 | | result of disclosure of such ORSA-related information or | 10 | | documents to the Director under this Section or as a result of | 11 | | sharing as authorized in this Article. | 12 | | (g) Documents, materials, or other information in the | 13 | | possession or control of the NAIC or any third-party | 14 | | consultants pursuant to this Article shall be confidential by | 15 | | law and privileged, shall not be subject to the Freedom of | 16 | | Information Act, shall not be subject to subpoena, and shall | 17 | | not be subject to discovery or admissible in evidence in any | 18 | | private civil action. | 19 | | (215 ILCS 5/129.9 new) | 20 | | Sec. 129.9. Sanctions. Any insurer failing, without just | 21 | | cause, to timely file the ORSA summary report as required in | 22 | | this Article shall be required, after notice and hearing, to | 23 | | pay a penalty of $200 for each day's delay, to be recovered by | 24 | | the Director, and the penalty so recovered shall be paid into | 25 | | the General Revenue Fund of this State. The Director may reduce |
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| 1 | | the penalty if the insurer demonstrates to the Director that | 2 | | the imposition of the penalty would constitute a financial | 3 | | hardship to the insurer. | 4 | | Section 97. Severability. The provisions of this Act are | 5 | | severable under Section 1.31 of the Statute on Statutes.
| 6 | | Section 99. Effective date. This Act takes effect January | 7 | | 1, 2015.".
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