HB4313enr 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB4313 EnrolledLRB102 21390 BMS 30506 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Insurance Code is amended by
5changing Sections 131.22, 132.5, and 547 as follows:
 
6    (215 ILCS 5/131.22)
7    (Text of Section before amendment by P.A. 102-578)
8    Sec. 131.22. Confidential treatment.
9    (a) Documents, materials, or other information in the
10possession or control of the Department that are obtained by
11or disclosed to the Director or any other person in the course
12of an examination or investigation made pursuant to this
13Article and all information reported or provided to the
14Department pursuant to paragraphs (12) and (13) of Section
15131.5 and Sections 131.13 through 131.21 shall be confidential
16by law and privileged, shall not be subject to the Illinois
17Freedom of Information Act, shall not be subject to subpoena,
18and shall not be subject to discovery or admissible in
19evidence in any private civil action. However, the Director is
20authorized to use the documents, materials, or other
21information in the furtherance of any regulatory or legal
22action brought as a part of the Director's official duties.
23The Director shall not otherwise make the documents,

 

 

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1materials, or other information public without the prior
2written consent of the company to which it pertains unless the
3Director, after giving the company and its affiliates who
4would be affected thereby prior written notice and an
5opportunity to be heard, determines that the interest of
6policyholders, shareholders, or the public shall be served by
7the publication thereof, in which event the Director may
8publish all or any part in such manner as may be deemed
9appropriate.
10    (b) Neither the Director nor any person who received
11documents, materials, or other information while acting under
12the authority of the Director or with whom such documents,
13materials, or other information are shared pursuant to this
14Article shall be permitted or required to testify in any
15private civil action concerning any confidential documents,
16materials, or information subject to subsection (a) of this
17Section.
18    (c) In order to assist in the performance of the
19Director's duties, the Director:
20        (1) may share documents, materials, or other
21    information, including the confidential and privileged
22    documents, materials, or information subject to subsection
23    (a) of this Section, with other state, federal, and
24    international regulatory agencies, with the NAIC and its
25    affiliates and subsidiaries, and with third-party
26    consultants, and with state, federal, and international

 

 

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1    law enforcement authorities and regulatory agencies,
2    including members of any supervisory college allowed by
3    this Article, provided that the recipient agrees in
4    writing to maintain the confidentiality and privileged
5    status of the document, material, or other information,
6    and has verified in writing the legal authority to
7    maintain confidentiality;
8        (1.5) notwithstanding paragraph (1) of this subsection
9    (c), may only share confidential and privileged documents,
10    material, or information reported pursuant to Section
11    131.14b with commissioners of states having statutes or
12    regulations substantially similar to subsection (a) of
13    this Section and who have agreed in writing not to
14    disclose such information; and
15        (1.7) notwithstanding paragraph (1) of this subsection
16    (c), may only share confidential and privileged documents,
17    material, or information reported pursuant to Section
18    131.14b with the Illinois Insurance Guaranty Fund
19    regarding any member company defined in Section 534.5 if
20    the member company has an authorized control level event
21    as defined in Section 35A-25; the Director may disclose
22    the information described in this subsection so long as
23    the Fund agrees in writing to hold that information
24    confidential, in a manner consistent with this Code, and
25    uses that information to prepare for the possible
26    liquidation of the member company; access to the

 

 

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1    information disclosed by the Director to the Fund shall be
2    limited to the Fund's staff and its counsel; the board of
3    directors of the Fund may have access to the information
4    disclosed by the Director to the Fund once the member
5    company is subject to a delinquency proceeding under
6    Article XIII subject to any terms and conditions
7    established by the Director; and
8        (2) may receive documents, materials, or information,
9    including otherwise confidential and privileged documents,
10    materials, or information from the NAIC and its affiliates
11    and subsidiaries and from regulatory and law enforcement
12    officials of other foreign or domestic jurisdictions, and
13    shall maintain as confidential or privileged any document,
14    material, or information received with notice or the
15    understanding that it is confidential or privileged under
16    the laws of the jurisdiction that is the source of the
17    document, material, or information; any such documents,
18    materials, or information, while in the Director's
19    possession, shall not be subject to the Illinois Freedom
20    of Information Act and shall not be subject to subpoena.
21    (c-5) Written agreements with the NAIC or third-party
22consultants governing sharing and use of information provided
23pursuant to this Article consistent with this subsection (c)
24shall:
25        (1) specify procedures and protocols regarding the
26    confidentiality and security of information shared with

 

 

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1    the NAIC and its affiliates and subsidiaries or
2    third-party consultants pursuant to this Article,
3    including procedures and protocols for sharing by the NAIC
4    with other state, federal, or international regulators;
5        (2) specify that ownership of information shared with
6    the NAIC and its affiliates and subsidiaries or
7    third-party consultants pursuant to this Article remains
8    with the Director and the NAIC's or third-party
9    consultant's use of the information is subject to the
10    direction of the Director;
11        (3) require prompt notice to be given to a company
12    whose confidential information in the possession of the
13    NAIC or third-party consultant pursuant to this Article is
14    subject to a request or subpoena for disclosure or
15    production; and
16        (4) require the NAIC and its affiliates and
17    subsidiaries or third-party consultants to consent to
18    intervention by a company in any judicial or
19    administrative action in which the NAIC and its affiliates
20    and subsidiaries or third-party consultants may be
21    required to disclose confidential information about the
22    company shared with the NAIC and its affiliates and
23    subsidiaries or third-party consultants pursuant to this
24    Article.
25    (d) The sharing of documents, materials, or information by
26the Director pursuant to this Article shall not constitute a

 

 

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1delegation of regulatory authority or rulemaking, and the
2Director is solely responsible for the administration,
3execution, and enforcement of the provisions of this Article.
4    (e) No waiver of any applicable privilege or claim of
5confidentiality in the documents, materials, or information
6shall occur as a result of disclosure to the Director under
7this Section or as a result of sharing as authorized in
8subsection (c) of this Section.
9    (f) Documents, materials, or other information in the
10possession or control of the NAIC or a third-party consultant
11pursuant to this Article shall be confidential by law and
12privileged, shall not be subject to the Illinois Freedom of
13Information Act, shall not be subject to subpoena, and shall
14not be subject to discovery or admissible in evidence in any
15private civil action.
16(Source: P.A. 102-394, eff. 8-16-21.)
 
17    (Text of Section after amendment by P.A. 102-578)
18    Sec. 131.22. Confidential treatment.
19    (a) Documents, materials, or other information in the
20possession or control of the Department that are obtained by
21or disclosed to the Director or any other person in the course
22of an examination or investigation made pursuant to this
23Article and all information reported or provided to the
24Department pursuant to paragraphs (12) and (13) of Section
25131.5 and Sections 131.13 through 131.21 are recognized by

 

 

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1this State as being proprietary and to contain trade secrets,
2and shall be confidential by law and privileged, shall not be
3subject to the Illinois Freedom of Information Act, shall not
4be subject to subpoena, and shall not be subject to discovery
5or admissible in evidence in any private civil action.
6However, the Director is authorized to use the documents,
7materials, or other information in the furtherance of any
8regulatory or legal action brought as a part of the Director's
9official duties. The Director shall not otherwise make the
10documents, materials, or other information public without the
11prior written consent of the company to which it pertains
12unless the Director, after giving the company and its
13affiliates who would be affected thereby prior written notice
14and an opportunity to be heard, determines that the interest
15of policyholders, shareholders, or the public shall be served
16by the publication thereof, in which event the Director may
17publish all or any part in such manner as may be deemed
18appropriate.
19    (b) Neither the Director nor any person who received
20documents, materials, or other information while acting under
21the authority of the Director or with whom such documents,
22materials, or other information are shared pursuant to this
23Article shall be permitted or required to testify in any
24private civil action concerning any confidential documents,
25materials, or information subject to subsection (a) of this
26Section.

 

 

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1    (c) In order to assist in the performance of the
2Director's duties, the Director:
3        (1) may share documents, materials, or other
4    information, including the confidential and privileged
5    documents, materials, or information subject to subsection
6    (a) of this Section, including proprietary and trade
7    secret documents and materials, with other state, federal,
8    and international regulatory agencies, with the NAIC and
9    its affiliates and subsidiaries, and with third-party
10    consultants, and with state, federal, and international
11    law enforcement authorities and regulatory agencies,
12    including members of any supervisory college allowed by
13    this Article, provided that the recipient agrees in
14    writing to maintain the confidentiality and privileged
15    status of the document, material, or other information,
16    and has verified in writing the legal authority to
17    maintain confidentiality;
18        (1.5) notwithstanding paragraph (1) of this subsection
19    (c), may only share confidential and privileged documents,
20    material, or information reported pursuant to subsection
21    (a) of Section 131.14b with commissioners of states having
22    statutes or regulations substantially similar to
23    subsection (a) of this Section and who have agreed in
24    writing not to disclose such information; and
25        (1.7) notwithstanding paragraph (1) of this subsection
26    (c), may only share confidential and privileged documents,

 

 

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1    material, or information reported pursuant to Section
2    131.14b with the Illinois Insurance Guaranty Fund
3    regarding any member company defined in Section 534.5 if
4    the member company has an authorized control level event
5    as defined in Section 35A-25; the Director may disclose
6    the information described in this subsection so long as
7    the Fund agrees in writing to hold that information
8    confidential, in a manner consistent with this Code, and
9    uses that information to prepare for the possible
10    liquidation of the member company; access to the
11    information disclosed by the Director to the Fund shall be
12    limited to the Fund's staff and its counsel; the board of
13    directors of the Fund may have access to the information
14    disclosed by the Director to the Fund once the member
15    company is subject to a delinquency proceeding under
16    Article XIII subject to any terms and conditions
17    established by the Director; and
18        (2) may receive documents, materials, or information,
19    including otherwise confidential and privileged documents,
20    materials, or information, including proprietary and trade
21    secret information, from the NAIC and its affiliates and
22    subsidiaries and from regulatory and law enforcement
23    officials of other foreign or domestic jurisdictions, and
24    shall maintain as confidential or privileged any document,
25    material, or information received with notice or the
26    understanding that it is confidential or privileged under

 

 

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1    the laws of the jurisdiction that is the source of the
2    document, material, or information; any such documents,
3    materials, or information, while in the Director's
4    possession, shall not be subject to the Illinois Freedom
5    of Information Act and shall not be subject to subpoena.
6        (blank).
7    (c-5) Written agreements with the NAIC or third-party
8consultants governing sharing and use of information provided
9pursuant to this Article consistent with subsection (c) shall:
10        (1) specify procedures and protocols regarding the
11    confidentiality and security of information shared with
12    the NAIC and its affiliates and subsidiaries or
13    third-party consultants pursuant to this Article,
14    including procedures and protocols for sharing by the NAIC
15    with other state, federal, or international regulators;
16    the agreement shall provide that the recipient agrees in
17    writing to maintain the confidentiality and privileged
18    status of the documents, materials, or other information
19    and has verified in writing the legal authority to
20    maintain such confidentiality;
21        (2) specify that ownership of information shared with
22    the NAIC and its affiliates and subsidiaries or
23    third-party consultants pursuant to this Article remains
24    with the Director and the NAIC's or third-party
25    consultant's use of the information is subject to the
26    direction of the Director;

 

 

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1        (3) require prompt notice to be given to a company
2    whose confidential information in the possession of the
3    NAIC or third-party consultant pursuant to this Article is
4    subject to a request or subpoena for disclosure or
5    production;
6        (4) require the NAIC and its affiliates and
7    subsidiaries or third-party consultants to consent to
8    intervention by a company in any judicial or
9    administrative action in which the NAIC and its affiliates
10    and subsidiaries or third-party consultants may be
11    required to disclose confidential information about the
12    company shared with the NAIC and its affiliates and
13    subsidiaries or third-party consultants pursuant to this
14    Article; and
15        (5) excluding documents, material, or information
16    reported pursuant to subsection (c) of Section 131.14b,
17    prohibit the NAIC or third-party consultant from storing
18    the information shared pursuant to this Code in a
19    permanent database after the underlying analysis is
20    completed.
21    (d) The sharing of documents, materials, or information by
22the Director pursuant to this Article shall not constitute a
23delegation of regulatory authority or rulemaking, and the
24Director is solely responsible for the administration,
25execution, and enforcement of the provisions of this Article.
26    (e) No waiver of any applicable privilege or claim of

 

 

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1confidentiality in the documents, materials, or information
2shall occur as a result of disclosure to the Director under
3this Section or as a result of sharing as authorized in
4subsection (c) of this Section.
5    (f) Documents, materials, or other information in the
6possession or control of the NAIC or third-party consultant
7pursuant to this Article shall be confidential by law and
8privileged, shall not be subject to the Illinois Freedom of
9Information Act, shall not be subject to subpoena, and shall
10not be subject to discovery or admissible in evidence in any
11private civil action.
12(Source: P.A. 102-394, eff. 8-16-21; 102-578, eff. 12-31-22;
13revised 9-22-21.)
 
14    (215 ILCS 5/132.5)  (from Ch. 73, par. 744.5)
15    Sec. 132.5. Examination reports.
16    (a) General description. All examination reports shall be
17comprised of only facts appearing upon the books, records, or
18other documents of the company, its agents, or other persons
19examined or as ascertained from the testimony of its officers,
20agents, or other persons examined concerning its affairs and
21the conclusions and recommendations as the examiners find
22reasonably warranted from those facts.
23    (b) Filing of examination report. No later than 60 days
24following completion of the examination, the examiner in
25charge shall file with the Department a verified written

 

 

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1report of examination under oath. Upon receipt of the verified
2report, the Department shall transmit the report to the
3company examined, together with a notice that affords the
4company examined a reasonable opportunity of not more than 30
5days to make a written submission or rebuttal with respect to
6any matters contained in the examination report.
7    (c) Adoption of the report on examination. Within 30 days
8of the end of the period allowed for the receipt of written
9submissions or rebuttals, the Director shall fully consider
10and review the report, together with any written submissions
11or rebuttals and any relevant portions of the examiners work
12papers and enter an order:
13        (1) Adopting the examination report as filed or with
14    modification or corrections. If the examination report
15    reveals that the company is operating in violation of any
16    law, regulation, or prior order of the Director, the
17    Director may order the company to take any action the
18    Director considers necessary and appropriate to cure the
19    violation.
20        (2) Rejecting the examination report with directions
21    to the examiners to reopen the examination for purposes of
22    obtaining additional data, documentation, or information
23    and refiling under subsection (b).
24        (3) Calling for an investigatory hearing with no less
25    than 20 days notice to the company for purposes of
26    obtaining additional documentation, data, information, and

 

 

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1    testimony.
2    (d) Order and procedures. All orders entered under
3paragraph (1) of subsection (c) shall be accompanied by
4findings and conclusions resulting from the Director's
5consideration and review of the examination report, relevant
6examiner work papers, and any written submissions or
7rebuttals. The order shall be considered a final
8administrative decision and may be appealed in accordance with
9the Administrative Review Law. The order shall be served upon
10the company by certified mail, together with a copy of the
11adopted examination report. Within 30 days of the issuance of
12the adopted report, the company shall file affidavits executed
13by each of its directors stating under oath that they have
14received a copy of the adopted report and related orders.
15    Any hearing conducted under paragraph (3) of subsection
16(c) by the Director or an authorized representative shall be
17conducted as a nonadversarial confidential investigatory
18proceeding as necessary for the resolution of any
19inconsistencies, discrepancies, or disputed issues apparent
20upon the face of the filed examination report or raised by or
21as a result of the Director's review of relevant work papers or
22by the written submission or rebuttal of the company. Within
2320 days of the conclusion of any hearing, the Director shall
24enter an order under paragraph (1) of subsection (c).
25    The Director shall not appoint an examiner as an
26authorized representative to conduct the hearing. The hearing

 

 

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1shall proceed expeditiously with discovery by the company
2limited to the examiner's work papers that tend to
3substantiate any assertions set forth in any written
4submission or rebuttal. The Director or his representative may
5issue subpoenas for the attendance of any witnesses or the
6production of any documents deemed relevant to the
7investigation, whether under the control of the Department,
8the company, or other persons. The documents produced shall be
9included in the record, and testimony taken by the Director or
10his representative shall be under oath and preserved for the
11record. Nothing contained in this Section shall require the
12Department to disclose any information or records that would
13indicate or show the existence or content of any investigation
14or activity of a criminal justice agency.
15    The hearing shall proceed with the Director or his
16representative posing questions to the persons subpoenaed.
17Thereafter the company and the Department may present
18testimony relevant to the investigation. Cross-examination
19shall be conducted only by the Director or his representative.
20The company and the Department shall be permitted to make
21closing statements and may be represented by counsel of their
22choice.
23    (e) Publication and use. Upon the adoption of the
24examination report under paragraph (1) of subsection (c), the
25Director shall continue to hold the content of the examination
26report as private and confidential information for a period of

 

 

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135 days, except to the extent provided in subsection (b).
2Thereafter, the Director may open the report for public
3inspection so long as no court of competent jurisdiction has
4stayed its publication.
5    Nothing contained in this Code shall prevent or be
6construed as prohibiting the Director from disclosing the
7content of an examination report, preliminary examination
8report or results, or any matter relating thereto, to the
9insurance department of any other state or country or to law
10enforcement officials of this or any other state or agency of
11the federal government at any time, so long as the agency or
12office receiving the report or matters relating thereto agrees
13in writing to hold it confidential and in a manner consistent
14with this Code.
15    In the event the Director determines that regulatory
16action is appropriate as a result of any examination, he may
17initiate any proceedings or actions as provided by law.
18    (f) Confidentiality of ancillary information. All working
19papers, recorded information, documents, and copies thereof
20produced by, obtained by, or disclosed to the Director or any
21other person in the course of any examination must be given
22confidential treatment, are not subject to subpoena, and may
23not be made public by the Director or any other persons, except
24to the extent provided in subsection (e). Access may also be
25granted to the National Association of Insurance
26Commissioners. Those parties must agree in writing before

 

 

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1receiving the information to provide to it the same
2confidential treatment as required by this Section, unless the
3prior written consent of the company to which it pertains has
4been obtained.
5    This subsection (f) applies to market conduct examinations
6described in Section 132 of this Code.
7    (g) Disclosure. Nothing contained in this Code shall
8prevent or be construed as prohibiting the Director from
9disclosing the information described in subsections (e) and
10(f) to the Illinois Insurance Guaranty Fund regarding any
11member company defined in Section 534.5 if the member company
12has an authorized control level event as defined in Section
1335A-25. The Director may disclose the information described in
14this subsection so long as the Fund agrees in writing to hold
15that information confidential, in a manner consistent with
16this Code, and uses that information to prepare for the
17possible liquidation of the member company. Access to the
18information disclosed by the Director to the Fund shall be
19limited to the Fund's staff and its counsel. The Board of
20Directors of the Fund may have access to the information
21disclosed by the Director to the Fund once the member company
22is subject to a delinquency proceeding under Article XIII
23subject to any terms and conditions established by the
24Director.
25(Source: P.A. 100-475, eff. 1-1-18.)
 

 

 

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1    (215 ILCS 5/547)  (from Ch. 73, par. 1065.97)
2    Sec. 547. Prevention of insolvencies. To aid in the
3detection and prevention of company insolvencies:
4    (a) The board of directors may, upon majority vote, make
5recommendations to the Director on matters pertaining to
6regulation for solvency.
7    (b) The board of directors may prepare a report on the
8history and causes of any company insolvency in which the Fund
9was obligated to pay covered claims, based on the information
10available to the Fund, and submit such report to the Director.
11    (c) The Director may disclose to the Fund the information
12described in subsection (g) of Section 132.5 as well as the
13information described in subsection (c) of Section 131.22, and
14the Fund may use that information to prepare for the possible
15liquidation of a member company subject to the requirements
16and restrictions set forth in Section 132.5.
17(Source: P.A. 85-576.)
 
18    Section 95. No acceleration or delay. Where this Act makes
19changes in a statute that is represented in this Act by text
20that is not yet or no longer in effect (for example, a Section
21represented by multiple versions), the use of that text does
22not accelerate or delay the taking effect of (i) the changes
23made by this Act or (ii) provisions derived from any other
24Public Act.
 
25    Section 99. Effective date. This Act takes effect upon

 

 

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1becoming law.