Effective 28 Aug 2014

375.1267. Reports and plans confidential — RBC levels are regulatory tool, limitation on use. — 1. All RBC reports, to the extent the information therein is not required to be set forth in a publicly available annual statement schedule, and RBC plans, including the results or report of any examination or analysis of an insurer or health organization performed pursuant to this section and any corrective order issued by the director pursuant to examination or analysis, with respect to any domestic insurer, foreign insurer, health organization, or foreign health organization which are filed with the director constitute information that might be damaging to the domestic insurer, foreign insurer, health organization, or foreign health organization if made available to its competitors, and therefore shall be kept confidential by the director. This information shall neither be made public nor be subject to subpoena, other than by the director and then only for the purpose of enforcement actions taken by the director pursuant to sections 375.1250 to 375.1275 or any other provision of the insurance laws of this state.

2. The comparison of an insurer's or health organization's total adjusted capital to any of its RBC levels is a regulatory tool which may indicate the need for possible corrective action with respect to the insurer or health organization, and is not intended as a means to rank insurers or health organizations generally. Therefore, except as otherwise required pursuant to the provisions of sections 375.1250 to 375.1275, the making, publishing, disseminating, circulating or placing before the public, or causing directly or indirectly, the making, publishing, disseminating, circulating or placing before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, an advertisement, announcement or statement containing an assertion, representation or statement with regard to the RBC levels of any insurer or health organization, or of any component derived in the calculations by any insurer or health organization, agent, broker, or other person engaged in any manner in the business of insurance would be misleading and is therefore an unfair trade practice as defined in section 375.934; except that if any materially false statement with respect to the comparison regarding an insurer's or health organization's total adjusted capital to its RBC levels or an inappropriate comparison of any other amount to the insurer's or health organization's RBC levels is published in any written publication and the insurer or health organization is able to demonstrate with substantial proof the falsity of such statement, or the inappropriateness, as the case may be, then the insurer or health organization may publish an announcement in a written publication if the sole purpose of the announcement is to rebut the materially false statement.

3. The RBC instructions, RBC reports, adjusted RBC reports, RBC plans and revised RBC plans are intended solely for use by the director in monitoring the solvency of insurers and health organizations and the need for possible corrective action with respect to insurers or health organizations and shall not be used by the director for ratemaking nor considered or introduced as evidence in any rate proceeding nor used by the director to calculate or derive any elements of an appropriate premium level or rate of return for any line of insurance which an insurer, health organization, or any affiliate is authorized to write.

4. In order to assist in the performance of the director's duties, the director:

(1) May share documents, materials, or other information, including the confidential and privileged documents, materials, or information subject to subsection 1 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) May receive documents, materials, or other 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; and

(3) May enter into agreements governing sharing and use of information consistent with this subsection.

5. 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 director under this section or as a result of sharing as authorized in subdivision (3) of subsection 4 of this section.

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(L. 1993 H.B. 709 § 8, A.L. 1996 S.B. 759, A.L. 2014 H.B. 1968)