Section 0780-01-81-.05 - MAINTENANCE OF INFORMATION(1) A third party administrator shall maintain and make available to the employer or pool complete books and records of all transactions performed on behalf of the employer or pool. The books and records shall be maintained in accordance with prudent standards of insurance record keeping and shall be maintained by the third party administrator for a period of not less than five (5) years from the date of their creation, unless the agreement between the employer or pool and the third party administrator is terminated prior to the five (5) years.(2) The Commissioner shall have access to all books and records maintained by a third party administrator for the purposes of examination, audit, and inspection. Pursuant to the Commissioner's role, applicable common law and statutory protections and privileges, and examination and investigative authority including those conferred under T.C.A. §§ 50-6-405, 56-1-409, and any other provisions of T.C.A. Title 56 or 50 that may be pertinent, any documents, materials, or other information in the possession or control of the Commissioner that are furnished by a third party administrator, insurance producer or an employee or agent thereof acting on behalf of the third party administrator, insurance producer, or obtained by the Commissioner shall be confidential by law and privileged, shall not be subject to public inspection as provided in T.C.A. § 10-7-503, may be shielded from subpoena or eligible for a protective order under applicable laws and court procedure rules, and may be shielded from discovery or inadmissible as evidence in any private civil action. However, the Commissioner is authorized to use such documents, materials or other information in furtherance of any regulatory or legal action brought as part of the Commissioner's official duties. The costs of such examination, audit, or inspection, including such experts which the Commissioner deems necessary to contract, may be assessed, in the discretion of the Commissioner, to the third party administrator, employer, or pool.(3) The Commissioner or any person who received documents, materials, or other information while acting under the authority of the Commissioner may resist under any applicable laws and court rules being called to testify in any private civil action concerning any confidential documents, materials, or information referenced in Paragraph (2) of this Rule. By this Rule, the Commissioner does not waive any right he or she may have to determine and assert the scope of confidentiality and privilege relating to particular documents, materials, or other information obtained or maintained under the Commissioner's authority.(4) In order to assist in the performance of his or her duties, the Commissioner:(a) May share documents, materials, or other information, including the confidential and privileged documents, materials, or information subject to Paragraph (2) of this Rule, with other state and federal agencies, provided that the recipient agrees in writing to maintain the confidentiality and privileged status of the document, material, or other information;(b) May receive documents, materials, or information, including otherwise confidential and privileged documents, materials, or information, from the NAIC, its affiliates or subsidiaries 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 documents, materials, or information; and(c) May enter into agreements governing sharing and use of information consistent with this Paragraph.(5) To the extent allowed under applicable law, the Commissioner deems that no waiver of any applicable privilege or claim of confidentiality in the documents, materials, or information is intended or shall occur as a result of disclosure to the Commissioner under this Rule or as a result of sharing as authorized in Paragraph (4) of this Rule.(6) Nothing in this Chapter shall prohibit the Commissioner from releasing documents relating to contested cases or examination reports or orders which are open to public inspection pursuant to T.C.A. § 10-7-503.(7) The employer or pool shall own the records generated by the third party administrator pertaining to the employer or pool, however, the third party administrator shall retain the right to continuing access to books and records necessary to permit the third party administrator to fulfill all of its contractual obligations to employers or pools. Nothing in this Paragraph shall restrict the ability of a third party administrator and an employer or pool from entering into a contract which would allow the third party administrator to make copies of documents in their possession after the termination of their agreement with the employer or pool.(8) If the employer or pool and the third party administrator cancel their agreement pursuant to Rule 0780-01-81-.03(3), notwithstanding the provisions of Paragraph (1) of this Rule, the third party administrator may by written agreement with the employer or pool transfer all records to a new third party administrator rather than retain them for five (5) years. In such cases, the new third party administrator shall acknowledge, in writing, that it is responsible for retaining the records of the prior third party administrator as required in Paragraph (1) of this Rule.Tenn. Comp. R. & Regs. 0780-01-81-.05
Original rule filed September 12, 2005; effective November 26, 2005.Authority: T.C.A. §§ 50-6-405, 50-6-405(a)(2), 50-6-405(b), 50-6-405(c), 50-6-405(c)(4)(C), 50-6- 405(h),10-7-503(a), 10-7-504, 56-1-204, 56-1-408 through 409, 56-1-411 through 413,56-6-120, 56-8-104(8), 56-8-107, 56-8-118, 56-44-105.