Claire-ification

Are you a member with a question? Contact IA&B Vice President - Advocacy Claire Pantaloni, CIC, CISR at 717-918-9202 or ClaireP@IABforME.com.

QUESTION:

When a customer leaves, what are the legal requirements for continuing access to policy documents through a company portal?

ANSWER:

First, note that emailing policy documents and giving access to those documents through a portal are both considered electronic transactions and subject to the federal ESIGN and the state version of the Uniform Electronic Transactions Act. (To learn more, access IA&B’s resource: IABforME.com/electronic-transactions)

Prior to conducting transactions electronically, entities generally must:

1) Disclose specific characteristics of the electronic transaction setup, and

2) Secure consent from the consumer before transacting electronically.

If you use a vendor for your electronic transactions, note that the disclosure can be embedded and the consent secured through an “I agree” check box. As alluded to above, specific elements must be included in the disclosure:

▲ The right or option to have paper copies;

▲ The right to withdraw consent to electronic transactions, as well as consequences of withdrawing consent;

▲ The process for withdrawing consent and for updating contact information;

▲ The process to obtain a paper copy after having consented to the use of an electronic record and whether a fee will be charged;

▲ Whether the consent applies to a particular transaction or to identified categories of records; and

▲ What hardware and software are necessary to access and retain the electronic records (e.g. Adobe for pdfs).

To answer the question about continued access post policy termination, it is likely necessary to first review that disclosure.

If your customers use an agency portal access, first check the disclosure/consent form to see what provision, if any, discusses continued document access when the policy is cancelled. If the disclosure is silent on this, look to the provision that describes the consumer’s right or option to receive paper copies of the electronic documents. Once you determine your stated policy, consider sending a reminder on the ability to either download or print or receive a paper copy of the documents within a reasonable timeframe before access is blocked.

If your customers use a carrier portal access, the insurer likely embedded a disclosure for access. You may want to ask the carrier about their process for customers whose policy is being or has been cancelled: whether access continues for a set period and if any communication goes out directly to the customer on the subject.

In both cases, this will give those customers who simply used the portal to view documents an opportunity to download the files and retain a copy for their records before losing access. Whatever your process is, it should be applied consistently among all customers.

Finally, note that the consent requirement is more formal for transactions for personal, family, or household purposes. Personal Lines would squarely fall in that category.

This document is not a legal opinion and should not be relied upon as such. The intent of this document is to provide a general background regarding the topic or topics discussed, not to provide legal advice. Producers and agencies should consult an attorney regarding specific situations and specific questions with respect to the topic or topics covered in this document. Neither the Insurance Agents & Brokers nor any of its employees shall be responsible for any errors or omissions regarding any statements made in this document, nor any errors or omissions regarding any statutes, regulations, court rules, and/or any other government documents cited in this document.