STATE OF NEW YORK ________________________________________________________________________ 336 2021-2022 Regular Sessions IN SENATE (Prefiled) January 6, 2021 ___________ Introduced by Sen. THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Insurance AN ACT to amend the insurance law, in relation to the establishment of the "Wellness Program Privacy Act" The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "Wellness 2 Program Privacy Act". 3 § 2. The insurance law is amended by adding a new section 3239-a to 4 read as follows: 5 § 3239-a. Wellness program privacy. (a) Definitions. For purposes of 6 this section: 7 (1) "Employer" means: 8 (i) any person who directly employs fifty or more persons to perform 9 services for a wage or salary; or 10 (ii) the state and any political or civil subdivision of the state, or 11 any county or city or other municipality. 12 (2) "Collects," "collected," or "collection" means buying, renting, 13 gathering, obtaining, receiving, or accessing any personal information 14 or protected health information pertaining to a consumer by any means. 15 This includes receiving information from such consumer, either actively 16 or passively, or by observing such consumer's behavior. 17 (3) "Administration and operation of a wellness program" means, but is 18 not limited to, the use of personal information when reasonably neces- 19 sary and proportionate to achieve one of the following purposes: 20 (i) detecting and responding to security incidents arising from a 21 wellness program and protecting against malicious, deceptive, fraudu- 22 lent, or illegal activity related to a wellness program; 23 (ii) executing functions of a wellness program for the benefit of the 24 insured; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00553-01-1S. 336 2 1 (iii) undertaking internal research for technological development and 2 demonstration related to a wellness program; or 3 (iv) undertaking activities to verify or maintain the quality or safe- 4 ty of a service or device that is owned by, manufactured by, manufac- 5 tured for, or controlled by the insurer, or to improve, upgrade, or 6 enhance the service or device that is owned by, manufactured by, manu- 7 factured for, or controlled by the insurer related to a wellness 8 program. 9 (4) "Personal information" means information that identifies or could 10 reasonably be linked, directly or indirectly, with a particular consum- 11 er, household, or consumer device. "Personal information" shall not 12 include publicly available information. 13 (5) "Publicly available" means information that is lawfully made 14 available from federal, state, or local government records, if any 15 conditions associated with such information. "Publicly available" shall 16 not mean information collected by an employer or insurer about an enrol- 17 lee without the enrollee's knowledge. "Personal information" does not 18 include enrollee information that is de-identified or aggregate enrollee 19 information. 20 (6) "Retaliatory" or "adverse action" in the context of an employer 21 offering a wellness program to its employees shall include: denial of 22 coverage, termination of employment, requiring one hundred percent 23 payment of medical care premiums when an employer pays a portion of the 24 premium for wellness program participants, or reducing contributions to 25 participants' health savings accounts. 26 (7) "Retaliatory" or "adverse action" in the context of an insurer 27 offering a wellness program shall include: denial of coverage, termi- 28 nation of coverage based on non-participation or failure to achieve 29 wellness targets, or adjustments to insurance premiums. 30 (b) Fair collection and use of personal information. (1) Any insurer 31 or employer that collects a wellness program participant's personal 32 information in the administration and operation of a wellness program 33 shall limit its collection to what is reasonably necessary to operate 34 the wellness program in which a consumer is enrolled. 35 (2) Any insurer or employer that collects a wellness program partic- 36 ipant's personal information in the administration and operation of a 37 wellness program shall limit its use and retention of personal informa- 38 tion to what is reasonably necessary to administer and operate the well- 39 ness program in which a consumer is enrolled and for related administra- 40 tive and operational purposes. 41 (3) No insurer or employer shall share with third parties any personal 42 information or data collected through a wellness program. 43 (4) Following the close of a wellness program, an employee's termi- 44 nation, or the end of an enrollee's term of insurance, any personal 45 information or data shall be deleted or de-identified. 46 (5) Wellness program participants shall have the right to obtain a 47 copy of their wellness program data, and shall have the right to chal- 48 lenge the completeness and accuracy of any data the program has about 49 them. 50 (6) The requirements described in this subdivision shall apply, to the 51 extent that they are applicable, to any entity that an insurer or 52 employer contracts with for purposes of administering or operating a 53 wellness program on such insurer or employer's behalf. 54 (c) Transparency. Any insurer or an employer that collects a wellness 55 program participant's personal information in the administration andS. 336 3 1 operation of a wellness program shall provide such participant with a 2 written explanation of: 3 (1) all data collected in the program; 4 (2) practices related to data sharing, including who will have access 5 to such data; and 6 (3) the wellness program enrollee's rights concerning the wellness 7 program under federal and state laws, rules, and regulations. 8 (d) Prohibition of discrimination based on participation. (1) Any 9 employer that offers a wellness program to its employees, or any insurer 10 that offers a wellness program to enrollees, shall not engage in retali- 11 atory or adverse action against individuals who do not participate in 12 wellness programs. 13 (2) The total amount of all wellness program incentives shall be 14 limited to an amount deemed by the superintendent not to be coercive. 15 (e) Enforcement and enrollee private right of action. (1) Any consumer 16 who has suffered from a violation of this section by an employer or 17 insurer may bring a lawsuit against such employer or insurer. A 18 violation of this section shall be deemed to constitute an injury in 19 fact to the consumer who has suffered from such violation, and the 20 consumer need not suffer a loss of money or property as a result of the 21 violation in order to bring an action for a violation of this section. 22 (2) A consumer who prevails in such a lawsuit shall obtain the follow- 23 ing remedies: 24 (i) damages in an amount not greater than the increased health or life 25 insurance premium cost due to penalties or lost incentives, or seven 26 hundred fifty dollars per consumer per incident, or actual damages, 27 whichever is greater; 28 (ii) injunctive or declaratory relief, as the court deems proper; 29 (iii) reasonable attorneys' fees and costs; and 30 (iv) any other relief the court deems proper. 31 (3) In assessing the amount of statutory damages, the court shall 32 consider any one or more of the relevant circumstances presented by any 33 of the parties to the case, including, but not limited to, the nature 34 and seriousness of the misconduct, the number of violations, the 35 persistence of the misconduct, the length of time over which the miscon- 36 duct occurred, the willfulness of the defendant's misconduct, and the 37 defendant's assets, liabilities, and net worth. 38 (4) A consumer bringing an action shall notify the attorney general 39 within thirty days that the action has been filed. 40 (5) The attorney general may bring a civil action, in the name of the 41 people of the state, against any employer or insurer in violation of 42 this section. 43 (6) The department may pursue enforcement action against health insur- 44 ers, health plans, or life insurers in violation of this section. 45 (7) Any employer or insurer that violates this section may be liable 46 for a civil penalty of up to seven thousand five hundred dollars for 47 each intentional violation, and up to two thousand five hundred dollars 48 for each unintentional violation. 49 § 3. This act shall take effect immediately.