Bill Text: IN HB1273 | 2011 | Regular Session | Introduced
Bill Title: Defines health care provider for purposes of the statute authorizing the attorney general to take certain actions with respect to abandoned health records and other records containing personal information.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Passed) 2011-05-16 - SECTION 26 effective retroactive to 07/01/2010 [HB1273 Detail]
Download: Indiana-2011-HB1273-Introduced.html
Citations Affected: IC 4-6-14-2; IC 24-4.7; IC 24-5-0.5; IC 24-9-2-7;
IC 27-7-3-15.5.
Effective: Upon passage; July 1, 2011.
January 12, 2011, read first time and referred to Committee on Judiciary.
Digest Continued
of which constitutes a deceptive act subject to the penalties and
remedies set forth in the statute. Specifies that for purposes of the
statute governing home loan practices, a "deceptive act" includes a
knowing or intentional misrepresentation made regarding real estate
transactions, as well as mortgage transactions. Provides that the statute
requiring the department of insurance (department) to establish and
maintain an electronic system for the collection and storage of certain
information about persons participating in or assisting with certain
residential mortgage transactions also applies in the case of residential
real estate transactions that: (1) do not involve a mortgage transaction;
and (2) are closed by a closing agent after December 31, 2011.
Requires certain additional information about residential mortgage
transactions and residential real estate transactions to be collected and
stored in the system. Requires the department to adopt, not later than
September 1, 2011, emergency rules to update the electronic system in
order to enable the storage and collection of the additional information.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning trade
regulation.
(1) a person listed in IC 16-39-7-1(a)(1) through IC 16-39-7-1(a)(11); or
(2) a person licensed, certified, registered, or regulated by a board listed in IC 25-1-9-1.
(1) for the telephone service received:
(A) has a place of primary use in Indiana; or
(B) is issued an Indiana telephone number or an Indiana identification number; and
(2) is an actual or a prospective:
(b) The term includes a user of a prepaid wireless calling service (as defined in IC 6-2.5-1-22.4) who:
(1) is issued an Indiana telephone number or an Indiana identification number for the service; or
(2) purchases prepaid wireless calling service in a retail transaction that is sourced to Indiana (as determined under IC 6-2.5-12-16).
(1) making; or
(2) causing others to make;
telephone sales calls to consumers located in Indiana whether the telephone sales calls are made from a location in Indiana or outside Indiana.
(1) the residential street address of the subscriber or, in the case of a subscriber of interconnected VOIP service, the subscriber's registered location (as defined in 47 CFR 9.3); and
(2) in the case of mobile telecommunications services (as defined in IC 6-8.1-15-7), within the licensed service area of the home service provider, as set forth in IC 6-8.1-15-8.
(1) is assigned to a subscriber who has a place of primary use in Indiana; or
(2) otherwise represents an Indiana telephone number or is associated with an Indiana identification number.
(1) Solicitation of a sale of consumer goods or services.
(2) Solicitation of a charitable contribution.
(3) Obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.
(b) The term includes any of the following:
(1) A call made by use of an automated dialing
(2) A call made by use of a recorded message
(3) Transmission of:
(A) a text message; or
(B) a graphic message;
using short message service (SMS).
(4) Transmission of:
(A) an image;
(B) a photograph; or
(C) a multimedia message;
using multimedia messaging service (MMS).
(5) Transmission of a communication or message using methods or technologies similar to those described in subdivisions (1) through (4).
(1) Subscribers of interconnected VOIP service.
(2) Subscribers of mobile telecommunications service (as defined in IC 6-8.1-15-7).
(3) Users of a prepaid wireless calling service, as described in IC 24-4.7-2-2(b).
(1) "Consumer transaction" means a sale, lease, assignment, award by chance, or other disposition of an item of personal
property, real property, a service, or an intangible, except
securities and policies or contracts of insurance issued by
corporations authorized to transact an insurance business under
the laws of the state of Indiana, with or without an extension of
credit, to a person for purposes that are primarily personal,
familial, charitable, agricultural, or household, or a solicitation to
supply any of these things. However, the term includes the
following:
(A) A transfer of structured settlement payment rights under
IC 34-50-2.
(B) An unsolicited advertisement sent to a person by telephone
facsimile machine offering a sale, lease, assignment, award by
chance, or other disposition of an item of personal property,
real property, a service, or an intangible.
(2) "Person" means an individual, corporation, the state of Indiana
or its subdivisions or agencies, business trust, estate, trust,
partnership, association, nonprofit corporation or organization, or
cooperative or any other legal entity.
(3) "Supplier" means the following:
(A) A seller, lessor, assignor, or other person who regularly
engages in or solicits consumer transactions, including
soliciting a consumer transaction by using a telephone
facsimile machine to transmit an unsolicited advertisement.
The term includes a manufacturer, wholesaler, or retailer,
whether or not the person deals directly with the consumer.
(B) A person who contrives, prepares, sets up, operates,
publicizes by means of advertisements, or promotes a pyramid
promotional scheme.
(4) "Subject of a consumer transaction" means the personal
property, real property, services, or intangibles offered or
furnished in a consumer transaction.
(5) "Cure" as applied to a deceptive act, means either:
(A) to offer in writing to adjust or modify the consumer
transaction to which the act relates to conform to the
reasonable expectations of the consumer generated by such
deceptive act and to perform such offer if accepted by the
consumer; or
(B) to offer in writing to rescind such consumer transaction
and to perform such offer if accepted by the consumer.
The term includes an offer in writing of one (1) or more items of
value, including monetary compensation, that the supplier
delivers to a consumer or a representative of the consumer if
accepted by the consumer.
(6) "Offer to cure" as applied to a deceptive act is a cure that:
(A) is reasonably calculated to remedy a loss claimed by the
consumer; and
(B) includes a minimum additional amount that is the greater
of:
(i) ten percent (10%) of the value of the remedy under
clause (A), but not more than four thousand dollars
($4,000); or
(ii) five hundred dollars ($500);
as compensation for attorney's fees, expenses, and other costs
that a consumer may incur in relation to the deceptive act.
(7) "Uncured deceptive act" means a deceptive act:
(A) with respect to which a consumer who has been damaged
by such act has given notice to the supplier under section 5(a)
of this chapter; and
(B) either:
(i) no offer to cure has been made to such consumer within
thirty (30) days after such notice; or
(ii) the act has not been cured as to such consumer within a
reasonable time after the consumer's acceptance of the offer
to cure.
(8) "Incurable deceptive act" means a deceptive act done by a
supplier as part of a scheme, artifice, or device with intent to
defraud or mislead. The term includes a failure of a transferee of
structured settlement payment rights to timely provide a true and
complete disclosure statement to a payee as provided under
IC 34-50-2 in connection with a direct or indirect transfer of
structured settlement payment rights.
(9) "Pyramid promotional scheme" means any program utilizing
a pyramid or chain process by which a participant in the program
gives a valuable consideration exceeding one hundred dollars
($100) for the opportunity or right to receive compensation or
other things of value in return for inducing other persons to
become participants for the purpose of gaining new participants
in the program. The term does not include ordinary sales of goods
or services to persons who are not purchasing in order to
participate in such a scheme.
(10) "Promoting a pyramid promotional scheme" means:
(A) inducing or attempting to induce one (1) or more other
persons to become participants in a pyramid promotional
scheme; or
(B) assisting another in promoting a pyramid promotional scheme.
(11) "Elderly person" means an individual who is at least sixty-five (65) years of age.
(12) "Telephone facsimile machine" means equipment that has the capacity to transcribe text or images, or both, from:
(A) paper into an electronic signal and to transmit that signal over a regular telephone line; or
(B) an electronic signal received over a regular telephone line onto paper.
(13) "Unsolicited advertisement" means material advertising the commercial availability or quality of:
(A) property;
(B) goods; or
(C) services;
that is transmitted to a person without the person's prior express invitation or permission, in writing or otherwise.
(b) As used in section 3(a)(15) and 3(a)(16) of this chapter:
(1) "Directory assistance" means the disclosure of telephone number information in connection with an identified telephone service subscriber by means of a live operator or automated service.
(2) "Local telephone directory" refers to a telephone classified advertising directory or the business section of a telephone directory that is distributed by a telephone company or directory publisher to subscribers located in the local exchanges contained in the directory. The term includes a directory that includes listings of more than one (1) telephone company.
(3) "Local telephone number" refers to a telephone number that has the three (3) number prefix used by the provider of telephone service for telephones physically located within the area covered by the local telephone directory in which the number is listed. The term does not include long distance numbers or 800-, 888-, or 900- exchange numbers listed in a local telephone directory.
(1) That such subject of a consumer transaction has sponsorship, approval, performance, characteristics, accessories, uses, or
benefits it does not have which the supplier knows or should
reasonably know it does not have.
(2) That such subject of a consumer transaction is of a particular
standard, quality, grade, style, or model, if it is not and if the
supplier knows or should reasonably know that it is not.
(3) That such subject of a consumer transaction is new or unused,
if it is not and if the supplier knows or should reasonably know
that it is not.
(4) That such subject of a consumer transaction will be supplied
to the public in greater quantity than the supplier intends or
reasonably expects.
(5) That replacement or repair constituting the subject of a
consumer transaction is needed, if it is not and if the supplier
knows or should reasonably know that it is not.
(6) That a specific price advantage exists as to such subject of a
consumer transaction, if it does not and if the supplier knows or
should reasonably know that it does not.
(7) That the supplier has a sponsorship, approval, or affiliation in
such consumer transaction the supplier does not have, and which
the supplier knows or should reasonably know that the supplier
does not have.
(8) That such consumer transaction involves or does not involve
a warranty, a disclaimer of warranties, or other rights, remedies,
or obligations, if the representation is false and if the supplier
knows or should reasonably know that the representation is false.
(9) That the consumer will receive a rebate, discount, or other
benefit as an inducement for entering into a sale or lease in return
for giving the supplier the names of prospective consumers or
otherwise helping the supplier to enter into other consumer
transactions, if earning the benefit, rebate, or discount is
contingent upon the occurrence of an event subsequent to the time
the consumer agrees to the purchase or lease.
(10) That the supplier is able to deliver or complete the subject of
the consumer transaction within a stated period of time, when the
supplier knows or should reasonably know the supplier could not.
If no time period has been stated by the supplier, there is a
presumption that the supplier has represented that the supplier
will deliver or complete the subject of the consumer transaction
within a reasonable time, according to the course of dealing or the
usage of the trade.
(11) That the consumer will be able to purchase the subject of the
consumer transaction as advertised by the supplier, if the supplier
does not intend to sell it.
(12) That the replacement or repair constituting the subject of a
consumer transaction can be made by the supplier for the estimate
the supplier gives a customer for the replacement or repair, if the
specified work is completed and:
(A) the cost exceeds the estimate by an amount equal to or
greater than ten percent (10%) of the estimate;
(B) the supplier did not obtain written permission from the
customer to authorize the supplier to complete the work even
if the cost would exceed the amounts specified in clause (A);
(C) the total cost for services and parts for a single transaction
is more than seven hundred fifty dollars ($750); and
(D) the supplier knew or reasonably should have known that
the cost would exceed the estimate in the amounts specified in
clause (A).
(13) That the replacement or repair constituting the subject of a
consumer transaction is needed, and that the supplier disposes of
the part repaired or replaced earlier than seventy-two (72) hours
after both:
(A) the customer has been notified that the work has been
completed; and
(B) the part repaired or replaced has been made available for
examination upon the request of the customer.
(14) Engaging in the replacement or repair of the subject of a
consumer transaction if the consumer has not authorized the
replacement or repair, and if the supplier knows or should
reasonably know that it is not authorized.
(15) The act of misrepresenting the geographic location of the
supplier by listing a fictitious business name or an assumed
business name (as described in IC 23-15-1) in a local telephone
directory if:
(A) the name misrepresents the supplier's geographic location;
(B) the listing fails to identify the locality and state of the
supplier's business;
(C) calls to the local telephone number are routinely forwarded
or otherwise transferred to a supplier's business location that
is outside the calling area covered by the local telephone
directory; and
(D) the supplier's business location is located in a county that
is not contiguous to a county in the calling area covered by the
local telephone directory.
(16) The act of listing a fictitious business name or assumed
business name (as described in IC 23-15-1) in a directory
assistance database if:
(A) the name misrepresents the supplier's geographic location;
(B) calls to the local telephone number are routinely forwarded
or otherwise transferred to a supplier's business location that
is outside the local calling area; and
(C) the supplier's business location is located in a county that
is not contiguous to a county in the local calling area.
(17) The violation by a supplier of IC 24-3-4 concerning
cigarettes for import or export.
(18) The act of a supplier in knowingly selling or reselling a
product to a consumer if the product has been recalled, whether
by the order of a court or a regulatory body, or voluntarily by the
manufacturer, distributor, or retailer, unless the product has been
repaired or modified to correct the defect that was the subject of
the recall.
(19) The violation by a supplier of 47 U.S.C. 227, including any
rules or regulations issued under 47 U.S.C. 227.
(20) A violation of IC 24-5-7 (concerning health spa services),
as set forth in IC 24-5-7-17.
(21) A violation of IC 24-5-8 (concerning business opportunity
transactions), as set forth in IC 24-5-8-20.
(22) A violation of IC 24-5-10 (concerning home consumer
transactions), as set forth in IC 24-5-10-18.
(23) A violation of IC 24-5-11 (concerning home improvement
contracts), as set forth in IC 24-5-11-14.
(24) A violation of IC 24-5-12 (concerning telephone
solicitations), as set forth in IC 24-5-12-23.
(25) A violation of IC 24-5-13.5 (concerning buyback motor
vehicles), as set forth in IC 24-5-13.5-14.
(26) A violation of IC 24-5-14 (concerning automatic
dialing-announcing devices), as set forth in IC 24-5-14-13.
(27) A violation of IC 24-5-15 (concerning credit services
organizations), as set forth in IC 24-5-15-11.
(28) A violation of IC 24-5-16 (concerning unlawful motor
vehicle subleasing), as set forth in IC 24-5-16-18.
(29) A violation of IC 24-5-17 (concerning environmental
marketing claims), as set forth in IC 24-5-17-14.
(30) A violation of IC 24-5-19 (concerning deceptive
commercial solicitation), as set forth in IC 24-5-19-11.
(31) A violation of IC 24-5-21 (concerning prescription drug
discount cards), as set forth in IC 24-5-21-7.
(32) A violation of IC 24-5-23.5-7 (concerning real estate
appraisals), as set forth in IC 24-5-23.5-9.
(33) A violation of IC 24-5-26 (concerning identity theft), as
set forth in IC 24-5-26-3.
(34) A violation of IC 24-5.5 (concerning mortgage rescue
fraud), as set forth in IC 24-5.5-6-1.
(35) A violation of IC 24-8 (concerning promotional gifts and
contests), as set forth in IC 24-8-6-3.
(b) Any representations on or within a product or its packaging or
in advertising or promotional materials which would constitute a
deceptive act shall be the deceptive act both of the supplier who places
such representation thereon or therein, or who authored such materials,
and such other suppliers who shall state orally or in writing that such
representation is true if such other supplier shall know or have reason
to know that such representation was false.
(c) If a supplier shows by a preponderance of the evidence that an
act resulted from a bona fide error notwithstanding the maintenance of
procedures reasonably adopted to avoid the error, such act shall not be
deceptive within the meaning of this chapter.
(d) It shall be a defense to any action brought under this chapter that
the representation constituting an alleged deceptive act was one made
in good faith by the supplier without knowledge of its falsity and in
reliance upon the oral or written representations of the manufacturer,
the person from whom the supplier acquired the product, any testing
organization, or any other person provided that the source thereof is
disclosed to the consumer.
(e) For purposes of subsection (a)(12), a supplier that provides
estimates before performing repair or replacement work for a customer
shall give the customer a written estimate itemizing as closely as
possible the price for labor and parts necessary for the specific job
before commencing the work.
(f) For purposes of subsection (a)(15) and (a)(16), a telephone
company or other provider of a telephone directory or directory
assistance service or its officer or agent is immune from liability for
publishing the listing of a fictitious business name or assumed business
name of a supplier in its directory or directory assistance database
unless the telephone company or other provider of a telephone
directory or directory assistance service is the same person as the
supplier who has committed the deceptive act.
(g) For purposes of subsection (a)(18), it is an affirmative defense
to any action brought under this chapter that the product has been
altered by a person other than the defendant to render the product
completely incapable of serving its original purpose.
(1) makes a material misrepresentation; or
(2) conceals material information regarding the terms or conditions of the transaction.
(b) For purposes of this section, "knowingly" means having actual knowledge at the time of the transaction.
(1)
(A) is:
(i) a first lien purchase money mortgage transaction; or
(2) A real estate transaction (as defined in IC 24-9-3-7(b)) that:
(A) does not involve a mortgage transaction described in subdivision (1);
(B) is closed by a closing agent (as defined in IC 6-1.1-12-43(a)(2)) after December 31, 2011.
(b) For purposes of this subsection, a person described in this subsection is involved in a transaction to which this section applies if the person participates in or assists with, or will participate in or assist with, a transaction to which this section applies.
(1) In the case of a transaction described in subsection (a)(1), the name and license number (under IC 23-2-5) of each loan brokerage business involved in the transaction.
(2) In the case of a transaction described in subsection (a)(1), the name and license or registration number of any mortgage loan originator who is:
(A) either licensed or registered under state or federal law as a mortgage loan originator consistent with the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (H.R. 3221 Title V); and
(B) involved in the transaction.
(3) The name and license number (under IC 25-34.1) of each:
(A) principal broker; and
(B) salesperson or broker-salesperson, if any;
involved in the transaction.
(4) The following information:
(A) The:
(i) name of; and
each title insurance underwriter involved in the transaction.
(B) The type of title insurance policy issued in connection with the transaction.
(5) The name and license number (under IC 27-1-15.6) of each title insurance agency and agent involved in the transaction as a closing agent (as defined in IC 6-1.1-12-43(a)(2)).
(6) The following information:
(A) The name and:
who appraises the property that is the subject of the transaction.
(B) The appraised value of the property that is the subject of the transaction, as determined as part of any appraisal (as defined in IC 24-5-23.5-1) prepared in connection with the transaction.
(C) The name and registration number (under IC 25-34.1-11-10) of any appraisal management company that performs appraisal management services (as defined in IC 25-34.1-11-3) in connection with the transaction.
(7) In the case of a transaction described in subsection (a)(1), the name of the
(8) In the case of a
(9) In the case of a
(A) The name of the buyer of the property that is the subject of the transaction.
(B) The purchase price of the property that is the subject of the transaction.
(C) The loan amount of the mortgage transaction.
(10) In the case of a transaction described in subsection (a)(2), the following information:
(A) The name of the buyer of the property that is the subject of the transaction.
(B) The purchase price of the property that is the subject of the transaction.
(11) In the case of a transaction described in subsection (a)(1)(A)(ii), the following information:
(A) The name of the borrower in the mortgage transaction.
(B) The loan amount of the refinancing.
(A) name; and
(B) license number, certificate number, registration number, or other code, as appropriate;
of any other person that
(c) The system established by the department under this section must include a form that:
(1) is uniformly accessible in an electronic format to the closing agent (as defined in IC 6-1.1-12-43(a)(2)) in the transaction; and
(2) allows the closing agent to do the following:
(A) Input information identifying the property that is the subject of the transaction by lot or parcel number, street address, or some other means of identification that the department determines:
(i) is sufficient to identify the property; and
(ii) is determinable by the closing agent.
(B) Subject to subsection (d) and to the extent determinable, input the applicable information described in subsection (b).
(C) Respond to the following questions, if applicable:
(i) "On what date did you receive the closing instructions from the creditor in the transaction?".
(ii) "On what date did the transaction close?".
(D) Submit the form electronically to a data base maintained by the department.
(d) Not later than the time of the closing, each person described in subsection (b), other than a person described in subsection (b)(8),
(1) legal name; and
(2) license number, certificate number, registration number, or NAIC code, as appropriate;
to allow the closing agent to comply with subsection (c)(2)(B).
(e) Except for a person described in subsection (b)(8),
(1) may be enforced by the state agency that has administrative jurisdiction over the person in the same manner that the agency enforces the payment of fees or other penalties payable to the agency; and
(2) shall be paid into the home ownership education account established by IC 5-20-1-27.
(f) Subject to subsection (g), the department shall make the information stored in the data base described in subsection (c)(2)(D) accessible to:
(1) each entity described in IC 4-6-12-4; and
(2) the homeowner protection unit established under IC 4-6-12-2.
(g) The department, a closing agent who submits a form under subsection (c), each entity described in IC 4-6-12-4, and the homeowner protection unit established under IC 4-6-12-2 shall exercise all necessary caution to avoid disclosure of any information:
(1) concerning a person described in subsection (b), including the person's license, registration, or certificate number; and
(2) contained in the data base described in subsection (c)(2)(D);
except to the extent required or authorized by state or federal law.
(h) The department may adopt rules under IC 4-22-2, including emergency rules under IC 4-22-2-37.1, to implement this section. Rules adopted by the department under this subsection may establish procedures for the department to:
(1) establish;
(2) collect; and
(3) change as necessary;
an administrative fee to cover the department's expenses in establishing and maintaining the electronic system required by this section.
(i) If the department adopts a rule under IC 4-22-2 to establish an administrative fee to cover the department's expenses in establishing and maintaining the electronic system required by this section, as allowed under subsection (h), the department may:
(1) require the fee to be paid:
(A) to the closing agent responsible for inputting the information and submitting the form described in subsection (c)(2); and
(B) by the borrower, the seller, or the buyer in the transaction;
(2) allow the closing agent described in subdivision (1)(A) to retain a part of the fee collected to cover the closing agent's costs in inputting the information and submitting the form described in subsection (c)(2); and
(3) require the closing agent to pay the remainder of the fee collected to the department for deposit in the title insurance enforcement fund established by IC 27-7-3.6-1, for the department's use in establishing and maintaining the electronic
system required by this section.
(b) Not later than September 1, 2011, the department shall adopt emergency rules under IC 4-22-2-37.1 to:
(1) update the electronic system established by the department under IC 27-7-3-15.5, before its amendment by this act, in order to enable the storage and collection of the information set forth in IC 27-7-3-15.5(b), as amended by this act; and
(2) otherwise implement IC 27-7-3-15.5, as amended by this act.
(c) An emergency rule adopted under this SECTION expires on the date the rule is adopted by the department under IC 4-22-2-24 through IC 4-22-2-36.
(d) This SECTION expires January 1, 2013.
