Last week, the House and Senate passed the “Red Flag Program Clarification Act of 2010.” The Act limits the definition of “creditor” to a person who obtains or uses consumer reports in connection with a credit transaction, furnishes information to consumer reporting agencies in connection with credit transactions, or advances funds based on the recipients’ obligation to repay. The bill excludes from the definition persons, such as health care providers, who “advance funds” by providing services before receiving payment. Relevant government agencies, however, are permitted to designate creditors that will be subject to the Rule. The Agencies will designate based upon the determination that the person manages accounts that are subject to a reasonably foreseeable risk of identity theft. These designations must be made through agency rule making.
The enforcement of the Red Flags rule has been delayed several times, with the most recent delay expiring on January 2011. The FTC previously determined that health care providers met the definition of “creditor.” While the Clarification Act’s revised definition would not include most health care providers, the FTC could still designate health care providers as “creditors” through the rule making process based on the risk of medical identity theft concerns previously voiced by the FTC.
For more information on the Red Flags rule, please visit www.wachler.com or contact a Wachler & Associates attorney at 248-544-0888.