SECTION
1. PURPOSE
The purpose of this rule is to establish standards for testing
for the presence of Human Immmunodeficiency Virus (HIV) and to prevent unfair
discriminatory practices. By establishing standards to regulate trade practices
the public will be protected from unfair acts or practices while at the same
time affording insurers a reasonable basis for continued operation in this
State.
SECTION 2. AUTHORITY
This rule is issued pursuant to the authority vested in the
Insurance Commissioner under Ark. Code Ann. §
23-61-108,
§ 23-56-201 et seq. and §
25-15-204.
SECTION 3. APPLICABILITY
This rule shall apply to all life insurers, disability insurers,
fraternal benefit societies, hospital medical service corporations, and health
maintenance organizations licensed pursuant to the Arkansas Insurance
Code.
SECTION 4, NONDISCRIMINATORY TESTING FOR HUMAN IMMUNODEFICIENCY VIRUS (HIV)
(a) A proposed insured for life or disability
insurance or any other coverage with a company licensed under the Arkansas
Insurance Code may be required to be tested for the presence of the human
immunodeficiency virus (HIV). Requiring such testing is not unfair
discrimination provided:
(1) The testing is
required on a nondiscriminatory basis for all individuals in the same class;
and
(2) No proposed insured is
denied coverage or rated as substandard risk on the basis of such testing
unless:
(A) An initial enzyme linked
immunosorbentassay (ELISA) test is administered to the proposed insured, and it
indicates the presence of HIV antibodies; and
(B) A second ELISA test is conducted and it
indicates the presence of HIV antibodies; and
(C) A Western Blot test is conducted and the
results of such test are not negative.
(b) The Commissioner may prescribe by
Bulletin other tests to be used in complying with Section 4(a)(2). These tests
must be recognized by the Director of the Arkansas Department of Health as
acceptable for testing for the human immunodeficiency virus.
SECTION 5. UNFAIR DISCRIMINATION
(a) General Propositions
(1) No inquiry in an application for
disability or life insurance coverage, or in an investigation conducted by or
on behalf of an insurer in connection with an application for such coverage,
shall be directed toward determining the proposed insured's sexual
orientation.
(2) Sexual orientation
may not be used in the * underwriting process or in the determination of
insurability.
(3) Insurers shall
not direct, require or request .insurance support organizations to investigate,
directly or indirectly, the sexual orientation of proposed insured or a
beneficiary.
(b)
Medical/lifestyle applications questions and underwriting standards.
(1) No question shall be used which is
designed to establish the sexual orientation of the proposed insured.
(2) Questions relating to the proposed
insured having, or having been diagnosed as having, acquired immune deficiency
syndrome (AIDS) or AIDS-related complex are permissible if they are factual and
designed to establish the existence of the condition.
(3) Questions relating to medical and other
factual matters intending to reveal the possible existence of a medical
condition are permissible if they are not used as a proxy to establish the
sexual orientation of the proposed insured, and the proposed insured has been
given an opportunity to provide an explanation for any affirmative answers
given in the application.
(4)
Questions relating to the proposed insured's having, or having been diagnosed
as having, sexually transmitted disease are permissible.
(5) Neither the marital status, the living
arrangements, the occupation, the gender, the medical history, the beneficiary
designation, nor the zip code or other territorial classification of a proposed
insured may be used to establish, or aid in establishing the proposed insured's
sexual orientation.
(6) For
purposes of rating a proposed insured for health and life insurance, an insurer
may impose territorial rates, but only if the rates are based on sound
actuarial principles or are related to actual or reasonably anticipated
experience.
(7) No adverse
underwriting decision shall be made because medical records or a report from
any other source shows that the proposed insured has demonstrated acquired
immune deficiency syndrome-related concerns by seeking counseling from health
care professionals. This paragraph does not apply to a proposed insured seeking
or having sought treatment.
(8)
Whenever a proposed insured is requested to take an AIDS-related test in
connection with an application for insurance, the use of such a test must be
revealed to the proposed insured or to any other person legally authorized to
consent to such a test, and his or her written authorization obtained. The form
of such authorization must be printed on a separate piece of paper and must
contain the specific language in the form, entitled "Notice and Consent for
AIDS Virus (HIV) Testing". This form is found in Section 8 of this rule. Other
information may be included so long as it is not misleading or violative of any
applicable law or rule. Testing may be required only on a non-discriminatory
basis. No adverse underwriting decision shall be made on the basis of such a
positive AIDS-related test unless the established test protocol as provided
herein has been followed.
(9)
Insurers are permitted to ask a proposed insured whether the proposed insured
has tested positive on an acquired immune deficiency syndrome-related
test.
(10) The result of an
AIDS-related test shall be confidential.
(A)
An insurer may not release or disclose such result or allow it to become known,
except in the following circumstances:
(i) as
may be required by law; or i
(ii)
pursuant to the written request or authorization of the proposed insured or
other person legally authorized to consent to the test on behalf of the
proposed insured, with such release pursuant to written request limited to:
(1) the proposed insured;
(2) the person legally authorized to consent
to the test;
(3) a licensed
physician, medical practitioner, or other person designated by the proposed
insured;
(4) an insurance medical
information exchange under procedures that are designed to assure
confidentiality, including the use of general codes that also cover results of
tests for other diseases or conditions not related to AIDS, or for preparation
of statistical reports that do not disclose the identify of any particular
proposed insured;
(5) a reinsurer,
if the reinsurer is involved in the underwriting process, under procedures that
are designed to assure confidentiality;
(6) persons who have the responsibility to
make underwriting decisions on behalf of the insurer; or
(7) insurer's legal counsel who needs such
information to effectively represent the insurer in regard to matters
concerning the proposed insured.
(B) Should a proposed insured or the person
legally authorized to consent to, the test request that notification of a
positive test result be sent to him or her personally, the insurer shall mail
the test result to the proposed insured or the person legally authorized to
consent to the test by registered mail with delivery restricted to the
addressee. A copy of the brochure entitled "LATEST FACTS ABOUT AIDS - If Your
Test for Antibody to the AIDS Virus Is Positive, " published jointly by the
United States Public Health Service and the American Red Cross, or of a
substantially similar publication, shall accompany such notification.
(C) Should a proposed insured, or the person
legally authorized to consent to the test, request that notification of a
positive test result be sent to any person other than himself or herself or a
physician, the insurer shall mail same to the person designated in the consent
form by registered mail with delivery restricted to the addressee.
SECTION 6.
EFFECTIVE DATE
This rule shall be effective December 31, 1996.
SECTION 7. SEVERABILITY
Any section or provision of this rule held by a court to be
invalid or unconstitutional shall not affect the validity of any other section
or provision.
SECTION 8.
FORM
The attached form is made a part of this regulation and shall be
used when so required by this rule.
NOTICE AND CONSENT FORK FOR AIDS VIRUS (HIV) TESTING
To evaluate your eligibility for insurance or insurance benefits,
it is requested that you consent to be tested for the AIDS virus (HIV) . By
signing and dating this form, you agree that this test may be performed and
that underwriting decisions will be based on the test results.
DISCLOSURE OF TEST RESULTS:
All test results will be treated confidentially. The results of
the test will be reported to the insurer identified on this form. Results of
the tests will not otherwise be disclosed except as allowed by law or as stated
below.
MEANING OF TEST RESULTS:
While positive HIV antibody test results do not mean that you
have AIDS, they do mean that you may be at increased risk of developing AIDS or
AIDS-related conditions. The test is a test for antibodies to the HIV virus,
the causative agent for AIDS, and shows whether you have been exposed to the
virus.
Positive HIV antibody test results could adversely affect your
application for insurance. This means that your application may be declined,
that an increased premium may be charged, or that other policy changes may be
necessary.
RELEASE OF RESULTS:
The results of this test may be released to the following:
(1) the proposed insured;
(2) the person legally authorized to consent
to the test;
(3) a licensed
physician, medical practitioner, or other person designated by the proposed
insured;
(4) an insurance medical
information exchange under procedures that are designed to assure
confidentiality, including the use of general codes that also cover results of
tests for other diseases or conditions not related to AIDS, or for the
preparation of statistical reports that do not disclose the identity of any
particular proposed insured;
(5) a
reinsurer, if the reinsurer is involved in the underwriting process, under
procedures that are designed to assure confidentiality;
(6) persons who have the responsibility to
make underwriting decisions on behalf of the insurer; or
(7) insurer's legal counsel who needs such
information to effectively represent the insurer in regard to matters
concerning the proposed insured.
The insurer may contact you for the name of a physician or other
health care provider to whom you may authorize disclosure and with whom you may
want to discuss the results.
CONSENT:
I have read and I understand this Notice and Consent Form. I
voluntarily consent to testing and disclosure as described above. I understand
that I have the right to request and receive a copy of this form. A photocopy
of this form will be as valid as the original.
Date:____________________
