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Virginia Administrative Code
Title 14. Insurance
Agency 5. State Corporation Commission, Bureau of Insurance
Chapter 180. Rules Governing Underwriting Practices and Coverage Limitations and Exclusions for Acquired Immunodeficiency Syndrome (Aids)
8/14/2020

14VAC5-180-50. Underwriting Procedures.

A. Insurers may underwrite for acquired immunodeficiency syndrome (AIDS) or HIV infection provided the underwriting procedures, including the questions used on the application for life or accident and sickness insurance coverage, are consistent and not unfairly discriminatory.

1. Questions relating to the applicant having or having been diagnosed as having AIDS or HIV infection are permissible if they are factual and designed to establish the existence of the condition.

2. An adverse underwriting decision is permissible if, during the underwriting process, it is revealed that the applicant has had positive HIV-related test results following the testing protocol as provided in subsection C, or has been diagnosed as having AIDS or HIV infection.

3. An adverse underwriting decision is not permissible if it is based solely on the presence of symptoms, as disclosed in an application for life or accident and sickness insurance coverage. An adverse underwriting decision is permissible, however, if the symptoms disclosed in the application for coverage are confirmed as being HIV-related through the use of medical records or HIV-related tests as provided in subsection C.

B. No inquiry in an application for life or accident and sickness insurance coverage, or in an investigation conducted by an insurer or an insurance support organization on its behalf in connection with an application for such coverage, shall be directed toward determining the applicant's sexual orientation.

1. No question that is designed to establish the sexual orientation of the applicant shall be used on an application for life or accident and sickness insurance coverage.

2. 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 an applicant may be used to establish, or aid in establishing, the sexual orientation of the applicant.

3. If information about an applicant's sexual orientation becomes known through other means, no adverse underwriting decision shall be made based solely on such information.

4. 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 applicant. The applicant must be given an opportunity to provide an explanation of any answers given in the application for life or accident and sickness insurance coverage that may result in an adverse underwriting decision.

5. Questions relating to an applicant having, or having been diagnosed as having, or having been advised to seek treatment for, a sexually transmitted disease are permissible.

6. No adverse underwriting decision shall be made solely because medical records or a report from an insurance support organization as defined in § 38.2-602 of the Code of Virginia shows that an applicant has demonstrated AIDS-related concerns by seeking preventative educational counseling or advice from health care professionals. This prohibition does not apply to an applicant diagnosed as having been infected with the HIV or seeking treatment for AIDS.

C. Insurers may require applicants for life or accident and sickness insurance coverage to be tested for the presence of HIV infection, provided the procedures are consistent, accurate, and not unfairly discriminatory.

1. If an HIV-related test is not required for all applicants, insurers may test a specific class of applicants based on type of insurance, face amount, or age and face amount of coverage being requested or late entrance under a group insurance policy or subscription contract. In all other cases, the insurer must have a medical basis for requiring individual applicants to take an HIV-related test.

2. Whenever an applicant is requested to take an HIV-related test in connection with an application for life or accident and sickness insurance coverage, the use of such a test must be revealed to the applicant and his or her written consent must be obtained. The consent form does not need to be filed with the Commission but must provide an explanation of the meaning of the HIV- related test and must disclose:

a. The types of individuals or organizations that will receive a copy of the test results;

b. The types of individuals or organizations that will have access to the applicant's insurance file;

c. The types of individuals or organizations that will keep the test information in a data bank or other file;

d. That if the applicant requests the names of the specific individuals or organizations named in subdivisions a, b, or c in connection with his application, the information shall be provided to the applicant;

e. The name and address of the person to be notified of the HIV test results. The applicant may choose to receive the test results directly or designate another person such as a physician; and

f. That if the person being tested does not designate a person or physician as provided in subdivision C 2 e above of this section, personal face-to-face counseling is available through the Virginia Department of Health. To obtain information regarding counseling, a person should contact their local health department. Additional information concerning AIDS or HIV infection can be obtained by calling the Virginia Health Department at 1-800-533-4148.

3. Insurers shall notify applicants or their designees of positive or indeterminate test results. Insurers shall:

a. Notify all applicants or their designees of negative test results; or

b. Permit each applicant to indicate affirmatively on the consent form whether or not negative test results are to be mailed to the applicant or his designee. If the applicant indicates the desire to receive notice of negative test results, the insurer shall comply with such request.

4. Insurers shall not send HIV test results to the applicant if another person is named on the consent form as provided in subdivision C 2 e of this section. If a person other than the applicant is named on the consent form, insurers shall, no earlier than seven days after sending the test results to the person designated by the applicant, send the applicant notice of an adverse underwriting decision.

5. Insurers shall maintain strict confidentiality regarding HIV-related test results or the diagnosis of a specific sickness or medical condition derived from such tests.

a. Information regarding specific HIV-related test results shall not be disclosed outside the insurance company or its employees, insurance affiliates, agents or reinsurers, third party contractors, insurance regulators, public health regulators or insurance industry data banks, except to the applicant being tested or persons designated in the consent form by the applicant.

b. Specific HIV-related test results may not be furnished to an insurance industry data bank if a review of the information would identify the individual and the specific test results.

c. The use of an insurance industry data bank code for a general blood disorder which is not specific to the HIV infection is permissible.

6. No adverse underwriting decision shall be made on the basis of positive HIV-related test results unless based on, as a minimum, the following test protocol: (i) two positive enzyme-linked immunosorbent assay (ELISA) tests, followed by (ii) one Western Blot. If the results of the Western Blot are indeterminate and the insurer makes a decision to delay issuing the insurance coverage, an adverse underwriting decision notice must be issued.

7. New and more effective HIV- related tests are anticipated to be developed in the future. If, in the opinion of the Commission, the medical community and public health officials establish that future tests are superior to the existing protocol, they may be used instead of the above.

8. An insurer may include questions on the application for life or accident and sickness insurance coverage as to whether the applicant has tested positive for the presence of HIV infection.

a. No adverse underwriting decision shall be made concerning an applicant who has tested positive for the presence of HIV infection unless the insurer determines that the test protocol outlined in subdivision C 6 or C 7 if applicable, of this section was followed.

b. Nothing in this section prohibits an insurer from requiring such an applicant to be re-tested if the insurer is unable to make a determination that the proper test protocol was followed.

9. An adverse underwriting decision is permissible if the applicant refuses to take an HIV-related test requested by the insurer.

10. If an insurer requires an applicant to be tested for the presence of HIV infection as a condition of underwriting, the cost of testing must be borne by the insurer to the same extent that the insurer bears the cost for any other tests required in the underwriting process.

Statutory Authority

§§ 38.2-223, 38.2-316, 38.2-508, 38.2-610, 38.2-3100.1 and 38.2-3401 of the Code of Virginia.

Historical Notes

Derived from Regulation 34, Case No. INS890325, § 6, eff. May 1, 1990; Sections 6.A.2 amended eff. February 23, 1990 and 6.C.8.a amended, eff. March 8, 1990.

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