Administrative Code

Virginia Administrative Code
Title 14. Insurance
Agency 5. State Corporation Commission, Bureau of Insurance
1/22/2020

Chapter 180. Rules Governing Underwriting Practices and Coverage Limitations and Exclusions for Acquired Immunodeficiency Syndrome (Aids)

14VAC5-180-10. Purpose.

The purpose of this chapter is to set forth rules and procedural requirements that the Commission deems necessary to regulate underwriting practices and policy limitations and exclusions with regard to HIV infection and acquired immunodeficiency syndrome (AIDS).

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, § 2, eff. May 1, 1990.

14VAC5-180-20. Effective date.

A. No new application, policy, subscription contract or rider as described in 14VAC5-180-30 shall be approved on or after May 1, 1990, unless it complies with this chapter.

B. No application shall be used and no policy, subscription contract or rider as described in 14VAC5-180-30 shall be delivered, issued for delivery, reissued, renewed or extended in Virginia nor shall any term of the policy contract or rider be changed or premium adjustment be made, on or after May 1, 1990, unless it complies with this chapter.

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, § 3, eff. May 1, 1990.

14VAC5-180-30. Scope.

This chapter shall apply to all life and accident and sickness insurance policies, and all health service plans and health maintenance organization subscription contracts delivered or issued for delivery in this Commonwealth, and to all applications, riders, and underwriting procedures used in connection with such policies or subscription contracts. This chapter shall apply to all such coverage delivered or issued for delivery in Virginia, whether individual or group.

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, § 4, eff. May 1, 1990.

14VAC5-180-40. Definitions.

As used in this chapter:

"Adverse underwriting decision" means any of the following actions with respect to insurance transactions involving insurance coverage that is individually underwritten:

1. A declination of insurance coverage,

2. A termination of insurance coverage,

3. Failure of an agent to apply for insurance coverage with a specific institution that an agent represents and that is requested by an applicant,

4. An offer to insure at higher than standard rates, or with limitations or exceptions or benefits other than those applied for.

"AIDS" means acquired immunodeficiency syndrome as defined by the Centers for Disease Control of the United States Public Health Service.

"HIV" means the human immunodeficiency virus.

"HIV-related test" means a test for exposure to or infection with HIV, including antibody tests such as the ELISA or Western Blot assays, or any future valid test approved by the Commission.

"Insurance" means any coverage provided by an insurer.

"Insurer" means any insurance company, health services plan, or health maintenance organization licensed in this Commonwealth.

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, § 5, eff. May 1, 1990.

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.

14VAC5-180-60. Coverage limitations and exclusions.

A. The following policy limitations and exclusions are prohibited under this section:

1. Any life or accident and sickness insurance policy, any health services plan or health maintenance organization subscription contract or any rider used in connection with such policies or subscription contracts that excludes coverage for the treatment of HIV infection or Acquired Immunodeficiency Syndrome (AIDS) or complications or death resulting from such disease.

2. Any life or accident and sickness insurance policy, any health services plan or health maintenance organization subscription contract or any rider used in connection with such policies or subscription contracts that places a dollar limit on face amount of benefits payable for the treatment of HIV infection or Acquired Immunodeficiency Syndrome (AIDS) or complications or death resulting from such disease (other than the overall policy maximum or face amount).

3. A "preexisting condition" limitation related to HIV infection or Acquired Immunodeficiency Syndrome (AIDS) that is:

a. Defined to be more restrictive than the following:

(1) The existence of symptoms which would cause an ordinarily prudent person to seek diagnosis, care or treatment within a five year period preceding the effective date of the coverage of the insured person; or

(2) A condition for which medical advice or treatment, not including preventative educational counseling, was recommended by a physician or received from a physician within a five year period preceding the effective date of the coverage of the insured.

b. Based on the sole existence of a positive HIV-related test result, following the protocol as described in 14VAC5-180-50 C, without the manifestation of symptoms or actual diagnosis of AIDS. Claims may not be denied as a preexisting condition solely on the existence of a positive HIV-related test result without the manifestation of symptoms or actual diagnosis of AIDS. Nothing in this subdivision shall be considered as prohibiting an insurance company from contesting a policy on the basis of material misrepresentation during the contestable period of the policy.

B. In only the following circumstances may insurers utilize a preexisting condition limitation for HIV infection or Acquired Immunodeficiency Syndrome (AIDS) which is more restrictive than that provided in subdivision A 3 above.

1. With regard to open enrollment contracts issued by health services plans pursuant to § 38.2-4216.1 of the Code of Virginia, a preexisting condition waiting period no more restrictive than that for any other illness is permitted. However, after the preexisting condition waiting period has expired, the health services plan shall provide coverage for HIV infection or acquired immunodeficiency syndrome (AIDS) as it does for any other illness not related to AIDS.

2. With regard to group life or accident and sickness insurance policies, group health services plans or health maintenance organization subscription contracts, where the insurer does not retain the right to exclude or limit coverage on any person when evidence of individual insurability is not satisfactory, a preexisting condition waiting period for HIV infection or acquired immunodeficiency syndrome (AIDS) is permitted to the same extent as such period is permitted for all other preexisting conditions. Nothing in this subsection shall prohibit an insurer from excluding or limiting coverage on any person when evidence of individual insurability is not satisfactory, if the person applies for coverage after the period they are first eligible to enroll under the group policy or subscription contract. After the preexisting condition waiting period has expired, the insurer shall provide the same coverage for HIV infection or acquired immunodeficiency syndrome (AIDS) as it does for any other death or illness not related to AIDS.

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, § 7, eff. May 1, 1990; Section 7.A.3.b. amended, eff. February 23, 1990.

14VAC5-180-70. Severability.

If any provisions of this chapter, or the application of it to any person or circumstances, is held invalid, such invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to that end the provisions of this chapter are severable.

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, § 8, eff. May 1, 1990.



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