HIV Testing for Insurance Act Exposed

The HIV Testing for Insurance Act is listed under ALEC's Health and Human Services Task Force and was included in the 1995 ALEC Sourcebook of American State Legislation. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

ALEC Bill Text

Summary

This bill ensures that insurance companies obtain the applicant’s written informed consent prior to requiring HIV testing. The insurer is responsible for informing the applicant of the results of the HIV tests as well as educating the applicant on the HIV virus.

Model Legislation

{Title, enacting clause, etc.}

Section 1.

This Act may be cited as the HIV Testing for Insurance Act.

Section 2.

For the purpose of this Act the following definitions apply:

(A) “HIV” means the human immunodeficiency virus or any other identified causative agent of acquired immune deficiency syndrome (AIDS).

(B) “Applicant” means the individuals proposed for insurance coverage.

(C) “HIV test” means an enzyme-linked immunosorbent assay (ELISA) to determine the presence of antibodies to the human immunodeficiency virus (HIV) or such other test as may be approved by the State Health Department; in the event of a positive or indeterminate result, the Western Blot Assay or an equivalent or more reliable confirmatory test shall also be administered prior to notification of the test result.

(D) “Insurer” means any individual, corporation, association, partnership, fraternal benefit society, or any other entity engaged in the insurance underwriting business, except insurance agents and brokers. This term shall also include medical service plans and hospital plans and health maintenance organizations, which shall be designed as engaged in the business of insurance for the purpose of this Act.

Section 3.

No insurer shall request or require that an applicant submit to an HIV test unless the insurer first:

(A) Obtain the applicant’s prior written informed consent;

(B) Reveals to the applicant the use to which the HIV test result may be put and entities to whom test results may be disclosed pursuant to Subsections (A) an (B) of Section 4 of this Act;

(C) Provides the applicant with printed material prior to testing which contains factual information describing HIV, its causes and symptoms, the tests used to detect HIV infection, and what the applicant should do if the test result is positive. Such information shall include:

(1) the methods of transmission and methods of prevention of HIV infection;

(2) the medically accepted degree of reliability of the testing procedures;

(3) the opportunity of medical treatment for HIV infection and any related infections if diagnosed;

(4) the presumption that a person who is infected with HIV in infectious for life; and

(5) the responsibility of an infected person not to knowingly infect others.

(D) No positive ELISA test result may be used for any purpose unless it has been confirmed by a Western Blot Assay or an equivalent or more accurate confirmatory test.

Section 4.

(A) Except as provided in Section 5 of this Act, on the basis of the applicant’s written informed consent as specified in Section 3 of this Act, as insurer may disclose as applicant’s HIV test result to its reinsurer or to those contractually retained medical personnel and insurance affiliates, excluding agents and brokers, who are involved in underwriting or claims decisions regarding the individual’s application, provided disclosure is necessary to make underwriting or claims decisions regarding such as application.

(B) An insurer may report positive or indeterminant HIV results to a medical information exchange agency, such as the Medical Information Bureau, provided that:

(1) the informed consent form clearly explains that such disclosure may be made; and

(2) the results are reported in a manner that only identifies that the applicant has had an abnormal blood test result.

Section 5.

An insurer shall notify the applicant in writing of an adverse underwriting decision based upon the results of such applicant’s blood test but shall not disclose the specific results of such blood test to the applicant. The insurer shall also inform the applicant that the result of the blood test will be sent to the physician designated by the applicant at the time of application and that such physician should be contacted for information regarding the applicant’s blood test. If a physician was not designated at the time of application, the insurer shall request that the applicant name a physician to whom a copy of the blood test may be sent.

Section 6. {Severability clause.}

Section 7. {Repealer clause.}

Section 8. {Effective date.}

1995 Sourcebook of American State Legislation