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304.12-013 Prohibited unfair or deceptive practices in the writing of insurance.
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(2)
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(4)
The purpose of this section is to prohibit unfair or deceptive practices in the
transaction of life and health insurance with respect to the human
immunodeficiency virus infection and related matters. This section applies to all life
and health insurance contracts which are delivered or issued for delivery in
Kentucky on or after July 13, 1990.
This section shall not prohibit an insurer from contesting the validity of an
insurance contract or whether a claim is covered under an insurance contract to the
extent allowed by law.
As used in this section:
(a) "Human immunodeficiency virus" (HIV) means the causative agent of
acquired immunodeficiency syndrome (AIDS) or any other type of
immunosuppression caused by the human immunodeficiency virus;
(b) "Insurance contract" means a contract issued by an insurer as defined in this
section; and
(c) "Insurer" means an insurer, a nonprofit hospital, medical-surgical, dental, and
health service corporation, a health maintenance organization, or a prepaid
dental plan organization.
(a) In the underwriting of an insurance contract regarding human
immunodeficiency virus infection and health conditions derived from such
infection, the insurer shall utilize medical tests which are reliable predictors of
risk. Only a test which is recommended by the Centers for Disease Control or
by the Food and Drug Administration is deemed to be reliable for the purposes
of this section. If a specific Centers for Disease Control or Food and Drug
Administration-recommended test indicates the existence or possible
existence of human immunodeficiency virus infection or a health condition
related to the human immunodeficiency virus infection, before relying on a
single test to deny issuance of an insurance contract, limit coverage under an
insurance contract, or to establish the premium for an insurance contract, the
insurer shall follow the applicable Centers for Disease Control or Food and
Drug Administration-recommended test protocol and shall utilize any
applicable Centers for Disease Control or Food and Drug Administrationrecommended follow-up tests or series of tests to confirm the indication.
(b) Prior to testing, the insurer shall disclose in writing its intent to test the
applicant for the human immunodeficiency virus infection or for a specific
health condition derived therefrom and shall obtain the applicant's written
informed consent to administer the test. Written informed consent shall
include a fair explanation of the test, including its purpose, potential uses and
limitations, the meaning of its results, and the right to confidential treatment
of information. Use of a form prescribed by the department shall raise a
conclusive presumption of informed consent.
(c) An applicant shall be notified of a positive test result by a physician
designated by the applicant, or, in the absence of such designation, by the
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Cabinet for Health and Family Services. The notification shall include:
1.
Face-to-face post-test counseling on the meaning of the test results, the
possible need for additional testing, and the need to eliminate behavior
which might spread the disease to others;
2.
The availability in the geographic area of any appropriate health-care
services, including mental health care, and appropriate social and
support services;
3.
The benefits of locating and counseling any person by whom the
infected person may have been exposed to human immunodeficiency
virus and any person whom the infected person may have exposed to the
virus; and
4.
The availability, if any, of the services of public health authorities with
respect to locating and counseling any person described in subparagraph
3. of this paragraph.
A medical test for human immunodeficiency virus infection or for a health
condition derived from the infection shall only be required or given to an
applicant for an insurance contract on the basis of the applicant's health
condition or health history, on the basis of the amount of insurance applied
for, or if the test is required of all applicants.
An insurer may ask whether an applicant for an insurance contract has been
tested positive for human immunodeficiency virus infection or other health
conditions derived from such infection. Insurers shall not inquire whether the
applicant has been tested for or has received a negative result from a specific
test for human immunodeficiency virus infection or for a health condition
derived from such infection.
Insurers shall maintain strict confidentiality of the results of tests for human
immunodeficiency virus infection or a specific health condition derived from
human immunodeficiency virus infection. Information regarding specific test
results shall be disclosed only as required by law or pursuant to a written
request or authorization by the applicant. Insurers may disclose results
pursuant to a specific written request only to the following persons:
1.
The applicant;
2.
A licensed physician or other person designated by the applicant;
3.
An insurance medical-information exchange under procedures that are
used to assure confidentiality, such as the use of general codes that also
cover results of tests for other diseases or conditions not related to
human immunodeficiency virus infection;
4.
For the preparation of statistical reports that do not disclose the identity
of any particular applicant;
5.
Reinsurers, contractually retained medical personnel, and insurer
affiliates if these entities are involved solely in the underwriting process
and under procedures that are designed to assure confidentiality;
6.
To insurer personnel who have the responsibility to make underwriting
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(a)
(b)
(c)
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decisions; and
7.
To outside legal counsel who needs the information to represent the
insurer effectively in regard to matters concerning the applicant.
Insurers shall use for the processing of human immunodeficiency virus-related
tests only those laboratories that are certified by the United States Department
of Health and Human Services under the Clinical Laboratory Improvement
Act of 1967, which permit testing of specimens in interstate commerce, and
which subject themselves to ongoing proficiency testing by the College of
American Pathologists, the American Association of Bioanalysts, or an
equivalent program approved by the Centers for Disease Control.
An insurance contract shall not exclude coverage for human
immunodeficiency virus infection. An insurance contract shall not contain
benefit provisions, terms, or conditions which apply to human
immunodeficiency virus infection in a different manner than those which
apply to any other health condition. Insurance contracts which violate this
paragraph shall be disapproved by the commissioner pursuant to KRS 304.14130(1)(a), 304.32-160, and 304.38-050.
A health insurance contract shall not be canceled or nonrenewed solely
because a person or persons covered by the contract has been diagnosed as
having or has been treated for human immunodeficiency virus infection.
Sexual orientation shall not be used in the underwriting process or in the
determination of which applicants shall be tested for exposure to the human
immunodeficiency virus infection. Neither the marital status, the living
arrangements, the occupation, the gender, the beneficiary designation, nor the
zip code or other territorial classification of an applicant's sexual orientation.
This subsection does not prohibit the issuance of accident only or specified
disease insurance contracts.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 24, sec. 1105, effective July 15, 2010. -Amended 2005 Ky. Acts ch. 99, sec. 578, effective June 20, 2005. -- Amended 2002
Ky. Acts ch. 105, sec. 31, effective July 15, 2002. -- Amended 1998 Ky. Acts ch.
426, sec. 522, effective July 15, 1998. -- Created 1990 Ky. Acts ch. 443, sec. 54,
effective July 13, 1990.
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