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304.12-013 Prohibited unfair or deceptive practices in the writing of
insurance.
(1)
(2)
(3)
(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
Administration-recommended 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
(d)
(e)
(f)
the 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 decisions; and
7.
(g)
(5)
(a)
(b)
(c)
(d)
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
304.14-130(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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