W. Va. Code R. § 114-27-5

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 114-27-5 - Testing

5.1. AIDS- related testing in connection with the application for group life or accident and sickness insurance is prohibited; provided that an insurer may conduct such testing in relation to the application for group life and accident and sickness insurance when the insurance applied for is individually underwritten and evidence of insurability is required by the insurer because the proposed insured is either a late entrant, is applying for supplemental group life coverage, or is applying for small group insurance where the group consists of less than twenty-five members.

5.2. Whenever a proposed insured is requested to take an AIDS-related test in connection with an application for insurance, the use of such a test must be revealed to the proposed insured and his or her written, informed consent obtained.

5.3. The proposed insured should demonstrate an understanding that the test is being performed, of the nature of the test, of the persons to whom the results of that test may be disclosed, of the purpose for which test results may be used, of any limitations on the accuracy and meaning of the test results, and of any foreseeable risks and benefits resulting from the test.

5.4. The person requesting the test, and not the individual or individual's health care provider, must underwrite the cost of the test.

5.5. The individual undergoing the test has a choice to receive the test result directly or to designate in writing, prior to the administration of the test, any other person, such as a health care professional or clergyman, who may receive the results.

5.6. The testing must be performed by an individual who is properly trained in the administration of the test; holds an appropriate medical license, if state or federal law requires licensure in order to perform the testing procedure; and is properly supervised in accordance with state and federal law and FDA approval requirements.

5.7. The insurer and its agents shall not release or disclose either that a HIV test has been conducted or the test results to any other party except under the following limited circumstances:

a. Negative test results only may be disclosed to a reinsurer where either:

1. The reinsurer is to reinsure a portion of the risk on a facultative basis; or

2. The reinsurer is to reinsure a portion of a block of business on a treaty basis and where the release of HIV test information is disclosed by the ceding insurer only to the extent that the reinsurer is permitted to perform limited underwriting audits of the ceding insurer's underwriting files to verify that proper HIV underwriting has occurred.

b. Positive test results only may be disclosed to the Medical Information Bureau (MIB) provided that such information release is limited to a coded report identified only as a nonspecific abnormal blood, urine or oral fluid test code.

c. To the extent necessary to allow them to properly perform the functions for which their services were contracted by the insurer, an insurer may disclose HIV test information to certain contractors of the insurer such as audit firms, third party underwriters and claims adjusting firms. No person receiving HIV test information shall transmit information further, and each person shall maintain strict confidentiality.

d. To the extent that they are otherwise entitled to access to the insurer's files, government agencies may be permitted access to files containing HIV test information: Provided that confidentiality is maintained and the HIV test information is not shared with other persons.

5.8. Upon written request by the individual undergoing the test the insurer must provide within 30 days, a written list of all persons or entities to whom test information has been released or caused to be released by the insurer.

5.9. The testing is required to be administered on a nondiscriminatory basis for all individuals in the same underwriting class. No proposed insured may be denied coverage or rated a substandard risk on the basis of HIV testing unless acceptable testing protocol is followed including the use of FDA-licensed tests.

5.10. If any confirmatory test produces a negative result, the testing ceases and the proposed insured cannot be denied coverage based on AIDS-related testing.

5.11. News of a positive test result could result in serious emotional trauma to the proposed insured. For this reason, it is recommended that the insurer recommend to the proposed insured that positive results be communicated to the proposed insured face to face by a qualified health care professional who could provide AIDS counseling.

W. Va. Code R. § 114-27-5