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Insurance Code - INS

DIVISION 1. GENERAL RULES GOVERNING INSURANCE [100 - 1879.8]

  ( Division 1 enacted by Stats. 1935, Ch. 145. )

PART 2. THE BUSINESS OF INSURANCE [680 - 1879.8]

  ( Part 2 enacted by Stats. 1935, Ch. 145. )

CHAPTER 1. General Regulations [680 - 1113]

  ( Chapter 1 enacted by Stats. 1935, Ch. 145. )

ARTICLE 6.9. Underwriting of AIDS Risks [799 - 799.10]
  ( Article 6.9 added by Stats. 1988, Ch. 1279, Sec. 1. )

799.
  

The purposes of this article are to establish standards for the performance by life and disability income insurers of their duty to avoid making or permitting unfair distinctions between individuals of the same class in the underwriting of life or disability income insurance for the risks of acquired immune deficiency syndrome (AIDS) and AIDS-related conditions (ARC); to establish mandatory and uniform minimum standards for assessing AIDS and ARC risks for determining insurability which are deemed to be sufficiently reliable to be used for life and disability income insurance risk classification and underwriting purposes; to require the maintenance of strict confidentiality of personal information obtained through testing; and to require informed consent before any insurer tests for HIV.

(Added by Stats. 1988, Ch. 1279, Sec. 1.)

799.01.
  

As used in this article:

(a) “ELISA” test means an enzyme-linked immunosorbent assay serologic test which has been licensed by the federal Food and Drug Administration to detect antibodies to the human immunodeficiency virus.

(b) “Positive ELISA test” means an ELISA test performed in accordance with the manufacturer’s specifications which is reactive on an initial testing and on at least one of two additional tests of the same specimen.

(c) “Western Blot Assay” means an assay which uses reagents consisting of HIV antigens separated by polyacrylamide-gel electrophoresis and then transferred to nitro-cellulose paper to detect antibodies to the human immunodeficiency virus.

(d) “Reactive Western Blot Assay” means a Western Blot Assay which is reactive according to the standards of performance and results specified in the manufacturer’s federal Food and Drug Administration approved product circular for the Western Blot Assay reagents and laboratory apparatus.

(e) “HIV antibody test” means an ELISA test or a Western Blot Assay, or both.

(f) “Life or disability income insurer” means an insurer licensed to transact life insurance or disability insurance in this state or a fraternal benefit society licensed in this state.

(g) “Certificate” means a certificate of group life insurance or group disability income insurance delivered in this state, regardless of the situs of the group master policy.

(h) “Policy” means an individual life insurance policy or individual disability income insurance policy delivered in this state or a certificate of life insurance benefits or disability income insurance benefits delivered in this state by a fraternal benefit society.

(i) “Disability income insurance” means insurance against loss of occupational earning capacity arising from injury, sickness, or disablement.

(Amended by Stats. 1997, Ch. 496, Sec. 1. Effective January 1, 1998.)

799.02.
  

Notwithstanding subdivision (f) of Section 120980 of the Health and Safety Code or any other provisions of law, a life or disability income insurer may decline a life or disability income insurance application or enrollment request on the basis of a positive ELISA test followed by a positive Western Blot Assay performed by or at the direction of the insurer on the same specimen of the applicant.

This authorization applies only to policies, certificates, and applications for coverage (a) that are issued, delivered, or received on or after the effective date of the urgency statute amending this section enacted during the 1989 portion of the 1989–90 Regular Session and (b) the issuance or granting of which is otherwise contingent upon medical review for other diseases or medical conditions to be effective.

This article shall not be construed to prohibit an insurer from declining an application or enrollment request for insurance because the applicant has been diagnosed as having AIDS or ARC by a medical professional.

(Amended by Stats. 1997, Ch. 496, Sec. 2. Effective January 1, 1998.)

799.03.
  

No insurer shall test for HIV or for the presence of antibodies to HIV for the purpose of determining insurability other than in accordance with the informed consent, counseling, and privacy protection provisions of this article and Article 6.6 (commencing with Section 791). Notwithstanding any other provision of law, this constitutes the exclusive requirements for counseling, informed consent, and privacy protection for that testing.

(a) An insurer that requests an applicant to take an HIV-related test shall obtain the applicant’s written informed consent for the test. Written informed consent shall include a description of the test to be performed, including its purpose, potential uses, and limitations, the meaning of its results, procedures for notifying the applicant of the results, and the right to confidential treatment of the results. Prior to the applicant’s execution of the consent, the insurer shall:

(1) Provide the applicant printed material describing HIV, its causes and symptoms, the manner in which it is spread, the test or tests used to detect HIV or the HIV antibody, and what a person can do whose test results are positive or negative.

(2) Provide the applicant a list of counseling resources available, where the applicant can obtain assistance in understanding the meaning of the test and its results. The list may be provided from publicly available information.

(b) The insurer shall notify an applicant of a positive test result by notifying the applicant’s designated physician. If the applicant tested has not given written consent authorizing a physician to receive the test results, the applicant shall be urged, at the time the applicant is informed of the positive test results, to contact a private physician, the county department of health, the State Department of Health Services, local medical societies, or alternative test sites for appropriate counseling.

(c) The commissioner shall develop and adopt standardized language for the informed consent disclosure form required by this section to be given to any applicant for life or disability income insurance who takes an HIV-related test.

(Amended by Stats. 1993, Ch. 1210, Sec. 4. Effective January 1, 1994.)

799.04.
  

A life or disability income insurer may not require an applicant to undergo an HIV antibody test unless the cost of the test is borne by the insurer.

(Added by Stats. 1988, Ch. 1279, Sec. 1.)

799.05.
  

No life or disability income insurer shall consider the marital status or known or suspected homosexuality or bisexuality of an applicant for life insurance or disability income insurance in determining whether to require an HIV antibody test of that applicant.

(Added by Stats. 1988, Ch. 1279, Sec. 1.)

799.06.
  

All underwriting activities undertaken by insurers pursuant to this article shall be subject to all applicable provisions of Article 6.6 (commencing with Section 791). On and after January 1, 1990, no application or enrollment request for life or disability income insurance shall contain a question pertaining to prior testing for HIV antibodies, unless the question is limited in scope to prior testing for the purpose of obtaining insurance.

(Amended by Stats. 1989, Ch. 824, Sec. 3. Effective September 26, 1989.)

799.07.
  

If an applicant has had a positive ELISA test result or a positive Western Blot Assay or both, a life or disability income insurer shall not report a code to an insurance support organization as defined in Section 791.02 or another insurer unless a nonspecific test result code is used which does not indicate that the individual was subject to testing related to the human immunodeficiency virus.

(Amended by Stats. 1997, Ch. 496, Sec. 3. Effective January 1, 1998.)

799.08.
  

No policy or certificate shall limit benefits otherwise payable if loss is caused or contributed to by AIDS or ARC unless the insurer could have declined the application or enrollment request of the insured as provided in Section 799.02.

(Added by Stats. 1988, Ch. 1279, Sec. 1.)

799.09.
  

No life or disability income insurer shall require an HIV antibody test if the results of the test would be used exclusively or nonexclusively for the purpose of determining eligibility for hospital, medical, or surgical insurance coverage or eligibility for coverage under a nonprofit hospital service plan or health care service plan.

(Amended by Stats. 1989, Ch. 824, Sec. 4. Effective September 26, 1989.)

799.10.
  

(a) This section shall apply to the disclosure of the results of HIV antibody tests requested by an insurer pursuant to this article and, notwithstanding the provisions of Section 120980 of the Health and Safety Code, Section 120980 of the Health and Safety Code does not apply to the disclosure of the results of HIV antibody tests conducted pursuant to this article.

(b) Any person who negligently discloses results of an HIV antibody test to any third party, in a manner that identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to a written authorization, as described in subdivision (g), or except as provided in this article or in Section 1603.1 or 1603.3 of the Health and Safety Code, shall be assessed a civil penalty in an amount not to exceed one thousand dollars ($1,000) plus court costs, as determined by the court, which penalty and costs shall be paid to the subject of the test.

(c) Any person who willfully discloses the results of an HIV antibody test to any third party, in a manner that identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to a written authorization, as described in subdivision (g), or except as provided in this article or in Section 1603.1 or 1603.3 of the Health and Safety Code, shall be assessed a civil penalty in an amount not less than one thousand dollars ($1,000) and not more than five thousand dollars ($5,000) plus court costs, as determined by the court, which penalty and costs shall be paid to the subject of the test.

(d) Any person who willfully or negligently discloses the results of an HIV antibody test to a third party, in a manner that identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to a written authorization, as described in subdivision (g), or except as provided in this article or in Section 1603.1 or 1603.3 of the Health and Safety Code, that results in economic, bodily, or psychological harm to the subject of the test, is guilty of a misdemeanor punishable by imprisonment in the county jail for a period not to exceed one year, by a fine of not to exceed ten thousand dollars ($10,000), or by both that fine and imprisonment.

(e) Any person who commits any act described in subdivision (b) or (c) shall be liable to the subject for all actual damages, including damages for economic, bodily, or psychological harm that is a proximate cause of the act.

(f) Each disclosure made in violation of this section is a separate and actionable offense.

(g) “Written authorization,” as used in this section, applies only to the disclosure of test results by a person responsible for the care and treatment of the person subject to the test. Written authorization is required for each separate disclosure of the test results, and shall include to whom the disclosure would be made.

(Amended by Stats. 1996, Ch. 1023, Sec. 375. Effective September 29, 1996.)

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