Insurance 1100

CHAPTER Ins 1100 CONFIDENTIALITY OF HIV TESTS

Statutory Authority: RSA 400-A:15, RSA 417:4, XIX (f)

PART Ins 1101 PURPOSE AND SCOPE

Ins 1101.01 Purpose. The purpose of this chapter is to establish rules whereby all human immunodeficiency virus test results and records pertaining to such test results are maintained as confidential and be protected against inadvertent or unwarranted intrusion. This chapter also gives effect to the charge given the insurance commissioner by RSA 417:4, XIX(f), which is to adopt rules relative to recordkeeping designed to maintain the confidentiality of an individual tested by an insurer or other person subject to this part and to prescribe rules relative to access to such records and the conditions of such access.

Source. #4583, eff 1-24-89; ss by #5650, eff 7-1-93; ss by #6953, eff 3-1-99, ss by #8826, eff 3-1-07, EXPIRED: 3-1-15

New. #10866, eff 7-1-15; ss by #14512, eff 2-7-26, EXPIRES: 2-7-36

Ins 1101.02 Scope. This chapter shall apply to all insurers, their producers, and any other person engaged in the business of insurance in this state who requires an individual applying for insurance or for any increased or additional insurance benefits to be tested for an antibody or antigen to a human immunodeficiency virus.

Source. #4583, eff 1-24-89; ss by #5650, eff 7-1-93; ss by #6953, eff 3-1-99, ss by #8826, eff 3-1-07, EXPIRED: 3-1-15

New. #10866, eff 7-1-15; ss by #14512, eff 2-7-26, EXPIRES: 2-7-36

PART Ins 1102 DEFINITIONS

Ins 1102.01 Definitions.

(a) "Antibody" means a protein produced by the body in response to specific foreign substances such as bacteria or viruses.

(b) "Antigen" means a substance that stimulates the production of antibodies.

(c) "Human immunodeficiency virus" (HIV) means the virus, or its variants, which are the causative agents of acquired immune deficiency syndrome (AIDS), AIDS related conditions (ARC), and other clinical manifestations.

(d) "Insurer" means any person as defined in RSA 417:2, I included in or subject to Title XXXVII of the New Hampshire Revised Statutes Annotated. The term includes any health service corporation, and any health maintenance organization, as well as the producers of any insurer, health service corporation, or health maintenance organization.

(e) “Medical Information Bureau (MIB)” means a membership association of insurance companies, or any similar entity, which acts as a clearinghouse for confidential data on insurance applicants.

(f) “Positive test result” means the presence in an individual, as detected by laboratory testing, of an antibody or antigen to the human immunodeficiency virus.

Source. #6953, eff 3-1-99 (formerly Ins 1101.03), ss by #8826, eff 3-1-07, EXPIRED: 3-1-15

New. #10866, eff 7-1-15; ss by #14512, eff 2-7-26, EXPIRES: 2-7-36

PART Ins 1103 MAINTAINING THE CONFIDENTIALITY OF AND PROTECTING THE PRIVACY OF HUMAN IMMUNODEFICIENCY VIRUS TEST RESULTS

Ins 1103.01 Informed Consent and Forms Pertaining Thereto.

(a) No insurer shall test any individual in connection with an application for insurance or for any increased or additional benefits for the presence of an antibody or antigen to a human immunodeficiency virus unless such individual gives written consent on a form created by the commissioner of health and human services and approved by the insurance commissioner pursuant to RSA 417:4, XIX(a).

(b) Insurers shall use the approved “HIV Antibody Testing Consent Form” the requirements of which are found in (d) below and is attached hereto as Appendix A when requesting receipt of an applicant’s HIV Antibody test results as part of the insurance application process.

(c) Insurers shall not use any form to obtain the consent required by (a), above, other than one that meets the requirements of (d), below.

(d) Insurers may add their own name, address, logo, and form number to the consent form, but the form shall include the following text and signatures exactly as they appear below:

“HIV Antibody Testing Consent Form

The insurance company to which you have applied may request a blood, urine or oral fluid sample from you for testing. One test will be to detect the presence of antibodies to the Human Immunodeficency Virus (HIV). HIV is the virus which causes Acquired Immune Deficiency Syndrome (AIDS). The New Hampshire Unfair Insurance Trade Practices Act (RSA 417) provides for an insurance company to test for the presence of an antibody or antigen to HIV only upon your written consent. The results of this test may determine your eligibility to acquire insurance. By signing this form you have consented to the HIV test and the reporting of the test results to the insurance company taking your application. Positive test results will not be disclosed except as authorized by you in writing. Negative and indeterminate (inconclusive) test results may be disclosed to reinsurers, contractually retained medical personnel and insurance affiliates or subsidiaries that are involved in necessary underwriting decisions regarding your application. The insurance company and any other party receiving the negative or indeterminate tests results will maintain the results of your HIV antibody test as confidential.

If your test results indicate the presence of antibodies to HIV or if your test results cannot be accurately determined, the insurance company will report a “nonspecific abnormality” to the Medical Information Bureau or any similar entity, if the insurance company reports these test results to third parties. The Medical Information Bureau contains the names and computerized medical records of insurance applicants nationally. The report will not identify you as having an abnormal HIV antibody test because many abnormalities are reported to the Bureau under the same classification.

The HIV antibody test is extremely accurate. However, in rare instances the test may be positive in persons who are not infected with the virus. Additionally, the test may occasionally be negative in persons who are infected with HIV (a false negative). If your HIV antibody test is positive, it does not mean that you have AIDS. A positive test indicates that you have been infected with HIV. It also means that HIV is present in your body fluids (such as blood, semen, vaginal secretions) and that you could infect other people through sexual contact, by sharing intravenous needles, by having a baby, or by donating blood, semen or body organs. Persons who have a positive HIV antibody test should see a physician as soon as possible. A negative test result indicates that no antibodies to the HIV virus were found. Absence of HIV antibodies does not mean that you have not been infected with the virus. Nor does absence of HIV antibodies mean that you are immune to the virus.

Public health authorities urge that everyone become educated about how to protect themselves from HIV infection. If you have questions, please consult your own physician or contact the Centers for Disease Control and Prevention at 1-800-232-4636 or visit their website at http://www.cdc.gov/hiv/default.html/.

The insurance company will notify you if your test results are positive or if your results cannot be accurately determined. At your request, the company will also send your results to a physician or other person. You should request that your results be sent to your private physician so that he/she can interpret them for you. In the event of a positive or indeterminate test result, I authorize disclosure to the following physician or other person or entity:

_____________________________________________________________________________________

Name of Physician or other person/entity

_____________________________________________________________________________________

Street Address

_____________________________________________________________________________________

City State ZIP

Informed Consent

I have read and understand this information. I voluntarily consent to provide a sample of my blood, urine or oral fluid, the testing of that blood, urine or oral fluid and the disclosure of the test results as described above.

_________________________________________________ ______________________________

Proposed Insured Date of birth

___________________________________ ____________ ______________________________

Signature of Proposed Insured Date Signed State of Residence

_____________________________________________________________________________________

Signature of Witness”

Source. #6953, eff 3-1-99 (formerly Ins 1101.04); ss by #8826, eff 3-1-07, EXPIRED: 3-1-15

New. #10866, eff 7-1-15; amd by #12411, eff 10-27-17; ss by #14512, eff 2-7-26, EXPIRES: 2-7-36

Ins 1103.02 Confidentiality and Disclosure of Test Results.

(a) All information in the possession of or available to an insurer regarding the results of any test for the human immunodeficiency virus shall be maintained as confidential information and shall be protected against inadvertent or unwarranted intrusion. The insurer shall take all necessary measures to maintain and assure the confidentiality and privacy of an individual applicant's test results.

(b) Insurers shall establish written policies and procedures to govern the internal dissemination of test results among their officers, employees, and producers. These policies and procedures shall be designed to assure compliance with the duties imposed by (a) above. Such policies and procedures shall also be designed to assure that only those officers, employees, or producers of the company whose official duties establish a definite, operational need for information regarding test results shall have access to such information.

(c) With respect to positive test results, each insurer's policies and procedures established in order to comply with (b) above shall:

(1) State that laboratory reports shall be routinely received from the laboratory only by the company physician(s), designated underwriting executive(s), or both retained or employed by the company;

(2) State that the company physician(s), designated underwriting executives(s), or both that were authorized to initially receive the report shall designate who shall see each report on a strict "need-to-know" basis;

(3) State that each referral of a file shall be documented;

(4) Be distributed to all persons with access to positive test results:

a. Upon adoption of the policy; and

b. If an employee is hired after the date of adoption, at the time such employee is hired; and

(5) Contain a statement about specific penalties to be enforced for willful or negligent abuse of its requirements.

(d) Each insurer currently engaged in the business of life insurance or health insurance shall submit a copy of its written policies and procedures designed to safeguard the confidentiality of human immunodeficiency virus test results to the insurance commissioner for review. Filings shall be made each time the insurer makes a change to such policies or procedures. Insurers authorized to do life or health insurance business but who are not currently engaged in either shall submit a statement to that effect.

(e) An insurer may disclose any test result, other than a positive test result, to its reinsurers, contractually retained medical personnel, laboratories, and insurance affiliates. However, such disclosure shall only be made if, and to the extent that, it is necessary to the making of underwriting decisions regarding the particular individual's application. Under no circumstances shall any such disclosure be made to the producers of the insurer.

(f) The insurer shall not submit positive test results to the MIB in any way that would identify a particular individual applicant as having had a positive test result for the human immunodeficiency virus. If an individual has a positive test result, the insurer may disclose to the MIB that the individual had an abnormal laboratory test, but shall not disclose the type of test, which was abnormal.

(g) Each insurer shall maintain data enabling it to report the number of New Hampshire applicants for insurance tested for antibodies or antigens to the human immunodeficiency virus and the number of such applicants denied insurance as a result of such test results. This information shall be made available to the insurance commissioner upon request.

(h) In the event of a positive test result, an insurer shall disclose the positive test result only to the individual tested or to such other person or entity as authorized in the approved consent form by the individual tested.

(i) Disclosure to the individual tested shall include the following language prominently displayed:

“A positive test result means that HIV is present in your body fluids (such as blood, semen, vaginal secretions) and that you could infect other people through sexual contact, by sharing intravenous needles, by having a baby, or by donating blood, semen or body organs. Persons who have a positive HIV antibody test should see a physician as soon as possible and refrain from close personal contact with other persons.”

(j) Test result information obtained by subpoena or any other method of discovery shall not be released or made public outside of the proceedings for which the information was obtained.

Source. #6953, eff 3-1-99 (formerly Ins 1101.05); ss by #8826, eff 3-1-07, EXPIRED: 3-1-15

New. #10866, eff 7-1-15; ss by #14512, eff 2-7-26, EXPIRES: 2-7-36

Ins 1103.03 Penalties. Any insurer, producer, or any other person violating any of the provisions of this chapter shall be subject to the penalties provided in RSA 400-A:15, III.

Source. #6953, eff 3-1-99 (formerly Ins 1101.07); ss by #8826, eff 3-1-07, EXPIRED: 3-1-15

New. #10866, eff 7-1-15; ss by #14512, eff 2-7-26, EXPIRES: 2-7-36

Ins 1103.04 Disclosure to the Department of Health and Human Services. Nothing in this chapter shall be construed to prohibit physicians, laboratory officials, hospital officials, or other health providers from reporting laboratory test results or other medical information on persons diagnosed with HIV and AIDS infection to the New Hampshire department of health and human services as provided under RSA 141-C:7.

Source. #6953, eff 3-1-99 (formerly Ins 1101.06); ss by #8826, eff 3-1-07, EXPIRED: 3-1-15

New. #10866, eff 7-1-15; ss by #14512, eff 2-7-26, EXPIRES: 2-7-36

APPENDIX A

State of New Hampshire Insurance Department

21 South Fruit Street, Suite 14

Concord, NH 03301

HIV Antibody Testing Consent Form

_____________________________________________________________________________________

Name of Physician or other person/entity

_____________________________________________________________________________________

Street Address

_____________________________________________________________________________________

City State ZIP

Informed Consent

___________________________________________________ ____________________________

Proposed Insured Date of birth

___________________________________ ______________ ____________________________

Signature of Proposed Insured Date Signed State of Residence

_____________________________________________________________________________________

Signature of Witness

APPENDIX B

Rule	Statute
Ins 1101.01	RSA 400-A:15, I; RSA 417:4, XIX
Ins 1101.02	RSA 400-A:15, I; RSA 417:4, XIX
Ins 1102.01	RSA 400-A:15, I; RSA 417:2, I; RSA 417:4, XIX
Ins 1103.01	RSA 400-A:15, I; RSA 417:4, XIX
Ins 1103.02	RSA 400-A:15, I; RSA 417:4, XIX
Ins 1103.03	RSA 400-A;15, I; RSA 417:4, XIX
Ins 1103.04	RSA 400-A:15, I; RSA 417:4, XIX