1209 Life and Health Submissions Regarding Acquired Immunodeficiency Syndrome (AIDS) [Formerly Regulation 56]
This regulation is promulgated in accordance with 18 Del.C. §§311 and 2714 and 29 Del.C. Ch. 101.
The purpose of this regulation is to establish guidelines to prevent discrimination against prospective insureds by life and health insurers when phrasing policy questions or requiring tests relating to Acquired Immunodeficiency Syndrome (“AIDS”) or Human Immunodeficiency Virus (“HIV”).
3.0 Testing and Filings Allowed
3.1 Whenever an applicant 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 applicant and his or her written consent obtained. The administration of the test must meet the test protocol as established by the Delaware Division of Public Health. (Attachment 1) The results of testing must be maintained in confidentiality between the insured and insurer. The insurer may ask the applicant to designate whether the applicant wants the results forwarded to (1) applicant only, (2) applicant’s personal physician, (3) other (list) or (4) no one.
3.2 Insurers are permitted to ask diagnostic questions. The Department will permit diagnostic questions such as, but not limited to, the following examples:
3.2.1 “Have you ever been treated for or diagnosed as having Acquired Immunodeficiency Syndrome (AIDS) or Human Immunodeficiency Virus (“HIV”)?
3.2.2 “Have you ever been told you have Acquired Immunodeficiency Syndrome (AIDS) or Human Immunodeficiency Virus (HIV)?“
Insurers are also permitted to ask predictive questions (i.e., have you tested positive on an AIDS-related blood test) but only if predictive questions are asked by the insurer pertaining to other major life threatening diseases.
Questions which are vague, subjective, unfairly discriminatory, overly technical or ask for the applicant’s opinion are prohibited.
3.3 Any underwriting use of AIDS-related test information or results, whether acquired by questioning the applicant or by tests administered in accordance with this Regulation, must be strictly limited to the test’s predictive value, and used in a balanced way relative to predictive information relating to other life threatening diseases.
3.4 The Commissioner will disapprove a policy form filing which he determines violates the standards set forth in sections 3.1, 3.2, and 3.3.
Willful disregard of Delaware Insurance Law may subject an insurer to all administrative remedies provided in accordance with 18 Del.C. §§106 and 334.
4.0 Effective Date
This regulation shall become effective February 1, 1998.
(ATTACHMENT NO. 1)
Test Protocol As Established By The Delaware Department Of Public Health
A medically significant and sufficiently reliable test or series of tests for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV includes one of more of the following.
3 DE Reg. 288 (8/1/99)
a. A single specimen which is repeatedly reactive using any Food and Drug Administration (FDA) licensed enzyme immunoassay (EIA) HIV antibody test and confirmed positive using an FDA licensed HIV antibody confirmatory test (e.g., Western blot, immunofluorescence assay).
b. A single specimen which is repeatedly reactive using an FDA licensed HIV antigen test and an FDA licensed EIA HIV antibody test. Specimens which are repeatedly reactive to an FDA licensed HIV antigen test shall be confirmed through a neutraliza-tion assay. Specimens which are repeatedly reactive to an FDA licensed EIA HIV antibody test shall be tested with an FDA licensed HIV antibody confirmatory test.
c. A single specimen which is tested for the presence of HIV using a molecular amplification method for the detection of HIV nucleic acids (e.g., polymerase chain reaction, RNA viral load) consistent with the National Committee for Clinical Laboratory Standards.
d. A single specimen which is tested for the presence of HIV using viral culture methods.