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 shall be maintained as confidential and
be protected against inadvertent or unwarranted intrusion. This chapter shall
also give effect to the charge given the insurance commissioner by RSA 417:4,
XIX (f), which is to adopt rules relative to recordkeeping which rules shall be
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
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, in connection with an application for
insurance, require 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
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 entity 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
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 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
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) and/or
designated underwriting executive(s) retained or employed by the company;
(2) State that the company physician(s) and/or
designated underwriting executives(s) 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/or 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
(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
Ins 1103.03 Penalties. Any insurer, producer or any other
person violating any of the provisions of this rule 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
Ins 1103.04 Disclosure
to the Department of Health and Human Services. Nothing in this rule 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
APPENDIX
A
State
of New Hampshire Insurance Department
21
South Fruit Street, Suite 14
Concord,
NH 03301
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
APPENDIX B
|
Rule |
Statute |
|
|
|
|
Ins 1101.01 |
RSA 400-A:15, |
|
Ins 1101.02 |
RSA 400-A:15, |
|
|
|
|
Ins 1102.01 |
RSA 400-A:15, |
|
|
|
|
Ins 1103.01 |
RSA 400-A:15, |
|
Ins 1103.02 |
RSA 400-A:15, |
|
Ins 1103.03 |
RSA 400-A;15, |
|
Ins 1103.04 |
RSA 400-A:15, |