CHAPTER 176

FORMERLY

HOUSE BILL NO. 38

AS AMENDED BY

HOUSE AMENDMENT NO. 1 AND

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 18 OF THE DELAWARE CODE RELATING TO INSURANCE AND CREATING THE HIV TESTING FOR INSURANCE ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 18 of the Delaware Code by adding a new chapter to read as follows:

"Chapter 73. The HIV Testing for Insurance Act

§ 7301. Title. This Chapter may be cited as the 'HIV Testing For Insurance Act.'

§ 7302. Definitions. For the purpose of this Chapter, the following definitions apply:

(1) 'Applicant' means the individual proposed for insurance coverage.

(2) 'HIV' means the human immunodeficiency virus or any other identified causative agent of acquired immune deficiency syndrome (AIDS).

(3) 'HIV test' means an enzyme-linked immunosorbent assay (ELISA) to determine the presence of antibodies to the human immunodeficiency virus (HIV) or such other test as may be approved by the Department of Health and Social Services; in the event of a positive or indeterminate result, the Western Blot Assay or an equivalent or more reliable confirmatory test shall also be administered prior to notification of the test result.

(4) 'Insurer' means any individual, corporation, association, partnership, fraternal benefit society, or any other entity engaged in the insurance underwriting business, except insurance agents and brokers. This term shall also include medical service plans and hospital plans and health

maintenance organizations and health service corporations which shall be designated as engaged in the business of insurance for the purpose of this Chapter.

(5) 'Informed consent' means a voluntary agreement of consent of HIV testing executed by the subject of the test or the subject's legal guardian. Information provided prior to consent shall be provided in such a manner as to be understood by the subject of the test, and shall fully describe:

(a) the test procedures generally;

(b) the implications of the test results;

(c) how the test results will be used;

(d) with whom the test results shall be shared;

(e) the methods of transmission and methods of prevention of HIV infection; (0 the medically accepted degree of reliability of the testing procedures;

(g) the opportunity of medical treatment for HIV infection and any related infections if diagnosed;

(h) the presumption that a person who is infected with HIV is infected for life; and

(i) the responsibility of an infected person not to knowingly infect others. § 7303. Insurer requirements; informed consent; use of results; information.

(a) No insurer shall request or require that an applicant submit to an HIV test unless the insurer first:

(1) Obtains the applicant's prior written informed consent;

(2) Reveals to the applicant the use to which the HIV test results may be put and entities to whom test results may be disclosed pursuant to Sections 7304 and 7405 of this Chapter; and

(3) Provides the applicant with written information approved by the Department of Health and Social Services, such as the brochure "HIV and AIDS" published by the American Red Cross, or its successor, or a similar brochure.

(b) An applicant may ask the person conducting the medical examination and testing on behalf of the insurer any questions the applicant may have regarding the HIV test and the informed consent. Such person shall either answer the questions to the extent of the person's knowledge or inform the applicant that prior to undergoing medical examination and testing, the applicant may wish to consult a physician or other knowledgeable health care professional, at the applicant's expense, if any.

(c) No positive ELISA test result may be used for any purpose unless it has been

confirmed by a Western Blot Assay or an equivalent or more accurate confirmatory test.

§ 7304. Disclosure Limitations.

(a) In addition to the disclosure provided for in Section 7305 of this Chapter, or Subsection (b) of this Section, on the basis of the applicant's written informed consent as specified in Section 7303 of this Chapter, an insurer may also disclose an applicant's HIV test result to its reinsurers or to those contractually retained medical personnel and insurance affiliates, excluding agents and brokers, which are involved in underwriting or claims decisions regarding the individual's application, provided disclosure is necessary to make underwriting or claims decisions regarding such application.

(b) An insurer may report a confirmed positive HIV test result to a medical information exchange agency, such as the Medical Information Bureau, provided that:

(I) the informed consent form clearly explains that such disclosure may be made;

and

(2)(i) the results are reported in a manner that only identifies that the applicant has had an abnormal blood test result; or

(ii) the results are reported in a manner that utilizes a neutral identifier to keep the identity of the individual confidential and anonymous to such agency.

(c) Insurers shall maintain strict confidentiality regarding HIV test results. Information regarding HIV test results may not be disclosed outside the insurer except as provided for in this Section and in Section 7305 of this Chapter.

§7305, Notification.

An insurer who fails to issue a policy an applicant due to the results of HIV testing shall notify the applicant in writing of an adverse underwriting decision based upon the results of such applicant's medical examination and testing but shall not disclose the specific results of such medical examination and testing to the applicant. The insurer shall also inform the applicant that the results of the medical examination and testing will be sent to the physician designated by the applicant at the time of application and that such physician should be contacted for information regarding the applicant's medical examination and testing. If a physician was not designated at the time of application, the insurer shall request that the applicant name a physician to whom a copy of the results of the medical examination and testing may be sent. In the event that an applicant fails to identify a physician despite the efforts of the insurer to have the applicant do so, the insurer shall convey to the Department of Health and Social Services information in the insurer's possession which may be necessary to locate and inform the applicant of the applicant's positive HIV test result. If a physician is named by the applicant, the insurer shall, at the time notification is made to the physician, inform the physician that if the applicant fails to contact the physician within 30 days of the notice, the physician shall convey to the Department of Health and Social Services information in the physician's possession which may be necessary to locate and inform the applicant of the applicant's positive HIV test result. The physician shall make such notification to the Department of Health and Social Services if the applicant fails to contact the physician within 30 days of the insurer's notice. AU reports made pursuant to this Chapter are confidential and protected from release and shall be used for the sole purpose of locating and informing the applicant of the applicant's positive HIV test result."

Section 2. Exclusivity Provision. It is the purpose and intent of this Chapter that it shall serve as the sole and exclusive standard by which insurers shall be permitted to test for HIV, and any other provisions of the Delaware Code presently imposing other or different duties on insurers in connection with testing for HIV are superseded by this Chapter.

Section 3. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 4. This Act shall take effect 90 days after its enactment.

Approved July 7, 1995