KRS 304.12-013: Prohibited unfair or deceptive practices in the writing of insurance.

(1) The purpose of this section is to prohibit unfair or deceptive practices in the

transaction of life and health insurance with respect to the human

immunodeficiency virus infection and related matters. This section applies to all life

and health insuran ce contracts which are delivered or issued for delivery in

Kentucky on or after July 13, 1990.

(2) This section shall not prohibit an insurer from contesting the validity of an

insurance contract or whether a claim is covered under an insurance contract to the

extent allowed by law.

(3) As used in this section:

(a) "Human immunodeficiency virus" (HIV) means the causative agent of

acquired immunodeficiency syndrome (AIDS) or any other type of

immunosuppression caused by the human immunodeficiency virus;

(b) "Insurance contract" means a contract issued by an insurer as defined in this

section; and

(c) "Insurer" means an insurer, a nonprofit hospital, medical -surgical, dental, and

health service corporation, a health maintenance organization, or a prepaid

dental plan organization.

(4) (a) In the underwriting of an insurance contract regarding human

immunodeficiency virus infection and health conditions derived from such

infection, the insurer shall utilize medical tests which are reliable predictors of

risk. Only a test which is recommended by the Centers for Disease Control or

by the Food and Drug Administration is deemed to be reliable for the purposes

of this section. If a specific Centers for Disease Control or Food and Drug

Administration-recommended test in dicates the existence or possible

existence of human immunodeficiency virus infection or a health condition

related to the human immunodeficiency virus infection, before relying on a

single test to deny issuance of an insurance contract, limit coverage und er an

insurance contract, or to establish the premium for an insurance contract, the

insurer shall follow the applicable Centers for Disease Control or Food and

Drug Administration -recommended test protocol and shall utilize any

applicable Centers for Dise ase Control or Food and Drug Administration -

recommended follow-up tests or series of tests to confirm the indication.

(b) Prior to testing, the insurer shall disclose in writing its intent to test the

applicant for the human immunodeficiency virus infectio n or for a specific

health condition derived therefrom and shall obtain the applicant's written

informed consent to administer the test. Written informed consent shall

include a fair explanation of the test, including its purpose, potential uses and

limitations, the meaning of its results, and the right to confidential treatment

of information. Use of a form prescribed by the department shall raise a

conclusive presumption of informed consent.

(c) An applicant shall be notified of a positive test result by a physician

designated by the applicant, or, in the absence of such designation, by the

Cabinet for Health and Family Services. The notification shall include:

1. Face-to-face post-test counseling on the meaning of the test results, the

possible need for a dditional testing, and the need to eliminate behavior

which might spread the disease to others;

2. The availability in the geographic area of any appropriate health -care

services, including mental health care, and appropriate social and

support services;

3. The benefits of locating and counseling any person by whom the

infected person may have been exposed to human immunodeficiency

virus and any person whom the infected person may have exposed to the

virus; and

4. The availability, if any, of the services of public health authorities with

respect to locating and counseling any person described in subparagraph

3. of this paragraph.

(d) A medical test for human immunodeficiency virus infection or for a health

condition derived from the infection shall only be required or given to an

applicant for an insurance contract on the basis of the applicant's health

condition or health history, on the basis of the amount of insurance applied

for, or if the test is required of all applicants.

(e) An insurer may ask wheth er an applicant for an insurance contract has been

tested positive for human immunodeficiency virus infection or other health

conditions derived from such infection. Insurers shall not inquire whether the

applicant has been tested for or has received a neg ative result from a specific

test for human immunodeficiency virus infection or for a health condition

derived from such infection.

(f) Insurers shall maintain strict confidentiality of the results of tests for human

immunodeficiency virus infection or a s pecific health condition derived from

human immunodeficiency virus infection. Information regarding specific test

results shall be disclosed only as required by law or pursuant to a written

request or authorization by the applicant. Insurers may disclose r esults

pursuant to a specific written request only to the following persons:

1. The applicant;

2. A licensed physician or other person designated by the applicant;

3. An insurance medical -information exchange under procedures that are

used to assure confid entiality, such as the use of general codes that also

cover results of tests for other diseases or conditions not related to

human immunodeficiency virus infection;

4. For the preparation of statistical reports that do not disclose the identity

of any particular applicant;

5. Reinsurers, contractually retained medical personnel, and insurer

affiliates if these entities are involved solely in the underwriting process

and under procedures that are designed to assure confidentiality;

6. To insurer personnel wh o have the responsibility to make underwriting

decisions; and

7. To outside legal counsel who needs the information to represent the

insurer effectively in regard to matters concerning the applicant.

(g) Insurers shall use for the processing of human immunodeficiency virus-related

tests only those laboratories that are certified by the United States Department

of Health and Human Services under the Clinical Laboratory Improvement

Act of 1967, which permit testing of specimens in interstate commerce, and

which subject themselves to ongoing proficiency testing by the College of

American Pathologists, the American Association of Bioanalysts, or an

equivalent program approved by the Centers for Disease Control.

(5) (a) An insurance contract shall not exclude cov erage for human

immunodeficiency virus infection. An insurance contract shall not contain

benefit provisions, terms, or conditions which apply to human

immunodeficiency virus infection in a different manner than those which

apply to any other health condit ion. Insurance contracts which violate this

paragraph shall be disapproved by the commissioner pursuant to KRS 304.14 -

130(1)(a), 304.32-160, and 304.38-050.

(b) A health insurance contract shall not be canceled or nonrenewed solely

because a person or pers ons covered by the contract has been diagnosed as

having or has been treated for human immunodeficiency virus infection.

(c) Sexual orientation shall not be used in the underwriting process or in the

determination of which applicants shall be tested for ex posure to the human

immunodeficiency virus infection. Neither the marital status, the living

arrangements, the occupation, the gender, the beneficiary designation, nor the

zip code or other territorial classification of an applicant's sexual orientation.

(d) This subsection does not prohibit the issuance of accident only or specified

disease insurance contracts.