Section Ins 3.53 - HIV testing(1) FINDINGS. The tests listed in sub. (4) (e) have been specified by the state epidemiologist in part B (4) of a report entitled "Validated positive, medically significant and sufficiently reliable tests to detect the presence of human immunodeficiency virus (HIV), antigen or nonantigenic products of HIV or an antibody to HIV," dated January 24, 1997. The commissioner of insurance, therefore, finds that these tests are sufficiently reliable for use in underwriting individual life, accident and health insurance policies.(2)PURPOSES. The purposes of this section are:(a) To implement s. 631.90(3) (a), Stats.(b) To establish procedures for insurers to use in obtaining informed consent for HIV testing and informing individuals of the results of a positive HIV test.(c) To ensure the confidentiality of HIV test results.(d) To restrict the use of certain information on HIV testing in underwriting group life, accident and health insurance policies.(3)DEFINITIONS. In this section: (a) "AIDS" means acquired immunodeficiency syndrome.(b) "AIDS service organization" means a state designated organization in this state that provides AIDS prevention and education services to the general public and offers direct care and support services to persons with HIV and AIDS at no cost.(c) "Health care provider" has the meaning given under s. 146.81(1), Stats.(d) "HIV" has the meaning given under s. 631.90(1), Stats.(e) "Medical information bureau, inc." means the nonprofit Delaware incorporated trade association, the members of which are life insurance companies, that operates an information exchange on behalf of its members.(f) "State epidemiologist" has the meaning given under s. 252.01(6), Stats.(g) "Wisconsin AIDSline" means the state designated statewide AIDS information and medical referral service.(4)TESTING; USE; PROHIBITIONS. (a) For use in underwriting an individual life, accident or health insurance policy, an insurer may require that the person to be insured be tested, at the insurer's expense, for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.(b) An insurer that requires a test under par. (a) shall, prior to testing, obtain a signed consent form, in substantially the format specified in Appendix A, either from the person to be tested or from one of the following if the specified condition exists: 1. The person's parent or guardian, if the person is under 14 years of age.2. The person's guardian, if the person is adjudged incompetent under ch. 54, Stats.3. The person's health care agent, as defined in s. 155.01(4), Stats., if the person has been found to be incapacitated under s. 155.05(2), Stats.(c) The insurer shall provide a copy of the consent form to the person who signed it and shall maintain a copy of each consent form for at least one year.(d) The insurer shall provide with the consent form a copy of the document, "Resources for persons with a positive HIV test/The implications of testing positive for HIV." Each insurer shall either obtain copies of the document from the office of the commissioner of insurance or reproduce the document itself. If the document is revised, the insurer shall begin using the revised version no later than 30 days after receiving notice of the revision from the office of the commissioner of insurance. Note: The document referred to in this paragraph is form number OCI 17-001. It may be obtained from the Office of the Commissioner of Insurance, P.O. Box 7873, Madison, Wisconsin 53707-7873.
(e) Tests may be used under par. (a) only if the tests meet the following criteria: 1. 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.2. A single specimen which is repeatedly reactive using any FDA licensed HIV antigen test and an FDA licensed EIA HIV antibody test. A specimen which is repeatedly reactive to an FDA licensed HIV antigen test shall be confirmed through a neutralization assay. A specimen which is repeatedly reactive to an FDA licensed EIA HIV antibody test shall be tested with an FDA licensed HIV antibody confirmatory test.3. A single specimen which is tested for the presence of HIV using a molecular amplification method for the detection of HIV nucleic acids consistent with national committee for clinical laboratory standards.4. A single specimen which is tested for the presence of HIV using viral culture methods.(f) A test under par. (e) shall be performed by a laboratory which meets the requirements of the federal health care financing administration under the clinical laboratory improvement amendments act of 1988.(g)1. An insurer that uses an application asking whether the person to be insured has been tested for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV may ask only whether the person has been tested using one or more of the tests specified in par. (e).2. Notwithstanding subd. 1., the insurer may not require or request the disclosure of any information as to whether the person to be insured has been tested at an anonymous counseling and testing site designated by the state epidemiologist or at a similar facility in another jurisdiction or through the use of an anonymous home test kit, or to reveal the results of such a test.(5)POSITIVE TEST RESULT; INSURER'S OBLIGATION. (a) If a test under sub. (4) (e) is positive and, in the normal course of underwriting, affects the issuance or terms of the policy, the insurer shall provide written notice to the person who signed the consent form that the person tested does not meet the insurer's usual underwriting criteria because of a test result. The insurer shall request that the person provide informed consent for disclosure of the test result to a health care provider with whom the person wants to discuss the test result.(b) If informed consent for disclosure is obtained, the insurer shall provide the designated health care provider with the test result. If the person refuses to give informed consent for disclosure, the insurer shall, upon the person's request, provide the person who signed the consent form with the test result. The insurer shall include with the report of the test result all of the following: 1. A statement that the person should contact a private health care provider, a public health clinic, an AIDS service organization or the Wisconsin AIDSline for additional medical evaluation or referral for such services.2. The toll-free telephone number of the Wisconsin AIDSline.3. A copy of the document specified in sub. (4) (d).(6)CONFIDENTIALITY OF TEST RESULTS. An insurer that requires a person to be tested under sub. (4) (a) may disclose the test result only as described in the consent form obtained under sub. (4) (b) or with written consent for disclosure signed by the person tested or a person specified in sub. (4) (b) 1. to 3.(7)GROUP POLICIES; ADDITIONAL PROHIBITION. In underwriting group life, accident or health insurance on an individual basis, in addition to the restrictions specified in s. 631.90(2), Stats., an insurer may not use or obtain from any source, including the medical information bureau, inc., any of the following: (a) The results of a person's test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.(b) Any other information on whether the person has been tested for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.Wis. Admin. Code Office of the Commissioner of Insurance Ins 3.53
Cr. Register, May, 1987, No. 377, eff. 6-1-87; r. and recr. Register, April, 1991, No. 424, eff. 5-1-91; am. (1), (3) (b) and (5) (b) 1., r. (3) (c), (d) and (4) (f), renum. (3) (e) to (i) and (4) (g) and (h) to be (3) (c) to (g) and (4) (f) and (g) and am. (3) (f) and (g), (4) (f) and (g), r. and recr. (4) (e), Register, May, 1998, No. 509, eff. 6-1-98; correction in (4) (b) 2. made under s. 13.92(4) (b) 7, Stats., Register October 2008 No. 634.