| (a) General propositions.
(1) No inquiry in an application for health or life
insurance coverage, or in an investigation conducted by or on behalf
of an insurer in connection with an application for such coverage,
may be directed toward determining the proposed insured's sexual orientation.
(2) Sexual orientation may not be used in the underwriting
process or in the determination of insurability.
(3) Insurers may not direct, require, or request insurance
support organizations to investigate, directly or indirectly, the
sexual orientation of a proposed insured or a beneficiary.
(b) Medical/lifestyle applications, questions, and
underwriting standards.
(1) No question may be used which is designed to establish
the sexual orientation of the proposed insured.
(2) Questions relating to the proposed insured having,
or having been diagnosed as having, acquired immune deficiency syndrome
(AIDS) or AIDS-related complex are permissible if they are factual
and designed to establish the existence of the condition.
(3) Questions relating to medical and other factual
matters intending to reveal the possible existence of a medical condition
are permissible if they are not used as a proxy to establish the sexual
orientation of the proposed insured, and if the proposed insured has
been given an opportunity to provide an explanation for any affirmative
answers given in the application.
(4) Questions relating to applicant's having, or having
been diagnosed as having, sexually transmitted disease are permissible.
(5) Neither the marital status, the living arrangements,
the occupation, the gender, the medical history, the beneficiary designation,
nor the zip code or other classification of a proposed insured may
be used to establish, or aid in establishing, the proposed insured's
sexual orientation.
(6) For purposes of rating a proposed insured for health
and life insurance, an insurer may impose territorial rates, but only
if the rates are based on sound actuarial principles or are related
to actual or reasonably anticipated experience.
(7) No adverse underwriting decision may be made because
medical records or a report from any other source shows that the proposed
insured has demonstrated acquired immune deficiency syndrome-related
concerns by seeking counseling from health care professionals. This
paragraph does not apply to a proposed insured seeking or having sought
treatment.
(8) Whenever a proposed insured is requested to take
an HIV-related test in connection with an application for insurance,
the use of such a test must be revealed to the proposed insured or
to any other person legally authorized to consent to such a test,
and his or her written authorization obtained. The form of such authorization
must be printed on a separate piece of paper and must contain the
specific language in the form, entitled Notice and Consent for HIV-Related
Testing, which the Texas Department of Insurance has adopted and incorporated
herein by reference, effective January 7, 1997. This form is published
by the Texas Department of Insurance and copies of this form are available
from and on file at the offices of the Texas Department of Insurance,
Life and Health Lines, MC-LH-LHL, P.O. Box 12030 Austin, Texas 78711-2030.
Other information may be included so long as it is not misleading
or violative of any applicable law or rule. Testing may be required
only on a nondiscriminatory basis. No adverse underwriting decision
shall be made on the basis of such a positive HIV-related test unless
the established test protocol as provided by §21.705 of this
title (relating to Nondiscriminatory Testing for Human Immunodeficiency
Virus) has been followed.
(9) Insurers are permitted to ask a proposed insured
whether the proposed insured has tested positive on an acquired immune
deficiency syndrome-related test.
(10) The result of an HIV-related test is confidential.
(A) An insurer may not release or disclose the test
results or allow them to become known, except in the following circumstances:
(i) as may be required by law; or
(ii) pursuant to the written request or authorization
of the proposed insured or other person legally authorized to consent
to the test on behalf of the proposed insured, with such release pursuant
to written request limited to:
(I) the proposed insured;
(II) the person legally authorized to consent to the
test;
(III) a licensed physician, medical practitioner, or
other person designated by the proposed insured;
(IV) an insurance medical information exchange under
procedures that are designed to assure confidentiality, including
the use of general codes that also cover results of tests for other
diseases or conditions not related to AIDS, or for the preparation
of statistical reports that do not disclose the identity of any particular
proposed insured;
(V) a reinsurer, if the reinsurer is involved in the
underwriting process, under procedures that are designed to assure
confidentiality;
(VI) persons within the insurer's organization who
have the responsibility to make underwriting decisions on behalf of
the insurer; or
(VII) outside legal counsel who needs such information
to effectively represent the insurer in regard to matters concerning
the proposed insured.
(B) Should a proposed insured or the person legally
authorized to consent to the test request that the test result be
sent to him or her directly, in addition to being provided notice
as otherwise required by law, the insurer shall mail the test result
to the proposed insured or the person legally authorized to consent
to the test by registered mail with delivery restricted to the addressee.
(C) Written notice of a positive HIV-related test result
must be provided by the insurer to either:
(i) a physician designated by the proposed insured
or other person legally authorized to consent to the test; or
(ii) in the absence of such designation, to the Texas
Department of Health, in order that the proposed insured be provided
notice of such result as required by law.
(c) Severability. If any provision of this section
or the application thereof to any person or circumstance is held invalid
for any reason, the invalidity shall not affect the other provisions
or any other application of the provisions of this section which can
be given effect without the invalid provisions or application. To
this end, all provisions of this subchapter are declared to be severable.
|
| Source Note: The provisions of this §21.704 adopted to be effective February 1, 1988, 13 TexReg 344; amended to be effective March 1, 1990, 15 TexReg 878; amended to be effective January 8, 1997, 22 TexReg 53; amended to be effective November 7, 2021, 46 TexReg 7408 |
