CHAPTER 545. HIV TESTING - Texas Statutes

INSURANCE CODE

TITLE 5. PROTECTION OF CONSUMER INTERESTS

SUBTITLE C. DECEPTIVE, UNFAIR, AND PROHIBITED PRACTICES

CHAPTER 545. HIV TESTING

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 545.001. DEFINITIONS. In this chapter:

(1) "AIDS" has the meaning assigned by Section 81.101, Health

and Safety Code.

(2) "Applicant" means an individual who applies to an issuer for

coverage.

(3) "HIV" has the meaning assigned by Section 81.101, Health and

Safety Code.

(4) "Issuer" means a person who delivers, issues for delivery,

or renews coverage in this state, including a group policy,

contract, or certificate of health insurance or evidence of

coverage delivered, issued for delivery, or renewed in this state

by an insurer, including a group hospital service corporation

operating under Chapter 842, or by a health maintenance

organization operating under Chapter 843.

(5) "Test result" means a statement:

(A) that an identifiable individual is positive, negative, at

risk, or has or does not have a certain level of antigen or

antibody; or

(B) that indicates that an identifiable individual has or has

not been tested for AIDS or HIV infection, antibodies to HIV, or

infection with any other probable causative agent of AIDS.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.002. EXCLUSIVE APPLICABILITY. This chapter and rules

adopted under this chapter exclusively govern the practices of an

issuer in testing applicants to determine or help determine if an

applicant has:

(1) AIDS or HIV infection;

(2) antibodies to HIV; or

(3) an infection with any other probable causative agent of

AIDS.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.003. RULES. The commissioner may adopt:

(1) reasonable rules and forms necessary to implement this

chapter; and

(2) rules to be followed for an HIV-related test requested or

required by an issuer.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

SUBCHAPTER B. ISSUER POWERS AND DUTIES

Sec. 545.051. HIV-RELATED TESTING AUTHORIZED. An issuer may

request or require an applicant to take an HIV-related test in

connection with the application.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.052. NONDISCRIMINATORY BASIS REQUIRED. (a) An issuer

that requests or requires applicants to take an HIV-related test

must request or require the test on a nondiscriminatory basis.

(b) An issuer may require an applicant to take an HIV-related

test only if:

(1) the test is based on the applicant's current medical

condition or medical history; or

(2) underwriting guidelines for the coverage amounts require all

applicants in the risk class to be tested.

(c) In determining who will be requested or required to take an

HIV-related test, an issuer may not use the marital status,

occupation, sex, beneficiary designation, or territorial

classification, including zip code, of an applicant.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.053. EXPLANATION AND AUTHORIZATION REQUIRED. (a) An

issuer that requests or requires an applicant to take an

HIV-related test in connection with an application must:

(1) provide an explanation to the applicant, or another person

legally authorized to consent to the test, of how the test will

be used; and

(2) obtain a written authorization from the person to whom the

explanation is provided.

(b) The authorization must:

(1) be on a form adopted by the commissioner; and

(2) be separate from any other document presented to the

applicant or other person legally authorized to consent to the

test.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.054. INQUIRIES REGARDING PREVIOUS TESTS. (a) An

issuer may inquire whether an applicant has:

(1) tested positive on an HIV-related test; or

(2) been diagnosed with HIV or AIDS.

(b) An issuer may not inquire whether an applicant has been

tested for or has received a negative result from a specific test

for:

(1) exposure to HIV; or

(2) a sickness or a medical condition derived from infection

with HIV.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.055. NOTICE OF POSITIVE TEST RESULT; FEE. (a) An

applicant must be given written notice of a positive HIV-related

test result by:

(1) a physician designated by the applicant; or

(2) the Texas Department of Health, if the applicant has not

designated a physician.

(b) The Texas Department of Health by rule may set a fee, not to

exceed $25, to cover the cost of giving written notice under this

section.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.056. ADVERSE UNDERWRITING DECISION; TEST PROTOCOL

RULES. An issuer may not make an adverse underwriting decision

based on a positive HIV-related test unless a test protocol

established by commissioner rule is followed.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.057. CONFIDENTIALITY OF TEST RESULT REQUIRED. (a) An

HIV-related test result is confidential.

(b) An issuer may not release or disclose the test result or

otherwise allow the test result to become known except as:

(1) required by law; or

(2) requested or authorized in writing by the applicant or a

person legally authorized to consent to the test on the

applicant's behalf.

(c) A test result released under Subsection (b)(2) may be

released only to:

(1) the applicant;

(2) a person legally authorized to consent to the test;

(3) a licensed physician, medical practitioner, or other person

designated by the applicant;

(4) an insurance medical information exchange under procedures

designed to ensure confidentiality, including the use of general

codes that 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 applicant;

(5) a reinsurer, if the reinsurer is involved in the

underwriting process, under procedures designed to ensure

confidentiality;

(6) persons within the issuer's organization who have the

responsibility to make underwriting decisions for the issuer; or

(7) outside legal counsel that needs the information to

effectively represent the issuer regarding the applicant.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

SUBCHAPTER O. SANCTIONS; PENALTIES; INJUNCTIONS

Sec. 545.701. SANCTIONS. The commissioner may impose sanctions

under Chapter 82 on an issuer that violates this chapter.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.702. CIVIL ACTION; PENALTY. (a) A person who is

injured by a violation of Section 545.057 may bring a civil

action for damages.

(b) A person may bring an action to restrain a violation or

threatened violation of Section 545.057.

(c) If it is found in a civil action that a person or entity has

released or disclosed a test result or allowed a test result to

become known in violation of Section 545.057, the person or

entity is liable for:

(1) actual damages;

(2) a civil penalty of:

(A) not more than $1,000 if the release or disclosure was

negligent; or

(B) not less than $1,000 or more than $5,000 if the release or

disclosure was wilful; and

(3) court costs and reasonable attorney's fees incurred by the

person bringing the action.

(d) A defendant in a civil action brought under this section is

not entitled to claim a privilege as a defense to the action.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 545.703. CRIMINAL PENALTY. (a) A person or entity commits

an offense if the person or entity, with criminal negligence,

violates Section 545.057 by:

(1) releasing or disclosing a test result or other information;

or

(2) allowing a test result or other information to become known.

(b) An offense under this section is a Class A misdemeanor.

(c) Each release or disclosure made or allowance of a test

result to become known in violation of this chapter constitutes a

separate offense.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.