Section 760 IAC 1-68-5 - ApplicationsAuthority: IC 27-1-34-9
Affected: IC 27-1-34
Sec. 5.
(a) A MEWA, in its application for coverage, may ask questions of a medically specific nature that are necessary to render a fully informed underwriting determination, based upon sound actuarial principles concerning whether to accept or rate a particular risk, subject to the following conditions: (1) Questions relating to medical and other factual matters intending to reveal the possible existence of medical conditions are permissible if the applicant has been given an opportunity to provide an explanation for any affirmative answers given in the application. Questions shall:(A) be related to a finite period of time preceding completion of the application;(B) be specific and objective; and(C) provide the applicant the opportunity to give a detailed explanation.(2) No question in an application shall be directed towards determining or designed to establish the applicant's sexual orientation.(3) Questions relating to the applicant having human immunodeficiency virus or having been diagnosed as having human immunodeficiency virus are permissible if they are factual, objective, and designed to establish the existence of the condition.(b) A MEWA may require a potential covered individual to submit to any medical tests, at the insurer's expense, the purpose of which is to determine infection with human immunodeficiency virus, subject to the following conditions: (1) The test is necessary to render a fully informed underwriting determination based upon sound actuarial principles concerning whether to accept or rate a particular risk.(2) Whenever an applicant is requested to take a test to determine human immunodeficiency virus infection, the use of such a test must be revealed to the applicant and his or her written consent obtained. No adverse underwriting decision shall be made on the basis of such a positive test unless an established test protocol has been followed.(3) The following test protocol is established and must be the basis of an adverse underwriting determination: (A) Two (2) positive ELISA tests.(B) One (1) Western Blot test, which is not negative, must be obtained from the same sample from tests conducted by a qualified laboratory.(4) All results of tests to determine human immunodeficiency virus infection and application responses are confidential and shall not be shared with anyone other than the applicant, the applicant's physician, and the MEWA's underwriting department, except as follows: (A) Test results and application responses may be shared with underwriting departments of affiliates of the MEWA and reinsurers, who shall be subject to all provisions of this rule as if they were the MEWA to which application was originally made.(B) Test results may be reported to the Medical Information Bureau, Inc., provided that: (i) the MEWA will not report that tests of an applicant showed the presence of human immunodeficiency virus, but only that unspecified test results were abnormal; and(ii) reports must use a general code that also covers results of tests for many diseases or conditions that are not related to human immunodeficiency virus or acquired immune deficiency syndrome.(5) A MEWA may make an underwriting or a rating determination based upon questions asked and tests required pursuant to this subsection, subject to the following conditions:(A) Sexual orientation may not be used in the underwriting process or in the determination of insurability.(B) Support organizations shall be directed by insurers not to investigate, directly or indirectly, the sexual orientation of an applicant or a beneficiary.(C) Neither the marital status, the living arrangements, the occupation, the gender, the medical history, the beneficiary designation, nor the zip code or other territorial classification of an applicant may be used to establish, or aid in establishing, the applicant's sexual orientation.(D) For purposes of rating a group for health, a MEWA may impose territorial rates, but only if the rates are based on sound actuarial principles or are related to actual or reasonably anticipated experience.(E) No adverse underwriting decision shall be made because medical records or a report from a support organization shows that the applicant has demonstrated concern about human immunodeficiency virus by seeking testing or counseling from health care professionals. This subsection does not apply to an applicant seeking treatment or diagnosis for a specific condition.(6) In the event a MEWA determines to accept a risk, it must do so without limitations or exclusions solely of the coverage for human immunodeficiency virus, acquired immune deficiency syndrome, or a related condition, as follows: (A) No maximum dollar amount of coverage, which is limited solely to human immunodeficiency virus, acquired immune deficiency syndrome, or a related condition, shall be included in any policy or certificate.(B) No exclusion of coverage, which is limited solely to human immunodeficiency virus, acquired immune deficiency syndrome, or a related condition, shall be included in any policy or certificate.Department of Insurance; 760 IAC 1-68-5; filed Apr 15, 2003, 2:20 p.m.: 26 IR 3039; readopted filed Nov 24, 2009, 9:35 a.m.: 20091223-IR-760090791RFAReadopted filed 11/20/2015, 9:25 a.m.: 20151216-IR-760150341RFAReadopted filed 11/15/2021, 8:32 a.m.: 20211215-IR-760210419RFA