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NO. 23. AN ACT RELATING TO INSURANCE TRADE PRACTICES.

(S.187)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 8 V.S.A. ß 4724(20) is amended to read:

(20) HIV-related tests. Failing to comply with the provisions of this subdivision *[relating to blood screening tests for HIV antibodies or antigens (hereinafter referred to as "HIV-related tests")]* regarding HIV-related tests. "HIV-related test" means a test approved by the United States Food and Drug Administration and the commissioner, used to determine the existence of HIV antibodies or antigens in the blood, urine or oral mucosal transudate (OMT).

(A) No person shall request or require that a person reveal having taken HIV-related tests in the past.

(B)(i) No person shall request or require that an individual submit to an HIV-related test unless he or she has first obtained the individualís written informed consent to the test. Before written, informed consent may be granted, the individual shall be informed, by means of a printed information statement which shall have been read aloud to the individual by *[the]* any agent *[or broker]* of the insurer at the time of application or later and then given to the individual for review and retention, of the following:

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(i)]*(I) an explanation of the test or tests to be given, including: the testsí relationship to AIDS, the insurerís purpose in seeking the test, potential uses and disclosures of the results, limitations on the accuracy of and the meaning of the testís results, *[and]* the importance of seeking counseling about the individualís test results after those results are received, and the availability of information from and the telephone numbers of the Vermont AIDS hotline and the Centers for Disease Control and Prevention; and

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(ii)]*(II) an explanation that the individual is free to consult, at personal expense, with a personal physician or counselor or the state health department, or obtain an anonymous test at the individualís choice and personal expense, before deciding whether to consent to testing and that such delay will not affect the status of any application or policy; and

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(iii)]*(III) a summary of the individualís rights under this subdivision (20), including subdivisions (F)-(K); and

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(iv)]*(IV) an explanation that the person requesting or requiring the test, not the individual or the individualís health care provider, will be billed for the test, *[and]* that the individual has a choice to receive the test results directly or to designate in writing prior to the administration of the test any other person through whom to receive the results, and any HIV positive test result from a test performed pursuant to this subdivision (20) shall be reported to the Vermont department of health by a unique identifier code pursuant to 18 V.S.A. ß 1001.

(ii) In addition, before drawing blood or obtaining a sample of the urine or OMT for the HIV-related test or tests, the person doing so shall give the individual to be tested an informed consent form containing the information required by the provisions of this subdivision (B), and shall then obtain the individualís written informed consent. If an OMT test is administered in the presence of the agent or broker, the individualís written informed consent need only be obtained prior to administering the test, in accordance with the provisions of this subdivision (B).

(C)(i) The forms for informed consent, information disclosure, and test results disclosure used for HIV-related testing shall be filed with and approved by the commissioner pursuant to *[8 V.S.A. ß 3541]* section 3541 of this title; and

(ii) Any testing procedure shall be filed and approved by the commissioner in consultation with the commissioner of the department of health.

(D) No laboratory may be used by an insurer or insurance support organization for the processing of HIV-related tests unless it is approved by the Vermont department of health. Any requests for approval under this subdivision shall be acted upon within 120 days. The department may approve a laboratory without on-site inspection or additional proficiency data if the laboratory has been certified under the Clinical Laboratory Improvement Act, 42 U.S.C. ß 263a or if it meets the requirements of the federal Health Care Financing Administration under the Clinical Laboratory Improvement Amendments.

(E) The test protocol shall be considered positive only if test results are two positive ELISA tests, and a Western Blot test *[with bands present at p24, p31 and either gp41 or gp160]* confirms the results of the two ELISA tests, or upon approval of any equally or more reliable confirmatory test or test protocol which has been approved by the commissioner and the United States Food and Drug Administration. If the result of any test performed on a sample of urine or OMT is positive or indeterminate, the insurer shall provide to the individual, no later than 30 days following the date of the first urine or OMT test results, the opportunity to retest once, and the individual shall have the option to provide either a blood sample, a urine sample or an OMT sample for that retest. This retest shall be in addition to the opportunities for retest provided in subdivisions (F) and (G) of this subdivision (20).

(F) If an individual has at least two positive ELISA tests but an indeterminate Western Blot test result, the Western Blot test may be repeated on the same *[serum]* sample. If the Western Blot test result is indeterminate, the insurer may delay action on the application, but no change in *[pre-existing]* preexisting coverage, benefits or rates under any separate policy or policies held by the individual may be based upon such indeterminacy. If action on an application is delayed due to indeterminacy as described herein, the insurer shall provide the individual the opportunity to retest once after six but not later than eight months following the date of the first indeterminate test result. If the retest Western Blot test result is again indeterminate or is negative, the test result shall be considered as negative, and a new application for coverage shall not be denied by the insurer based upon the results of either test. Any underwriting decision granting a substandard classification or exclusion based on the individualís prior HIV-related test results shall be reversed, and the company performing a retest which had forwarded to a medical information bureau reports based upon the individualís prior HIV-related test results shall request the medical information bureau to remove any abnormal *[blood]* codes listed due to such prior test results.

(G)(i) Upon the written request of an individual for a retest, an insurer shall retest, at the insurer's expense, any individual who was denied insurance, or offered insurance on any other than a standard basis, because of the positive results of an HIV-related test:

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(i)]*(I) once within the three-year period following the date of the most recent test; and

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(ii)]*(II) in any event, upon the approval by the commissioner of an alternative test or test protocol for the presence of HIV antibodies or antigens.

(ii) If such retest is negative, a new application for coverage shall not be denied by the insurer based upon the results of the initial test. Any underwriting decision granting a substandard classification or exclusion based on the individual's prior HIV-related test results shall be reversed, and the company performing a retest which had forwarded to a medical information bureau reports based upon the individual's prior HIV-related test results shall request the medical information bureau to remove any abnormal *[blood]* codes listed due to such prior test results.

(H) An insurer, on the basis of the individual's written informed consent as specified in subdivision (B) of this subdivision, if necessary to make underwriting decisions regarding the particular individual's application, may disclose the results of an individual's HIV-related test results to its reinsurers, or to those contractually retained medical personnel, laboratories, insurance support organizations, and insurance affiliates (but not agents or brokers) that are involved in underwriting decisions regarding the individual's particular application. Other than the disclosures permitted by this subdivision, the entities listed herein, including the insurer, shall not further disclose to anyone individually-identified HIV-related test result information without a separately obtained written authorization from the individual; provided, however, that if an individual's test result is positive or indeterminate, then an insurer may report a code to the medical information bureau provided that a nonspecific *[blood]* test result code is used which does not indicate that the individual was subjected to HIV-related testing.

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Approved: May 16, 2001