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SB-961 The Equal Insurance HIV Act.(2019-2020)

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Date Published: 05/11/2020 09:00 PM
SB961:v98#DOCUMENT

Amended  IN  Senate  May 11, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 961


Introduced by Senator Lena Gonzalez
(Principal coauthor: Senator Wiener)
(Coauthors: Senators Atkins, Beall, Galgiani, Mitchell, and Skinner)
(Coauthors: Assembly Members Eggman, Gipson, and Gloria)

February 10, 2020


An act to amend Sections 799.03, 799.04, 799.05, 799.06, 799.07, 799.09, and 799.10 of, and to repeal and add Sections 799.01 and 799.02 of, add Section 799.11 to, and to repeal and add Article 6.9 (commencing with Section 799) of Chapter 1 of Part 2 of Division 1 of, the Insurance Code, relating to insurance.


LEGISLATIVE COUNSEL'S DIGEST


SB 961, as amended, Lena Gonzalez. Underwriting of AIDS risks. The Equal Insurance HIV Act.
Existing law authorizes a life or disability income insurer to decline a life or disability income insurance application or enrollment request on the basis of positive test results from certain tests, known as the ELISA test and the Western Blot Assay, that detect antibodies to the human immunodeficiency virus (HIV), performed by or at the direction of the insurer.
This bill bill, to become operative January 1, 2023, would instead prohibit a life or disability income an insurer from declining a an application or enrollment request for coverage under a policy or certificate for life insurance or disability income insurance application or enrollment request based solely on the basis results of a positive HIV test, regardless of when or at whose direction the test was performed. However, the bill would not prevent or restrict an insurer from refusing to insure an applicant that is HIV positive, limiting the amount, extent, or kind of coverage for an applicant that is HIV positive, or charging a different rate to an applicant that is HIV positive, if the refusal, limitation, or charge is based on sound actuarial principals and actual or reasonably anticipated experience. The bill would define “HIV test” for purposes of these provisions to mean any clinical test, laboratory or otherwise, used to identify HIV, a component of HIV, or antibodies or antigens to HIV.
Existing law imposes a civil penalty on a person who negligently or willfully discloses results of an HIV antibody test to any third party, except pursuant to written authorization or informed consent, in a manner that identifies or provides identifying characteristics of the person to whom the test results apply. Under existing law, the penalty for a negligent violation of those provisions is civil penalty in an amount not to exceed $1,000 plus court costs, and the penalty for a willful violation of those provisions is a civil penalty in an amount not less than $1,000 and not more than $5,000 plus court costs. If the negligent or willful disclosure results in economic, bodily, or psychological harm to the subject of the test, existing law makes the person guilty of a misdemeanor punishable by imprisonment in a county jail for a period not to exceed one year, by a fine not to exceed $10,000, or by both that fine and imprisonment. Existing law defines “HIV antibody test” for these purposes to mean an ELISA test or a Western Blot Assay, or both.
This bill would eliminate the references to HIV antibody test for purposes of those civil and ciminal criminal penalty provisions and instead would impose those penalties for the negligent or willful negligent, willful, or malicious disclosure of results of an HIV test, as defined above. The bill would increase the civil penalty for a negligent violation of those provisions to an amount not to exceed $2,500 plus court costs and would increase the civil penalty for a willful violation of those provisions to an amount not less than $5,000 and not more than $10,000 plus court costs. The bill would impose the same civil penalty for a malicious violation of those provisions as is provided for the willful violation. The bill would also increase the amount of the fine that may be imposed for a misdemeanor violation of those provisions to an amount not to exceed $25,000. By changing the definition of a crime, the bill would impose a state-mandated local program.
The bill would make conforming changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 799.11 is added to the Insurance Code, to read:

799.11.
 This article shall remain in effect only until January 1, 2023, and as of that date is repealed.

SEC. 2.

 Article 6.9 (commencing with Section 799) is added to Chapter 1 of Part 2 of Division 1 of the Insurance Code, to read:
Article  6.9. The Equal Insurance HIV Act

799.
 (a) The Legislature finds and declares all of the following:
(1) The laws governing the underwriting of insurance policies for individuals with acquired immunodeficiency syndrome (AIDS) were originally enacted in 1988 and were last amended in 1997. These laws require an update to reflect advancements in testing and medical treatments for individuals living with the human immunodeficiency virus (HIV).
(2) When the HIV/AIDS epidemic began in the United States, HIV was considered a life-threatening condition because relatively little was known at the time about HIV detection, transmission, or treatment. Today, however, just as with diabetes or other chronic health conditions, HIV can be effectively managed.
(3) According to data collected by the Antiretroviral Therapy Cohort Collaboration from 1996 to 2013, modern antiretroviral therapy (ART) is more sophisticated than original treatments, causes fewer adverse effects, and results in a life expectancy similar to people not living with HIV.
(4) The National Institutes of Health notes that ART can suppress an individual’s viral load to a point where HIV is undetectable in the blood, and the chance of HIV developing into AIDS is reduced.
(5) Research shows that in recent years, people living with HIV who are receiving treatment have a life expectancy of approximately 70 to 78 years or more, depending on other determinants of health and how early treatment was commenced, compared to a life expectancy of 39 years in 1996. The risk of death due to AIDS-related causes has declined dramatically.
(6) It is now possible for HIV-positive individuals to have an average life expectancy. They should have the same opportunities as other individuals with chronic medical conditions to purchase life insurance and disability income insurance.
(b) It is, therefore, the intent of the Legislature to ensure the equitable health and well-being of all people living in California.
(c) The purposes of this article are to do all of the following:
(1) Establish standards that prevent insurers from making or permitting unfair distinctions between individuals of the same class in underwriting life insurance or disability insurance for individuals living with HIV.
(2) Require the maintenance of strict confidentiality for personal information obtained through testing.
(3) Require informed consent before an insurer tests for HIV.

799.01.
 As used in this article, the following terms have the following meanings:
(a) “AIDS” means acquired immunodeficiency syndrome.
(b) “ARC” means an AIDS-related condition.
(c) “Certificate” means a certificate of group life insurance or a certificate of group disability income insurance delivered in this state, regardless of the situs of the group master policy.
(d) “Disability income insurance” means insurance against loss of occupational earning capacity arising from injury, sickness, or disablement.
(e) “HIV” or “human immunodeficiency virus” means the etiologic virus of AIDS.
(f) “HIV test” means any clinical test, laboratory or otherwise, used to identify HIV, a component of HIV, or antibodies or antigens to HIV.
(g) “Insurer” means an insurer licensed to transact life insurance or disability insurance in this state or a fraternal benefit society licensed in this state.
(h) “Life insurance” means a life insurance policy or life insurance coverage, but it does not include an annuity.
(i) “Policy” means an individual life insurance policy or individual disability income insurance policy issued or delivered in this state or a certificate of life insurance benefits or disability income insurance benefits issued or delivered in this state by a fraternal benefit society.

799.02.
 (a) An insurer shall not decline an application or enrollment request for coverage under a policy or certificate for life insurance or disability income insurance based solely on the results of a positive HIV test, regardless of when or at whose direction the test was performed.
(b) Notwithstanding any other law, this article does not prevent or otherwise restrict an insurer from refusing to insure an applicant that is HIV positive, limiting the amount, extent, or kind of coverage for an applicant that is HIV positive, or charging a different rate to an applicant that is HIV positive, if the refusal, limitation, or charge is based on sound actuarial principles and actual or reasonably anticipated experience.
(c) Transferring an applicant from a simplified, expedited, accelerated, or algorithmic underwriting process to a traditional medical underwriting process, based solely on the results of a positive HIV test, does not constitute a denial of the application or a violation of this section.

799.03.
 (a) An insurer shall not test for HIV or for the presence of antibodies to HIV for the purpose of determining insurability other than in accordance with the informed consent, counseling, and privacy protection provisions of this article and Article 6.6 (commencing with Section 791). Notwithstanding any other law, this constitutes the exclusive requirements for counseling, informed consent, and privacy protection for that testing.
(b) An insurer that asks an applicant to take an HIV test shall obtain the applicant’s written informed consent for the test. Written informed consent shall include a description of the test to be performed, including its purpose, potential uses, and limitations, the meaning of its results, procedures for notifying the applicant of the results, and the right to confidential treatment of the results. Prior to the applicant’s execution of the consent, the insurer shall provide the applicant with both of the following:
(1) Printed material describing HIV, its causes and symptoms, the manner in which it is spread, the test or tests used to detect HIV or the HIV antibody, and what a person can do whose test results are positive or negative.
(2) A list of counseling resources available, where the applicant can obtain assistance in understanding the meaning of the test and its results. The list may be provided from publicly available information or internet websites, and may include resources available from the State Department of Public Health.
(c) The insurer shall notify an applicant of a positive HIV test result by notifying the applicant’s designated physician. If the applicant tested has not given written consent authorizing a physician to receive the test results, the applicant shall be urged, at the time the applicant is informed of the positive test results, to contact a private physician, the county department of health, the State Department of Public Health, local medical societies, or alternative test sites for appropriate counseling and treatment.

799.04.
 An insurer shall not require an applicant to undergo an HIV test unless the cost of the test is borne by the insurer.

799.05.
 An insurer shall not consider the marital status, actual or perceived sexual orientation, gender identity, or gender expression of an applicant for life insurance or disability income insurance in determining whether to require an HIV test of that applicant.

799.06.
 All underwriting activities undertaken by insurers pursuant to this article shall be subject to all applicable provisions of Article 6.6 (commencing with Section 791). An application or enrollment request for life insurance or disability income insurance shall not contain a question pertaining to prior HIV tests unless the question is limited in scope to prior testing for the purpose of obtaining insurance.

799.07.
 If an applicant has had a positive HIV test, an insurer shall not report a code to an insurance support organization as defined in Section 791.02 or another insurer unless a nonspecific test result code is used that does not indicate that the individual was subject to an HIV test.

799.08.
 A policy or certificate shall not limit benefits otherwise payable if loss is caused or contributed to by AIDS or ARC unless the insurer could have declined the application or enrollment request of the insured as provided in Section 799.02.

799.09.
 An insurer shall not require an applicant to take an HIV test if the results of the test would be used exclusively or nonexclusively for the purpose of determining eligibility for hospital, medical, or surgical insurance coverage or eligibility for coverage under a nonprofit hospital service plan or health care service plan.

799.10.
 (a) This section applies to the disclosure of the results of HIV tests requested by an insurer pursuant to this article and, notwithstanding Section 120980 of the Health and Safety Code, Section 120980 of the Health and Safety Code does not apply to the disclosure of the results of HIV tests conducted pursuant to this article.
(b) A person who negligently discloses results of an HIV test to any a third party, in a manner that identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to a written authorization, as described in subdivision (g), or except as provided in this article or in Section 1603.1, 1603.3, or 121022 of the Health and Safety Code, or in any other law that expressly provides an exemption to this section, shall be assessed a civil penalty in an amount not to exceed two thousand five hundred dollars ($2,500) plus court costs, as determined by the court, which penalty and costs shall be paid to the subject of the test.
(c) A person who willfully or maliciously discloses the results of an HIV test to a third party, in a manner that identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to a written authorization, as described in subdivision (g), or except as provided in this article or in Section 1603.1, 1603.3, or 121022 of the Health and Safety Code, or in any other law that expressly provides an exemption to this section, shall be assessed a civil penalty in an amount not less than five thousand dollars ($5,000) and not more than ten thousand dollars ($10,000) plus court costs, as determined by the court, which penalty and costs shall be paid to the subject of the test.
(d) A person who willfully, maliciously, or negligently discloses the results of an HIV test to a third party, in a manner that identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to a written authorization, as described in subdivision (g), or except as provided in this article or in Section 1603.1, 1603.3, or 121022 of the Health and Safety Code, or in any other law that expressly provides an exemption to this section, that results in economic, bodily, or psychological harm to the subject of the test, is guilty of a misdemeanor punishable by imprisonment in a county jail for a period not to exceed one year, or by a fine not to exceed twenty-five thousand dollars ($25,000) or by both that fine and imprisonment.
(e) A person who commits any act described in subdivision (b) or (c) shall be liable to the subject for all actual damages, including damages for economic, bodily, or psychological harm that is a proximate cause of the act.
(f) Each disclosure made in violation of this section is a separate and actionable offense.
(g) “Written authorization,” as used in this section, applies only to the disclosure of test results by a person responsible for the care and treatment of the person subject to the test. Written authorization is required for each separate disclosure of the test results, and shall include to whom the disclosure would be made.

799.11.
 This article shall become operative on January 1, 2023.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.