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SB-283 Life and disability income insurance: HIV tests.(2021-2022)

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Date Published: 07/26/2021 02:00 PM
SB283:v95#DOCUMENT

Senate Bill No. 283
CHAPTER 134

An act to amend Sections 799.03, 799.05, and 799.10 of, and to repeal Section 799.08 of, the Insurance Code, relating to insurance.

[ Approved by Governor  July 23, 2021. Filed with Secretary of State  July 23, 2021. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 283, Gonzalez. Life and disability income insurance: HIV tests.
Existing law generally regulates classes of insurance, including life insurance and disability income insurance. Existing law, on and after January 1, 2023, prohibits a life or disability income insurer from, among other things, requiring an HIV test to determine an individual’s insurability, except as specified, and from considering specified traits of an applicant, including actual or perceived sexual orientation, in determining whether to require an HIV test of that applicant. Existing law, on and after that same date, prohibits a policy or certificate from limiting benefits otherwise payable if a loss is caused by or contributed to by HIV or AIDS, unless the insurer could have declined the application or enrollment request, as specified. Existing law, also on and after that date, imposes criminal penalties, including imprisonment in a county jail for a period not to exceed one year, and civil penalties for the negligent, willful, or malicious disclosure of results of an HIV test to a third party, and makes a person liable for all actual damages that are a proximate cause of the disclosure.
This bill, on and after January 1, 2023, would prohibit a life or disability income insurer from considering the occupation of an applicant in determining whether to require an HIV test of that applicant. On and after January 1, 2023, the bill would delete the prohibition on a policy or certificate from limiting benefits payable for a loss caused by or contributed to by HIV or AIDS, as specified. On and after January 1, 2023, the bill would reduce the authorized imprisonment period for the negligent, willful, or malicious disclosure of HIV test results to a period not to exceed 364 calendar days, and would make a person who negligently, willfully, or maliciously discloses those test results to a third party liable for all actual damages that are proximately caused by the disclosure.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 799.03 of the Insurance Code, as added by Section 3 of Chapter 184 of the Statutes of 2020, is amended to read:

799.03.
 (a) A life or disability income insurer shall not require a test for HIV or for the presence of antibodies to HIV for the purpose of determining insurability other than pursuant to 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) A life or disability income insurer that asks an applicant to undergo 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. Before the applicant signs the consent, the insurer shall provide the applicant with both of the following, on paper or electronically, whichever the applicant chooses:
(1) 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 shall be provided from publicly available information or internet websites, and shall include resources available from the State Department of Public Health and the federal Centers for Disease Control and Prevention.
(c) The life or disability income insurer that asks an applicant to undergo an HIV test shall notify an applicant of a positive 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.

SEC. 2.

 Section 799.05 of the Insurance Code, as added by Section 3 of Chapter 184 of the Statutes of 2020, is amended to read:

799.05.
 A life or disability income insurer shall not consider the marital status, actual or perceived sexual orientation, gender, gender identity, gender expression, race, color, religion, national origin, ancestry, living arrangements, occupation, beneficiary designation, or ZIP Codes or other territorial classification within this state, or any combination thereof, of an applicant for life insurance or disability income insurance in determining whether to require an HIV test of that applicant.

SEC. 3.

 Section 799.08 of the Insurance Code, as added by Section 3 of Chapter 184 of the Statutes of 2020, is repealed.

SEC. 4.

 Section 799.10 of the Insurance Code, as added by Section 3 of Chapter 184 of the Statutes of 2020, is amended to read:

799.10.
 (a) This section applies to the disclosure of the results of HIV tests requested by a life or disability income 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 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 364 calendar days, 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 proximately caused by 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.