Law / United States / 
Delaware
HIV Testing for Insurance Act: insurer consent, use limits and confidentiality of HIV test results
Del. Code Ann. tit. 18, §§ 7401 to 7405
In force since .
A sensitive categories rule binding private bodies.
- Obligation class
- Consent, Disclosure, Prohibition
- Audit expectation
- none
As of .
What it requires
- If you are an insurer, do not request or require that an applicant submit to an HIV test unless you first obtain the applicant's prior written informed consent, reveal to the applicant the use to which the HIV test results may be put and the entities to whom they may be disclosed, and give the applicant written information the Department of Health and Social Services approves.
- Do not use a positive ELISA test result for any purpose unless a Western Blot Assay or an equivalent or more accurate confirmatory test has confirmed it.
- Maintain strict confidentiality regarding HIV test results and do not disclose them outside your company except as sections 7404 and 7405 allow, which include disclosure on the applicant's written informed consent to your reinsurers and to retained medical personnel and affiliates, other than agents and brokers, involved in the underwriting or claims decision, and a report of a confirmed positive result to a medical information exchange agency in a form that identifies only an abnormal blood test result or uses a neutral identifier.
- If you do not issue a policy because of HIV test results, notify the applicant in writing of an adverse underwriting decision without disclosing the specific results to the applicant, tell the applicant the results will go to the physician the applicant designated, and ask the applicant to name a physician if none was named.
These lines are LexLint's reading of the law's text, as of .
If you get it wrong
Penalty structure
Chapter 74 states no penalty of its own. Section 329 of title 18 lets the Commissioner, after notice and hearing, impose an administrative penalty for a violation of any provision of the title that is reasonable and appropriate, not exceeding $50,000 per violation for insurance companies, insurance holding companies and all other persons licensed under the title, and $15,000 per violation for those licensed under chapter 17.
- Rule
- Per violation only
- As of
- Currency
- USD
- Per violation unit
- Violation
- Per violation amount
- 50,000
Who enforces it
Enforcement body
Insurance Commissioner of Delaware, who may impose the administrative penalty under 18 Del. C. section 329 after notice and hearing.
What this law does
In chapter 74 of title 18, an insurer is any individual, corporation, association, partnership, fraternal benefit society or other entity engaged in the insurance underwriting business, except insurance agents and brokers, and includes medical service plans, hospital plans, health maintenance organizations and health service corporations.
An insurer may not request or require that an applicant submit to an HIV test unless the insurer first obtains the applicant's prior written informed consent, reveals to the applicant the use to which the results may be put and the entities to whom they may be disclosed, and provides the applicant with written information the Department of Health and Social Services approves.
Under section 7403(c) of title 18, no positive ELISA test result may be used for any purpose unless a Western Blot Assay or an equivalent or more accurate confirmatory test has confirmed it.
Under section 7404(a) of title 18, on the basis of the applicant's written informed consent, an insurer may disclose an applicant's HIV test result to its reinsurers or to contractually retained medical personnel and insurance affiliates, excluding agents and brokers, involved in underwriting or claims decisions on the application, where the disclosure is necessary to make those decisions.
Under section 7404(c) of title 18, insurers must maintain strict confidentiality regarding HIV test results, which may not be disclosed outside the insurer except as sections 7404 and 7405 provide. An insurer that fails to issue a policy because of the results of HIV testing must notify the applicant in writing of an adverse underwriting decision but may not disclose the specific results of the examination and testing to the applicant.
An insurer that violates a provision of title 18 of the Delaware Code may be subject to an administrative penalty the Insurance Commissioner imposes, up to $50,000 per violation for insurance companies and other persons licensed under the title.
When LexLint raises it
When your app profile says your app is an insurer.