(1) The general assembly declares that a balance must be maintained between the need for information by those conducting the business of insurance and the public's need for fairness in practices for testing for the human immunodeficiency virus, including the need to minimize intrusion into an individual's privacy and the need to limit disclosure of the results of such testing.
(2) As used in this section, unless the context otherwise requires: (a) "AIDS" means acquired immunodeficiency syndrome.
"Applicant" means the individual proposed for coverage.
"HIV" means human immunodeficiency virus.
"HIV infection" means infection with the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS.
"HIV related test" means any laboratory test or series of tests for any virus, antibody,antigen, or etiologic agent whatsoever thought to cause or to indicate the presence of AIDS.
"Person" means any individual, corporation, association, partnership, fraternal benefitsociety, or any other entity engaged in the insurance business, except insurance agents and brokers. Such term shall also include medical service plans and hospital service plans regulated under parts 1 and 3 of article 16 of this title and health maintenance organizations regulated under parts 1 and 4 of article 16 of this title. Such plans and health maintenance organizations shall be deemed to be engaged in the business of insurance for purposes of this section.
No person shall request or require that an applicant submit to an HIV related testunless that person:
Obtains the applicant's prior written informed consent; and
Reveals, in the written consent form, and explains the use of the HIV related testresult to the applicant and entities to whom test results may be disclosed pursuant to paragraphs
and (b) of subsection (4) of this section; and(c) Provides the applicant with:
Printed material prior to testing which contains factual information describing AIDS;its causes, symptoms, and transmission; and the tests used to detect HIV infection and what a person should do if the result of the HIV related test is positive; or
Information on how to obtain relevant counseling from a qualified practitioner having extensive training and experience in addressing the fears, questions, and concerns of persons tested for HIV infection; and
Administers the HIV related test based upon the following test protocol, as a minimum:
Two positive ELISA tests and a western blot test with bands present at p24, p31, andeither gp41 or gp160; or
An equally reliable screening or confirmatory test protocol designated by the commissioner, with the approval of the department of public health and environment; and
Discloses the results of testing in the manner prescribed by subsection (4) of thissection.
(4) (a) On the basis of the applicant's written informed consent as specified in subsection (3) of this section, a person may disclose an individual applicant's HIV related test results to its reinsurers or to those contractually retained medical personnel, laboratories, and insurance affiliates, excluding agents and brokers, which are involved in underwriting decisions regarding the individual's application if disclosure is necessary to make underwriting decisions regarding such application.
Other than the disclosures permitted by paragraph (a) of this subsection (4), no person shall disclose HIV related test results which identify the individual applicant with the test results obtained to anyone without first obtaining separate written informed consent for such disclosure from the applicant; except that, if the result of the HIV related test of an applicant is positive or indeterminate, such person may report the test finding to the medical information bureau but only if a nonspecific blood test result code is used which does not indicate that the applicant was tested for HIV infection.
Nothing in this subsection (4) shall be construed to prohibit reporting as required bythe provisions of section 25-4-405, C.R.S.
A person shall notify the applicant in writing of an adverse underwriting decisionbased upon the results of such applicant's blood test but shall not disclose the specific results of such blood test to such applicant. The person shall also inform the applicant that the results of the blood test will be sent to the physician designated by the applicant at the time of application and that such physician should be contacted for information regarding the HIV related test. If a physician was not designated at the time of application, the person shall request that the applicant name a physician to whom a copy of the blood test can be sent.
Notwithstanding any other provisions to the contrary, any person who fails to complywith all the provisions of this section regarding the disclosure of HIV related test results is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than five hundred dollars nor more than five thousand dollars, or by imprisonment in the county jail for not less than six months nor more than twenty-four months, or both such fine and imprisonment.
Source: L. 89: Entire section added, p. 446, § 1, effective April 12. L. 92: (2)(f) amended, p. 1724, § 5, effective July 1. L. 94: (3)(d)(II) amended, p. 2723, § 318, effective July 1. L. 2016: (4)(c) amended, (SB 16-146), ch. 230, p. 914, § 4, effective July 1.