OAR 836-050-0250: Testing for HIV Infection

(1) An insurer may not rate or deny coverage on the basis of test results unless the rating or denial is based on a test protocol consisting of two positive ELISA tests confirmed by a Western Blot test or another test or test series that the state epidemiologist finds to be no less accurate. This testing series may be performed on blood samples, or on oral specimens or urine obtained and tested according to approval by the federal Food and Drug Administration. If the result of a Western Blot test is indeterminate, the insurer may postpone action on the application not longer than six months after the date of that Western Blot test in order to retest the applicant for conclusive Western Blot test results. The insurer may rate or deny coverage only if retesting produces the positive testing result or if the applicant declines the retesting or fails to respond to a request for retesting by the insurer. (2) The following provisions apply to all testing for HIV infection and consent therefor: (a) Testing may be done only with the informed consent of the applicant. Any test that helps an insurer determine the presence of HIV infection and is performed in conjunction with an insurance application shall have a signed consent by the applicant regarding the specific types of tests involved. This consent shall require the applicant to designate the person to whom final positive test results are to be reported. The applicant may designate a named physician, the county health department or the applicant directly. An insurer may obtain the consent of the applicant at any time in the underwriting process prior to obtaining a sample or specimen. (b) The consent form must be submitted to the Director for approval before use. A consent form may not be used unless the Director has approved the form as complying with OAR 836-050-0230 to 836-050-0255. (c) An insurer shall disclose to the applicant when soliciting consent that the test is used for determining insurability. (d) A copy of an informational brochure containing the information in Exhibit 1 shall be given to the applicant prior to or at the time of consent. [Exhibit not included. See ED. NOTE.] The consent form and informational brochure may be combined in one form. (e) A consent form signed by an applicant is valid for six months following the date that the consent form was signed. The consent form must so state. If after six months the test is not performed or retesting is needed, a new signed consent form must be obtained. (3) All final positive HIV results shall be directly or indirectly disclosed to the applicant as provided in this section. Information about the results that an insurer acquires through required tests other than from a physician shall be disclosed to the applicant through the physician or county health department named by the applicant for that purpose, so that the physician or county health department may give further explanation of the results to the applicant. Such information may be disclosed directly to the applicant only if the applicant requested disclosure in the consent form and if the insurer, after receipt of positive HIV results confirmed through the protocol in section (1) of this rule, has given the applicant another opportunity to designate a physician or county health department. Direct disclosure to the applicant of final positive HIV results shall include a notice that gives the Oregon AIDS Hotline numbers for securing local assistance and advises the applicant to call the Oregon AIDS Hotline or consult a physician. (4) An insurer may report only positive test results determined under section (1) of this rule to the person or person designated in the consent form and to affiliates, reinsurers, employees and contractors of the insurer in relation to the underwriting of the insurance application. For positive test results as defined in section (1) of this section, an insurer may also make a report of a nonspecific abnormality determined by the testing of blood, oral specimen or urine to the Medical Information Bureau. An insurer may not make a report to the Medical Information Bureau when positive or inconclusive results occur only with respect to preliminary tests, even when the applicant fails to follow up with the required protocol. [ED. NOTE: Exhibits referenced are available from the agency.]