INSURANCE CODE
CHAPTER 545. HIV TESTING
SUBCHAPTER A. GENERAL PROVISIONS
§ 545.001. DEFINITIONS. In this chapter:
(1) "AIDS" has the meaning assigned by Section 81.101,
Health and Safety Code.
(2) "Applicant" means an individual who applies to an
issuer for coverage.
(3) "HIV" has the meaning assigned by Section 81.101,
Health and Safety Code.
(4) "Issuer" means a person who delivers, issues for
delivery, or renews coverage in this state, including a group
policy, contract, or certificate of health insurance or evidence of
coverage delivered, issued for delivery, or renewed in this state
by an insurer, including a group hospital service corporation
operating under Chapter 842, or by a health maintenance
organization operating under Chapter 843.
(5) "Test result" means a statement:
(A) that an identifiable individual is positive,
negative, at risk, or has or does not have a certain level of
antigen or antibody; or
(B) that indicates that an identifiable
individual has or has not been tested for AIDS or HIV infection,
antibodies to HIV, or infection with any other probable causative
agent of AIDS.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.002. EXCLUSIVE APPLICABILITY. This chapter and
rules adopted under this chapter exclusively govern the practices
of an issuer in testing applicants to determine or help determine if
an applicant has:
(1) AIDS or HIV infection;
(2) antibodies to HIV; or
(3) an infection with any other probable causative
agent of AIDS.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.003. RULES. The commissioner may adopt:
(1) reasonable rules and forms necessary to implement
this chapter; and
(2) rules to be followed for an HIV-related test
requested or required by an issuer.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
SUBCHAPTER B. ISSUER POWERS AND DUTIES
§ 545.051. HIV-RELATED TESTING AUTHORIZED. An issuer
may request or require an applicant to take an HIV-related test in
connection with the application.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.052. NONDISCRIMINATORY BASIS REQUIRED. (a) An
issuer that requests or requires applicants to take an HIV-related
test must request or require the test on a nondiscriminatory basis.
(b) An issuer may require an applicant to take an
HIV-related test only if:
(1) the test is based on the applicant's current
medical condition or medical history; or
(2) underwriting guidelines for the coverage amounts
require all applicants in the risk class to be tested.
(c) In determining who will be requested or required to take
an HIV-related test, an issuer may not use the marital status,
occupation, sex, beneficiary designation, or territorial
classification, including zip code, of an applicant.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.053. EXPLANATION AND AUTHORIZATION
REQUIRED. (a) An issuer that requests or requires an applicant to
take an HIV-related test in connection with an application must:
(1) provide an explanation to the applicant, or
another person legally authorized to consent to the test, of how the
test will be used; and
(2) obtain a written authorization from the person to
whom the explanation is provided.
(b) The authorization must:
(1) be on a form adopted by the commissioner; and
(2) be separate from any other document presented to
the applicant or other person legally authorized to consent to the
test.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.054. INQUIRIES REGARDING PREVIOUS TESTS. (a) An
issuer may inquire whether an applicant has:
(1) tested positive on an HIV-related test; or
(2) been diagnosed with HIV or AIDS.
(b) An issuer may not inquire whether an applicant has been
tested for or has received a negative result from a specific test
for:
(1) exposure to HIV; or
(2) a sickness or a medical condition derived from
infection with HIV.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.055. NOTICE OF POSITIVE TEST RESULT;
FEE. (a) An applicant must be given written notice of a positive
HIV-related test result by:
(1) a physician designated by the applicant; or
(2) the Texas Department of Health, if the applicant
has not designated a physician.
(b) The Texas Department of Health by rule may set a fee, not
to exceed $25, to cover the cost of giving written notice under this
section.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.056. ADVERSE UNDERWRITING DECISION; TEST PROTOCOL
RULES. An issuer may not make an adverse underwriting decision
based on a positive HIV-related test unless a test protocol
established by commissioner rule is followed.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.057. CONFIDENTIALITY OF TEST RESULT
REQUIRED. (a) An HIV-related test result is confidential.
(b) An issuer may not release or disclose the test result or
otherwise allow the test result to become known except as:
(1) required by law; or
(2) requested or authorized in writing by the
applicant or a person legally authorized to consent to the test on
the applicant's behalf.
(c) A test result released under Subsection (b)(2) may be
released only to:
(1) the applicant;
(2) a person legally authorized to consent to the
test;
(3) a licensed physician, medical practitioner, or
other person designated by the applicant;
(4) an insurance medical information exchange under
procedures designed to ensure confidentiality, including the use of
general codes that cover results of tests for other diseases or
conditions not related to AIDS, or for the preparation of
statistical reports that do not disclose the identity of any
particular applicant;
(5) a reinsurer, if the reinsurer is involved in the
underwriting process, under procedures designed to ensure
confidentiality;
(6) persons within the issuer's organization who have
the responsibility to make underwriting decisions for the issuer;
or
(7) outside legal counsel that needs the information
to effectively represent the issuer regarding the applicant.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
SUBCHAPTER O. SANCTIONS; PENALTIES; INJUNCTIONS
§ 545.701. SANCTIONS. The commissioner may impose
sanctions under Chapter 82 on an issuer that violates this chapter.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.702. CIVIL ACTION; PENALTY. (a) A person who is
injured by a violation of Section 545.057 may bring a civil action
for damages.
(b) A person may bring an action to restrain a violation or
threatened violation of Section 545.057.
(c) If it is found in a civil action that a person or entity
has released or disclosed a test result or allowed a test result to
become known in violation of Section 545.057, the person or entity
is liable for:
(1) actual damages;
(2) a civil penalty of:
(A) not more than $1,000 if the release or
disclosure was negligent; or
(B) not less than $1,000 or more than $5,000 if
the release or disclosure was wilful; and
(3) court costs and reasonable attorney's fees
incurred by the person bringing the action.
(d) A defendant in a civil action brought under this section
is not entitled to claim a privilege as a defense to the action.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
§ 545.703. CRIMINAL PENALTY. (a) A person or entity
commits an offense if the person or entity, with criminal
negligence, violates Section 545.057 by:
(1) releasing or disclosing a test result or other
information; or
(2) allowing a test result or other information to
become known.
(b) An offense under this section is a Class A misdemeanor.
(c) Each release or disclosure made or allowance of a test
result to become known in violation of this chapter constitutes a
separate offense.
Added by Acts 2003, 78th Leg., ch. 1274, § 2, eff. April 1, 2005.
