INSURANCE. Can I be asked if I am HIV-positive on an application for health or life insurance?

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1 INSURANCE Insurance is a very important issue for people living with HIV. It is vital to your longterm stability and care that you attempt to maintain coverage that you receive through employment or other means. This section deals mostly with health, life, and disability insurance. Your local AIDS Service Organization or an attorney can help you handle insurance issues (see Resources chapter for phone numbers). Can I be asked if I am HIV-positive on an application for health or life insurance? The answer depends on whether the insurance plan is a group, individual, or self-funded policy. Usually, private health or life insurance is either a group or self-insured policy provided by your employer, or an individual policy that you bought on your own. Group Policy: Under a group insurance policy, an insurer may neither ask if you have been tested for HIV nor what the results of any HIV tests have been. 1 In fact, a group policy insurer may not use or obtain from any source, including the Medical Information Bureau, Inc., (see infra What Health Insurance Companies Know: Your Records at MIB) any of the following: (a) The results of a person's test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV; (b) Any other information on whether the person has been tested for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV. 2 An insurer can, however, ask you whether you have been diagnosed or treated by a medical professional for AIDS or AIDS Related Complex (ARC). 3 Individual Policy: An insurer may ask for information about your HIV/AIDS status under an individual insurance policy. 4 Individual policies may cover single persons or families. Self-funded Policy: Some insurance plans are self-funded or funded and managed by an employer not an insurance company. Self-funded plans are not subject to the same state and federal laws as regular plans and you may be asked your HIV/AIDS status under these plans. Can an insurer require that I be tested for HIV? Group Policy: A group policy insurer may neither condition the provision of insurance coverage on, nor consider in the determination of rates or any other aspect of insurance coverage, whether an individual has gotten an HIV test. 5 Individual Policy: Under current Wisconsin law, insurers underwriting individual health and life insurance may require applicants for insurance to be tested for the presence of HIV. 6 An individual policy insurer may not, however, require or request that you reveal

2 whether you have previously undergone a test at an anonymous counseling and testing site, or through the use of a home test kit. 7 NOTE: Insurers may only disclose the results of your test to: (1) you, as the test taker; (2) your health care provider if you provide the insurer with informed consent; and (3) such other persons you authorize through informed consent. 8 Can an insurer deny me coverage because I have HIV? A health insurance policy is prohibited from containing any exclusions or limitations for coverage of the treatment of HIV infection or any related condition unless the same exclusions or limitations apply to all other conditions. 9 A life insurance policy may not deny or limit benefits solely because the insured's death is caused, directly or indirectly, by HIV infection or any illness or medical condition arising from or related to HIV infection. 10 Group Policy: A group policy insurer may not condition the provision of insurance coverage on, nor consider in the determination of rates or any other aspect of insurance coverage, the results of an HIV test. 11 Individual Policy: Although individual insurers can require people applying for insurance to take HIV tests, this does not authorize the use of an HIV test to discriminate in violation of section (3) of the Wisconsin Statutes, which prohibits discrimination among policyholders unless such differences are based on sound actuarial principles supported by reliable data or actual or reasonably anticipated experience. 12 What is a preexisting condition and how may it affect my insurance coverage? A preexisting condition is an illness or medical condition that occurred before you applied for health insurance. Insurance claims relating to a preexisting condition that arise within a certain time period, or waiting period, may be denied depending on what type of health insurance coverage you are seeking.

3 NOTE: On or after January 1, 2014, individual health plans and group health plans may not impose any preexisting condition exclusions. The Patient Protection and Affordable Care Act (a.k.a. Obamacare ) will prohibit insurers from discrimination against or charging higher rates for any individual based on preexisting medical conditions. For more information, see the question about the PPACA at the end of this chapter. Individual and Self-Funded Policies: A preexisting condition under an individual insurance policy is defined as a condition diagnosed or treated within the 12 months prior to the effective date of coverage. 13 An insurance company may deny you insurance for a preexisting condition if the policy specifically states the name, or a description, of the condition. 14 If it does not, then no loss suffered, or disability beginning, after 12 months from the start date of an individual disability insurance policy may be reduced or denied on the ground that a disease or physical condition existed prior to the effective date of coverage. 15 Group Policies: A preexisting condition under a group insurance policy is defined as a condition diagnosed or treated within the six months prior to the effective date of coverage. 16 After 12 months of coverage, the insurer can no longer reduce or deny coverage on the ground that a disease or physical condition existed prior to the effective date of coverage. 17 What if I lie about my HIV/AIDS status on the insurance application? Intentionally providing false answers on your insurance application is considered fraud. The insurance company can use the fraud as a basis to cancel your policy from the date of application. The insurance company is allowed to cancel for mistakes only within the first two years the policy is in effect. 18 However, fraudulent misrepresentation is a basis for avoidance of the policy even after two years have elapsed. 19 What Health Insurance Companies Know: Your Records at MIB Protecting yourself and knowing what information health insurance companies have about you is a way to avoid committing fraud. MIB Group, Inc. ("MIB") is a membership corporation owned by approximately 500 member insurance companies in the US and Canada. MIB is a fraud protection service that protects insurers from fraud, or attempts to conceal or omit information that is material to the underwriting of life, health, disability income, critical illness, and long-term care insurance. You will only have an MIB file if you have applied for individual insurance at a member company within the last seven years. 20 Your right to know

4 One way to protect yourself from denial is to check your status with MIB to ensure your record is correct. Under the federal Fair Credit Reporting Act and the Fair and Accurate Credit Transactions Act, MIB is regulated as a nationwide specialty consumer reporting agency, which means that you can access your record and correct any inaccuracies. You may request one free copy a year of your MIB consumer file. You can request your file online at or by telephone; MIB s toll-free number for disclosure is (TTY for hearing impaired). In addition to your free annual copy, you will also receive a free copy of your file if you received a written notification of adverse action from an MIB member insurance company that identified MIB as an information source. Adverse action generally means that your application for insurance has been denied, or that the premium has been increased as a result of the investigation initiated by the insurance company because of the MIB record. See Section 615 of the Federal Fair Credit Reporting Act for specific details. To qualify for the free file copy, you will need to include a copy of the letter of adverse action that you received from the MIB member insurance company with your request for Record Search and Disclosure. Your request must be received within 60 days of the date of the adverse action letter. Upon receiving your (a) request for a Record Search and Disclosure, and (b) proper identification, MIB will provide you with: The nature and substance of information, if any, that MIB may have in its files about you; The name(s) of the MIB member companies, if any, that: o reported information to MIB; o received a copy of your MIB record during the 36 month period preceding your request for disclosure; and, o have made an inquiry on you in the 24 month period preceding your request for disclosure. See for more information. Will I be able to keep my health coverage after I leave my job or if I reduce my work-hours to part-time? Employers must provide continuing health insurance coverage for up to 18 months or more after an employee leaves the job under a federal law called COBRA (20 or more employees), 21 or Wisconsin s insurance continuation coverage statute (all employers, regardless of size). 22 Under both the federal and state laws, you are eligible if you leave your job or reduce your work hours for health reasons, but are not eligible if you were terminated due to misconduct. 23

5 NOTE: You have 60 days after your job ends to inform your employer that you are choosing COBRA. 24 You will be responsible for monthly premium payments for the health insurance. Your employer must inform you of your right to continuing coverage, 25 and will be able to put you in touch with the insurance company to determine your monthly premium cost. Coverage under COBRA is available for 29 months, instead of only 18 months, for individuals whom the Social Security Administration has determined became or were disabled during the first 60 days of continuing COBRA coverage. 26 You must inform the plan administrator of your disability status within 60 days of your Social Security determination, 27 and before the end of the 18-month period of coverage. 28 Plans can charge 150% of the premium cost for the extended period of coverage. For more information on federal and state continuation coverage, see If I leave my job or reduce my work hours to part-time, can I get help to pay my monthly premiums for continuation health insurance (COBRA)? The Wisconsin AIDS/HIV Health Insurance Premium Subsidy Program may be able to pay your premiums for up to 29 months after you leave your job. 29 To be eligible, an individual must: 1. live in Wisconsin; 2. have family income that does not exceed 300% of the federal poverty guideline; 3. have a doctor certify that the individual has HIV infection and had to quit work, reduce work hours, or take an unpaid medical leave from employment due to an HIV-related medical condition; and 4. have or be eligible for health insurance coverage under a group health plan or an individual health plan. NOTE: Individuals with income between 201% and 300% of poverty are required to cover 3% of the cost of their annual premium. See the end of the Public Benefits chapter for more information on other programs that may help you. If I stop working, can I keep my employer-provided life insurance?

6 Yes. You have 31 days from your last day of work to convert your employee group life insurance to an individual policy. 30 Once converted, you will be responsible for the premium payments. Can I sell my life insurance policy? Yes. A person who is chronically ill can sell his or her life insurance policy for cash in a transaction called a life settlement. 31 In this transaction, the owner of a life insurance policy sells the policy for an amount less than the death benefit but greater than the cash surrender value or accelerated death benefit under the policy. 32 Although you remain the insured and receive a cash settlement at the time of sale, you forfeit the death benefit and any other interest in the policy (e.g. the right to pledge the policy as collateral). 33 Settlement offers can vary from 25% to 70% percent of the face value of your policy and will drastically affect your eligibility to receive benefits, so consult an attorney before selling your policy. Can I collect on my employer s disability insurance if I am HIV-positive? Maybe. If you are diagnosed with HIV while you are enrolled in an employer disability insurance plan, you may be able to collect monthly payments from this plan. If you apply for these benefits from the disability insurance company and are denied, you should consult an attorney. Not all employers have disability insurance. What effects will the Patient Protection and Affordable Care Act (a.k.a. Obamacare ) have on my insurance coverage? In March 2010, the 111th Congress passed health reform legislation, the Patient Protection and Affordable Care Act (P.L ), as amended by the Health Care and Education Reconciliation Act of 2010 (P.L ). Jointly referred to as PPACA, the law is intended to increase access to health insurance coverage. On or after January 1, 2014, individual health plans and group health plans may not impose any preexisting condition exclusions. 34 Insurers will be prohibited from discriminating against or charging higher rates for any individuals based on preexisting medical conditions. Furthermore, PPACA bans annual and lifetime benefit limits. 35 The shared responsibility requirement mandates that all individuals not covered by an employer sponsored health plan, Medicaid, Medicare, or other public insurance program, secure an approved private insurance policy or pay a penalty. 36 You are not required to buy a private insurance policy, however, if the least expensive policy would exceed 8% of your income. 37 Starting in 2014, states must create health insurance exchanges, which are one-stop shopping markets for health insurance. These exchanges offer a choice of different health plans, certify plans that participate, and provide information to help consumers better understand their options. Individuals who purchase insurance after January 1, 2014, through an exchange will be eligible for subsidies for health insurance premiums 38

7 and cost-sharing 39 if their income is less than 400% of the federal poverty level. Individuals who get insurance through their employer can get subsidized coverage in an exchange if their premiums are unaffordable (more than 9.5% of their household income) or the plan is inadequate (pays less than 60% of the cost of covered benefits) WIS. STAT (2); WIS. ADMIN. CODE INS WIS. ADMIN. CODE INS 3.53(7). 3 State of Wisconsin, Office of the Commissioner of Insurance, Insurance Coverage and AIDS, Page 3, available at 4 WIS. STAT (3). 5 WIS. STAT (2)(b)-(c). 6 See WIS. ADMIN. CODE INS 3.53(4)(e). 7 WIS. ADMIN.CODE INS 3.53(4)(g)(2). 8 WIS. ADMIN. CODE INS 3.53(6). 9 WIS. STAT (2). 10 WIS. STAT (3). 11 WIS. STAT (2)(b)-(c). 12 WIS. STAT (3). 13 WIS. STAT (2)(ac)2. 14 WIS. STAT (2)(ac)1. 15 WIS. STAT (2)(ac) U.S.C. 1181(a)(1); WIS. STAT (1)(a) U.S.C. 1181(a)(2); WIS. STAT (1)(b). 18 WIS. STAT (1). 19 Id U.S.C WIS. STAT U.S.C. 1163(2); WIS. STAT (2)(b) U.S.C U.S.C U.S.C. 1162(2)(A)(vii) U.S.C. 1166(3) U.S.C. 1162(2)(A)(vii). 29 WIS. STAT and WIS. STAT (2) 31 WIS. STAT

8 32 WIS. STAT (1)(j)1. 33 Id U.S.C. 300gg 3; 29 C.F.R U.S.C. 300gg U.S.C. 5000A U.S.C. 5000A(e)(1) U.S.C. 36B U.S.C U.S.C. 36B.