Insurers,Consumers,and Testing: The AIDS Experience

Calif. Health & Safety Code, c. 1.11, $199.21 (1988) (prohibiting use of HIV blood test that identifies person tested for determination of insurability); 7 D.C. Code Anno. $35-221-229(1987) (insurer may not deny insurance because of positive HIV test or because individual declines to take test; before August 1991, insurers may not require individuals to take test or consider tests for rate-making purposes); 29 Fla. Stats. Anno. $381,606 (1986) (prohibiting result of serologic test conducted under Health Department declaration of public health threat to determine if a person may be insured for disability, health, or life insurance); 9 C.Mass.R. $36.01-36.15 (1987) (prohibiting HIV tests for accident and health insurance and group life insurance; permits HIV testing on the basis of objective criteria for individual life and non-cancelable disability insurance under certain conditions) (regulations under preliminary injunction; Life Ins. Ass'n of Mass. v. Singer, CA No. 87-5321, Supr. Ct., Suffolk Cry, Massachusetts Lawyers Weekly, 16 (Oct. 12, 1987): 105-6); 11 N.Y.C.R.R. $52.27 (1987) (prohibiting HIV tests for determination of insurability for health insurance). See also Office of Technology Assessment, AIDS and Health Insurance—An OTA Survey (Washington, D.C.: U.S. Government Printing Office, 1988).

Centers for Disease Control, “Pneumocystis Pneumonia—Los Angeles,” Morbidity and Mortality Weekly Report, 30 (1981): 250–52.

Nancy Mueller , “The Epidemiology of the Human Immunodeficiency Virus Infection,” Law, Medicine & Health Care, 14 (Dec. 1986): 250–58.

Sarndagharan M.G. , “Antibodies Reactive with Human T-Lymphotropic Retrovirus (HTLV-III) in the Serum of Patients with AIDS,” Science, 124 (1984): 506–8. A new FDA rule requires the testing of all human blood and blood products; 53 Fed. Reg. 111 (1-1-88).

Friedland G.H. Klein R.S. , “Transmission of the Human Immunodeficiency Virus,” New England Journal of Medicine, 317 (1987): 1125–35.

Id.

Robert-Guroff M. Brown M. , and Gallo R.C. , “HTLV-III-Neutralizing Antibodies in Patients with AIDS and AIDS-Related Complex,” Nature, 316 (1985): 72–74.

Institute of Medicine, Confronting AIDS (Washington, D.C.: National Academy of Sciences, 1986), 59–60.

American Council of Life Insurance, 1986 Life Insurance Fact Book (Washington, D.C., 1986), 6.

The McCarran—Fergeson Act exempts the state-regulated business of insurance, such as risk-spreading and actuarial activities, from federal antitrust scrutiny. See, e.g., Group Life Insurance v. Royal Drug, 440 U.S. 205, reh. den. 441 U.S. 917 (1979).

“Fortieth Annual Report on American Industry,” Forbes Magazine, 141 (Jan. 11, 1988): 151, 155.

Exhibit S of document submitted by Lincoln National Life Insurance Company to the Massachusetts Division of Insurance regarding public hearing held Aug. 4, 1987, respecting proposed 221CMR36.00.

See Barry Michael Cleary Paul and Fineberg Harvey , “Screening for HIV Infection: Risks, Benefits, and the Burden of Proof,” Law, Medicine & Health Care, 14 (Dec. 1986): 259–67.

Proposed Bulletin, National Association of Insurance Commissioners Advisory Committee on AIDS, 1986.

Statement submitted by Karen Clifford of Health Insurance Association of America to Health Insurance (B) Committee of the National Association of Insurance Commissioners (Dec 19, 1986): 2.

Wis. Stat. Ann. 631.90, as amended by A.487, eff. Nov. 23, 1985.

Written statement of B'nai B'rith Members Program filed with New York Insurance Department regarding public hearing held June 25, 1987, respecting proposed 11NYCRR52.

Wash. Admin. Code ch. 284-90-010.

Presti Steven Lo , “Who Should Bear the Cost of AIDS?”, Professional Agent, June 1986: 57.

Testimony of Nationwide Insurance Company before New York Insurance Department at public hearing held June 25, 1987, regarding proposed 11NYCRR52.

Statements submitted by Karen Clifford and Russell Iuculano of Health Insurance Association of America and American Council of Life Insurance, respectively, to Health Insurance (B) Committee of the National Association of Insurance Commissioners (Dec. 19, 1986): 5.

See, for example, Me. Rev. Stat. Ann. 24A, $2450; Mass. G.L. c.175, $108C; N.Y. Ins. Law $3225.

Letter from Peter Hiam, Massachusetts Commissioner of Insurance, to Dukakis Michael S. , Governor of Massachusetts, July 8, 1987.

AIDS Survey, American Council of Life Insurance/Health Insurance Association of America, Aug. 16, 1986.

Letter from Peter Hiam, Massachusetts Commissioner of Insurance, to Schweicker Richard S. , President, American Council of Life Insurance, April 2, 1987.

Best's Insurance Management Reports, A.M. Best Company Release 33, Nov. 16, 1987.

AIDS Survey, American Council of Life Insurance/Health Insurance Association of America, June 1987.

Morgan W.M. Curran J.W. , “Acquired Immunodeficiency Syndrome: Current and Future Trends,” Public Health Reports, 101 (1986): 459–65.

AIDS Survey, Institute of Home Office Underwriters, Underwriting Procedures and Committee, Question 2.

AIDS Survey, American Council of Life Insurers/Health Insurance Association of America, Aug. 16, 1986: 4.

“Industry Survey Shows Impact of AIDS Claims,” Journal of Commerce, Oct. 7, 1986.

Lo Presti , supra note 19.

Gostin Larry Curran William , and Clark Mary , “The Case Against Compulsory Case Finding in Controlling AIDS—Testing, Screening, and Reporting,” American Journal of Law & Medicine, 12 (1987): 7–53; Bayer Ron Levine Carol , and Susan Wolf , “HIV Antibody Screening: An Ethical Framework for Evaluating Proposed Programs,” Journal of the American Medical Association, 256 (1986): 1768–74.

“Suicides Raise Questions on AIDS Testing,” Boston Globe, Feb. 14, 1987, at 17.

Cleary Paul Barry Michael , and Mayer Kenneth , “Compulsory Premarital Screening for the Human Immunodeficiency Virus,” Journal of the American Medical Association, 258 (1987): 1757–62.

New York Times, June 1, 1987, sec A1.

Meyer Klemens Pauker Stephen , “Screening for HIV; Can We Afford the False Positive Rate?”, New England Journal of Medicine, July 23, 1987: 238.

Exhibit F , Agent Communication, filed by New York Life Insurance Company with the New York Insurance Department regarding public hearing held June 25, 1987, respecting proposed 11NYCRR52.

Insurer Position: “For Cause” Testing, Life Insurance Association of Massachusetts, March 11, 1987.

Curran William Gostin Larry , and Clark Mary , Acquired Immunodeficiency Syndrome: Legal and Regulatory Policy (Washington, D.C.: U.S. Dept. of Health and Human Services, contract no. 282-86-0032, 1986).

Lo Presti , supra note 19, at 56.

Testimony of John Carter, President, Equitable Life Assurance Society of the United States, before the New York Insurance Department at the public hearing held June 25, 1987, respecting proposed 11NYCRR52.

Written notes by Neil Day, President of Medical Information Bureau, Inc., filed with Massachusetts Division of Insurance, March 10, 1987.

Exhibit C of Written Statement by Harry A. Woodman, filed with the New York Insurance Department regarding proposed 11NYCRR52.