HIV testing and consent in Florida underwriting

Florida regulates HIV testing in insurance underwriting more tightly than most states, and s. 627.429, F.S., is written as a series of narrow permissions rather than broad ones. Almost every wrong answer on this topic is something an insurer may plausibly want to do and is specifically forbidden from doing.

Questions and answers, explained

All 10 questions above, with the correct answer and why it is correct. Everything here is on hiv testing and consent in florida underwriting.

1. While selling a health insurance policy, an agent tells the applicant that an accidental death rider is "required by Florida law" and charges for it without the applicant's informed consent. The rider is not actually required by law. The agent has committed:

   • Acoercion
   • Bdefamation
   • Crebating
   • DslidingCorrect

   Why: Sliding includes representing that a coverage is required by law when it is not, representing that ancillary coverage is included at no extra charge when a charge applies, or charging for ancillary coverage without the applicant's informed consent (s. 626.9541(1)(z), F.S.). Coercion — the closest distractor — involves boycott, intimidation, or restraint to force insurance transactions, not deceptively attaching extra products to a sale. (Outline FL-I.I)

   Reference s. 626.9541(1)(z), F.S. — Outline FL-I.I

2. Before an insurer may test a Florida insurance applicant for HIV, s. 627.429, F.S., requires the insurer to:

   • AObtain the applicant’s verbal agreement during the telephone underwriting interview
   • BNothing, if the test is part of the insurer’s routine blood work panel
   • CFile a notice of its intent to test with the Department of Financial Services before any blood is drawn
   • DDisclose its intent to test and obtain written informed consent explaining purpose and confidentialityCorrect

   Why: Section 627.429, F.S., requires the insurer to disclose its intent to test for HIV and obtain written informed consent that fairly explains the test, its purpose, potential uses, limitations, the meaning of results, and the right to confidential treatment. A positive result must be reported to a physician designated by the applicant or, absent a designation, to the Department of Health — not casually disclosed; verbal consent or burying the test in routine blood work does not satisfy the statute.

   Reference FL-III.H; s. 627.429, F.S.

3. Before an insurer may obtain an applicant's protected health information from her physicians, HIPAA requires

   • Anothing more than the applicant's signature at the end of the application itself
   • Ba signed authorization naming the information, the recipients, an expiration, and revocation rightsCorrect
   • Cprior written approval from the Florida Department of Financial Services
   • Da court order compelling each physician to release the applicant's records

   Why: HIPAA's privacy rule requires a specific signed authorization with defined content — the information covered, the permitted recipients, an expiration date or event, and notice of the right to revoke — before a covered provider may release protected health information to an insurer. A general signature on the application is not sufficient; the authorization is a separate document the applicant signs and normally receives a copy of, and it is a distinct requirement from the separate written informed consent Florida requires before HIV testing under s. 627.429, F.S.

   Reference Outline IX (Field Underwriting Procedures): HIPAA privacy and insurability information; s. 627.429, F.S.

4. A Florida life insurer's HIV test on an applicant comes back positive. Under s. 627.429, F.S., how must that result be communicated to the applicant?

   • ABy the insurer’s underwriter, in the written declination letter sent to the applicant’s address of record
   • BBy the agent who took the application, during the policy delivery appointment at the applicant’s home
   • CThrough a physician the applicant designates, or the Department of Health, with counseling on the resultCorrect
   • DBy certified mail to the applicant’s home address, with no counseling required at any point in the process

   Why: s. 627.429, F.S., requires that a positive HIV result be delivered through a physician chosen by the applicant or through the Department of Health, accompanied by face-to-face counseling covering the meaning of the result, the possible need for further testing, and how to prevent transmission. Choice D fails on both counts: the insurer may neither mail the result directly nor skip the counseling requirement.

   Reference s. 627.429, F.S. — HIV testing: notification and counseling

5. As part of underwriting, a life insurer wants a Florida applicant to be tested for HIV. Before the test may be administered, the insurer must:

   • ANotify the applicant’s primary care physician and obtain that physician’s authorization
   • BDisclose its intent to test and obtain written informed consent explaining the purposeCorrect
   • CFile a request for prior approval with the Office of Insurance Regulation first
   • DObtain the applicant’s verbal consent, documented in the agent’s written report

   Why: Section 627.429, F.S., requires that before HIV testing, the insurer disclose its intent to test and obtain the applicant's written informed consent, including a fair explanation of the test, its purpose, potential uses, the meaning of results, and the right to confidential treatment of the information. Verbal consent (the closest distractor) does not satisfy the statute — the consent must be written. Outline III.A (disclosures at point of sale — HIV consent).

   Reference Outline III.A — Disclosures at point of sale (HIV consent); s. 627.429, F.S.

6. Under s. 627.429, F.S., an application for life or health insurance in Florida may ask an applicant:

   • AWhether the applicant has ever been tested for HIV at any point in the past decade
   • BWhether the applicant has tested positive for HIV or been diagnosed with AIDSCorrect
   • CWhether anyone in the applicant’s household has been diagnosed with HIV
   • DWhether the applicant has received a negative HIV test result recently

   Why: Section 627.429, F.S., permits questions limited to whether the person has tested POSITIVE for exposure to HIV infection or has been diagnosed as having AIDS or AIDS-related complex. Option A is the closest distractor and is not allowed: asking whether someone has been tested, or about negative results (D), would penalize responsible testing and is outside the permitted inquiry. Questions about other household members (C) have no bearing on the applicant's own insurability.

   Reference FL-III.H; s. 627.429, F.S.

7. Under Florida's HIV testing statute, an insurer that tests a life insurance applicant for HIV may do all of the following EXCEPT:

   • ARequire the test based on the amount of coverage applied for, using a threshold applied uniformly to an entire class of risks
   • BShare the result with its reinsurer
   • CReport an identifiable positive result to an industry information data bankCorrect
   • DAsk on the application whether the applicant has previously been diagnosed as HIV positive

   Why: s. 627.429, F.S., imposes strict confidentiality: results may be shared inside the company and with affiliates, agents, and reinsurers, but may not be furnished to industry information data banks in any form that identifies the individual. Choice A is permitted because testing thresholds tied to the amount of coverage and applied to an entire class are allowed; what is never allowed is using sexual orientation to select who is tested or to make an underwriting decision.

   Reference s. 627.429, F.S. — confidentiality of HIV test results

8. An underwriter proposes requiring an HIV test for every male applicant who is unmarried, lives with a same-sex roommate, and names a nonrelative as beneficiary. Under s. 627.429, F.S., this practice is:

   • APermitted, because an insurer may set its own testing criteria so long as the criteria are actuarially justified and filed
   • BPermitted as long as it is applied consistently to every applicant who fits the profile, since consistency defeats a discrimination claim
   • CProhibited: marital status, living arrangements, beneficiary designation, and ZIP code may not be used to infer sexual orientationCorrect
   • DProhibited only if the insurer ultimately denies the application, since an adverse outcome is what converts screening into discrimination

   Why: Section 627.429, F.S., bars an insurer from using sexual orientation in underwriting or in determining whom to test, and expressly bars using marital status, living arrangements, occupation, gender, beneficiary designation, ZIP code, or other territorial classification to establish an applicant's sexual orientation. Option B is the closest distractor and fails because consistency cannot cure a criterion that is itself unlawful; the violation occurs when the testing rule is applied, not only upon denial (D).

   Reference FL-III.H; s. 627.429, F.S.

9. An applicant's initial HIV screening test is positive. Before making an adverse underwriting decision on that basis, s. 627.429, F.S., requires the insurer to:

   • ANotify the applicant’s employer and physician of the positive screening result
   • BRepeat the identical screening test twice more within 30 days
   • CReport the result to an industry data bank in identifiable form
   • DFollow the CDC- or FDA-recommended protocol, including a confirmatory testCorrect

   Why: Under s. 627.429, F.S., an adverse underwriting decision may rest on HIV test results only when written informed consent was obtained and the testing follows the applicable CDC- or FDA-recommended protocol, including any recommended follow-up confirmatory test. Positive results must be communicated through a physician the applicant designates, or to the Department of Health, with counseling. Option C is not merely unnecessary — furnishing identifiable HIV results to an industry data bank is prohibited.

   Reference FL-III.H; s. 627.429, F.S.

10. Under s. 627.6265, F.S., a Florida health insurer may NOT cancel or nonrenew an insured's policy because of:

    • AThe insured's failure to pay premium
    • BAn intentional material misrepresentation on the insured's application
    • CThe insured moving permanently outside the plan's service area
    • DThe insured's diagnosis of, or treatment for, HIV infection or AIDSCorrect

    Why: Notwithstanding any other law, no insurer may cancel or nonrenew the health insurance policy of any insured because of the diagnosis or treatment of human immunodeficiency virus infection or acquired immune deficiency syndrome (s. 627.6265, F.S.). The other three are legitimate grounds recognized elsewhere in the code, chiefly in the individual renewability statute, s. 627.6425, F.S. Do not confuse this rule with s. 627.429, F.S., which governs the informed-consent and confidentiality requirements an insurer must satisfy BEFORE it may HIV-test an applicant.

    Reference FL-III.H; s. 627.6265, F.S.

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