AIDS and the Law, Fourth Edition
Chapter 12: Private Insurance
Mark Scherzer, David W. Webber, and A. Christoper Wieber
§ 12.01 Introduction
§ 12.02 Overview of the Insurance Market
[A] Types of Insurance Coverage
[1] Health Insurance
[2] Disability Insurance
[3] Life Insurance
[B] Coverage Formats
[1] Individual Insurance Policies
[2] Group Insurance Policies
[3] ERISA Employee Welfare Benefit Plans
[C] Laws Governing Insurance Coverage
§ 12.03 Access to Insurance Coverage
[A] HIV Testing and Medical Underwriting
[1] State Legislative Prohibitions on HIV Testing
[2] State Regulation of HIV Testing
[B] Other Screening for HIV
[1] Screening Based on Sexual Orientation
[2] Screening Based on Association or Relationship
[C] NAIC Guidelines
[D] Health Insurance Access In the Individual Market
[1] HIPAA Continuation Rights and Cancellation Restrictions
[2] State “Guaranteed Issue” Laws
[3] State High-Risk Pools
[4] Other State Health Insurance Initiatives
[5] Medicare
[6] State AIDS Drug Assistance Programs
[E] Employer Sponsored Health Insurance and Underwriting Restrictions
[1] HIPAA Nondiscrimination Provisions
[2] State Law Regulation of Employer Sponsored Insurance
§ 12.04 Overview of Nondiscrimination in Coverage
[A] Americans with Disabilities Act
[1] Insurance as an Employment Benefit (ADA Title I)
[2] Insurance as Public Accommodation (ADA Title III)
[3] ADA's "Safe Harbor'' Insurance Provision
[4] EEOC Health Insurance Enforcement Guidance
[B] Health Insurance Portability and Accountability Act
[1] HIPAA Legislative History
[2] HIPAA Nondiscrimination Regulations
[C] Employee Retirement Income Security Act and Rehabilitation Act
[1] Scope of ERISA Nondiscrimination Coverage
[2] Judicial Interpretation of ERISA as Allowing HIV-Based Limitations and Exclusions
[D] Rehabilitation Act of 1973
§ 12.05 Confidentiality of Insurance-Related Information
[A] Waiver of Confidentiality Rights
[B] Disclosure of Insurance-Related Information in the Workplace
[C] HIPAA Privacy Rule
[D] Confidentiality and the Medical Information Bureau
[E] NAIC Model Confidentiality Legislation
§ 12.06 Overview of Using Coverage/Claim Denials: General
[A] Appeal Procedure and Litigation
[1] Employee Retirement Income Security Act
[2] Non-ERISA Insurance Policies
[3] State External Review Laws
[B] Pre-Existing Condition Exclusions and HIPAA Portability
[C] Coverage Lacunae: Waiting Periods, Actively at Work Requirements, Leaves of Absence, and Late Enrollment
[D] Using Coverage/Claim Denials: Health Insurance
[1] Managed Care Organizations and Quality of Care Issues
[2] Medical Necessity
[3] Experimental/Investigational
[4] Usual and Customary Charges
[E] Using Coverage/Claim Denials: Disability Insurance
[1] Effect of Work Accommodations
[2] Subjective Symptoms
[3] Gradual versus Sudden Deterioration
[4] Return to Work Issues
[F] Using Coverage/Claim Denials: Life Insurance
[1] Waiver of Premium Benefits
[2] Viatical Settlements, Accelerated Life Insurance Benefits, and Related Options
[a] Accelerated Benefits
[b] Viatical Settlements
[c] State Regulation of Viatical Settlements
[d] Tax Consequences of Viatical Settlements
[e] Other Considerations Affecting Viatical Settlements
§ 12.07 Keeping Coverage
[A] Insurer Policy Rescissions and Defenses
[1] Policy Incontestability
[2] Fraud as Exception to Incontestability
[B] HIPAA Portability
[C] COBRA Continuation Rights for Employer-Sponsored Health Insurance
[D] Conversion Rights for Employer-Sponsored Health, Life, and Disability Insurance
[E] Interaction Between Medicare and Other Coverage
§ 12.08 Miscellaneous State Statutory and Administrative Protections
[A] Problem of ERISA Pre-Emption
[B] State Insurance Regulators
