Reprinted with the permission of Aspen Publishers, from AIDS and the Law, Fourth Edition, 2008-2010, www.aspenpublishers.com

Mark Scherzer, David W. Webber, and A. Christopher 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 Rules

[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