§ 90c.5. Underwriting questions.

 (a)  Information.

   (1)  Information asked of the applicant to underwrite the coverage is in the form of a single direct question, not a compound question or declaratory statement, and permits a direct response of known fact. This complies with §  89.12(d) (relating to application forms).

   (2)  Additional information obtained by a telephone interview conducted after the application has been submitted to the company is not used to contest coverage, unless the additional information is agreed to in writing by the applicant.

 (b)  ‘‘Good health’’ question.

   (1)  An adult application does or does not contain a ‘‘good health’’ question if the application contains extensive health underwriting questions.

   (2)  An adult application does not contain a ‘‘good health’’ question if the application does not contain extensive health underwriting questions. Extensive health underwriting questions means questions concerning at least the common dread diseases and a broad range of common nonlife threatening health conditions.

   (3)  A juvenile application does or does not contain a ‘‘good health’’ question.

 (c)  Serious health condition.

   (1)  An adult application does or does not contain either of the following questions, or a similar question, if the application contains extensive health underwriting questions:

     (i)   ‘‘Had or been treated for any serious health condition?’’

     (ii)   ‘‘Do you have any other impairment?’’

   (2)  A juvenile application does or does not contain either of these questions, or a similar question, without extensive health underwriting questions.

 (d)  Alcohol and drug use.

   (1)  An application contains alcohol and drug use or dependency questions if the application clearly defines words such as ‘‘excessive,’’ ‘‘dependency,’’ ‘‘habitual,’’ ‘‘abuse,’’ ‘‘regular,’’ and the like. An application does not contain these questions if the application does not clearly define ‘‘excessive,’’ ‘‘dependency,’’ ‘‘habitual,’’ ‘‘abuse,’’ ‘‘regular,’’ and the like. In relation to alcohol, these words are defined in terms of number of drinks consumed per day or some similar measure. In relation to drugs, they are defined in terms of being treated by a doctor for drug use or dependency.

   (2)  Underwriting questions concerning treatment for alcohol or drug use or dependency are worded to permit responses of known fact.

   (3)  The following alcohol or drug questions do or do not appear:

     (i)   Have you been medically treated for or been medically advised to have treatment for alcoholism or drug use or dependency?

     (ii)   Have you been treated for alcohol or drug use or dependency?

     (iii)   Have you joined a treatment organization because of alcohol or drug use or dependency?

     (iv)   Have you ever sought medical treatment for alcohol or drug use or dependency?

     (v)   Have you ever been hospitalized for drug or alcohol use or dependency?

 (e)  Subsequent application. If an application is taken subsequent to the taking of an original application, it does not contain questions that require the applicant to agree that his health on the date of the application is the same as it was when the original application was taken, unless the applicant has a copy of the original application. In addition, a subsequent application that refers to the original application is not used more than 180 days after the original application.

 (f)  AIDS questions. The following AIDS questions do or do not appear:

   (1)  Have you ever been treated for or ever had Acquired Immune Deficiency Syndrome (AIDS) or AIDS Related Complex (ARC)?

   (2)  Have you ever had a condition which you were medically advised is related to AIDS?

   (3)  Have you ever tested positively for HIV, AIDS or ARC?

  NOTE: The Department considers valid testing to be the HTLV-III test. A company uses a positive response to require additional testing to confirm AIDS. The additional testing includes the HTLV-III test twice and the Western Blot Test on the same sample of blood. The company does not deny coverage or rate the coverage on incomplete testing.

   (4)  Have you ever had an immune deficiency disorder or disease of the lymphatic system or immune mechanism? This appears only if the question in paragraph (1) or (2) or a similar question appears on the application.

 (g)  Additional AIDS questions. The following AIDS questions do not appear:

   (1)  Have you received counseling for, or advice concerning, AIDS?

  NOTE: Questioning a proposed insured’s history of counseling concerning AIDS is an invasion of the applicant’s privacy. Counseling by itself would not reveal anything pertinent to the underwriting process.

   (2)  Are you homosexual?

  NOTE: Questioning a proposed insured’s life style is an invasion of the proposed insured’s privacy.

   (3)  Have you ever had a known indication or symptom of AIDS or ARC or other health condition?

  NOTE: Questions about whether a proposed insured has had a known indication or symptom do not appear on an application. Unless a condition has been previously diagnosed or treated, this question places the applicant in the position of making a self-diagnosis. Also, it is difficult to define what constitutes a ‘‘known indication or symptom of.’’

   (4)  Have you ever had an AIDS related condition?

  NOTE: ‘‘AIDS’’/‘‘AIDS Related Complex’’ is definitive. Conversely, ‘‘related conditions’’ is vague and not in compliance with §  89.12(d).

   (5)  Have you ever had an AIDS Related Complex?

  NOTE: ‘‘AIDS’’/‘‘AIDS Related Complex’’ is definitive. Conversely, ‘‘any AIDS related complex’’ erroneously suggests that there is more than one AIDS Related Complex.

   (6)  Have you ever had an AIDS related blood test?

  NOTE: ‘‘AIDS related blood test’’ is vague and not in compliance with §  89.12.

 (h) Specific AIDS questions. The following questions do or do not appear with or without specific AIDS questions:

   (1)  Have you ever had, experienced, been tested for, treated for or told you had any of the following: Kaposi’s Sarcoma, infections from Pneumocystis Carinii, Cytomegalovirus (CMV), enlargement of lymph nodes or glands, chronic diarrhea, unusual or persistent skin lesions, unexplained infections or chronic fatigue?

   (2)  Have you ever had major surgery that necessitated a blood transfusion?

 (i)  Blood transfusion. The following question does not appear: Have you ever had major surgery that necessitated, or may have necessitated, a blood transfusion?

 (j)  Medical consultation. An application does or does not contain a general question about a medical consultation or a visit to a physician, for example, ‘‘Have you within the past 10 years had a consultation?’’ or ‘‘When did you last see a physician?’’ If it does, the company certifies in writing that information obtained on the application about a medical consultation or informational visit concerning AIDS or ARC, as opposed to the diagnosis or treatment of AIDS or ARC, will never be used to underwrite coverage on a proposed insured.

 (k)  Church affiliation. An application does not contain a question about the applicant’s church affiliation. The agent’s report does or does not contain a question concerning the applicant’s church affiliation. If it does, the company certifies that the information is not used for underwriting purposes.

 (l)  Smoker or nonsmoker. Underwriting questions for the purpose of assigning a smoker or nonsmoker rating in determining the cash values of a fixed premium policy or rider and the cost of insurance rates of a flexible premium universal life policy or rider are limited to questions about the proposed insured’s tobacco use habits. With respect to the cost of insurance rates, this does not prevent the company from classifying a proposed insured, not an existing insured, who does not smoke a substandard nonsmoker based on medical history.

 (m)  Medical exam report. When using another company’s medical exam report the following apply:

   (1)  The report is provided to the new company only by the applicant or with specific authorization in writing from the applicant.

   (2)  The new application that incorporates the other company’s medical exam report provides for the applicant to state that the medical condition as stated in the medical exam report is unchanged only if the applicant has a copy of the report.

   (3)  The medical exam is no older than 180 days.



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