Financial Services Superintendent Maria T. Vullo today announced that the New York Department of Financial Services (DFS) has issued guidance to ensure that insurers do not discriminate when underwriting insurance for New Yorkers who use pre-exposure prophylaxis (PrEP), a combination of prescription drugs used to reduce the risk of contracting human immunodeficiency virus (HIV).  The guidance issued today follows news reports that some insurers may be denying coverage or taking other adverse underwriting actions for life insurance, disability income insurance or long-term care insurance if an applicant uses PrEP.  DFS previously issued guidance to health insurers to ensure that insurance coverage for PrEP is available to all New Yorkers and that insurance companies do not discriminate against those requesting PrEP based on lifestyle or behavior.

“DFS will not tolerate discrimination in the underwriting of insurance for any New Yorker, nor will we tolerate any denial of insurance that is not based on sound actuarial principles,” said Superintendent Vullo.  “Today’s action will ensure that consumers who are taking prudent steps to protect their health by reducing the risk of contracting HIV will be able to purchase life insurance, disability income insurance and long-term care insurance at fair and reasonable prices and without fear of unfair denials.”

DFS began an investigation of underwriting guidelines and practices following reports that some issuers may be denying coverage or taking other adverse underwriting actions for life insurance, disability income insurance, or long-term care insurance if an applicant uses PrEP.  Under New York Insurance Law, the Superintendent may examine issuers to confirm that their underwriting of such policies, where HIV prevention strategies are relevant, is based on underwriting and actuarial principles reasonably related to actual or anticipated experience.

In the guidance issued today, DFS noted that underwriting practices in which adverse decisions are based on an applicant's use of PrEP violate New York Insurance Law because these practices result in unfair discrimination between individuals with the same level of potential exposure to HIV.  These practices result in adverse underwriting decisions for individuals who are taking steps to mitigate the risk of contracting HIV infection but no adverse underwriting decisions for individuals with the same level of potential exposure to HIV who are not taking steps to mitigate the risk.  Indeed, evidence suggests that the use of PrEP can significantly reduce the risk of contracting HIV infection.

In addition, Insurance Law prohibits issuers of life insurance, disability income insurance, and long-term care insurance from refusing to insure or continue to insure, limiting the amount, extent or kind of coverage, or charging a different rate for the same coverage solely because of the physical or mental disability, impairment or disease, or prior history of the disability or disease of an insured or potential insured, except where the refusal, limitation or rate differential is permitted by law or regulation and is based on sound actuarial principles or is related to actual or reasonably anticipated experience.

A copy of the full circular letter can be found here.