Use of Opioid Overdose Reversal Agents in Underwriting and Rating; Notice 2019-03
[49 Pa.B. 3197]
[Saturday, June 15, 2019]
Questions have been raised regarding the Insurance Department's (Department) expectations concerning underwriting and rating practices for an applicant or enrollee1 for a policy for which health status may be considered, where those practices may include consideration of the presence of an opioid overdose reversal agent on a list of medications identified with the applicant or enrollee. The consideration of health status may occur for many types of policies, including but not limited to life insurance, limited benefit health insurance and short-term limited duration insurance.
For policies for which health status may be considered, an insurance company may underwrite or rate policies based on legitimate health status factors, including health conditions for which medications are prescribed. However, it is possible that the presence of a medication on a list of medications identified with an applicant or enrollee may not be indicative of a health condition, but may be on the list for other reasons. Opioid overdose reversal agents, such as Naloxone Hydrochloride (Naloxone), are medications that may be carried by individuals for reasons other than an indication of a health condition.
Pennsylvania, like many, if not all, of the states in the United States, is making significant efforts to address an ongoing opioid crisis. For example, the General Assembly enacted The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. §§ 780-101—780-144) to, inter alia, increase the ability of persons to have and use Naloxone without being subject to criminal liability or professional disciplinary action. In January 2018, Governor Tom Wolf issued a Proclamation of Disaster Emergency, subject to multiple subsequent renewals, most recently on March 20, 2019, to address the ongoing opioid crisis.2
On April 18, 2018, Dr. Rachel L. Levine, Secretary of Health for the Commonwealth, issued Standing Order DOH-002-2018 (Standing Order), which permits ''family members, friends or other persons who are in a position to assist a person at risk of experiencing an opioid-related overdose (Eligible Persons). . .to obtain Naloxone''3 . The week of December 10, 2018, the Wolf Administration held a number of events for ''Stop Overdoses in PA: Get Help Now Week''4 , a Statewide initiative to get Naloxone to Pennsylvanians and to get help for residents suffering from the disease of opioid-use disorder. That initiative included providing Naloxone for free at multiple locations across this Commonwealth, to more than 6,000 individuals.5
By this notice, the Department reminds insurers that underwriting and rating policies and practices, like other trade practices in the business of insurance, may not be discriminatory, unfair or deceptive. See, for example, 40 P.S. §§ 477a, 1171.4, 1171.5 and 3801.304(b). The Department urges carriers, before making an underwriting or rating decision based on the presence of a prescription for an opioid overdose reversal agent in a person's prescription drug history, to gather sufficient information to determine in what context an applicant or enrollee has obtained the prescription. It would frustrate the Commonwealth's public health efforts to address the ongoing opioid crisis if, for example, applications for life insurance and other underwritten or health status-rated products were denied simply because of the presence of a prescription, without considering whether it is relevant to the applicant's health. The Department strongly encourages carriers to carefully research and consider the reason for, and intended user of, an opioid overdose reversal agent prescription prior to issuing an underwriting decision or making a rating decision.
Questions concerning this notice may be directed to the Bureau of Market Actions, Office of Market Regulation, 1209 Strawberry Square, Harrisburg, PA 17120, RA-IN-MarkRegulation@pa.gov.
JESSICA K. ALTMAN,
[Pa.B. Doc. No. 19-919. Filed for public inspection June 14, 2019, 9:00 a.m.]
1 The concern has been identified predominantly in the context of underwriting an applicant, but the reasoning applies as well in the context of rating an enrollee.
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