Department of Banking and Insurance Commissioner Marlene Caride issued a bulletin on Tuesday providing guidance to insurance companies concerning the use of certain prescription drug information – specifically information related to naloxone and medications used as a pre-exposure prophylaxis, or PrEP, to prevent HIV infection – in considering an applicant for a policy.
“New Jersey law provides explicit protections against discrimination in the issuance of life insurance policies. We want to ensure those who are obtaining naloxone and HIV prevention medication are not adversely evaluated for conditions that are not relevant to their health or actual risk,” said Caride in a statement. “We are asking carriers to immediately review their underwriting policies to ensure they comply with state law.”
The bulletin addresses the following medications: naloxone prescriptions, which may be prescribed or dispensed to individuals without substance use disorder, and medications such as emtricitabine/tenofovir, which may be intended to prevent, not treat, HIV infection. It applies to insurers that issue accident and sickness insurance, disability, life insurance and annuity contracts.
The guidance acknowledges that as part of the underwriting process, insurers may collect and consider information about an applicant’s medical history, including information about the applicant’s use of prescription medications, which may be used to determine his or her health status and risk level. However, it states that the department has become aware of circumstances where medications may be prescribed or dispensed without a prescription but are not indicative of an applicant’s health status or actual risk.
The department said it is directing that insurance companies, prior to making an underwriting decision, obtain sufficient information to determine whether an applicant’s prescription is relevant to the applicant’s health or is designed to prevent, rather than treat, a disease. If the medication is not indicative of the applicant’s health and actual risk, the insurer must disregard the information concerning the prescription drug in the underwriting process.
The bulletin comes as the state provided a one-day free distribution of naloxone, the opioid overdose reversal drug, on June 18. The pilot program, which was approved by the New Jersey Board of Pharmacy, is part of Gov. Phil Murphy’s initiative to combat the opioid crisis.
“New Jersey, like many other jurisdictions, has taken significant steps to address the opioid epidemic. It would defeat the state’s important public health efforts if individuals applying for these types of policies were unfavorably impacted solely because they obtained these drugs to prevent loved ones from overdosing or to protect themselves from illness or disease,” said Caride. “We are asking insurance companies to adhere to this guidance and to do their due diligence before making determinations that can unfairly affect coverage.”
Insurers must consider that New Jersey law permits the prescribing and dispensing of naloxone to individuals without substance use disorder. For example, a prescription may be provided to medical professionals, friends, family members, and other professionals that work to assist people who use opioids. Additionally, insurers must consider that prescriptions for medications such as emtricitabine/tenofovir may be intended to prevent, not treat, HIV infection.
For instance, a combination of emtricitabine and tenofovir not only treats HIV infection, but it is also a pre-exposure prophylactic to prevent HIV infections. As such, it may be prescribed to persons who have not been infected with HIV. Such prescriptions, like vaccinations, are intended to address a potential public health problem by reducing the individual’s risk of being impacted by a disease or illness. These prescriptions may be written to prevent an illness or disease from occurring rather than to treat an existing illness or disease. It is incumbent upon insurers to obtain the necessary information to distinguish between treatment and preventive uses.