By McCall, Van de Putte, Gray, Greenberg, H.B. No. 39 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to a prohibition of discrimination in the determination of 1-3 eligibility for employment, occupational licenses, and coverage 1-4 under certain health benefit plans based on the use of certain 1-5 genetic tests and to limitations on the use of information derived 1-6 from those tests. 1-7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-8 SECTION 1. Chapter 21, Labor Code, is amended by adding 1-9 Subchapter H to read as follows: 1-10 SUBCHAPTER H. DISCRIMINATORY USE OF GENETIC INFORMATION 1-11 Sec. 21.401. DEFINITIONS. In this subchapter: 1-12 (1) "DNA" means deoxyribonucleic acid. 1-13 (2) "Genetic information" means information derived 1-14 from the results of a genetic test. 1-15 (3) "Genetic test" means a laboratory test of an 1-16 individual's DNA, RNA, proteins, or chromosomes to identify by 1-17 analysis of the DNA, RNA, proteins, or chromosomes the genetic 1-18 mutations or alterations in the DNA, RNA, proteins, or chromosomes 1-19 that are associated with a predisposition for a clinically 1-20 recognized disease or disorder. The term does not include: 1-21 (A) a routine physical examination or a routine 1-22 test performed as a part of a physical examination; 1-23 (B) a chemical, blood, or urine analysis; 1-24 (C) a test to determine drug use; or 1-25 (D) a test for the presence of the human 2-1 immunodeficiency virus. 2-2 (4) "RNA" means ribonucleic acid. 2-3 Sec. 21.402. DISCRIMINATORY USE OF GENETIC INFORMATION 2-4 PROHIBITED. (a) An employer commits an unlawful employment 2-5 practice if the employer fails or refuses to hire, discharges, or 2-6 otherwise discriminates against an individual with respect to 2-7 compensation or the terms, conditions, or privileges of employment: 2-8 (1) on the basis of genetic information concerning the 2-9 individual; or 2-10 (2) because of the refusal of the individual to submit 2-11 to a genetic test. 2-12 (b) A labor organization commits an unlawful employment 2-13 practice if the labor organization excludes or expels from 2-14 membership or otherwise discriminates against an individual: 2-15 (1) on the basis of genetic information concerning the 2-16 individual; or 2-17 (2) because of the refusal of the individual to submit 2-18 to a genetic test. 2-19 (c) An employment agency commits an unlawful employment 2-20 practice if the employment agency classifies or refers for 2-21 employment, fails or refuses to refer for employment, or otherwise 2-22 discriminates against an individual: 2-23 (1) on the basis of genetic information concerning the 2-24 individual; or 2-25 (2) because of the refusal of the individual to submit 2-26 to a genetic test. 2-27 (d) An employer, labor organization, or employment agency 3-1 commits an unlawful employment practice if the employer, labor 3-2 organization, or employment agency limits, segregates, or 3-3 classifies an employee, member, or applicant for employment or 3-4 membership in a way that would deprive or tend to deprive the 3-5 employee, member, or applicant of employment opportunities or 3-6 otherwise adversely affect the status of the employee, member, or 3-7 applicant: 3-8 (1) on the basis of genetic information concerning the 3-9 employee, member, or applicant; or 3-10 (2) because of the refusal of the employee, member, or 3-11 applicant to submit to a genetic test. 3-12 Sec. 21.403. INFORMATION CONFIDENTIAL; EXCEPTIONS. 3-13 (a) Except as provided by Subsections (c) and (d), genetic 3-14 information is confidential and privileged regardless of the source 3-15 of the information. A person who holds that information may not 3-16 disclose or be compelled to disclose, by subpoena or otherwise, 3-17 genetic information about an individual unless the disclosure is 3-18 specifically authorized by the individual as provided by Subsection 3-19 (b). This subsection applies to a redisclosure of genetic 3-20 information by a secondary recipient of the information after 3-21 disclosure of the information by an initial recipient. 3-22 (b) An individual or the legal representative of an 3-23 individual may authorize the disclosure of genetic information 3-24 relating to that individual through a written authorization that 3-25 includes: 3-26 (1) a description of the information to be disclosed; 3-27 (2) the name of the person to whom the disclosure is 4-1 made; and 4-2 (3) the purpose for the disclosure. 4-3 (c) Subject to Subchapter G, Chapter 411, Government Code, 4-4 genetic information relating to an individual may be disclosed 4-5 without the authorization required under Subsection (b) if the 4-6 disclosure is: 4-7 (1) authorized under a state or federal criminal law 4-8 relating to: 4-9 (A) the identification of individuals; or 4-10 (B) a criminal or juvenile proceeding, an 4-11 inquest, or a child fatality review by a multidisciplinary child 4-12 abuse team; 4-13 (2) required under a specific order of a state or 4-14 federal court; 4-15 (3) authorized under a state or federal law to 4-16 establish paternity; 4-17 (4) made to furnish genetic information relating to a 4-18 decedent to the blood relatives of the decedent for the purpose of 4-19 medical diagnosis; or 4-20 (5) made to identify a decedent. 4-21 (d) In addition to the exceptions under Subsection (c), 4-22 genetic information relating to an individual may be disclosed 4-23 without the authorization required under Subsection (b) if: 4-24 (1) the disclosure is for information from a research 4-25 study in which the procedure for obtaining informed written consent 4-26 and use of the information is governed by national standards for 4-27 protecting participants involved in research projects, including 5-1 guidelines issued under 21 C.F.R. Part 50 and 45 C.F.R. Part 46; 5-2 and 5-3 (2) the information does not identify a particular 5-4 individual. 5-5 Sec. 21.404. RIGHT TO KNOW TEST RESULTS. An individual who 5-6 submits to a genetic test has the right to know the results of that 5-7 test. On the written request of the individual, the entity that 5-8 performed the test shall disclose the test results to the 5-9 individual or to a physician designated by the individual. 5-10 Sec. 21.405. RETENTION OF SAMPLE. A sample of genetic 5-11 material taken for a genetic test from an individual shall be 5-12 destroyed promptly after the purpose for which the sample was 5-13 obtained is accomplished unless: 5-14 (1) the sample is retained under a court order; 5-15 (2) the individual tested authorizes retention of the 5-16 sample for purposes of medical treatment or scientific research; 5-17 (3) for a sample obtained for research that is cleared 5-18 by an institutional review board, the sample is retained under the 5-19 requirements that the institutional review board imposes on a 5-20 specific research project or as authorized by the research 5-21 participant with institutional review board approval under federal 5-22 law; or 5-23 (4) the sample was obtained for a screening test 5-24 established by the Texas Department of Health and performed by that 5-25 department or by a laboratory approved by that department under 5-26 Section 33.011, Health and Safety Code. 5-27 SECTION 2. Chapter 20, Title 132, Revised Statutes, is 6-1 amended by adding Article 9031 to read as follows: 6-2 Art. 9031. PROHIBITED USE OF GENETIC INFORMATION 6-3 Sec. 1. DEFINITIONS. In this article: 6-4 (1) "DNA" means deoxyribonucleic acid. 6-5 (2) "Genetic information" means information derived 6-6 from the results of a genetic test. 6-7 (3) "Genetic test" means a laboratory test of an 6-8 individual's DNA, RNA, proteins, or chromosomes to identify by 6-9 analysis of the DNA, RNA, proteins, or chromosomes the genetic 6-10 mutations or alterations in the DNA, RNA, proteins, or chromosomes 6-11 that are associated with a predisposition for a clinically 6-12 recognized disease or disorder. The term does not include: 6-13 (A) a routine physical examination or a routine 6-14 test performed as a part of a physical examination; 6-15 (B) a chemical, blood, or urine analysis; 6-16 (C) a test to determine drug use; or 6-17 (D) a test for the presence of the human 6-18 immunodeficiency virus. 6-19 (4) "Licensing authority" means a state agency or 6-20 political subdivision that issues an occupational license. 6-21 (5) "Occupational license" means a license, 6-22 certificate, registration, permit, or other form of authorization 6-23 required by law or rule that must be obtained by an individual to 6-24 engage in a particular business or occupation. 6-25 (6) "Political subdivision" means a municipality, 6-26 county, or special district or authority. The term includes a 6-27 school district. 7-1 (7) "RNA" means ribonucleic acid. 7-2 (8) "State agency" means a department, board, bureau, 7-3 commission, committee, division, office, council, or agency in the 7-4 executive or judicial branch of state government. 7-5 Sec. 2. GENETIC TESTING REQUIREMENT PROHIBITED. A licensing 7-6 authority may not deny an application for an occupational license, 7-7 suspend, revoke, or refuse to renew an occupational license, or 7-8 take any other disciplinary action against a license holder based 7-9 on the refusal of the license applicant or license holder to: 7-10 (1) submit to a genetic test; or 7-11 (2) reveal: 7-12 (A) whether the applicant or holder has 7-13 submitted to a genetic test; or 7-14 (B) the results of any genetic test to which the 7-15 applicant or holder has submitted. 7-16 Sec. 3. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) Except 7-17 as provided by Subsections (c) and (d) of this section, genetic 7-18 information is confidential and privileged regardless of the source 7-19 of the information. A person or entity that holds that information 7-20 may not disclose or be compelled to disclose, by subpoena or 7-21 otherwise, genetic information about an individual unless the 7-22 disclosure is specifically authorized by the individual as provided 7-23 by Subsection (b) of this section. This subsection applies to a 7-24 redisclosure of genetic information by a secondary recipient of the 7-25 information after disclosure of the information by an initial 7-26 recipient. 7-27 (b) An individual or the legal representative of an 8-1 individual may authorize the disclosure of genetic information 8-2 relating to that individual through a written authorization that 8-3 includes: 8-4 (1) a description of the information to be disclosed; 8-5 (2) the name of the person or entity to whom the 8-6 disclosure is made; and 8-7 (3) the purpose for the disclosure. 8-8 (c) Subject to Subchapter G, Chapter 411, Government Code, 8-9 genetic information relating to an individual may be disclosed 8-10 without the authorization required under Subsection (b) of this 8-11 section if the disclosure is: 8-12 (1) authorized under a state or federal criminal law 8-13 relating to: 8-14 (A) the identification of individuals; or 8-15 (B) a criminal or juvenile proceeding, an 8-16 inquest, or a child fatality review by a multidisciplinary 8-17 child-abuse team; 8-18 (2) required under a specific order of a state or 8-19 federal court; 8-20 (3) authorized under a state or federal law to 8-21 establish paternity; 8-22 (4) made to furnish genetic information relating to a 8-23 decedent to the blood relatives of the decedent for the purpose of 8-24 medical diagnosis; or 8-25 (5) made to identify a decedent. 8-26 (d) In addition to the exceptions under Subsection (c), 8-27 genetic information relating to an individual may be disclosed 9-1 without the authorization required under Subsection (b) if: 9-2 (1) the disclosure is for information from a research 9-3 study in which the procedure for obtaining informed written consent 9-4 and use of the information is governed by national standards for 9-5 protecting participants involved in research projects, including 9-6 guidelines issued under 21 C.F.R. Part 50 and 45 C.F.R. Part 46; 9-7 and 9-8 (2) the information does not identify a particular 9-9 individual. 9-10 Sec. 4. RIGHT TO KNOW TEST RESULTS. An individual who 9-11 submits to a genetic test has the right to know the results of that 9-12 test. On the written request of the individual, the entity that 9-13 performed the test shall disclose the test results to the 9-14 individual or to a physician designated by the individual. 9-15 Sec. 5. RETENTION OF SAMPLE. A sample of genetic material 9-16 taken for a genetic test from an individual shall be destroyed 9-17 promptly after the purpose for which the sample was obtained is 9-18 accomplished unless: 9-19 (1) the sample is retained under a court order; 9-20 (2) the individual tested authorizes retention of the 9-21 sample for purposes of medical treatment or scientific research; 9-22 (3) for a sample obtained for research that is cleared 9-23 by an institutional review board, the sample is retained under the 9-24 requirements that the institutional review board imposes on a 9-25 specific research project or as authorized by the research 9-26 participant with institutional review board approval under federal 9-27 law; or 10-1 (4) the sample was obtained for a screening test 10-2 established by the Texas Department of Health and performed by that 10-3 department or by a laboratory approved by that department under 10-4 Section 33.011, Health and Safety Code. 10-5 SECTION 3. Subchapter E, Chapter 21, Insurance Code, is 10-6 amended by adding Article 21.73 to read as follows: 10-7 Art. 21.73. USE OF GENETIC TESTING INFORMATION BY INSURERS 10-8 Sec. 1. DEFINITIONS. In this article: 10-9 (1) "DNA" means deoxyribonucleic acid. 10-10 (2) "Genetic information" means information derived 10-11 from the results of a genetic test. 10-12 (3) "Genetic test" means a laboratory test of an 10-13 individual's DNA, RNA, proteins, or chromosomes to identify by 10-14 analysis of the DNA, RNA, proteins, or chromosomes the genetic 10-15 mutations or alterations in the DNA, RNA, proteins, or chromosomes 10-16 that are associated with a predisposition for a clinically 10-17 recognized disease or disorder. The term does not include: 10-18 (A) a routine physical examination or a routine 10-19 test performed as a part of a physical examination; 10-20 (B) a chemical, blood, or urine analysis; 10-21 (C) a test to determine drug use; or 10-22 (D) a test for the presence of the human 10-23 immunodeficiency virus. 10-24 (4) "Group health benefit plan" means a plan described 10-25 by Section 2 of this article. 10-26 (5) "RNA" means ribonucleic acid. 10-27 Sec. 2. SCOPE OF ARTICLE. (a) This article applies to a 11-1 group health benefit plan that: 11-2 (1) provides benefits for medical or surgical expenses 11-3 incurred as a result of a health condition, accident, or sickness, 11-4 including: 11-5 (A) a group, blanket, or franchise insurance 11-6 policy or insurance agreement, a group hospital service contract, 11-7 or a group evidence of coverage that is offered by: 11-8 (i) an insurance company; 11-9 (ii) a group hospital service corporation 11-10 operating under Chapter 20 of this code; 11-11 (iii) a fraternal benefit society 11-12 operating under Chapter 10 of this code; 11-13 (iv) a stipulated premium insurance 11-14 company operating under Chapter 22 of this code; or 11-15 (v) a health maintenance organization 11-16 operating under the Texas Health Maintenance Organization Act 11-17 (Chapter 20A, Vernon's Texas Insurance Code); or 11-18 (B) to the extent permitted by the Employee 11-19 Retirement Income Security Act of 1974 (29 U.S.C. Section 1001 et 11-20 seq.), a group health benefit plan that is offered by: 11-21 (i) a multiple employer welfare 11-22 arrangement as defined by Section 3, Employee Retirement Income 11-23 Security Act of 1974 (29 U.S.C. Section 1002); 11-24 (ii) any other entity not licensed under 11-25 this code or another insurance law of this state that contracts 11-26 directly for health care services on a risk-sharing basis, 11-27 including an entity that contracts for health care services on a 12-1 capitation basis; or 12-2 (iii) another analogous benefit 12-3 arrangement; or 12-4 (2) is offered by an approved nonprofit health 12-5 corporation that is certified under Section 5.01(a), Medical 12-6 Practice Act (Article 4495b, Vernon's Texas Civil Statutes), and 12-7 that holds a certificate of authority issued by the commissioner 12-8 under Article 21.52F of this code. 12-9 (b) This article does not apply to: 12-10 (1) a plan that provides coverage: 12-11 (A) only for a specified disease; 12-12 (B) only for accidental death or dismemberment; 12-13 (C) for wages or payments in lieu of wages for a 12-14 period during which an employee is absent from work because of 12-15 sickness or injury; or 12-16 (D) as a supplement to liability insurance; 12-17 (2) a Medicare supplemental policy as defined by 12-18 Section 1882(g)(1), Social Security Act (42 U.S.C. Section 1395ss); 12-19 (3) workers' compensation insurance coverage; 12-20 (4) medical payment insurance issued as part of a 12-21 motor vehicle insurance policy; or 12-22 (5) a long-term care policy, including a nursing home 12-23 fixed indemnity policy, unless the commissioner determines that the 12-24 policy provides benefit coverage so comprehensive that the policy 12-25 is a group health benefit plan as described by Subsection (a) of 12-26 this section. 12-27 Sec. 3. USE OF GENETIC INFORMATION BY GROUP HEALTH BENEFIT 13-1 PLAN. (a) A group health benefit plan issuer may not use genetic 13-2 information to reject, deny, limit, cancel, refuse to renew, 13-3 increase the premiums for, or otherwise adversely affect 13-4 eligibility for or coverage under the group health benefit plan. 13-5 (b) If a group health benefit plan issuer requests that an 13-6 applicant for coverage under the plan submit to a genetic test in 13-7 connection with the application for coverage for a purpose other 13-8 than a purpose prohibited under Subsection (a) of this section, the 13-9 issuer must: 13-10 (1) notify the applicant that the test is required; 13-11 (2) disclose to the applicant the proposed use of the 13-12 test results; and 13-13 (3) obtain the applicant's written informed consent 13-14 for the test before the administration of the test. 13-15 (c) In the consent form, the applicant shall state whether 13-16 the applicant elects to be informed of the results of the test. If 13-17 the applicant does so elect, the person or entity that performs the 13-18 test shall disclose the results of the test to the applicant, as 13-19 well as to the group health benefit plan issuer, and the group 13-20 health benefit plan issuer shall ensure that: 13-21 (1) the applicant receives an interpretation of the 13-22 test results made by a qualified health care practitioner; and 13-23 (2) a physician or other health care practitioner 13-24 designated by the applicant receives a copy of the results of the 13-25 test. 13-26 (d) A group health benefit plan issuer may not use the 13-27 results of a genetic test conducted in accordance with Subsection 14-1 (b) of this section as an inducement for the purchase of coverage 14-2 under the plan. 14-3 (e) A group health benefit plan issuer may not use the 14-4 refusal of an applicant to submit to a genetic test to reject, 14-5 deny, limit, cancel, refuse to renew, increase the premiums for, or 14-6 otherwise adversely affect eligibility for or coverage under the 14-7 group health benefit plan. 14-8 Sec. 4. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) Except 14-9 as provided by Subsections (c) and (d) of this section, genetic 14-10 information is confidential and privileged regardless of the source 14-11 of the information. A person or entity that holds that information 14-12 may not disclose or be compelled to disclose, by subpoena or 14-13 otherwise, genetic information about an individual unless the 14-14 disclosure is specifically authorized by the individual as provided 14-15 by Subsection (b) of this section. This subsection applies to a 14-16 redisclosure of genetic information by a secondary recipient of the 14-17 information after disclosure of the information by an initial 14-18 recipient. 14-19 (b) An individual or the legal representative of an 14-20 individual may authorize the disclosure of genetic information 14-21 relating to that individual through an authorization that: 14-22 (1) is written in plain language; 14-23 (2) is dated; 14-24 (3) contains a specific description of the information 14-25 to be disclosed; 14-26 (4) identifies or describes each person authorized to 14-27 disclose the genetic information to a group health benefit plan 15-1 issuer; 15-2 (5) identifies or describes the individuals or 15-3 entities to whom the disclosure or subsequent redisclosure of the 15-4 genetic information may be made; 15-5 (6) describes the specific purpose of the disclosure; 15-6 (7) is signed by the individual or the legal 15-7 representative and, if the disclosure is for claiming proceeds of 15-8 any affected life insurance policy, the claimant; and 15-9 (8) advises the individual or legal representative 15-10 that the individual's authorized representative is entitled to 15-11 receive a copy of the authorization form. 15-12 (c) Subject to Subchapter G, Chapter 411, Government Code, 15-13 genetic information relating to an individual may be disclosed 15-14 without the authorization required under Subsection (b) of this 15-15 section if the disclosure is: 15-16 (1) authorized under a state or federal criminal law 15-17 relating to: 15-18 (A) the identification of individuals; or 15-19 (B) a criminal or juvenile proceeding, an 15-20 inquest, or a child fatality review by a multidisciplinary 15-21 child-abuse team; 15-22 (2) required under a specific order of a state or 15-23 federal court; 15-24 (3) authorized under a state or federal law to 15-25 establish paternity; 15-26 (4) made to furnish genetic information relating to a 15-27 decedent to the blood relatives of the decedent for the purpose of 16-1 medical diagnosis; or 16-2 (5) made to identify a decedent. 16-3 (d) Except as provided by this subsection, a group health 16-4 benefit plan issuer may not redisclose genetic information unless 16-5 the redisclosure is consistent with the disclosures authorized by 16-6 the tested individual under an authorization form executed under 16-7 Subsection (b) of this section. A group health benefit plan issuer 16-8 may redisclose genetic information: 16-9 (1) for actuarial or research studies if: 16-10 (A) a tested individual may not be identified in 16-11 any actuarial or research report; and 16-12 (B) any materials that identify a tested 16-13 individual are returned or destroyed as soon as reasonably 16-14 practicable; 16-15 (2) to the department for the purposes of the 16-16 enforcement of this article; or 16-17 (3) for purposes directly related to enabling business 16-18 decisions to be made about the purchase, transfer, merger, or sale 16-19 of all or part of an insurance business or about obtaining 16-20 reinsurance affecting that insurance business. 16-21 (e) A redisclosure authorized under Subsection (d) of this 16-22 section may contain only information reasonably necessary to 16-23 accomplish the purpose for which the information is disclosed. 16-24 Sec. 5. RIGHT TO KNOW TEST RESULTS. An individual who 16-25 submits to a genetic test has the right to know the results of that 16-26 test. On the written request of the individual, the group health 16-27 benefit plan issuer or other entity that performed the test shall 17-1 disclose the test results to the individual or to a physician 17-2 designated by the individual. The right to information under this 17-3 section is in addition to any right or requirement established 17-4 under Section 3 of this article. 17-5 Sec. 6. RETENTION OF SAMPLE. A sample of genetic material 17-6 taken for a genetic test from an individual shall be destroyed 17-7 promptly after the purpose for which the sample was obtained is 17-8 accomplished unless: 17-9 (1) the sample is retained under a court order; 17-10 (2) the individual tested authorizes retention of the 17-11 sample for purposes of medical treatment or scientific research; 17-12 (3) for a sample obtained for research that is cleared 17-13 by an institutional review board, the sample is retained under the 17-14 requirements that the institutional review board imposes on a 17-15 specific research project or as authorized by the research 17-16 participant with institutional review board approval under federal 17-17 law; or 17-18 (4) the sample was obtained for a screening test 17-19 established by the Texas Department of Health and performed by that 17-20 department or by a laboratory approved by that department under 17-21 Section 33.011, Health and Safety Code. 17-22 Sec. 7. CEASE AND DESIST ORDER; ADMINISTRATIVE PENALTY. 17-23 (a) On a finding by the commissioner that a group health benefit 17-24 plan issuer is in violation of this article, the commissioner may 17-25 enter a cease and desist order in the manner provided under Article 17-26 1.10A of this code. If the group health benefit plan issuer 17-27 refuses or fails to comply with the cease and desist order, the 18-1 commissioner may, in the manner provided by this code and the other 18-2 insurance laws of this state, revoke or suspend the issuer's 18-3 certificate of authority or other authorization to engage in the 18-4 operation of a group health benefit plan in this state. 18-5 (b) A group health benefit plan issuer that operates the 18-6 plan in violation of this article is subject to an administrative 18-7 penalty as provided by Article 1.10E of this code. 18-8 SECTION 4. This Act takes effect September 1, 1997. 18-9 SECTION 5. Article 9031, Revised Statutes, as added by this 18-10 Act, applies only to a license issued or renewed by a licensing 18-11 authority on or after the effective date of this Act. A license 18-12 issued or renewed before that date is governed by the law in effect 18-13 on the date the license was issued or renewed, and the former law 18-14 is continued in effect for that purpose. 18-15 SECTION 6. Article 21.73, Insurance Code, as added by this 18-16 Act, applies only to a group health benefit plan that is delivered, 18-17 issued for delivery, or renewed on or after January 1, 1998. A 18-18 group health benefit plan that is delivered, issued for delivery, 18-19 or renewed before January 1, 1998, is governed by the law as it 18-20 existed immediately before the effective date of this Act, and that 18-21 law is continued in effect for that purpose. 18-22 SECTION 7. The importance of this legislation and the 18-23 crowded condition of the calendars in both houses create an 18-24 emergency and an imperative public necessity that the 18-25 constitutional rule requiring bills to be read on three several 18-26 days in each house be suspended, and this rule is hereby suspended.