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.