75R8074 PB-D
By McCall, Gray, Greenberg H.B. No. 39
Substitute the following for H.B. No. 39:
By Van de Putte C.S.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, or chromosomes to identify by analysis of
1-17 the DNA, RNA, or chromosomes the genetic mutations or alterations
1-18 in the DNA, RNA, or chromosomes that are associated with a
1-19 predisposition for a clinically recognized disease or disorder. The
1-20 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
2-1 (D) a test for the presence of the human
2-2 immunodeficiency virus.
2-3 (4) "RNA" means ribonucleic acid.
2-4 Sec. 21.402. DISCRIMINATORY USE OF GENETIC INFORMATION
2-5 PROHIBITED. (a) An employer commits an unlawful employment
2-6 practice if the employer fails or refuses to hire, discharges, or
2-7 otherwise discriminates against an individual with respect to
2-8 compensation or the terms, conditions, or privileges of employment:
2-9 (1) on the basis of genetic information concerning the
2-10 individual; or
2-11 (2) because of the refusal of the individual to submit
2-12 to a genetic test.
2-13 (b) A labor organization commits an unlawful employment
2-14 practice if the labor organization excludes or expels from
2-15 membership or otherwise discriminates against an individual:
2-16 (1) on the basis of genetic information concerning the
2-17 individual; or
2-18 (2) because of the refusal of the individual to submit
2-19 to a genetic test.
2-20 (c) An employment agency commits an unlawful employment
2-21 practice if the employment agency classifies or refers for
2-22 employment, fails or refuses to refer for employment, or otherwise
2-23 discriminates against an individual:
2-24 (1) on the basis of genetic information concerning the
2-25 individual; or
2-26 (2) because of the refusal of the individual to submit
2-27 to a genetic test.
3-1 (d) An employer, labor organization, or employment agency
3-2 commits an unlawful employment practice if the employer, labor
3-3 organization, or employment agency limits, segregates, or
3-4 classifies an employee, member, or applicant for employment or
3-5 membership in a way that would deprive or tend to deprive the
3-6 employee, member, or applicant of employment opportunities or
3-7 otherwise adversely affect the status of the employee, member, or
3-8 applicant:
3-9 (1) on the basis of genetic information concerning the
3-10 employee, member, or applicant; or
3-11 (2) because of the refusal of the employee, member, or
3-12 applicant to submit to a genetic test.
3-13 Sec. 21.403. INFORMATION CONFIDENTIAL; EXCEPTIONS.
3-14 (a) Except as provided by Subsections (c) and (d), genetic
3-15 information is confidential and privileged regardless of the source
3-16 of the information. A person who holds that information may not
3-17 disclose or be compelled to disclose, by subpoena or otherwise,
3-18 genetic information about an individual unless the disclosure is
3-19 specifically authorized by the individual as provided by Subsection
3-20 (b). This subsection applies to a redisclosure of genetic
3-21 information by a secondary recipient of the information after
3-22 disclosure of the information by an initial recipient.
3-23 (b) An individual or the legal representative of an
3-24 individual may authorize the disclosure of genetic information
3-25 relating to that individual through a written authorization that
3-26 includes:
3-27 (1) a description of the information to be disclosed;
4-1 (2) the name of the person to whom the disclosure is
4-2 made; and
4-3 (3) the purpose for the disclosure.
4-4 (c) Subject to Subchapter G, Chapter 411, Government Code,
4-5 genetic information relating to an individual may be disclosed
4-6 without the authorization required under Subsection (b) if the
4-7 disclosure is:
4-8 (1) authorized under a state or federal criminal law
4-9 relating to:
4-10 (A) the identification of individuals; or
4-11 (B) a criminal or juvenile proceeding, an
4-12 inquest, or a child fatality review by a multidisciplinary child
4-13 abuse team;
4-14 (2) required under a specific order of a state or
4-15 federal court;
4-16 (3) authorized under a state or federal law to
4-17 establish paternity;
4-18 (4) made to furnish genetic information relating to a
4-19 decedent to the blood relatives of the decedent for the purpose of
4-20 medical diagnosis; or
4-21 (5) made to identify a decedent.
4-22 (d) In addition to the exceptions under Subsection (c),
4-23 genetic information relating to an individual may be disclosed
4-24 without the authorization required under Subsection (b) if:
4-25 (1) the disclosure is for information from a research
4-26 study in which the procedure for obtaining informed written consent
4-27 and use of the information is governed by national standards for
5-1 protecting participants involved in research projects, including
5-2 guidelines issued under 21 C.F.R. Part 50 and 45 C.F.R. Part 46;
5-3 and
5-4 (2) the information does not identify a particular
5-5 individual.
5-6 Sec. 21.404. RIGHT TO KNOW TEST RESULTS. An individual who
5-7 submits to a genetic test has the right to know the results of that
5-8 test. On the written request of the individual, the entity that
5-9 performed the test shall disclose the test results to the
5-10 individual or to a physician designated by the individual.
5-11 Sec. 21.405. RETENTION OF SAMPLE. A sample of genetic
5-12 material taken for a genetic test from an individual shall be
5-13 destroyed promptly after the purpose for which the sample was
5-14 obtained is accomplished unless:
5-15 (1) the sample is retained under a court order;
5-16 (2) the individual tested authorizes retention of the
5-17 sample for purposes of medical treatment or scientific research;
5-18 (3) for a sample obtained for research that is cleared
5-19 by an institutional review board, the sample is retained under the
5-20 requirements that the institutional review board imposes on a
5-21 specific research project or as authorized by the research
5-22 participant with institutional review board approval under federal
5-23 law; or
5-24 (4) the sample was obtained for a screening test
5-25 established by the Texas Department of Health and performed by that
5-26 department or by a laboratory approved by that department under
5-27 Section 33.011, Health and Safety Code.
6-1 SECTION 2. Chapter 20, Title 132, Revised Statutes, is
6-2 amended by adding Article 9031 to read as follows:
6-3 Art. 9031. PROHIBITED USE OF GENETIC INFORMATION
6-4 Sec. 1. DEFINITIONS. In this article:
6-5 (1) "DNA" means deoxyribonucleic acid.
6-6 (2) "Genetic information" means information derived
6-7 from the results of a genetic test.
6-8 (3) "Genetic test" means a laboratory test of an
6-9 individual's DNA, RNA, or chromosomes to identify by analysis of
6-10 the DNA, RNA, or chromosomes the genetic mutations or alterations
6-11 in the DNA, RNA, or chromosomes that are associated with a
6-12 predisposition for a clinically recognized disease or disorder. The
6-13 term does not include:
6-14 (A) a routine physical examination or a routine
6-15 test performed as a part of a physical examination;
6-16 (B) a chemical, blood, or urine analysis;
6-17 (C) a test to determine drug use; or
6-18 (D) a test for the presence of the human
6-19 immunodeficiency virus.
6-20 (4) "Licensing authority" means a state agency or
6-21 political subdivision that issues an occupational license.
6-22 (5) "Occupational license" means a license,
6-23 certificate, registration, permit, or other form of authorization
6-24 required by law or rule that must be obtained by an individual to
6-25 engage in a particular business or occupation.
6-26 (6) "Political subdivision" means a municipality,
6-27 county, or special district or authority. The term includes a
7-1 school district.
7-2 (7) "RNA" means ribonucleic acid.
7-3 (8) "State agency" means a department, board, bureau,
7-4 commission, committee, division, office, council, or agency in the
7-5 executive or judicial branch of state government.
7-6 Sec. 2. GENETIC TESTING REQUIREMENT PROHIBITED. A licensing
7-7 authority may not deny an application for an occupational license,
7-8 suspend, revoke, or refuse to renew an occupational license, or
7-9 take any other disciplinary action against a license holder based
7-10 on the refusal of the license applicant or license holder to:
7-11 (1) submit to a genetic test; or
7-12 (2) reveal:
7-13 (A) whether the applicant or holder has
7-14 submitted to a genetic test; or
7-15 (B) the results of any genetic test to which the
7-16 applicant or holder has submitted.
7-17 Sec. 3. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) Except
7-18 as provided by Subsections (c) and (d) of this section, genetic
7-19 information is confidential and privileged regardless of the source
7-20 of the information. A person or entity that holds that information
7-21 may not disclose or be compelled to disclose, by subpoena or
7-22 otherwise, genetic information about an individual unless the
7-23 disclosure is specifically authorized by the individual as provided
7-24 by Subsection (b) of this section. This subsection applies to a
7-25 redisclosure of genetic information by a secondary recipient of the
7-26 information after disclosure of the information by an initial
7-27 recipient.
8-1 (b) An individual or the legal representative of an
8-2 individual may authorize the disclosure of genetic information
8-3 relating to that individual through a written authorization that
8-4 includes:
8-5 (1) a description of the information to be disclosed;
8-6 (2) the name of the person or entity to whom the
8-7 disclosure is made; and
8-8 (3) the purpose for the disclosure.
8-9 (c) Subject to Subchapter G, Chapter 411, Government Code,
8-10 genetic information relating to an individual may be disclosed
8-11 without the authorization required under Subsection (b) of this
8-12 section if the disclosure is:
8-13 (1) authorized under a state or federal criminal law
8-14 relating to:
8-15 (A) the identification of individuals; or
8-16 (B) a criminal or juvenile proceeding, an
8-17 inquest, or a child fatality review by a multidisciplinary
8-18 child-abuse team;
8-19 (2) required under a specific order of a state or
8-20 federal court;
8-21 (3) authorized under a state or federal law to
8-22 establish paternity;
8-23 (4) made to furnish genetic information relating to a
8-24 decedent to the blood relatives of the decedent for the purpose of
8-25 medical diagnosis; or
8-26 (5) made to identify a decedent.
8-27 (d) In addition to the exceptions under Subsection (c),
9-1 genetic information relating to an individual may be disclosed
9-2 without the authorization required under Subsection (b) if:
9-3 (1) the disclosure is for information from a research
9-4 study in which the procedure for obtaining informed written consent
9-5 and use of the information is governed by national standards for
9-6 protecting participants involved in research projects, including
9-7 guidelines issued under 21 C.F.R. Part 50 and 45 C.F.R. Part 46;
9-8 and
9-9 (2) the information does not identify a particular
9-10 individual.
9-11 Sec. 4. RIGHT TO KNOW TEST RESULTS. An individual who
9-12 submits to a genetic test has the right to know the results of that
9-13 test. On the written request of the individual, the entity that
9-14 performed the test shall disclose the test results to the
9-15 individual or to a physician designated by the individual.
9-16 Sec. 5. RETENTION OF SAMPLE. A sample of genetic material
9-17 taken for a genetic test from an individual shall be destroyed
9-18 promptly after the purpose for which the sample was obtained is
9-19 accomplished unless:
9-20 (1) the sample is retained under a court order;
9-21 (2) the individual tested authorizes retention of the
9-22 sample for purposes of medical treatment or scientific research;
9-23 (3) for a sample obtained for research that is cleared
9-24 by an institutional review board, the sample is retained under the
9-25 requirements that the institutional review board imposes on a
9-26 specific research project or as authorized by the research
9-27 participant with institutional review board approval under federal
10-1 law; or
10-2 (4) the sample was obtained for a screening test
10-3 established by the Texas Department of Health and performed by that
10-4 department or by a laboratory approved by that department under
10-5 Section 33.011, Health and Safety Code.
10-6 SECTION 3. Subchapter E, Chapter 21, Insurance Code, is
10-7 amended by adding Article 21.73 to read as follows:
10-8 Art. 21.73. USE OF GENETIC TESTING INFORMATION BY INSURERS
10-9 Sec. 1. DEFINITIONS. In this article:
10-10 (1) "DNA" means deoxyribonucleic acid.
10-11 (2) "Genetic information" means information derived
10-12 from the results of a genetic test.
10-13 (3) "Genetic test" means a laboratory test of an
10-14 individual's DNA, RNA, or chromosomes to identify by analysis of
10-15 the DNA, RNA, or chromosomes the genetic mutations or alterations
10-16 in the DNA, RNA, or chromosomes that are associated with a
10-17 predisposition for a clinically recognized disease or disorder. The
10-18 term does not include:
10-19 (A) a routine physical examination or a routine
10-20 test performed as a part of a physical examination;
10-21 (B) a chemical, blood, or urine analysis;
10-22 (C) a test to determine drug use; or
10-23 (D) a test for the presence of the human
10-24 immunodeficiency virus.
10-25 (4) "Group health benefit plan" means a plan described
10-26 by Section 2 of this article.
10-27 (5) "RNA" means ribonucleic acid.
11-1 Sec. 2. SCOPE OF ARTICLE. (a) This article applies to a
11-2 group health benefit plan that:
11-3 (1) provides benefits for medical or surgical expenses
11-4 incurred as a result of a health condition, accident, or sickness,
11-5 including:
11-6 (A) a group, blanket, or franchise insurance
11-7 policy or insurance agreement, a group hospital service contract,
11-8 or a group evidence of coverage that is offered by:
11-9 (i) an insurance company;
11-10 (ii) a group hospital service corporation
11-11 operating under Chapter 20 of this code;
11-12 (iii) a fraternal benefit society
11-13 operating under Chapter 10 of this code;
11-14 (iv) a stipulated premium insurance
11-15 company operating under Chapter 22 of this code; or
11-16 (v) a health maintenance organization
11-17 operating under the Texas Health Maintenance Organization Act
11-18 (Chapter 20A, Vernon's Texas Insurance Code); or
11-19 (B) to the extent permitted by the Employee
11-20 Retirement Income Security Act of 1974 (29 U.S.C. Section 1001 et
11-21 seq.), a group health benefit plan that is offered by:
11-22 (i) a multiple employer welfare
11-23 arrangement as defined by Section 3, Employee Retirement Income
11-24 Security Act of 1974 (29 U.S.C. Section 1002);
11-25 (ii) any other entity not licensed under
11-26 this code or another insurance law of this state that contracts
11-27 directly for health care services on a risk-sharing basis,
12-1 including an entity that contracts for health care services on a
12-2 capitation basis; or
12-3 (iii) another analogous benefit
12-4 arrangement; or
12-5 (2) is offered by an approved nonprofit health
12-6 corporation that is certified under Section 5.01(a), Medical
12-7 Practice Act (Article 4495b, Vernon's Texas Civil Statutes), and
12-8 that holds a certificate of authority issued by the commissioner
12-9 under Article 21.52F of this code.
12-10 (b) This article does not apply to:
12-11 (1) a plan that provides coverage:
12-12 (A) only for a specified disease;
12-13 (B) only for accidental death or dismemberment;
12-14 (C) for wages or payments in lieu of wages for a
12-15 period during which an employee is absent from work because of
12-16 sickness or injury; or
12-17 (D) as a supplement to liability insurance;
12-18 (2) a small employer plan written under Chapter 26 of
12-19 this code;
12-20 (3) a Medicare supplemental policy as defined by
12-21 Section 1882(g)(1), Social Security Act (42 U.S.C. Section 1395ss);
12-22 (4) workers' compensation insurance coverage;
12-23 (5) medical payment insurance issued as part of a
12-24 motor vehicle insurance policy; or
12-25 (6) a long-term care policy, including a nursing home
12-26 fixed indemnity policy, unless the commissioner determines that the
12-27 policy provides benefit coverage so comprehensive that the policy
13-1 is a group health benefit plan as described by Subsection (a) of
13-2 this section.
13-3 Sec. 3. USE OF GENETIC INFORMATION BY GROUP HEALTH BENEFIT
13-4 PLAN. (a) A group health benefit plan issuer may not use genetic
13-5 information to reject, deny, limit, cancel, refuse to renew,
13-6 increase the premiums for, or otherwise adversely affect
13-7 eligibility for or coverage under the group health benefit plan.
13-8 (b) If a group health benefit plan issuer requests that an
13-9 applicant for coverage under the plan submit to a genetic test in
13-10 connection with the application for coverage for a purpose other
13-11 than a purpose prohibited under Subsection (a) of this section, the
13-12 issuer must:
13-13 (1) notify the applicant that the test is required;
13-14 (2) disclose to the applicant the proposed use of the
13-15 test results; and
13-16 (3) obtain the applicant's written informed consent
13-17 for the test before the administration of the test.
13-18 (c) In the consent form, the applicant shall state whether
13-19 the applicant elects to be informed of the results of the test. If
13-20 the applicant does so elect, the person or entity that performs the
13-21 test shall disclose the results of the test to the applicant, as
13-22 well as to the group health benefit plan issuer, and the group
13-23 health benefit plan issuer shall ensure that:
13-24 (1) the applicant receives an interpretation of the
13-25 test results made by a qualified health care practitioner; and
13-26 (2) a physician or other health care practitioner
13-27 designated by the applicant receives a copy of the results of the
14-1 test.
14-2 (d) A group health benefit plan issuer may not use the
14-3 results of a genetic test conducted in accordance with Subsection
14-4 (b) of this section as an inducement for the purchase of coverage
14-5 under the plan.
14-6 Sec. 4. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) Except
14-7 as provided by Subsections (c) and (d) of this section, genetic
14-8 information is confidential and privileged regardless of the source
14-9 of the information. A person or entity that holds that information
14-10 may not disclose or be compelled to disclose, by subpoena or
14-11 otherwise, genetic information about an individual unless the
14-12 disclosure is specifically authorized by the individual as provided
14-13 by Subsection (b) of this section. This subsection applies to a
14-14 redisclosure of genetic information by a secondary recipient of the
14-15 information after disclosure of the information by an initial
14-16 recipient.
14-17 (b) An individual or the legal representative of an
14-18 individual may authorize the disclosure of genetic information
14-19 relating to that individual through an authorization that:
14-20 (1) is written in plain language;
14-21 (2) is dated;
14-22 (3) contains a specific description of the information
14-23 to be disclosed;
14-24 (4) identifies or describes each person authorized to
14-25 disclose the genetic information to a group health benefit plan
14-26 issuer;
14-27 (5) identifies or describes the individuals or
15-1 entities to whom the disclosure or subsequent redisclosure of the
15-2 genetic information may be made;
15-3 (6) describes the specific purpose of the disclosure;
15-4 (7) is signed by the individual or the legal
15-5 representative and, if the disclosure is for claiming proceeds of
15-6 any affected life insurance policy, the claimant; and
15-7 (8) advises the individual or legal representative
15-8 that the individual's authorized representative is entitled to
15-9 receive a copy of the authorization form.
15-10 (c) Subject to Subchapter G, Chapter 411, Government Code,
15-11 genetic information relating to an individual may be disclosed
15-12 without the authorization required under Subsection (b) of this
15-13 section if the disclosure is:
15-14 (1) authorized under a state or federal criminal law
15-15 relating to:
15-16 (A) the identification of individuals; or
15-17 (B) a criminal or juvenile proceeding, an
15-18 inquest, or a child fatality review by a multidisciplinary
15-19 child-abuse team;
15-20 (2) required under a specific order of a state or
15-21 federal court;
15-22 (3) authorized under a state or federal law to
15-23 establish paternity;
15-24 (4) made to furnish genetic information relating to a
15-25 decedent to the blood relatives of the decedent for the purpose of
15-26 medical diagnosis; or
15-27 (5) made to identify a decedent.
16-1 (d) Except as provided by this subsection, a group health
16-2 benefit plan issuer may not redisclose genetic information unless
16-3 the redisclosure is consistent with the disclosures authorized by
16-4 the tested individual under an authorization form executed under
16-5 Subsection (b) of this section. A group health benefit plan issuer
16-6 may redisclose genetic information:
16-7 (1) for actuarial or research studies if:
16-8 (A) a tested individual may not be identified in
16-9 any actuarial or research report; and
16-10 (B) any materials that identify a tested
16-11 individual are returned or destroyed as soon as reasonably
16-12 practicable;
16-13 (2) to the department for the purposes of the
16-14 enforcement of this article; or
16-15 (3) for purposes directly related to enabling business
16-16 decisions to be made about the purchase, transfer, merger, or sale
16-17 of all or part of an insurance business or about obtaining
16-18 reinsurance affecting that insurance business.
16-19 (e) A redisclosure authorized under Subsection (d) of this
16-20 section may contain only information reasonably necessary to
16-21 accomplish the purpose for which the information is disclosed.
16-22 Sec. 5. RIGHT TO KNOW TEST RESULTS. An individual who
16-23 submits to a genetic test has the right to know the results of that
16-24 test. On the written request of the individual, the group health
16-25 benefit plan issuer or other entity that performed the test shall
16-26 disclose the test results to the individual or to a physician
16-27 designated by the individual. The right to information under this
17-1 section is in addition to any right or requirement established
17-2 under Section 3 of this article.
17-3 Sec. 6. RETENTION OF SAMPLE. A sample of genetic material
17-4 taken for a genetic test from an individual shall be destroyed
17-5 promptly after the purpose for which the sample was obtained is
17-6 accomplished unless:
17-7 (1) the sample is retained under a court order;
17-8 (2) the individual tested authorizes retention of the
17-9 sample for purposes of medical treatment or scientific research;
17-10 (3) for a sample obtained for research that is cleared
17-11 by an institutional review board, the sample is retained under the
17-12 requirements that the institutional review board imposes on a
17-13 specific research project or as authorized by the research
17-14 participant with institutional review board approval under federal
17-15 law; or
17-16 (4) the sample was obtained for a screening test
17-17 established by the Texas Department of Health and performed by that
17-18 department or by a laboratory approved by that department under
17-19 Section 33.011, Health and Safety Code.
17-20 Sec. 7. CEASE AND DESIST ORDER; ADMINISTRATIVE PENALTY.
17-21 (a) On a finding by the commissioner that a group health benefit
17-22 plan issuer is in violation of this article, the commissioner may
17-23 enter a cease and desist order in the manner provided under Article
17-24 1.10A of this code. If the group health benefit plan issuer
17-25 refuses or fails to comply with the cease and desist order, the
17-26 commissioner may, in the manner provided by this code and the other
17-27 insurance laws of this state, revoke or suspend the issuer's
18-1 certificate of authority or other authorization to engage in the
18-2 operation of a group health benefit plan in this state.
18-3 (b) A group health benefit plan issuer that operates the
18-4 plan in violation of this article is subject to an administrative
18-5 penalty as provided by Article 1.10E of this code.
18-6 SECTION 4. This Act takes effect September 1, 1997.
18-7 SECTION 5. Article 9031, Revised Statutes, as added by this
18-8 Act, applies only to a license issued or renewed by a licensing
18-9 authority on or after the effective date of this Act. A license
18-10 issued or renewed before that date is governed by the law in effect
18-11 on the date the license was issued or renewed, and the former law
18-12 is continued in effect for that purpose.
18-13 SECTION 6. Article 21.73, Insurance Code, as added by this
18-14 Act, applies only to a group health benefit plan that is delivered,
18-15 issued for delivery, or renewed on or after January 1, 1998. A
18-16 group health benefit plan that is delivered, issued for delivery,
18-17 or renewed before January 1, 1998, is governed by the law as it
18-18 existed immediately before the effective date of this Act, and that
18-19 law is continued in effect for that purpose.
18-20 SECTION 7. The importance of this legislation and the
18-21 crowded condition of the calendars in both houses create an
18-22 emergency and an imperative public necessity that the
18-23 constitutional rule requiring bills to be read on three several
18-24 days in each house be suspended, and this rule is hereby suspended.