By McCall H.B. No. 39 75R1859 PB-D 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 health 1-4 insurance coverage based on the use of certain genetic tests and to 1-5 limitations on the use of information derived from those tests. 1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-7 SECTION 1. Chapter 21, Labor Code, is amended by adding 1-8 Subchapter H to read as follows: 1-9 SUBCHAPTER H. DISCRIMINATORY USE OF GENETIC INFORMATION 1-10 Sec. 21.401. DEFINITIONS. In this subchapter: 1-11 (1) "Genetic characteristic" means an inherited gene 1-12 or chromosome, or an alteration of such a gene or chromosome, that 1-13 is scientifically or medically believed to: 1-14 (A) predispose an individual to a disease, 1-15 disorder, or syndrome; or 1-16 (B) be associated with a statistically 1-17 significant increased risk of development of a disease, disorder, 1-18 or syndrome. 1-19 (2) "Genetic information" means information about 1-20 genes, gene products, or inherited characteristics that may derive 1-21 from an individual or family member. 1-22 (3) "Genetic test" means a laboratory test used to 1-23 determine the presence or absence of genetic characteristics. The 1-24 term includes a test to diagnose a genetic characteristic, 2-1 including a test of: 2-2 (A) a nucleic acid, including DNA, RNA, or 2-3 mitochondrial DNA; 2-4 (B) a chromosome; or 2-5 (C) a protein. 2-6 Sec. 21.402. DISCRIMINATORY USE OF GENETIC INFORMATION 2-7 PROHIBITED. (a) An employer commits an unlawful employment 2-8 practice if the employer fails or refuses to hire, discharges, or 2-9 otherwise discriminates against an individual with respect to 2-10 compensation or the terms, conditions, or privileges of employment: 2-11 (1) on the basis of genetic information concerning the 2-12 individual derived from a genetic test; or 2-13 (2) because of the refusal of the individual to submit 2-14 to a genetic test. 2-15 (b) A labor organization commits an unlawful employment 2-16 practice if the labor organization excludes or expels from 2-17 membership or otherwise discriminates against an individual: 2-18 (1) on the basis of genetic information concerning the 2-19 individual derived from a genetic test; or 2-20 (2) because of the refusal of the individual to submit 2-21 to a genetic test. 2-22 (c) An employment agency commits an unlawful employment 2-23 practice if the employment agency classifies or refers for 2-24 employment, fails or refuses to refer for employment, or otherwise 2-25 discriminates against an individual: 2-26 (1) on the basis of genetic information concerning the 2-27 individual derived from a genetic test; or 3-1 (2) because of the refusal of the individual to submit 3-2 to a genetic test. 3-3 (d) An employer, labor organization, or employment agency 3-4 commits an unlawful employment practice if the employer, labor 3-5 organization, or employment agency limits, segregates, or 3-6 classifies an employee, member, or applicant for employment or 3-7 membership in a way that would deprive or tend to deprive the 3-8 employee, member, or applicant of employment opportunities or 3-9 otherwise adversely affect the status of the employee, member, or 3-10 applicant: 3-11 (1) on the basis of genetic information concerning the 3-12 employee, member, or applicant derived from a genetic test; or 3-13 (2) because of the refusal of the employee, member, or 3-14 applicant to submit to a genetic test. 3-15 Sec. 21.403. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) 3-16 Except as provided by Subsection (c), genetic information is 3-17 confidential and privileged regardless of the source of the 3-18 information. A person or entity who holds that information may not 3-19 disclose or be compelled to disclose, by subpoena or otherwise, 3-20 genetic information about an individual unless the disclosure is 3-21 specifically authorized by the individual as provided by Subsection 3-22 (b). This subsection applies to a redisclosure of genetic 3-23 information by a secondary recipient of the information after 3-24 disclosure of the information by an initial recipient. 3-25 (b) An individual or the legal representative of an 3-26 individual may authorize the disclosure of genetic information 3-27 relating to that individual through a written authorization that 4-1 includes: 4-2 (1) a description of the information to be disclosed; 4-3 (2) the name of the person or entity to whom the 4-4 disclosure is made; and 4-5 (3) the purpose for the disclosure. 4-6 (c) Subject to Subchapter G, Chapter 411, Government Code, 4-7 genetic information relating to an individual may be disclosed 4-8 without the authorization required under Subsection (b) if the 4-9 disclosure is: 4-10 (1) authorized under a state or federal criminal law 4-11 relating to: 4-12 (A) the identification of individuals; or 4-13 (B) a criminal or juvenile proceeding, an 4-14 inquest, or a child fatality review by a multidisciplinary child 4-15 abuse team; 4-16 (2) required under a specific order of a state or 4-17 federal court; 4-18 (3) authorized under a state or federal law to 4-19 establish paternity; 4-20 (4) made to furnish genetic information relating to a 4-21 decedent to the blood relatives of the decedent for the purpose of 4-22 medical diagnosis; or 4-23 (5) to identify a decedent. 4-24 Sec. 21.404. RETENTION OF SAMPLE. A sample of genetic 4-25 material taken for a genetic test from an individual remains the 4-26 property of that individual and shall be destroyed promptly after 4-27 the purpose for which the sample was obtained is accomplished 5-1 unless retention of the sample is required by order of a court. 5-2 SECTION 2. Chapter 20, Title 132, Revised Statutes, is 5-3 amended by adding Article 9031 to read as follows: 5-4 Art. 9031. PROHIBITED USE OF GENETIC INFORMATION 5-5 Sec. 1. DEFINITIONS. In this article: 5-6 (1) "Genetic characteristic" means an inherited gene 5-7 or chromosome, or an alteration of such a gene or chromosome, that 5-8 is scientifically or medically believed to: 5-9 (A) predispose an individual to a disease, 5-10 disorder, or syndrome; or 5-11 (B) be associated with a statistically 5-12 significant increased risk of development of a disease, disorder, 5-13 or syndrome. 5-14 (2) "Genetic information" means information about 5-15 genes, gene products, or inherited characteristics that may derive 5-16 from an individual or family member. 5-17 (3) "Genetic test" means a laboratory test used to 5-18 determine the presence or absence of genetic characteristics. The 5-19 term includes a test to diagnose a genetic characteristic, 5-20 including a test of: 5-21 (A) a nucleic acid, including DNA, RNA, or 5-22 mitochondrial DNA; 5-23 (B) a chromosome; or 5-24 (C) a protein. 5-25 (4) "Licensing authority" means a state agency or 5-26 political subdivision that issues an occupational license. 5-27 (5) "Occupational license" means a license, 6-1 certificate, registration, permit, or other form of authorization 6-2 required by law or rule that must be obtained by an individual to 6-3 engage in a particular business or occupation. 6-4 (6) "Political subdivision" means a municipality, 6-5 county, or special district or authority. The term includes a 6-6 school district. 6-7 (7) "State agency" means a department, board, bureau, 6-8 commission, committee, division, office, council, or agency in the 6-9 executive or judicial branch of state government. 6-10 Sec. 2. GENETIC TESTING REQUIREMENT PROHIBITED. A licensing 6-11 authority may not deny an application for an occupational license, 6-12 suspend, revoke, or refuse to renew an occupational license, or 6-13 take any other disciplinary action against a license holder based 6-14 on the refusal of the license applicant or license holder to: 6-15 (1) submit to a genetic test; or 6-16 (2) reveal: 6-17 (A) whether the applicant or holder has 6-18 submitted to a genetic test; or 6-19 (B) the results of any genetic test to which the 6-20 applicant or holder has submitted. 6-21 Sec. 3. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) Except 6-22 as provided by Subsection (c) of this section, genetic information 6-23 is confidential and privileged regardless of the source of the 6-24 information. A person or entity who holds that information may not 6-25 disclose or be compelled to disclose, by subpoena or otherwise, 6-26 genetic information about an individual unless the disclosure is 6-27 specifically authorized by the individual as provided by Subsection 7-1 (b) of this section. This subsection applies to a redisclosure of 7-2 genetic information by a secondary recipient of the information 7-3 after disclosure of the information by an initial recipient. 7-4 (b) An individual or the legal representative of an 7-5 individual may authorize the disclosure of genetic information 7-6 relating to that individual through a written authorization that 7-7 includes: 7-8 (1) a description of the information to be disclosed; 7-9 (2) the name of the person or entity to whom the 7-10 disclosure is made; and 7-11 (3) the purpose for the disclosure. 7-12 (c) Subject to Subchapter G, Chapter 411, Government Code, 7-13 genetic information relating to an individual may be disclosed 7-14 without the authorization required under Subsection (b) of this 7-15 section if the disclosure is: 7-16 (1) authorized under a state or federal criminal law 7-17 relating to: 7-18 (A) the identification of individuals; or 7-19 (B) a criminal or juvenile proceeding, an 7-20 inquest, or a child fatality review by a multidisciplinary child 7-21 abuse team; 7-22 (2) required under a specific order of a state or 7-23 federal court; 7-24 (3) authorized under a state or federal law to 7-25 establish paternity; 7-26 (4) made to furnish genetic information relating to a 7-27 decedent to the blood relatives of the decedent for the purpose of 8-1 medical diagnosis; or 8-2 (5) to identify a decedent. 8-3 Sec. 4. RETENTION OF SAMPLE. A sample of genetic material 8-4 taken for a genetic test from an individual remains the property of 8-5 that individual and shall be destroyed promptly after the purpose 8-6 for which the sample was obtained is accomplished unless retention 8-7 of the sample is required by order of a court. 8-8 SECTION 3. Subchapter E, Chapter 21, Insurance Code, is 8-9 amended by adding Article 21.73 to read as follows: 8-10 Art. 21.73. USE OF GENETIC TESTING INFORMATION BY HEALTH 8-11 INSURERS 8-12 Sec. 1. DEFINITIONS. In this article: 8-13 (1) "Genetic characteristic" means an inherited gene 8-14 or chromosome, or an alteration of such a gene or chromosome, that 8-15 is scientifically or medically believed to: 8-16 (A) predispose an individual to a disease, 8-17 disorder, or syndrome; or 8-18 (B) be associated with a statistically 8-19 significant increased risk of development of a disease, disorder, 8-20 or syndrome. 8-21 (2) "Genetic information" means information about 8-22 genes, gene products, or inherited characteristics that may derive 8-23 from an individual or family member. 8-24 (3) "Genetic test" means a laboratory test used to 8-25 determine the presence or absence of genetic characteristics. The 8-26 term includes a test to diagnose a genetic characteristic, 8-27 including a test of: 9-1 (A) a nucleic acid, including DNA, RNA, or 9-2 mitochondrial DNA; 9-3 (B) a chromosome; or 9-4 (C) a protein. 9-5 (4) "Insurer" includes: 9-6 (A) a company authorized to engage in the 9-7 business of insurance in this state under Chapter 3 of this code; 9-8 (B) a group hospital service corporation under 9-9 Chapter 20 of this code; 9-10 (C) a health maintenance organization under the 9-11 Texas Health Maintenance Organization Act (Chapter 20A, Vernon's 9-12 Texas Insurance Code); 9-13 (D) a nonprofit hospital or other entity that 9-14 provides health care insurance or long-term care insurance coverage 9-15 and is subject to the jurisdiction of the commissioner; and 9-16 (E) any other person engaged in the business of 9-17 health insurance in this state who is subject to regulation under 9-18 this code or the other insurance laws of this state. 9-19 Sec. 2. USE OF GENETIC INFORMATION BY INSURERS. (a) An 9-20 insurer, in the writing of a health insurance policy, or evidence 9-21 of coverage, may not use genetic information to reject, deny, 9-22 limit, cancel, refuse to renew, increase the premiums for, or 9-23 otherwise adversely affect eligibility for or coverage under the 9-24 policy or contract or evidence of coverage. 9-25 (b) If an insurer requests that an applicant for insurance 9-26 submit to a genetic test in connection with the insurance 9-27 application for a purpose other than a purpose prohibited under 10-1 Subsection (a) of this section, the insurer must: 10-2 (1) notify the applicant that the test is required; 10-3 (2) disclose to the applicant the proposed use of the 10-4 test results; and 10-5 (3) obtain the applicant's written informed consent 10-6 for the test before the administration of the test. 10-7 (c) In the consent form, the applicant shall state whether 10-8 the applicant elects to be informed of the results of the test. If 10-9 the applicant does so elect, the person or entity who performs the 10-10 test shall disclose the results of the test to the applicant, as 10-11 well as to the insurer, and the insurer shall ensure that: 10-12 (1) the applicant receives an interpretation of the 10-13 test results made by a qualified health care practitioner; and 10-14 (2) a physician or other health care practitioner 10-15 designated by the applicant receives a copy of the results of the 10-16 test. 10-17 (d) An insurer may not use the results of a genetic test 10-18 conducted in accordance with Subsection (b) of this section as an 10-19 inducement for the purchase of insurance coverage. 10-20 Sec. 3. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) Except 10-21 as provided by Subsection (c) of this section, genetic information 10-22 is confidential and privileged regardless of the source of the 10-23 information. A person or entity who holds that information may not 10-24 disclose or be compelled to disclose, by subpoena or otherwise, 10-25 genetic information about an individual unless the disclosure is 10-26 specifically authorized by the individual as provided by Subsection 10-27 (b) of this section. This subsection applies to a redisclosure of 11-1 genetic information by a secondary recipient of the information 11-2 after disclosure of the information by an initial recipient. 11-3 (b) An individual or the legal representative of an 11-4 individual may authorize the disclosure of genetic information 11-5 relating to that individual through a written authorization that 11-6 includes: 11-7 (1) a description of the information to be disclosed; 11-8 (2) the name of the person or entity to whom the 11-9 disclosure is made; and 11-10 (3) the purpose for the disclosure. 11-11 (c) Subject to Subchapter G, Chapter 411, Government Code, 11-12 genetic information relating to an individual may be disclosed 11-13 without the authorization required under Subsection (b) of this 11-14 section if the disclosure is: 11-15 (1) authorized under a state or federal criminal law 11-16 relating to: 11-17 (A) the identification of individuals; or 11-18 (B) a criminal or juvenile proceeding, an 11-19 inquest, or a child fatality review by a multidisciplinary child 11-20 abuse team; 11-21 (2) required under a specific order of a state or 11-22 federal court; 11-23 (3) authorized under a state or federal law to 11-24 establish paternity; 11-25 (4) made to furnish genetic information relating to a 11-26 decedent to the blood relatives of the decedent for the purpose of 11-27 medical diagnosis; or 12-1 (5) to identify a decedent. 12-2 Sec. 4. RETENTION OF SAMPLE. A sample of genetic material 12-3 taken for a genetic test from an individual remains the property 12-4 of that individual and shall be destroyed promptly after the 12-5 purpose for which the sample was obtained is accomplished unless 12-6 retention of the sample is required by order of a court. 12-7 Sec. 5. UNFAIR PRACTICE; REMEDIES. An insurer who requires 12-8 an individual to submit to a genetic test or who uses or reveals 12-9 genetic information in violation of the requirements of this 12-10 article commits an unfair practice under Article 21.21 of this code 12-11 and is liable to that individual as provided by that article. 12-12 SECTION 4. This Act takes effect September 1, 1997. 12-13 SECTION 5. Article 9031, Revised Statutes, as added by 12-14 Section 2 of this Act, applies only to a license issued or renewed 12-15 by a licensing authority on or after the effective date of this 12-16 Act. A license issued or renewed before that date is governed by 12-17 the law in effect on the date the license was issued or renewed, 12-18 and the former law is continued in effect for that purpose. 12-19 SECTION 6. Article 21.73, Insurance Code, as added by 12-20 Section 3 of this Act, applies only to a health insurance policy 12-21 or an evidence of coverage that is delivered, issued for delivery, 12-22 or renewed on or after January 1, 1998. A policy or evidence of 12-23 coverage that is delivered, issued for delivery, or renewed before 12-24 January 1, 1998, is governed by the law as it existed immediately 12-25 before the effective date of this Act, and that law is continued in 12-26 effect for that purpose. 12-27 SECTION 7. The importance of this legislation and the 13-1 crowded condition of the calendars in both houses create an 13-2 emergency and an imperative public necessity that the 13-3 constitutional rule requiring bills to be read on three several 13-4 days in each house be suspended, and this rule is hereby suspended.