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.