1-1 By: Zaffirini, Shapleigh S.B. No. 98 1-2 (In the Senate - Filed November 18, 1996; January 14, 1997, 1-3 read first time and referred to Committee on Economic Development; 1-4 March 24, 1997, reported adversely, with favorable Committee 1-5 Substitute by the following vote: Yeas 10, Nays 0; March 24, 1997, 1-6 sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 98 By: Shapleigh 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to a prohibition of discrimination in the determination of 1-11 eligibility for employment and coverage under certain group health 1-12 benefit plans based on the use of certain genetic tests and to 1-13 limitations on the use of information derived from those tests; 1-14 providing an administrative penalty. 1-15 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-16 SECTION 1. Chapter 21, Labor Code, is amended by adding 1-17 Subchapter H to read as follows: 1-18 SUBCHAPTER H. DISCRIMINATORY USE OF GENETIC INFORMATION 1-19 Sec. 21.401. DEFINITIONS. In this subchapter: 1-20 (1) "DNA" means deoxyribonucleic acid. 1-21 (2) "Genetic information" means information derived 1-22 from the results of a genetic test. 1-23 (3) "Genetic test" means a laboratory test of an 1-24 individual's DNA, RNA, or chromosomes to identify by analysis of 1-25 the DNA, RNA, or chromosomes the genetic mutations or alterations 1-26 in the DNA, RNA, or chromosomes that are associated with a 1-27 predisposition for a clinically recognized disease or disorder. 1-28 The term does not include: 1-29 (A) a routine physical examination or a routine 1-30 test performed as a part of a physical examination; 1-31 (B) a chemical, blood, or urine analysis; 1-32 (C) a test to determine drug use; or 1-33 (D) a test for the presence of the human 1-34 immunodeficiency virus. 1-35 (4) "RNA" means ribonucleic acid. 1-36 Sec. 21.402. DISCRIMINATORY USE OF GENETIC INFORMATION 1-37 PROHIBITED. (a) An employer commits an unlawful employment 1-38 practice if the employer fails or refuses to hire, discharges, or 1-39 otherwise discriminates against an individual with respect to 1-40 compensation or the terms, conditions, or privileges of employment: 1-41 (1) on the basis of genetic information concerning the 1-42 individual; or 1-43 (2) because of the refusal of the individual to submit 1-44 to a genetic test. 1-45 (b) A labor organization commits an unlawful employment 1-46 practice if the labor organization excludes or expels from 1-47 membership or otherwise discriminates against an individual: 1-48 (1) on the basis of genetic information concerning the 1-49 individual; or 1-50 (2) because of the refusal of the individual to submit 1-51 to a genetic test. 1-52 (c) An employment agency commits an unlawful employment 1-53 practice if the employment agency classifies or refers for 1-54 employment, fails or refuses to refer for employment, or otherwise 1-55 discriminates against an individual: 1-56 (1) on the basis of genetic information concerning the 1-57 individual; or 1-58 (2) because of the refusal of the individual to submit 1-59 to a genetic test. 1-60 (d) An employer, labor organization, or employment agency 1-61 commits an unlawful employment practice if the employer, labor 1-62 organization, or employment agency limits, segregates, or 1-63 classifies an employee, member, or applicant for employment or 1-64 membership in a way that would deprive or tend to deprive the 2-1 employee, member, or applicant of employment opportunities or 2-2 otherwise adversely affect the status of the employee, member, or 2-3 applicant: 2-4 (1) on the basis of genetic information concerning the 2-5 employee, member, or applicant; or 2-6 (2) because of the refusal of the employee, member, or 2-7 applicant to submit to a genetic test. 2-8 Sec. 21.403. INFORMATION CONFIDENTIAL; EXCEPTIONS. 2-9 (a) Except as provided by Subsections (c) and (d), genetic 2-10 information is confidential and privileged regardless of the source 2-11 of the information. A person who holds that information may not 2-12 disclose or be compelled to disclose, by subpoena or otherwise, 2-13 genetic information about an individual unless the disclosure is 2-14 specifically authorized by the individual as provided by Subsection 2-15 (b). This subsection applies to a redisclosure of genetic 2-16 information by a secondary recipient of the information after 2-17 disclosure of the information by an initial recipient. 2-18 (b) An individual or the legal representative of an 2-19 individual may authorize the disclosure of genetic information 2-20 relating to that individual through a written authorization that 2-21 includes: 2-22 (1) a description of the information to be disclosed; 2-23 (2) the name of the person to whom the disclosure is 2-24 made; and 2-25 (3) the purpose for the disclosure. 2-26 (c) Subject to Subchapter G, Chapter 411, Government Code, 2-27 genetic information relating to an individual may be disclosed 2-28 without the authorization required under Subsection (b) if the 2-29 disclosure is: 2-30 (1) authorized under a state or federal criminal law 2-31 relating to: 2-32 (A) the identification of individuals; or 2-33 (B) a criminal or juvenile proceeding, an 2-34 inquest, or a child fatality review by a multidisciplinary 2-35 child-abuse team; 2-36 (2) required under a specific order of a state or 2-37 federal court; 2-38 (3) authorized under a state or federal law to 2-39 establish paternity; 2-40 (4) made to furnish genetic information relating to a 2-41 decedent to the blood relatives of the decedent for the purpose of 2-42 medical diagnosis; or 2-43 (5) made to identify a decedent. 2-44 (d) In addition to the exceptions under Subsection (c), 2-45 genetic information relating to an individual may be disclosed 2-46 without the authorization required under Subsection (b) if: 2-47 (1) the disclosure is for information from a research 2-48 study in which the procedure for obtaining informed written consent 2-49 and use of the information is governed by national standards for 2-50 protecting participants involved in research projects, including 2-51 guidelines issued by the office for protection from research risk 2-52 and the Food and Drug Administration under 21 C.F.R. Part 50 and 45 2-53 C.F.R. Part 46; and 2-54 (2) the information does not identify a particular 2-55 individual. 2-56 Sec. 21.404. RIGHT TO KNOW TEST RESULTS. An individual who 2-57 submits to a genetic test has the right to know the results of that 2-58 test. On the written request of the individual, the entity that 2-59 performed the test shall disclose the test results to the 2-60 individual or to a physician designated by the individual. 2-61 Sec. 21.405. RETENTION OF SAMPLE. A sample of genetic 2-62 material taken for a genetic test from an individual shall be 2-63 destroyed promptly after the purpose for which the sample was 2-64 obtained is accomplished unless: 2-65 (1) the sample is retained under a court order; 2-66 (2) the individual tested authorizes retention of the 2-67 sample for purposes of medical treatment or scientific research; 2-68 (3) for a sample obtained for research that is cleared 2-69 by an institutional review board, the sample is retained under the 3-1 requirements that the institutional review board imposes on a 3-2 specific research project or as authorized by the research 3-3 participant with institutional review board approval under federal 3-4 law; or 3-5 (4) the sample was obtained for a screening test 3-6 established by the Texas Department of Health and performed by that 3-7 department or by a laboratory approved by that department under 3-8 Section 33.011, Health and Safety Code. 3-9 SECTION 2. Subchapter E, Chapter 21, Insurance Code, is 3-10 amended by adding Article 21.73 to read as follows: 3-11 Art. 21.73. USE OF GENETIC TESTING INFORMATION BY INSURERS 3-12 Sec. 1. DEFINITIONS. In this article: 3-13 (1) "DNA" means deoxyribonucleic acid. 3-14 (2) "Genetic information" means information derived 3-15 from the results of a genetic test. 3-16 (3) "Genetic test" means a laboratory test of an 3-17 individual's DNA, RNA, or chromosomes to identify by analysis of 3-18 the DNA, RNA, or chromosomes the genetic mutations or alterations 3-19 in the DNA, RNA, or chromosomes that are associated with a 3-20 predisposition for a clinically recognized disease or disorder. 3-21 The term does not include: 3-22 (A) a routine physical examination or a routine 3-23 test performed as a part of a physical examination; 3-24 (B) a chemical, blood, or urine analysis; 3-25 (C) a test to determine drug use; or 3-26 (D) a test for the presence of the human 3-27 immunodeficiency virus. 3-28 (4) "Group health benefit plan" means a plan described 3-29 by Section 2 of this article. 3-30 (5) "RNA" means ribonucleic acid. 3-31 Sec. 2. SCOPE OF ARTICLE. (a) This article applies to a 3-32 group health benefit plan that: 3-33 (1) provides benefits for medical or surgical expenses 3-34 incurred as a result of a health condition, accident, or sickness, 3-35 including: 3-36 (A) a group, blanket, or franchise insurance 3-37 policy or insurance agreement, a group hospital service contract, 3-38 or a group evidence of coverage that is offered by: 3-39 (i) an insurance company; 3-40 (ii) a group hospital service corporation 3-41 operating under Chapter 20 of this code; 3-42 (iii) a fraternal benefit society 3-43 operating under Chapter 10 of this code; 3-44 (iv) a stipulated premium insurance 3-45 company operating under Chapter 22 of this code; or 3-46 (v) a health maintenance organization 3-47 operating under the Texas Health Maintenance Organization Act 3-48 (Chapter 20A, Vernon's Texas Insurance Code); or 3-49 (B) to the extent permitted by the Employee 3-50 Retirement Income Security Act of 1974 (29 U.S.C. Section 1001 et 3-51 seq.), a group health benefit plan that is offered by: 3-52 (i) a multiple employer welfare 3-53 arrangement as defined by Section 3, Employee Retirement Income 3-54 Security Act of 1974 (29 U.S.C. Section 1002); 3-55 (ii) any other entity not licensed under 3-56 this code or another insurance law of this state that contracts 3-57 directly for health care services on a risk-sharing basis, 3-58 including an entity that contracts for health care services on a 3-59 capitation basis; or 3-60 (iii) another analogous benefit 3-61 arrangement; or 3-62 (2) is offered by an approved nonprofit health 3-63 corporation that is certified under Section 5.01(a), Medical 3-64 Practice Act (Article 4495b, Vernon's Texas Civil Statutes), and 3-65 that holds a certificate of authority issued by the commissioner 3-66 under Article 21.52F of this code. 3-67 (b) This article does not apply to: 3-68 (1) a plan that provides coverage: 3-69 (A) only for a specified disease; 4-1 (B) only for accidental death or dismemberment; 4-2 (C) for wages or payments in lieu of wages for a 4-3 period during which an employee is absent from work because of 4-4 sickness or injury; or 4-5 (D) as a supplement to liability insurance; 4-6 (2) a small employer plan written under Chapter 26 of 4-7 this code; 4-8 (3) a Medicare supplemental policy as defined by 4-9 Section 1882(g)(1), Social Security Act (42 U.S.C. Section 1395ss); 4-10 (4) workers' compensation insurance coverage; 4-11 (5) medical payment insurance issued as part of a 4-12 motor vehicle insurance policy; or 4-13 (6) a long-term care policy, including a nursing home 4-14 fixed indemnity policy, unless the commissioner determines that the 4-15 policy provides benefit coverage so comprehensive that the policy 4-16 is a group health benefit plan as described by Subsection (a) of 4-17 this section. 4-18 Sec. 3. USE OF GENETIC INFORMATION BY GROUP HEALTH BENEFIT 4-19 PLAN. The issuer of a group health benefit plan may not use 4-20 genetic information to reject, deny, limit, cancel, refuse to 4-21 renew, increase the premiums for, or otherwise adversely affect 4-22 eligibility for or coverage under the group health benefit plan. 4-23 Sec. 4. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) Except 4-24 as provided by Subsections (c) and (d) of this section, genetic 4-25 information is confidential and privileged regardless of the source 4-26 of the information. A person or entity that holds that information 4-27 may not disclose or be compelled to disclose, by subpoena or 4-28 otherwise, genetic information about an individual unless the 4-29 disclosure is specifically authorized by the individual as provided 4-30 by Subsection (b) of this section. This subsection applies to a 4-31 redisclosure of genetic information by a secondary recipient of the 4-32 information after disclosure of the information by an initial 4-33 recipient. 4-34 (b) An individual or the legal representative of an 4-35 individual may authorize the disclosure of genetic information 4-36 relating to that individual through a written authorization that 4-37 includes: 4-38 (1) a description of the information to be disclosed; 4-39 (2) the name of the person or entity to whom the 4-40 disclosure is made; 4-41 (3) the purpose for the disclosure; and 4-42 (4) any additional requirements adopted by rule by the 4-43 commissioner. 4-44 (c) Subject to Subchapter G, Chapter 411, Government Code, 4-45 genetic information relating to an individual may be disclosed 4-46 without the authorization required under Subsection (b) of this 4-47 section if the disclosure is: 4-48 (1) authorized under a state or federal criminal law 4-49 relating to: 4-50 (A) the identification of individuals; or 4-51 (B) a criminal or juvenile proceeding, an 4-52 inquest, or a child fatality review by a multidisciplinary 4-53 child-abuse team; 4-54 (2) required under a specific order of a state or 4-55 federal court; 4-56 (3) authorized under a state or federal law to 4-57 establish paternity; 4-58 (4) made to furnish genetic information relating to a 4-59 decedent to the blood relatives of the decedent for the purpose of 4-60 medical diagnosis; or 4-61 (5) made to identify a decedent. 4-62 (d) In addition to the exceptions under Subsection (c) of 4-63 this section, genetic information relating to an individual may be 4-64 disclosed without the authorization required under Subsection (b) 4-65 of this section if: 4-66 (1) the disclosure is for information from a research 4-67 study in which the procedure for obtaining informed written consent 4-68 and use of the information is governed by national standards for 4-69 protecting participants involved in research projects, including 5-1 guidelines issued by the office for protection from research risk 5-2 and the Food and Drug Administration under 21 C.F.R. Part 50 and 45 5-3 C.F.R. Part 46; and 5-4 (2) the information does not identify a particular 5-5 individual. 5-6 Sec. 5. 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 issuer of the 5-9 group health benefit plan or other entity that performed the test 5-10 shall disclose the test results to the individual or to a physician 5-11 designated by the individual. 5-12 Sec. 6. RETENTION OF SAMPLE. A sample of genetic material 5-13 taken for a genetic test from an individual shall be destroyed 5-14 promptly after the purpose for which the sample was obtained is 5-15 accomplished unless: 5-16 (1) the sample is retained under a court order; 5-17 (2) the individual tested authorizes retention of the 5-18 sample for purposes of medical treatment or scientific research; 5-19 (3) for a sample obtained for research that is cleared 5-20 by an institutional review board, the sample is retained under the 5-21 requirements that the institutional review board imposes on a 5-22 specific research project or as authorized by the research 5-23 participant with institutional review board approval under federal 5-24 law; or 5-25 (4) the sample was obtained for a screening test 5-26 established by the Texas Department of Health and performed by that 5-27 department or by a laboratory approved by that department under 5-28 Section 33.011, Health and Safety Code. 5-29 Sec. 7. UNFAIR PRACTICE; REMEDIES. An issuer of a group 5-30 health benefit plan that requires an individual to submit to a 5-31 genetic test or that uses or reveals genetic information in 5-32 violation of the requirements of this article commits an unfair 5-33 practice under Article 21.21 of this code and is liable to the 5-34 individual as provided by that article. 5-35 Sec. 8. CEASE AND DESIST ORDER; ADMINISTRATIVE PENALTY. 5-36 (a) On a finding by the commissioner that the issuer of a group 5-37 health benefit plan is in violation of this article, the 5-38 commissioner may enter a cease and desist order in the manner 5-39 provided under Article 1.10A of this code. If the issuer of the 5-40 plan refuses or fails to comply with the cease and desist order, 5-41 the commissioner may, in the manner provided by this code and the 5-42 other insurance laws of this state, revoke or suspend the entity's 5-43 certificate of authority or other authorization to engage in the 5-44 operation of a group health benefit plan in this state. 5-45 (b) An issuer of a group health benefit plan that operates 5-46 the plan in violation of this article is subject to an 5-47 administrative penalty as provided by Article 1.10E of this code. 5-48 SECTION 3. This Act takes effect September 1, 1997. 5-49 SECTION 4. Article 21.73, Insurance Code, as added by this 5-50 Act, applies only to a group health benefit plan that is 5-51 delivered, issued for delivery, or renewed on or after January 1, 5-52 1998. A group health benefit plan that is delivered, issued for 5-53 delivery, or renewed before January 1, 1998, is governed by the law 5-54 as it existed immediately before the effective date of this Act, 5-55 and that law is continued in effect for that purpose. 5-56 SECTION 5. The importance of this legislation and the 5-57 crowded condition of the calendars in both houses create an 5-58 emergency and an imperative public necessity that the 5-59 constitutional rule requiring bills to be read on three several 5-60 days in each house be suspended, and this rule is hereby suspended. 5-61 * * * * *