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                                  * * * * *