By Moncrief                                            S.B. No. 538
         76R3696 PB-F                           
                                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 insurance
 1-4     coverage based on certain genetic information and to limitations on
 1-5     the use of that information.
 1-6           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-7           SECTION 1.  Section 21.401, Labor Code, is amended to read as
 1-8     follows:
 1-9           Sec. 21.401.  DEFINITIONS.  In this subchapter:
1-10                 (1)  "DNA" means deoxyribonucleic acid.
1-11                 (2)  "Genetic family history" means a history taken by
1-12     a physician or a genetic professional to ascertain genetic
1-13     information about a patient or a patient's family.
1-14                 (3)  "Genetic information" means information derived
1-15     from the results of a genetic test, genetic family history, genetic
1-16     physical examination, or a radiologic finding diagnostic of a
1-17     genetic condition listed in:
1-18                       (A)  the latest edition of McKusick's "Mendelian
1-19     Inheritance in Man"; or
1-20                       (B)  another analogous comprehensive scientific
1-21     study on genetics recognized by the American College of Medical
1-22     Genetics or its successor organization and by the Texas Department
1-23     of Health.
1-24                 (4)  "Genetic physical examination" means a physical
 2-1     examination performed by a physician or a genetic professional to
 2-2     obtain  physical information about a patient's genetic condition.
 2-3                 (5) [(3)]  "Genetic test" means a laboratory test of an
 2-4     individual's DNA, RNA, proteins, or chromosomes to identify by
 2-5     analysis of the DNA, RNA, proteins, or chromosomes the genetic
 2-6     mutations or alterations in the DNA, RNA, proteins, or chromosomes
 2-7     that are associated with a predisposition for a clinically
 2-8     recognized disease or disorder.  The term does not include:
 2-9                       (A)  a routine physical examination or a routine
2-10     test performed as a part of a physical examination;
2-11                       (B)  a chemical, blood, or urine analysis;
2-12                       (C)  a test to determine drug use; or
2-13                       (D)  a test for the presence of the human
2-14     immunodeficiency virus.
2-15                 (6) [(4)]  "RNA" means ribonucleic acid.
2-16           SECTION 2.  Section 21.402, Labor Code, is amended to read as
2-17     follows:
2-18           Sec. 21.402.  DISCRIMINATORY USE OF GENETIC INFORMATION
2-19     PROHIBITED.  (a)  An employer commits an unlawful employment
2-20     practice if the employer fails or refuses to hire, discharges, or
2-21     otherwise discriminates against an individual with respect to
2-22     compensation or the terms, conditions, or privileges of employment:
2-23                 (1)  on the basis of genetic information concerning the
2-24     individual; or
2-25                 (2)  because of the refusal of the individual to submit
2-26     to a genetic physical examination or genetic test or provide a
2-27     genetic family history.
 3-1           (b)  A labor organization commits an unlawful employment
 3-2     practice if the labor organization excludes or expels from
 3-3     membership or otherwise discriminates against an individual:
 3-4                 (1)  on the basis of genetic information concerning the
 3-5     individual; or
 3-6                 (2)  because of the refusal of the individual to submit
 3-7     to a genetic physical examination or genetic test or provide a
 3-8     genetic family history.
 3-9           (c)  An employment agency commits an unlawful employment
3-10     practice if the employment agency classifies or refers for
3-11     employment, fails or refuses to refer for employment, or otherwise
3-12     discriminates against an individual:
3-13                 (1)  on the basis of genetic information concerning the
3-14     individual; or
3-15                 (2)  because of the refusal of the individual to submit
3-16     to a genetic physical examination or genetic test or provide a
3-17     genetic family history.
3-18           (d)  An employer, labor organization, or employment agency
3-19     commits an unlawful employment practice if the employer, labor
3-20     organization, or employment agency limits, segregates, or
3-21     classifies an employee, member, or applicant for employment or
3-22     membership in a way that would deprive or tend to deprive the
3-23     employee, member, or applicant of employment opportunities or
3-24     otherwise adversely affect the status of the employee, member, or
3-25     applicant:
3-26                 (1)  on the basis of genetic information concerning the
3-27     employee, member, or applicant; or
 4-1                 (2)  because of the refusal of the employee, member, or
 4-2     applicant to submit to a genetic physical examination or genetic
 4-3     test or provide a genetic family history.
 4-4           SECTION 3.  Section 21.403(c), Labor Code, is amended to read
 4-5     as follows:
 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
4-15     child-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)  made to identify a decedent; or
4-24                 (6)  made to a physician who refers the individual for
4-25     a genetic physical examination or a genetic test.
4-26           SECTION 4.  Section 21.404, Labor Code, is amended to read as
4-27     follows:
 5-1           Sec. 21.404.  RIGHT TO KNOW [TEST] RESULTS.  An individual
 5-2     who submits to a genetic physical examination or genetic test has
 5-3     the right to know or to refuse to know the results of that
 5-4     examination or test.  If the individual elects to know the results
 5-5     [On the written request of the individual], the physician who
 5-6     requested [entity that performed] the examination or test shall
 5-7     disclose the [test] results to the individual or to another [a]
 5-8     physician designated by the individual.  If the individual elects
 5-9     not to know the results, the physician who requested the
5-10     performance of the examination or test may not disclose the results
5-11     to the individual.
5-12           SECTION 5.  Section 21.405, Labor Code, is amended to read as
5-13     follows:
5-14           Sec. 21.405.  RETENTION OF SAMPLE.  A sample of genetic
5-15     material taken for a genetic test from an individual shall be
5-16     destroyed promptly after the purpose for which the sample was
5-17     obtained is accomplished unless:
5-18                 (1)  the sample is retained under a court order;
5-19                 (2)  the individual tested authorizes retention of the
5-20     sample for purposes of medical treatment, DNA banking, or
5-21     scientific research;
5-22                 (3)  for a sample obtained for research that is cleared
5-23     by an institutional review board, the sample is retained under the
5-24     requirements that the institutional review board imposes on a
5-25     specific research project or as authorized by the research
5-26     participant with institutional review board approval under federal
5-27     law; [or]
 6-1                 (4)  the sample was obtained for a screening test
 6-2     established by the Texas Department of Health and performed by that
 6-3     department or by a laboratory approved by that department under
 6-4     Section 33.011, Health and Safety Code; or
 6-5                 (5)  retention of the sample is required by an
 6-6     organization that:
 6-7                       (A)  certifies laboratories that perform genetic
 6-8     tests; and
 6-9                       (B)  is recognized by the Texas Department of
6-10     Health.
6-11           SECTION 6.  Section 1, Article 21.73, Insurance Code, is
6-12     amended to read as follows:
6-13           Sec. 1.  DEFINITIONS.  In this article:
6-14                 (1)  "DNA" means deoxyribonucleic acid.
6-15                 (2)  "Genetic family history" means a history taken by
6-16     a physician or a genetic professional to ascertain genetic
6-17     information about a patient or a patient's family.
6-18                 (3)  "Genetic information" means information derived
6-19     from the results of a genetic test, genetic family history, genetic
6-20     physical examination, or a radiologic finding diagnostic of a
6-21     genetic condition listed in:
6-22                       (A)  the latest edition of McKusick's "Mendelian
6-23     Inheritance in Man"; or
6-24                       (B)  another analogous comprehensive scientific
6-25     study on genetics recognized by the American College of Medical
6-26     Genetics or its successor organization and by the Texas Department
6-27     of Health.
 7-1                 (4)  "Genetic physical examination" means a physical
 7-2     examination performed by a physician or a genetic professional to
 7-3     obtain physical information about a patient's genetic condition.
 7-4                 (5) [(3)]  "Genetic test" means a laboratory test of an
 7-5     individual's DNA, RNA, proteins, or chromosomes to identify by
 7-6     analysis of the DNA, RNA, proteins, or chromosomes the genetic
 7-7     mutations or alterations in the DNA, RNA, proteins, or chromosomes
 7-8     that are associated with a predisposition for a clinically
 7-9     recognized disease or disorder.  The term does not include:
7-10                       (A)  a routine physical examination or a routine
7-11     test performed as a part of a physical examination;
7-12                       (B)  a chemical, blood, or urine analysis;
7-13                       (C)  a test to determine drug use; or
7-14                       (D)  a test for the presence of the human
7-15     immunodeficiency virus.
7-16                 (6) [(4)]  "Group health benefit plan" means a plan
7-17     described by Section 2 of this article.
7-18                 (7) [(5)]  "RNA" means ribonucleic acid.
7-19           SECTION 7.  Sections 3(b), (d), and (e), Article 21.73,
7-20     Insurance Code, are amended to read as follows:
7-21           (b)  If a group health benefit plan issuer requests that an
7-22     applicant for coverage under the plan submit to a genetic physical
7-23     examination or genetic test or provide a genetic family history in
7-24     connection with the application for coverage for a purpose other
7-25     than a purpose prohibited under Subsection (a)  of this section,
7-26     the issuer must:
7-27                 (1)  notify the applicant that the examination,
 8-1     history, or test is required;
 8-2                 (2)  disclose to the applicant the proposed use of the
 8-3     [test] results; and
 8-4                 (3)  obtain the applicant's prior written informed
 8-5     consent [for the test before the administration of the test].
 8-6           (d)  A group health benefit plan issuer may not use the
 8-7     results of a genetic family history, genetic physical examination,
 8-8     or genetic test conducted in accordance with Subsection (b) of this
 8-9     section as an inducement for the purchase of coverage under the
8-10     plan.
8-11           (e)  A group health benefit plan issuer may not use the
8-12     refusal of an applicant to submit to a genetic physical examination
8-13     or genetic test or provide a genetic family history to reject,
8-14     deny, limit, cancel, refuse to renew, increase the premiums for, or
8-15     otherwise adversely affect eligibility for or coverage under the
8-16     group health benefit plan.
8-17           SECTION 8.  Section 4(c), Article 21.73, Insurance Code, is
8-18     amended to read as follows:
8-19           (c)  Subject to Subchapter G, Chapter 411, Government Code,
8-20     genetic information relating to an individual may be disclosed
8-21     without the authorization required under Subsection (b) of this
8-22     section if the disclosure is:
8-23                 (1)  authorized under a state or federal criminal law
8-24     relating to:
8-25                       (A)  the identification of individuals; or
8-26                       (B)  a criminal or juvenile proceeding, an
8-27     inquest, or a child fatality review by a multidisciplinary
 9-1     child-abuse team;
 9-2                 (2)  required under a specific order of a state or
 9-3     federal court;
 9-4                 (3)  authorized under a state or federal law to
 9-5     establish paternity;
 9-6                 (4)  made to furnish genetic information relating to a
 9-7     decedent to the blood relatives of the decedent for the purpose of
 9-8     medical diagnosis; [or]
 9-9                 (5)  made to identify a decedent; or
9-10                 (6)  made to the physician who refers the individual
9-11     for the genetic test.
9-12           SECTION 9.  Section 5, Article 21.73, Insurance Code, is
9-13     amended to read as follows:
9-14           Sec. 5.  RIGHT TO KNOW [TEST] RESULTS.  An individual who
9-15     submits to a genetic physical examination or genetic test has the
9-16     right to know or to refuse to know the results of that examination
9-17     or test.  If the individual elects to know the results [On the
9-18     written request of the individual], the physician who requested
9-19     [group health benefit plan issuer or other entity that performed]
9-20     the examination or test shall disclose the [test] results to the
9-21     individual or to another [a] physician designated by the
9-22     individual.  If the individual elects not to know the results, the
9-23     physician who requested the performance of the examination or test
9-24     may not disclose the results to the individual.  The right to
9-25     information under this section is in addition to any right or
9-26     requirement established under Section 3 of this article.
9-27           SECTION 10.  Section 6, Article 21.73, Insurance Code, is
 10-1    amended to read as follows:
 10-2          Sec. 6.  RETENTION OF SAMPLE.  A sample of genetic material
 10-3    taken for a genetic test from an individual shall be destroyed
 10-4    promptly after the purpose for which the sample was obtained is
 10-5    accomplished unless:
 10-6                (1)  the sample is retained under a court order;
 10-7                (2)  the individual tested authorizes retention of the
 10-8    sample for purposes of medical treatment, DNA banking, or
 10-9    scientific research;
10-10                (3)  for a sample obtained for research that is cleared
10-11    by an institutional review board, the sample is retained under the
10-12    requirements that the institutional review board imposes on a
10-13    specific research project or as authorized by the research
10-14    participant with institutional review board approval under federal
10-15    law; [or]
10-16                (4)  the sample was obtained for a screening test
10-17    established by the Texas Department of Health and performed by that
10-18    department or by a laboratory approved by that department under
10-19    Section 33.011, Health and Safety Code; or
10-20                (5)  retention of the sample is required by an
10-21    organization that:
10-22                      (A)  certifies laboratories that perform  genetic
10-23    tests; and
10-24                      (B)  is recognized by the Texas Department of
10-25    Health.
10-26          SECTION 11.  Article 9031, Revised Statutes, as added by
10-27    Section 2, Chapter 1215, Acts of the 75th Legislature, Regular
 11-1    Session, 1997, is renumbered as Article 9032, Revised Statutes, and
 11-2    amended to read as follows:
 11-3          Art. 9032 [9031].  PROHIBITED USE OF GENETIC INFORMATION
 11-4          Sec. 1.  DEFINITIONS.  In this article:
 11-5                (1)  "DNA" means deoxyribonucleic acid.
 11-6                (2)  "Genetic family history" means a history taken by
 11-7    a physician or a genetic professional to ascertain genetic
 11-8    information about a patient or a patient's family.
 11-9                (3)  "Genetic information" means information derived
11-10    from the results of a genetic test, genetic family history, genetic
11-11    physical examination, or a radiologic finding diagnostic of a
11-12    genetic condition listed in:
11-13                      (A)  the latest edition of McKusick's "Mendelian
11-14    Inheritance in Man"; or
11-15                      (B)  another analogous comprehensive scientific
11-16    study on genetics recognized by the American College of Medical
11-17    Genetics or its successor organization and by the Texas Department
11-18    of Health.
11-19                (4)  "Genetic physical examination" means a physical
11-20    examination  performed by a physician or a genetic professional to
11-21    obtain physical information about a patient's genetic condition.
11-22                (5) [(3)]  "Genetic test" means a laboratory test of an
11-23    individual's DNA, RNA, proteins, or chromosomes to identify by
11-24    analysis of the DNA, RNA, proteins, or chromosomes the genetic
11-25    mutations or alterations in the DNA, RNA, proteins, or chromosomes
11-26    that are associated with a predisposition for a clinically
11-27    recognized disease or disorder.  The term does not include:
 12-1                      (A)  a routine physical examination or a routine
 12-2    test performed as a part of a physical examination;
 12-3                      (B)  a chemical, blood, or urine analysis;
 12-4                      (C)  a test to determine drug use; or
 12-5                      (D)  a test for the presence of the human
 12-6    immunodeficiency virus.
 12-7                (6) [(4)]  "Licensing authority" means a state agency
 12-8    or political subdivision that issues an occupational license.
 12-9                (7) [(5)]  "Occupational license" means a license,
12-10    certificate, registration, permit, or other form of authorization
12-11    required by law or rule that must be obtained by an individual to
12-12    engage in a particular business or occupation.
12-13                (8) [(6)]  "Political subdivision" means a
12-14    municipality, county, or special district or authority.  The term
12-15    includes a school district.
12-16                (9) [(7)]  "RNA" means ribonucleic acid.
12-17                (10) [(8)]  "State agency" means a department, board,
12-18    bureau, commission, committee, division, office, council, or agency
12-19    in the executive or judicial branch of state government.
12-20          Sec. 2.  GENETIC TESTING REQUIREMENT PROHIBITED.  A licensing
12-21    authority may not deny an application for an occupational license,
12-22    suspend, revoke, or refuse to renew an occupational license, or
12-23    take any other disciplinary action against a license holder based
12-24    on the refusal of the license applicant or license holder to:
12-25                (1)  submit to a genetic physical examination or
12-26    genetic test or provide a genetic family history; or
12-27                (2)  reveal:
 13-1                      (A)  whether the applicant or holder has
 13-2    submitted to a genetic physical examination or genetic test or
 13-3    provided a genetic family history; or
 13-4                      (B)  the results of any genetic physical
 13-5    examination or genetic test to which the applicant or holder has
 13-6    submitted.
 13-7          Sec. 3.  INFORMATION CONFIDENTIAL; EXCEPTIONS.  (a)  Except
 13-8    as provided by Subsections (c) and (d) of this section, genetic
 13-9    information is confidential and privileged regardless of the source
13-10    of the information.  A person or entity that holds that information
13-11    may not disclose or be compelled to disclose, by subpoena or
13-12    otherwise, genetic information about an individual unless the
13-13    disclosure is specifically authorized by the individual as provided
13-14    by Subsection (b) of this section.  This subsection applies to a
13-15    redisclosure of genetic information by a secondary recipient of the
13-16    information after disclosure of the information by an initial
13-17    recipient.
13-18          (b)  An individual or the legal representative of an
13-19    individual may authorize the disclosure of genetic information
13-20    relating to that individual through a written authorization that
13-21    includes:
13-22                (1)  a description of the information to be disclosed;
13-23                (2)  the name of the person or entity to whom the
13-24    disclosure is made; and
13-25                (3)  the purpose for the disclosure.
13-26          (c)  Subject to Subchapter G, Chapter 411, Government Code,
13-27    genetic information relating to an individual may be disclosed
 14-1    without the authorization required under Subsection (b) of this
 14-2    section if the disclosure is:
 14-3                (1)  authorized under a state or federal criminal law
 14-4    relating to:
 14-5                      (A)  the identification of individuals; or
 14-6                      (B)  a criminal or juvenile proceeding, an
 14-7    inquest, or a child fatality review by a multidisciplinary
 14-8    child-abuse team;
 14-9                (2)  required under a specific order of a state or
14-10    federal court;
14-11                (3)  authorized under a state or federal law to
14-12    establish paternity;
14-13                (4)  made to furnish genetic information relating to a
14-14    decedent to the blood relatives of the decedent for the purpose of
14-15    medical diagnosis; [or]
14-16                (5)  made to identify a decedent; or
14-17                (6)  made to the physician who refers the individual
14-18    for the genetic physical examination or genetic test.
14-19          (d)  In addition to the exceptions under Subsection (c),
14-20    genetic information relating to an individual may be disclosed
14-21    without the authorization required under Subsection (b) if:
14-22                (1)  the disclosure is for information from a research
14-23    study in which the procedure for obtaining informed written consent
14-24    and use of the information is governed by national standards for
14-25    protecting participants involved in research projects, including
14-26    guidelines issued under 21 C.F.R. Part 50 and 45 C.F.R. Part 46;
14-27                (2)  the information does not identify a particular
 15-1    individual; and
 15-2                (3)  the information is provided to the Texas
 15-3    Department of Health to comply with Chapter 87, Health and Safety
 15-4    Code.
 15-5          Sec. 4.  RIGHT TO KNOW [TEST] RESULTS.  An individual who
 15-6    submits to a genetic physical examination or genetic test has the
 15-7    right to know  or to refuse to know the results of that examination
 15-8    or test.  If the individual elects to know the results [On the
 15-9    written request of the individual], the physician who requested
15-10    [entity that performed] the examination or test shall disclose the
15-11    [test] results to the individual or to another [a] physician
15-12    designated by the individual.  If the individual elects not to know
15-13    the results, the physician who requested the performance of the
15-14    genetic physical examination or genetic test may not disclose the
15-15    results to the individual.
15-16          Sec. 5.  RETENTION OF SAMPLE.  A sample of genetic material
15-17    taken for a genetic test from an individual shall be destroyed
15-18    promptly after the purpose for which the sample was obtained is
15-19    accomplished unless:
15-20                (1)  the sample is retained under a court order;
15-21                (2)  the individual tested authorizes retention of the
15-22    sample for purposes of medical treatment, DNA banking, or
15-23    scientific research;
15-24                (3)  for a sample obtained for research that is cleared
15-25    by an institutional review board, the sample is retained under the
15-26    requirements that the institutional review board imposes on a
15-27    specific research project or as authorized by the research
 16-1    participant with institutional review board approval under federal
 16-2    law; [or]
 16-3                (4)  the sample was obtained for a screening test
 16-4    established by the Texas Department of Health and performed by that
 16-5    department or by a laboratory approved by that department under
 16-6    Section 33.011, Health and Safety Code; or
 16-7                (5)  retention of the sample is required by an
 16-8    organization that:
 16-9                      (A)  certifies laboratories that perform  genetic
16-10    tests; and
16-11                      (B)  is recognized by the Texas Department of
16-12    Health.
16-13          SECTION 12.  This Act takes effect September 1, 1999.
16-14          SECTION 13.  Article 21.73, Insurance Code, as amended by
16-15    this  Act,  applies only to an insurance policy or evidence of
16-16    coverage that is delivered, issued for delivery, or renewed on or
16-17    after January 1, 2000.  A policy or evidence of coverage that is
16-18    delivered, issued for delivery, or renewed before January 1, 2000,
16-19    is governed by the law as it existed immediately before the
16-20    effective date of this Act, and that law is continued in effect for
16-21    that purpose.
16-22          SECTION 14.  The importance of this legislation and the
16-23    crowded condition of the calendars in both houses create an
16-24    emergency and an imperative public necessity that the
16-25    constitutional rule requiring bills to be read on three several
16-26    days in each house be suspended, and this rule is hereby suspended.