1-1 By: Moncrief S.B. No. 538
1-2 (In the Senate - Filed February 16, 1999; February 17, 1999,
1-3 read first time and referred to Committee on Economic Development;
1-4 April 22, 1999, reported favorably by the following vote: Yeas 5,
1-5 Nays 0; April 22, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to a prohibition of discrimination in the determination of
1-9 eligibility for employment, occupational licenses, and insurance
1-10 coverage based on certain genetic information and to limitations on
1-11 the use of that information.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 21.401, Labor Code, is amended to read as
1-14 follows:
1-15 Sec. 21.401. DEFINITIONS. In this subchapter:
1-16 (1) "DNA" means deoxyribonucleic acid.
1-17 (2) "Genetic family history" means a history taken by
1-18 a physician or a genetic professional to ascertain genetic
1-19 information about a patient or a patient's family.
1-20 (3) "Genetic information" means information derived
1-21 from the results of a genetic test, genetic family history, genetic
1-22 physical examination, or a radiologic finding diagnostic of a
1-23 genetic condition listed in:
1-24 (A) the latest edition of McKusick's "Mendelian
1-25 Inheritance in Man"; or
1-26 (B) another analogous comprehensive scientific
1-27 study on genetics recognized by the American College of Medical
1-28 Genetics or its successor organization and by the Texas Department
1-29 of Health.
1-30 (4) "Genetic physical examination" means a physical
1-31 examination performed by a physician or a genetic professional to
1-32 obtain physical information about a patient's genetic condition.
1-33 (5) [(3)] "Genetic test" means a laboratory test of an
1-34 individual's DNA, RNA, proteins, or chromosomes to identify by
1-35 analysis of the DNA, RNA, proteins, or chromosomes the genetic
1-36 mutations or alterations in the DNA, RNA, proteins, or chromosomes
1-37 that are associated with a predisposition for a clinically
1-38 recognized disease or disorder. The term does not include:
1-39 (A) a routine physical examination or a routine
1-40 test performed as a part of a physical examination;
1-41 (B) a chemical, blood, or urine analysis;
1-42 (C) a test to determine drug use; or
1-43 (D) a test for the presence of the human
1-44 immunodeficiency virus.
1-45 (6) [(4)] "RNA" means ribonucleic acid.
1-46 SECTION 2. Section 21.402, Labor Code, is amended to read as
1-47 follows:
1-48 Sec. 21.402. DISCRIMINATORY USE OF GENETIC INFORMATION
1-49 PROHIBITED. (a) An employer commits an unlawful employment
1-50 practice if the employer fails or refuses to hire, discharges, or
1-51 otherwise discriminates against an individual with respect to
1-52 compensation or the terms, conditions, or privileges of employment:
1-53 (1) on the basis of genetic information concerning the
1-54 individual; or
1-55 (2) because of the refusal of the individual to submit
1-56 to a genetic physical examination or genetic test or provide a
1-57 genetic family history.
1-58 (b) A labor organization commits an unlawful employment
1-59 practice if the labor organization excludes or expels from
1-60 membership or otherwise discriminates against an individual:
1-61 (1) on the basis of genetic information concerning the
1-62 individual; or
1-63 (2) because of the refusal of the individual to submit
1-64 to a genetic physical examination or genetic test or provide a
2-1 genetic family history.
2-2 (c) An employment agency commits an unlawful employment
2-3 practice if the employment agency classifies or refers for
2-4 employment, fails or refuses to refer for employment, or otherwise
2-5 discriminates against an individual:
2-6 (1) on the basis of genetic information concerning the
2-7 individual; or
2-8 (2) because of the refusal of the individual to submit
2-9 to a genetic physical examination or genetic test or provide a
2-10 genetic family history.
2-11 (d) An employer, labor organization, or employment agency
2-12 commits an unlawful employment practice if the employer, labor
2-13 organization, or employment agency limits, segregates, or
2-14 classifies an employee, member, or applicant for employment or
2-15 membership in a way that would deprive or tend to deprive the
2-16 employee, member, or applicant of employment opportunities or
2-17 otherwise adversely affect the status of the employee, member, or
2-18 applicant:
2-19 (1) on the basis of genetic information concerning the
2-20 employee, member, or applicant; or
2-21 (2) because of the refusal of the employee, member, or
2-22 applicant to submit to a genetic physical examination or genetic
2-23 test or provide a genetic family history.
2-24 SECTION 3. Subsection (c), Section 21.403, Labor Code, is
2-25 amended to read as follows:
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; or
2-44 (6) made to a physician who refers the individual for
2-45 a genetic physical examination or a genetic test.
2-46 SECTION 4. Section 21.404, Labor Code, is amended to read as
2-47 follows:
2-48 Sec. 21.404. RIGHT TO KNOW [TEST] RESULTS. An individual
2-49 who submits to a genetic physical examination or genetic test has
2-50 the right to know or to refuse to know the results of that
2-51 examination or test. If [On the written request of] the individual
2-52 elects to know the results, the physician who requested [entity
2-53 that performed] the examination or test shall disclose the [test]
2-54 results to the individual or to another [a] physician designated by
2-55 the individual. If the individual elects not to know the results,
2-56 the physician who requested the performance of the examination or
2-57 test may not disclose the results to the individual.
2-58 SECTION 5. Section 21.405, Labor Code, is amended to read as
2-59 follows:
2-60 Sec. 21.405. RETENTION OF SAMPLE. A sample of genetic
2-61 material taken for a genetic test from an individual shall be
2-62 destroyed promptly after the purpose for which the sample was
2-63 obtained is accomplished unless:
2-64 (1) the sample is retained under a court order;
2-65 (2) the individual tested authorizes retention of the
2-66 sample for purposes of medical treatment, DNA banking, or
2-67 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; or
3-9 (5) retention of the sample is required by an
3-10 organization that:
3-11 (A) certifies laboratories that perform genetic
3-12 tests; and
3-13 (B) is recognized by the Texas Department of
3-14 Health.
3-15 SECTION 6. Section 1, Article 21.73, Insurance Code, is
3-16 amended to read as follows:
3-17 Sec. 1. DEFINITIONS. In this article:
3-18 (1) "DNA" means deoxyribonucleic acid.
3-19 (2) "Genetic family history" means a history taken by
3-20 a physician or a genetic professional to ascertain genetic
3-21 information about a patient or a patient's family.
3-22 (3) "Genetic information" means information derived
3-23 from the results of a genetic test, genetic family history, genetic
3-24 physical examination, or a radiologic finding diagnostic of a
3-25 genetic condition listed in:
3-26 (A) the latest edition of McKusick's "Mendelian
3-27 Inheritance in Man"; or
3-28 (B) another analogous comprehensive scientific
3-29 study on genetics recognized by the American College of Medical
3-30 Genetics or its successor organization and by the Texas Department
3-31 of Health.
3-32 (4) "Genetic physical examination" means a physical
3-33 examination performed by a physician or a genetic professional to
3-34 obtain physical information about a patient's genetic condition.
3-35 (5) [(3)] "Genetic test" means a laboratory test of an
3-36 individual's DNA, RNA, proteins, or chromosomes to identify by
3-37 analysis of the DNA, RNA, proteins, or chromosomes the genetic
3-38 mutations or alterations in the DNA, RNA, proteins, or chromosomes
3-39 that are associated with a predisposition for a clinically
3-40 recognized disease or disorder. The term does not include:
3-41 (A) a routine physical examination or a routine
3-42 test performed as a part of a physical examination;
3-43 (B) a chemical, blood, or urine analysis;
3-44 (C) a test to determine drug use; or
3-45 (D) a test for the presence of the human
3-46 immunodeficiency virus.
3-47 (6) [(4)] "Group health benefit plan" means a plan
3-48 described by Section 2 of this article.
3-49 (7) [(5)] "RNA" means ribonucleic acid.
3-50 SECTION 7. Subsections (b), (d), and (e), Section 3, Article
3-51 21.73, Insurance Code, are amended to read as follows:
3-52 (b) If a group health benefit plan issuer requests that an
3-53 applicant for coverage under the plan submit to a genetic physical
3-54 examination or genetic test or provide a genetic family history in
3-55 connection with the application for coverage for a purpose other
3-56 than a purpose prohibited under Subsection (a) of this section,
3-57 the issuer must:
3-58 (1) notify the applicant that the examination,
3-59 history, or test is required;
3-60 (2) disclose to the applicant the proposed use of the
3-61 [test] results; and
3-62 (3) obtain the applicant's prior written informed
3-63 consent [for the test before the administration of the test].
3-64 (d) A group health benefit plan issuer may not use the
3-65 results of a genetic family history, genetic physical examination,
3-66 or genetic test conducted in accordance with Subsection (b) of this
3-67 section as an inducement for the purchase of coverage under the
3-68 plan.
3-69 (e) A group health benefit plan issuer may not use the
4-1 refusal of an applicant to submit to a genetic physical examination
4-2 or genetic test or provide a genetic family history to reject,
4-3 deny, limit, cancel, refuse to renew, increase the premiums for, or
4-4 otherwise adversely affect eligibility for or coverage under the
4-5 group health benefit plan.
4-6 SECTION 8. Subsection (c), Section 4, Article 21.73,
4-7 Insurance Code, is amended to read as follows:
4-8 (c) Subject to Subchapter G, Chapter 411, Government Code,
4-9 genetic information relating to an individual may be disclosed
4-10 without the authorization required under Subsection (b) of this
4-11 section if the disclosure is:
4-12 (1) authorized under a state or federal criminal law
4-13 relating to:
4-14 (A) the identification of individuals; or
4-15 (B) a criminal or juvenile proceeding, an
4-16 inquest, or a child fatality review by a multidisciplinary
4-17 child-abuse team;
4-18 (2) required under a specific order of a state or
4-19 federal court;
4-20 (3) authorized under a state or federal law to
4-21 establish paternity;
4-22 (4) made to furnish genetic information relating to a
4-23 decedent to the blood relatives of the decedent for the purpose of
4-24 medical diagnosis; [or]
4-25 (5) made to identify a decedent; or
4-26 (6) made to the physician who refers the individual
4-27 for the genetic test.
4-28 SECTION 9. Section 5, Article 21.73, Insurance Code, is
4-29 amended to read as follows:
4-30 Sec. 5. RIGHT TO KNOW [TEST] RESULTS. An individual who
4-31 submits to a genetic physical examination or genetic test has the
4-32 right to know or to refuse to know the results of that examination
4-33 or test. If [On the written request of] the individual elects to
4-34 know the results, the physician who requested [group health benefit
4-35 plan issuer or other entity that performed] the examination or test
4-36 shall disclose the [test] results to the individual or to another
4-37 [a] physician designated by the individual. If the individual
4-38 elects not to know the results, the physician who requested the
4-39 performance of the examination or test may not disclose the results
4-40 to the individual. The right to information under this section is
4-41 in addition to any right or requirement established under Section 3
4-42 of this article.
4-43 SECTION 10. Section 6, Article 21.73, Insurance Code, is
4-44 amended to read as follows:
4-45 Sec. 6. RETENTION OF SAMPLE. A sample of genetic material
4-46 taken for a genetic test from an individual shall be destroyed
4-47 promptly after the purpose for which the sample was obtained is
4-48 accomplished unless:
4-49 (1) the sample is retained under a court order;
4-50 (2) the individual tested authorizes retention of the
4-51 sample for purposes of medical treatment, DNA banking, or
4-52 scientific research;
4-53 (3) for a sample obtained for research that is cleared
4-54 by an institutional review board, the sample is retained under the
4-55 requirements that the institutional review board imposes on a
4-56 specific research project or as authorized by the research
4-57 participant with institutional review board approval under federal
4-58 law; [or]
4-59 (4) the sample was obtained for a screening test
4-60 established by the Texas Department of Health and performed by that
4-61 department or by a laboratory approved by that department under
4-62 Section 33.011, Health and Safety Code; or
4-63 (5) retention of the sample is required by an
4-64 organization that:
4-65 (A) certifies laboratories that perform genetic
4-66 tests; and
4-67 (B) is recognized by the Texas Department of
4-68 Health.
4-69 SECTION 11. Article 9031, Revised Statutes, as added by
5-1 Section 2, Chapter 1215, Acts of the 75th Legislature, Regular
5-2 Session, 1997, is renumbered as Article 9032, Revised Statutes, and
5-3 amended to read as follows:
5-4 Art. 9032 [9031]. PROHIBITED USE OF GENETIC INFORMATION
5-5 Sec. 1. DEFINITIONS. In this article:
5-6 (1) "DNA" means deoxyribonucleic acid.
5-7 (2) "Genetic family history" means a history taken by
5-8 a physician or a genetic professional to ascertain genetic
5-9 information about a patient or a patient's family.
5-10 (3) "Genetic information" means information derived
5-11 from the results of a genetic test, genetic family history, genetic
5-12 physical examination, or a radiologic finding diagnostic of a
5-13 genetic condition listed in:
5-14 (A) the latest edition of McKusick's "Mendelian
5-15 Inheritance in Man"; or
5-16 (B) another analogous comprehensive scientific
5-17 study on genetics recognized by the American College of Medical
5-18 Genetics or its successor organization and by the Texas Department
5-19 of Health.
5-20 (4) "Genetic physical examination" means a physical
5-21 examination performed by a physician or a genetic professional to
5-22 obtain physical information about a patient's genetic condition.
5-23 (5) [(3)] "Genetic test" means a laboratory test of an
5-24 individual's DNA, RNA, proteins, or chromosomes to identify by
5-25 analysis of the DNA, RNA, proteins, or chromosomes the genetic
5-26 mutations or alterations in the DNA, RNA, proteins, or chromosomes
5-27 that are associated with a predisposition for a clinically
5-28 recognized disease or disorder. The term does not include:
5-29 (A) a routine physical examination or a routine
5-30 test performed as a part of a physical examination;
5-31 (B) a chemical, blood, or urine analysis;
5-32 (C) a test to determine drug use; or
5-33 (D) a test for the presence of the human
5-34 immunodeficiency virus.
5-35 (6) [(4)] "Licensing authority" means a state agency
5-36 or political subdivision that issues an occupational license.
5-37 (7) [(5)] "Occupational license" means a license,
5-38 certificate, registration, permit, or other form of authorization
5-39 required by law or rule that must be obtained by an individual to
5-40 engage in a particular business or occupation.
5-41 (8) [(6)] "Political subdivision" means a
5-42 municipality, county, or special district or authority. The term
5-43 includes a school district.
5-44 (9) [(7)] "RNA" means ribonucleic acid.
5-45 (10) [(8)] "State agency" means a department, board,
5-46 bureau, commission, committee, division, office, council, or agency
5-47 in the executive or judicial branch of state government.
5-48 Sec. 2. GENETIC TESTING REQUIREMENT PROHIBITED. A licensing
5-49 authority may not deny an application for an occupational license,
5-50 suspend, revoke, or refuse to renew an occupational license, or
5-51 take any other disciplinary action against a license holder based
5-52 on the refusal of the license applicant or license holder to:
5-53 (1) submit to a genetic physical examination or
5-54 genetic test or provide a genetic family history; or
5-55 (2) reveal:
5-56 (A) whether the applicant or holder has
5-57 submitted to a genetic physical examination or genetic test or
5-58 provided a genetic family history; or
5-59 (B) the results of any genetic physical
5-60 examination or genetic test to which the applicant or holder has
5-61 submitted.
5-62 Sec. 3. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) Except
5-63 as provided by Subsections (c) and (d) of this section, genetic
5-64 information is confidential and privileged regardless of the source
5-65 of the information. A person or entity that holds that information
5-66 may not disclose or be compelled to disclose, by subpoena or
5-67 otherwise, genetic information about an individual unless the
5-68 disclosure is specifically authorized by the individual as provided
5-69 by Subsection (b) of this section. This subsection applies to a
6-1 redisclosure of genetic information by a secondary recipient of the
6-2 information after disclosure of the information by an initial
6-3 recipient.
6-4 (b) An individual or the legal representative of an
6-5 individual may authorize the disclosure of genetic information
6-6 relating to that individual through a written authorization that
6-7 includes:
6-8 (1) a description of the information to be disclosed;
6-9 (2) the name of the person or entity to whom the
6-10 disclosure is made; and
6-11 (3) the purpose for the disclosure.
6-12 (c) Subject to Subchapter G, Chapter 411, Government Code,
6-13 genetic information relating to an individual may be disclosed
6-14 without the authorization required under Subsection (b) of this
6-15 section if the disclosure is:
6-16 (1) authorized under a state or federal criminal law
6-17 relating to:
6-18 (A) the identification of individuals; or
6-19 (B) a criminal or juvenile proceeding, an
6-20 inquest, or a child fatality review by a multidisciplinary
6-21 child-abuse team;
6-22 (2) required under a specific order of a state or
6-23 federal court;
6-24 (3) authorized under a state or federal law to
6-25 establish paternity;
6-26 (4) made to furnish genetic information relating to a
6-27 decedent to the blood relatives of the decedent for the purpose of
6-28 medical diagnosis; [or]
6-29 (5) made to identify a decedent; or
6-30 (6) made to the physician who refers the individual
6-31 for the genetic physical examination or genetic test.
6-32 (d) In addition to the exceptions under Subsection (c),
6-33 genetic information relating to an individual may be disclosed
6-34 without the authorization required under Subsection (b) if:
6-35 (1) the disclosure is for information from a research
6-36 study in which the procedure for obtaining informed written consent
6-37 and use of the information is governed by national standards for
6-38 protecting participants involved in research projects, including
6-39 guidelines issued under 21 C.F.R. Part 50 and 45 C.F.R. Part 46;
6-40 (2) the information does not identify a particular
6-41 individual; and
6-42 (3) the information is provided to the Texas
6-43 Department of Health to comply with Chapter 87, Health and Safety
6-44 Code.
6-45 Sec. 4. RIGHT TO KNOW [TEST] RESULTS. An individual who
6-46 submits to a genetic physical examination or genetic test has the
6-47 right to know or to refuse to know the results of that examination
6-48 or test. If [On the written request of] the individual elects to
6-49 know the results, the physician who requested [entity that
6-50 performed] the examination or test shall disclose the [test]
6-51 results to the individual or to another [a] physician designated by
6-52 the individual. If the individual elects not to know the results,
6-53 the physician who requested the performance of the genetic physical
6-54 examination or genetic test may not disclose the results to the
6-55 individual.
6-56 Sec. 5. RETENTION OF SAMPLE. A sample of genetic material
6-57 taken for a genetic test from an individual shall be destroyed
6-58 promptly after the purpose for which the sample was obtained is
6-59 accomplished unless:
6-60 (1) the sample is retained under a court order;
6-61 (2) the individual tested authorizes retention of the
6-62 sample for purposes of medical treatment, DNA banking, or
6-63 scientific research;
6-64 (3) for a sample obtained for research that is cleared
6-65 by an institutional review board, the sample is retained under the
6-66 requirements that the institutional review board imposes on a
6-67 specific research project or as authorized by the research
6-68 participant with institutional review board approval under federal
6-69 law; [or]
7-1 (4) the sample was obtained for a screening test
7-2 established by the Texas Department of Health and performed by that
7-3 department or by a laboratory approved by that department under
7-4 Section 33.011, Health and Safety Code; or
7-5 (5) retention of the sample is required by an
7-6 organization that:
7-7 (A) certifies laboratories that perform genetic
7-8 tests; and
7-9 (B) is recognized by the Texas Department of
7-10 Health.
7-11 SECTION 12. This Act takes effect September 1, 1999.
7-12 SECTION 13. Article 21.73, Insurance Code, as amended by
7-13 this Act, applies only to an insurance policy or evidence of
7-14 coverage that is delivered, issued for delivery, or renewed on or
7-15 after January 1, 2000. A policy or evidence of coverage that is
7-16 delivered, issued for delivery, or renewed before January 1, 2000,
7-17 is governed by the law as it existed immediately before the
7-18 effective date of this Act, and that law is continued in effect for
7-19 that purpose.
7-20 SECTION 14. The importance of this legislation and the
7-21 crowded condition of the calendars in both houses create an
7-22 emergency and an imperative public necessity that the
7-23 constitutional rule requiring bills to be read on three several
7-24 days in each house be suspended, and this rule is hereby suspended.
7-25 * * * * *