SECTIONS 10146-10149.1 - California Statutes

INSURANCE CODE

SECTION 10146-10149.1

10146. The purposes of this article are to establish standards
regarding unfair discrimination among individuals of the same class
in the underwriting of life or disability income insurance on the
basis of tests of a person's genetic characteristics; to establish
minimum standards for determining insurability which are sufficiently
reliable to be used for life and disability income insurance risk
classification and underwriting purposes; to require the maintenance
of strict confidentiality of personal information obtained through a
test of a person's genetic characteristics; and to require informed
consent before insurers underwrite on the basis of a test of a person'
s genetic characteristics. This article and Sections 10140 and 10143
shall constitute the exclusive requirements for insurers' practices
relating to genetic characteristics or to tests thereof.

10147. As used in this article:
(a) "Disability income insurance" means insurance against loss of
occupational earning capacity arising from injury, sickness, or
disablement, and includes insurance which provides benefits for
overhead expenses of a business or profession when the insured
becomes disabled.
(b) "Genetic characteristics" means any scientifically or
medically identifiable gene or chromosome, or alteration thereof,
that is known to be a cause of a disease or disorder, or that is
determined to be associated with a statistically increased risk of
development of a disease or disorder, and that is presently not
associated with any symptoms of any disease or disorder.
(c) "Life or disability income insurer" means an insurer licensed
to transact life insurance or disability income insurance in this
state or a fraternal benefit society licensed in this state.
(d) "Policy" means (1) a life insurance policy or a disability
income insurance policy delivered in this state, or (2) a certificate
of life insurance benefits or disability income insurance benefits,
issued under a group life or disability income insurance policy and
delivered in this state by a life or disability income insurer or a
fraternal benefits society, regardless of the location of the group
master policy.
(e) "Test of a person's genetic characteristics" means a
laboratory test which is generally accepted in the scientific and
medical communities for the determination of the presence or absence
of genetic characteristics.

10148. No insurer shall require a test for the presence of a
genetic characteristic for the purpose of determining insurability
other than for those policies that are contingent on review or
testing for other diseases or medical conditions. In those cases, the
test shall be done in accordance with the informed consent and
privacy protection provisions of this article and Article 6.6
(commencing with Section 791) of Chapter 1 of Part 2 of Division 1.
Notwithstanding any other provision of law, this constitutes the
exclusive requirements for informed consent and privacy protection
for that testing.
(a) An insurer that requests an applicant to take a genetic
characteristic test shall obtain the applicant's written informed
consent for the test. Written informed consent shall include a
description of the test to be performed, including its purpose,
potential uses, and limitations, the meaning of its results,
procedures for notifying the applicant of the results, and the right
to confidential treatment of the results.
(b) The insurer shall notify an applicant of a test result by
notifying the applicant or the applicant's designated physician. If
the applicant tested has not given written consent authorizing a
physician to receive the test results, the applicant shall be urged,
at the time the applicant is informed of the test results, to contact
a health care professional.
(c) The commissioner shall develop and adopt standardized language
for the informed consent disclosure form required by this section to
be given to any applicant for life or disability income insurance
who takes a test for a genetic characteristic.
(d) A life or disability income insurer shall not require a person
to undergo a test of the person's genetic characteristics unless the
cost of the test is paid by the insurer.
(e) No policy shall limit benefits otherwise payable if loss is
caused or contributed to by the presence or absence of genetic
characteristics, except to the extent and in the same fashion as the
insurer limits coverage for loss caused or contributed to by other
medical conditions presenting an increased degree of risk.
(f) Nothing in this chapter shall limit an insurer's right to
decline an application or enrollment request for a life or disability
income insurance policy, charge a higher rate or premium for such a
policy, or place a limitation on coverage under such a policy, on the
basis of manifestations of any disease or disorder.
(g) No discrimination shall be made in the fees or commissions of
agents or brokers writing or renewing a life or disability income
policy on the basis of a test of that person's genetic
characteristics.

10149. (a) All underwriting activities undertaken by insurers
pursuant to this article shall be subject to all applicable
provisions of Article 6.6 (commencing with Section 791) of Chapter 1
of Part 2 of Division 1.
(b) No life or disability income insurer shall require a genetic
characteristic test if the results of the test would be used
exclusively or nonexclusively for the purpose of determining
eligibility for hospital, medical, or surgical insurance coverage or
eligibility for coverage under a nonprofit hospital service plan or
health care service plan.

10149.1. (a) This section shall apply to the disclosure of the
results of a test for a genetic characteristic requested by an
insurer pursuant to this article.
(b) Any person who negligently discloses results of a test for a
genetic characteristic to any third party, in a manner which
identifies or provides identifying characteristics of the person to
whom the test results apply, except pursuant to a written
authorization, as described in subdivision (g), or except as provided
in this article or in Sections 1603.1 and 1603.3 of the Health and
Safety Code, shall be assessed a civil penalty in an amount not to
exceed one thousand dollars ($1,000) plus court costs, as determined
by the court, which penalty and costs shall be paid to the subject of
the test.
(c) Any person who willfully discloses the results of a test for a
genetic characteristic to any third party, in a manner which
identifies or provides identifying characteristics of the person to
whom the test results apply, except pursuant to a written
authorization, as described in subdivision (g), or except as provided
in this article or in Sections 1603.1 and 1603.3 of the Health and
Safety Code, shall be assessed a civil penalty in an amount not less
than one thousand dollars ($1,000) and no more than five thousand
dollars ($5,000) plus court costs, as determined by the court, which
penalty and costs shall be paid to the subject of the test.
(d) Any person who willfully or negligently discloses the results
of a test for a genetic characteristic to a third party, in a manner
which identifies or provides identifying characteristics of the
person to whom the test results apply, except pursuant to a written
authorization, as described in subdivision (g), or except as provided
in this article or in Sections 1603.1 and 1603.3 of the Health and
Safety Code, which results in economic, bodily, or emotional harm to
the subject of the test, is guilty of a misdemeanor punishable by
imprisonment in a county jail for a period not to exceed one year, by
a fine of not to exceed ten thousand dollars ($10,000), or by both
that fine and imprisonment.
(e) Any person who commits any act described in subdivision (b) or
(c) shall be liable to the subject for all actual damages, including
damages for economic, bodily, or emotional harm which is proximately
caused by the act.
(f) Each disclosure made in violation of this section is a
separate and actionable offense.
(g) The applicant's "written authorization," as used in this
section, applies only to the disclosure of test results by a person
responsible for the care and treatment of the person subject to the
test. Written authorization is required for each separate disclosure
of the test results, and shall include to whom the disclosure would
be made.