CHAPTER 546. USE OF GENETIC TESTING INFORMATION - Texas Statutes

INSURANCE CODE

TITLE 5. PROTECTION OF CONSUMER INTERESTS

SUBTITLE C. DECEPTIVE, UNFAIR, AND PROHIBITED PRACTICES

CHAPTER 546. USE OF GENETIC TESTING INFORMATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 546.001. DEFINITIONS. In this chapter:

(1) "DNA" means deoxyribonucleic acid.

(2) "Genetic characteristic" means a scientifically or medically

identifiable genetic or chromosomal variation, composition, or

alteration that predisposes an individual to a disease, disorder,

or syndrome.

(3) "Genetic information" means information that is:

(A) obtained from or based on a scientific or medical

determination of the presence or absence in an individual of a

genetic characteristic; or

(B) derived from the results of a genetic test performed on an

individual.

(4) "Genetic test" means a presymptomatic laboratory test of an

individual's genes, gene products, or chromosomes that:

(A) analyzes the individual's DNA, RNA, proteins, or

chromosomes; and

(B) is performed to identify any genetic variation, composition,

or alteration that is associated with the individual's having a

predisposition for:

(i) developing a clinically recognized disease, disorder, or

syndrome; or

(ii) being a carrier of a clinically recognized disease,

disorder, or syndrome.

The term does not include a blood test, cholesterol test, urine

test, or other physical test used for a purpose other than

determining a genetic or chromosomal variation, composition, or

alteration in a specific individual; a routine physical

examination or a routine test performed as part of a physical

examination; a test to determine drug use; or a test to determine

the presence of the human immunodeficiency virus.

(5) "RNA" means ribonucleic acid.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Sec. 546.002. APPLICABILITY OF CHAPTER. This chapter applies

only to a health benefit plan that:

(1) provides benefits for medical or surgical expenses incurred

as a result of a health condition, accident, or sickness,

including:

(A) an individual, group, blanket, or franchise insurance policy

or insurance agreement, a group hospital service contract, or an

individual or group evidence of coverage that is offered by:

(i) an insurance company;

(ii) a group hospital service corporation operating under

Chapter 842;

(iii) a fraternal benefit society operating under Chapter 885;

(iv) a stipulated premium company operating under Chapter 884;

or

(v) a health maintenance organization operating under Chapter

843; and

(B) to the extent permitted by the Employee Retirement Income

Security Act of 1974 (29 U.S.C. Section 1001 et seq.), a health

benefit plan that is offered by:

(i) a multiple employer welfare arrangement as defined by

Section 3 of that Act;

(ii) another entity not authorized under this code or another

insurance law of this state that directly contracts for health

care services on a risk-sharing basis, including a capitation

basis; or

(iii) another analogous benefit arrangement; or

(2) is offered by an approved nonprofit health corporation that

holds a certificate of authority under Chapter 844.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 1, eff. September 1, 2005.

Sec. 546.003. EXCEPTIONS. This chapter does not apply to:

(1) a plan that provides coverage:

(A) only for a specified disease;

(B) only for accidental death or dismemberment;

(C) for wages or payments in lieu of wages for a period during

which an employee is absent from work because of sickness or

injury; or

(D) as a supplement to liability insurance;

(2) a Medicare supplemental policy as defined by Section

1882(g)(1), Social Security Act (42 U.S.C. Section 1395ss);

(3) workers' compensation insurance coverage;

(4) medical payment insurance coverage provided under a motor

vehicle insurance policy; or

(5) a long-term care policy, including a nursing home fixed

indemnity policy, unless the commissioner determines that the

policy provides benefit coverage so comprehensive that the policy

is a health benefit plan as described by Section 546.002.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 2, eff. September 1, 2005.

SUBCHAPTER B. GENETIC TESTING AND USE OF TEST RESULTS

Sec. 546.051. CERTAIN TESTING PERMITTED; INDUCEMENT PROHIBITED.

(a) A health benefit plan issuer that requests an applicant for

coverage under the plan to submit to a genetic test in connection

with the application for coverage for a purpose not prohibited

under Section 546.052 must:

(1) notify the applicant that the test is required;

(2) disclose to the applicant the proposed use of the test

results; and

(3) obtain the applicant's written informed consent before the

test is administered.

(b) The applicant shall state in the consent form whether the

applicant elects to be informed of the test results. If the

applicant elects to be informed, the person or entity that

performs the test shall disclose the test results to the

applicant and the health benefit plan issuer. The issuer shall

ensure that:

(1) the applicant receives an interpretation of the test results

made by a qualified health care practitioner; and

(2) a physician or other health care practitioner designated by

the applicant receives a copy of the test results.

(c) A health benefit plan issuer may not use the results of a

genetic test conducted in accordance with Subsection (a) to

induce the purchase of coverage under the plan.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 3, eff. September 1, 2005.

Sec. 546.052. IMPROPER USE OF TEST RESULTS; REFUSAL TO SUBMIT TO

TESTING. A health benefit plan issuer may not use genetic

information or the refusal of an applicant to submit to a genetic

test to reject, deny, limit, cancel, refuse to renew, increase

the premiums for, or otherwise adversely affect eligibility for

or coverage under the plan.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 4, eff. September 1, 2005.

Sec. 546.053. TESTING RELATED TO PREGNANCY. (a) In this

section, "coerce" means to restrain or dominate a woman's free

will by actual or implied:

(1) force; or

(2) threat of rejecting, denying, limiting, canceling, refusing

to renew, or otherwise adversely affecting eligibility for

coverage under a health benefit plan.

(b) A health benefit plan issuer may not:

(1) require as a condition of coverage genetic testing of a

child in utero without the pregnant woman's consent; or

(2) use genetic information to coerce or compel a pregnant woman

to have an induced abortion.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 5, eff. September 1, 2005.

Sec. 546.054. DESTRUCTION OF SAMPLE MATERIAL; EXCEPTIONS. A

sample of genetic material obtained from an individual for a

genetic test shall be destroyed promptly after the purpose for

which the sample was obtained is accomplished unless:

(1) the sample is retained under a court order;

(2) the individual authorizes retention of the sample for

medical treatment or scientific research;

(3) the sample was obtained for research that is cleared by an

institutional review board and retention of the sample is:

(A) under a requirement the institutional review board imposes

on a specific research project; or

(B) authorized by the research participant with institutional

review board approval under federal law; or

(4) the sample was obtained for a screening test established by

the Texas Department of Health under Section 33.011, Health and

Safety Code, and performed by that department or a laboratory

approved by that department.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

SUBCHAPTER C. DISCLOSURE OF GENETIC INFORMATION; CONFIDENTIALITY;

EXCEPTIONS

Sec. 546.101. DISCLOSURE OF TEST RESULTS TO INDIVIDUAL TESTED.

(a) An individual who submits to a genetic test has the right to

know the results of the test. On the written request by the

individual, the health benefit plan issuer or other entity that

performed the test shall disclose the test results to:

(1) the individual; or

(2) a physician designated by the individual.

(b) The right to receive information under this section is in

addition to any right or requirement established under Sections

546.051 and 546.052.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 6, eff. September 1, 2005.

Sec. 546.102. CONFIDENTIALITY OF GENETIC INFORMATION. (a)

Except as provided by Sections 546.103(a) and (b), genetic

information is confidential and privileged regardless of the

source of the information.

(b) A person or entity that holds genetic information about an

individual may not disclose or be compelled to disclose, by

subpoena or otherwise, that information unless the disclosure is

specifically authorized by the individual as provided by Section

546.104.

(c) This section applies to a redisclosure of genetic

information by a secondary recipient of the information after

disclosure of the information by an initial recipient. Except as

provided by Section 546.103(b), a health benefit plan issuer may

not redisclose genetic information unless the redisclosure is

consistent with the disclosures authorized by the tested

individual under an authorization executed under Section 546.104.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 7, eff. September 1, 2005.

Sec. 546.103. EXCEPTIONS TO CONFIDENTIALITY. (a) Subject to

Subchapter G, Chapter 411, Government Code, genetic information

may be disclosed without an authorization under Section 546.104

if the disclosure is:

(1) authorized under a state or federal criminal law relating

to:

(A) the identification of individuals; or

(B) a criminal or juvenile proceeding, an inquest, or a child

fatality review by a multidisciplinary child-abuse team;

(2) required under a specific order of a state or federal court;

(3) for the purpose of establishing paternity as authorized

under a state or federal law;

(4) made to provide genetic information relating to a decedent

and the disclosure is made to the blood relatives of the decedent

for medical diagnosis; or

(5) made to identify a decedent.

(b) A health benefit plan issuer may redisclose genetic

information without an authorization under Section 546.104:

(1) for actuarial or research studies if:

(A) a tested individual could not be identified in any actuarial

or research report; and

(B) any materials that identify a tested individual are returned

or destroyed as soon as reasonably practicable;

(2) to the department for the purpose of enforcing this chapter;

or

(3) for a purpose directly related to enabling a business

decision to be made about:

(A) purchasing, transferring, merging, or selling all or part of

an insurance business; or

(B) obtaining reinsurance affecting that insurance business.

(c) A redisclosure authorized under Subsection (b) may contain

only information reasonably necessary to accomplish the purpose

for which the information is disclosed.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 8, eff. September 1, 2005.

Sec. 546.104. AUTHORIZED DISCLOSURE. An individual or an

individual's legal representative may authorize disclosure of

genetic information relating to the individual by an

authorization that:

(1) is written in plain language;

(2) is dated;

(3) contains a specific description of the information to be

disclosed;

(4) identifies or describes each person authorized to disclose

the genetic information to a health benefit plan issuer;

(5) identifies or describes the individuals or entities to whom

the disclosure or subsequent redisclosure of the genetic

information may be made;

(6) describes the specific purpose of the disclosure;

(7) is signed by the individual or legal representative and, if

the disclosure is made to claim proceeds of an affected life

insurance policy, the claimant; and

(8) advises the individual or legal representative that the

individual's authorized representative is entitled to receive a

copy of the authorization.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 9, eff. September 1, 2005.

SUBCHAPTER D. ENFORCEMENT

Sec. 546.151. CEASE AND DESIST ORDER. (a) On a finding by the

commissioner that a health benefit plan issuer is in violation of

this chapter, the commissioner may issue a cease and desist order

in the manner provided by Chapter 83.

(b) If a health benefit plan issuer refuses or fails to comply

with a cease and desist order issued under this section, the

commissioner may, in the manner provided by this code and other

insurance laws of this state, revoke or suspend the issuer's

certificate of authority or other authorization to operate a

health benefit plan in this state.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 10, eff. September 1, 2005.

Sec. 546.152. ADMINISTRATIVE PENALTY. A health benefit plan

issuer that operates a plan in violation of this chapter is

subject to an administrative penalty as provided by Chapter 84.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1,

2005.

Amended by:

Acts 2005, 79th Leg., Ch.

670, Sec. 11, eff. September 1, 2005.