Law:Title 5. Protection Of Consumer Interests. Subtitle C. Deceptive, Unfair, And Prohibited Practices from Chapter 546. Use Of Genetic Testing Information (Texas)

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Subtitle C. Deceptive, Unfair, And Prohibited Practices

Contents

Chapter 546. Use Of Genetic Testing Information

Subchapter A. General Provisions

Section  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.



Section 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.



Section 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

Section 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.



Section 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.



Section 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.



Section  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

Section  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.



Section  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.



Section  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.



Section 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

Section 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.



Section 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.


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