[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 493 Enrolled Bill (ENR)]
H.R.493
One Hundred Tenth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Thursday,
the third day of January, two thousand and eight
An Act
To prohibit discrimination on the basis of genetic information with
respect to health insurance and employment.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Genetic
Information Nondiscrimination Act of 2008''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
TITLE I--GENETIC NONDISCRIMINATION IN HEALTH INSURANCE
Sec. 101. Amendments to Employee Retirement Income Security Act of 1974.
Sec. 102. Amendments to the Public Health Service Act.
Sec. 103. Amendments to the Internal Revenue Code of 1986.
Sec. 104. Amendments to title XVIII of the Social Security Act relating
to medigap.
Sec. 105. Privacy and confidentiality.
Sec. 106. Assuring coordination.
TITLE II--PROHIBITING EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENETIC
INFORMATION
Sec. 201. Definitions.
Sec. 202. Employer practices.
Sec. 203. Employment agency practices.
Sec. 204. Labor organization practices.
Sec. 205. Training programs.
Sec. 206. Confidentiality of genetic information.
Sec. 207. Remedies and enforcement.
Sec. 208. Disparate impact.
Sec. 209. Construction.
Sec. 210. Medical information that is not genetic information.
Sec. 211. Regulations.
Sec. 212. Authorization of appropriations.
Sec. 213. Effective date.
TITLE III--MISCELLANEOUS PROVISIONS
Sec. 301. Severability.
Sec. 302. Child labor protections.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Deciphering the sequence of the human genome and other
advances in genetics open major new opportunities for medical
progress. New knowledge about the genetic basis of illness will
allow for earlier detection of illnesses, often before symptoms
have begun. Genetic testing can allow individuals to take steps to
reduce the likelihood that they will contract a particular
disorder. New knowledge about genetics may allow for the
development of better therapies that are more effective against
disease or have fewer side effects than current treatments. These
advances give rise to the potential misuse of genetic information
to discriminate in health insurance and employment.
(2) The early science of genetics became the basis of State
laws that provided for the sterilization of persons having presumed
genetic ``defects'' such as mental retardation, mental disease,
epilepsy, blindness, and hearing loss, among other conditions. The
first sterilization law was enacted in the State of Indiana in
1907. By 1981, a majority of States adopted sterilization laws to
``correct'' apparent genetic traits or tendencies. Many of these
State laws have since been repealed, and many have been modified to
include essential constitutional requirements of due process and
equal protection. However, the current explosion in the science of
genetics, and the history of sterilization laws by the States based
on early genetic science, compels Congressional action in this
area.
(3) Although genes are facially neutral markers, many genetic
conditions and disorders are associated with particular racial and
ethnic groups and gender. Because some genetic traits are most
prevalent in particular groups, members of a particular group may
be stigmatized or discriminated against as a result of that genetic
information. This form of discrimination was evident in the 1970s,
which saw the advent of programs to screen and identify carriers of
sickle cell anemia, a disease which afflicts African-Americans.
Once again, State legislatures began to enact discriminatory laws
in the area, and in the early 1970s began mandating genetic
screening of all African Americans for sickle cell anemia, leading
to discrimination and unnecessary fear. To alleviate some of this
stigma, Congress in 1972 passed the National Sickle Cell Anemia
Control Act, which withholds Federal funding from States unless
sickle cell testing is voluntary.
(4) Congress has been informed of examples of genetic
discrimination in the workplace. These include the use of pre-
employment genetic screening at Lawrence Berkeley Laboratory, which
led to a court decision in favor of the employees in that case
Norman-Bloodsaw v. Lawrence Berkeley Laboratory (135 F.3d 1260,
1269 (9th Cir. 1998)). Congress clearly has a compelling public
interest in relieving the fear of discrimination and in prohibiting
its actual practice in employment and health insurance.
(5) Federal law addressing genetic discrimination in health
insurance and employment is incomplete in both the scope and depth
of its protections. Moreover, while many States have enacted some
type of genetic non-discrimination law, these laws vary widely with
respect to their approach, application, and level of protection.
Congress has collected substantial evidence that the American
public and the medical community find the existing patchwork of
State and Federal laws to be confusing and inadequate to protect
them from discrimination. Therefore Federal legislation
establishing a national and uniform basic standard is necessary to
fully protect the public from discrimination and allay their
concerns about the potential for discrimination, thereby allowing
individuals to take advantage of genetic testing, technologies,
research, and new therapies.
TITLE I--GENETIC NONDISCRIMINATION IN HEALTH INSURANCE
SEC. 101. AMENDMENTS TO EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974.
(a) No Discrimination in Group Premiums Based on Genetic
Information.--Section 702(b) of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1182(b)) is amended--
(1) in paragraph (2)(A), by inserting before the semicolon the
following: ``except as provided in paragraph (3)''; and
(2) by adding at the end the following:
``(3) No group-based discrimination on basis of genetic
information.--
``(A) In general.--For purposes of this section, a group
health plan, and a health insurance issuer offering group
health insurance coverage in connection with a group health
plan, may not adjust premium or contribution amounts for the
group covered under such plan on the basis of genetic
information.
``(B) Rule of construction.--Nothing in subparagraph (A) or
in paragraphs (1) and (2) of subsection (d) shall be construed
to limit the ability of a health insurance issuer offering
health insurance coverage in connection with a group health
plan to increase the premium for an employer based on the
manifestation of a disease or disorder of an individual who is
enrolled in the plan. In such case, the manifestation of a
disease or disorder in one individual cannot also be used as
genetic information about other group members and to further
increase the premium for the employer.''.
(b) Limitations on Genetic Testing; Prohibition on Collection of
Genetic Information; Application to All Plans.--Section 702 of the
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1182) is
amended by adding at the end the following:
``(c) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic testing.--A
group health plan, and a health insurance issuer offering health
insurance coverage in connection with a group health plan, shall
not request or require an individual or a family member of such
individual to undergo a genetic test.
``(2) Rule of construction.--Paragraph (1) shall not be
construed to limit the authority of a health care professional who
is providing health care services to an individual to request that
such individual undergo a genetic test.
``(3) Rule of construction regarding payment.--
``(A) In general.--Nothing in paragraph (1) shall be
construed to preclude a group health plan, or a health
insurance issuer offering health insurance coverage in
connection with a group health plan, from obtaining and using
the results of a genetic test in making a determination
regarding payment (as such term is defined for the purposes of
applying the regulations promulgated by the Secretary of Health
and Human Services under part C of title XI of the Social
Security Act and section 264 of the Health Insurance
Portability and Accountability Act of 1996, as may be revised
from time to time) consistent with subsection (a).
``(B) Limitation.--For purposes of subparagraph (A), a
group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, may
request only the minimum amount of information necessary to
accomplish the intended purpose.
``(4) Research exception.--Notwithstanding paragraph (1), a
group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, may
request, but not require, that a participant or beneficiary undergo
a genetic test if each of the following conditions is met:
``(A) The request is made, in writing, pursuant to research
that complies with part 46 of title 45, Code of Federal
Regulations, or equivalent Federal regulations, and any
applicable State or local law or regulations for the protection
of human subjects in research.
``(B) The plan or issuer clearly indicates to each
participant or beneficiary, or in the case of a minor child, to
the legal guardian of such beneficiary, to whom the request is
made that--
``(i) compliance with the request is voluntary; and
``(ii) non-compliance will have no effect on enrollment
status or premium or contribution amounts.
``(C) No genetic information collected or acquired under
this paragraph shall be used for underwriting purposes.
``(D) The plan or issuer notifies the Secretary in writing
that the plan or issuer is conducting activities pursuant to
the exception provided for under this paragraph, including a
description of the activities conducted.
``(E) The plan or issuer complies with such other
conditions as the Secretary may by regulation require for
activities conducted under this paragraph.
``(d) Prohibition on Collection of Genetic Information.--
``(1) In general.--A group health plan, and a health insurance
issuer offering health insurance coverage in connection with a
group health plan, shall not request, require, or purchase genetic
information for underwriting purposes (as defined in section 733).
``(2) Prohibition on collection of genetic information prior to
enrollment.--A group health plan, and a health insurance issuer
offering health insurance coverage in connection with a group
health plan, shall not request, require, or purchase genetic
information with respect to any individual prior to such
individual's enrollment under the plan or coverage in connection
with such enrollment.
``(3) Incidental collection.--If a group health plan, or a
health insurance issuer offering health insurance coverage in
connection with a group health plan, obtains genetic information
incidental to the requesting, requiring, or purchasing of other
information concerning any individual, such request, requirement,
or purchase shall not be considered a violation of paragraph (2) if
such request, requirement, or purchase is not in violation of
paragraph (1).
``(e) Application to All Plans.--The provisions of subsections
(a)(1)(F), (b)(3), (c), and (d), and subsection (b)(1) and section 701
with respect to genetic information, shall apply to group health plans
and health insurance issuers without regard to section 732(a).''.
(c) Application to Genetic Information of a Fetus or Embryo.--Such
section is further amended by adding at the end the following:
``(f) Genetic Information of a Fetus or Embryo.--Any reference in
this part to genetic information concerning an individual or family
member of an individual shall--
``(1) with respect to such an individual or family member of an
individual who is a pregnant woman, include genetic information of
any fetus carried by such pregnant woman; and
``(2) with respect to an individual or family member utilizing
an assisted reproductive technology, include genetic information of
any embryo legally held by the individual or family member.''.
(d) Definitions.--Section 733(d) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1191b(d)) is amended by adding at the
end the following:
``(5) Family member.--The term `family member' means, with
respect to an individual--
``(A) a dependent (as such term is used for purposes of
section 701(f)(2)) of such individual, and
``(B) any other individual who is a first-degree, second-
degree, third-degree, or fourth-degree relative of such
individual or of an individual described in subparagraph (A).
``(6) Genetic information.--
``(A) In general.--The term `genetic information' means,
with respect to any individual, information about--
``(i) such individual's genetic tests,
``(ii) the genetic tests of family members of such
individual, and
``(iii) the manifestation of a disease or disorder in
family members of such individual.
``(B) Inclusion of genetic services and participation in
genetic research.--Such term includes, with respect to any
individual, any request for, or receipt of, genetic services,
or participation in clinical research which includes genetic
services, by such individual or any family member of such
individual.
``(C) Exclusions.--The term `genetic information' shall not
include information about the sex or age of any individual.
``(7) Genetic test.--
``(A) In general.--The term `genetic test' means an
analysis of human DNA, RNA, chromosomes, proteins, or
metabolites, that detects genotypes, mutations, or chromosomal
changes.
``(B) Exceptions.--The term `genetic test' does not mean--
``(i) an analysis of proteins or metabolites that does
not detect genotypes, mutations, or chromosomal changes; or
``(ii) an analysis of proteins or metabolites that is
directly related to a manifested disease, disorder, or
pathological condition that could reasonably be detected by
a health care professional with appropriate training and
expertise in the field of medicine involved.
``(8) Genetic services.--The term `genetic services' means--
``(A) a genetic test;
``(B) genetic counseling (including obtaining,
interpreting, or assessing genetic information); or
``(C) genetic education.
``(9) Underwriting purposes.--The term `underwriting purposes'
means, with respect to any group health plan, or health insurance
coverage offered in connection with a group health plan--
``(A) rules for, or determination of, eligibility
(including enrollment and continued eligibility) for benefits
under the plan or coverage;
``(B) the computation of premium or contribution amounts
under the plan or coverage;
``(C) the application of any pre-existing condition
exclusion under the plan or coverage; and
``(D) other activities related to the creation, renewal, or
replacement of a contract of health insurance or health
benefits.''.
(e) ERISA Enforcement.--Section 502 of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1132) is amended--
(1) in subsection (a)(6), by striking ``(7), or (8)'' and
inserting ``(7), (8), or (9)'';
(2) in subsection (b)(3), by striking ``The Secretary'' and
inserting ``Except as provided in subsections (c)(9) and (a)(6)
(with respect to collecting civil penalties under subsection
(c)(9)), the Secretary''; and
(3) in subsection (c), by redesignating paragraph (9) as
paragraph (10), and by inserting after paragraph (8) the following
new paragraph:
``(9) Secretarial enforcement authority relating to use of
genetic information.--
``(A) General rule.--The Secretary may impose a penalty
against any plan sponsor of a group health plan, or any health
insurance issuer offering health insurance coverage in
connection with the plan, for any failure by such sponsor or
issuer to meet the requirements of subsection (a)(1)(F),
(b)(3), (c), or (d) of section 702 or section 701 or 702(b)(1)
with respect to genetic information, in connection with the
plan.
``(B) Amount.--
``(i) In general.--The amount of the penalty imposed by
subparagraph (A) shall be $100 for each day in the
noncompliance period with respect to each participant or
beneficiary to whom such failure relates.
``(ii) Noncompliance period.--For purposes of this
paragraph, the term `noncompliance period' means, with
respect to any failure, the period--
``(I) beginning on the date such failure first
occurs; and
``(II) ending on the date the failure is corrected.
``(C) Minimum penalties where failure discovered.--
Notwithstanding clauses (i) and (ii) of subparagraph (D):
``(i) In general.--In the case of 1 or more failures
with respect to a participant or beneficiary--
``(I) which are not corrected before the date on
which the plan receives a notice from the Secretary of
such violation; and
``(II) which occurred or continued during the
period involved;
the amount of penalty imposed by subparagraph (A) by reason
of such failures with respect to such participant or
beneficiary shall not be less than $2,500.
``(ii) Higher minimum penalty where violations are more
than de minimis.--To the extent violations for which any
person is liable under this paragraph for any year are more
than de minimis, clause (i) shall be applied by
substituting `$15,000' for `$2,500' with respect to such
person.
``(D) Limitations.--
``(i) Penalty not to apply where failure not discovered
exercising reasonable diligence.--No penalty shall be
imposed by subparagraph (A) on any failure during any
period for which it is established to the satisfaction of
the Secretary that the person otherwise liable for such
penalty did not know, and exercising reasonable diligence
would not have known, that such failure existed.
``(ii) Penalty not to apply to failures corrected
within certain periods.--No penalty shall be imposed by
subparagraph (A) on any failure if--
``(I) such failure was due to reasonable cause and
not to willful neglect; and
``(II) such failure is corrected during the 30-day
period beginning on the first date the person otherwise
liable for such penalty knew, or exercising reasonable
diligence would have known, that such failure existed.
``(iii) Overall limitation for unintentional
failures.--In the case of failures which are due to
reasonable cause and not to willful neglect, the penalty
imposed by subparagraph (A) for failures shall not exceed
the amount equal to the lesser of--
``(I) 10 percent of the aggregate amount paid or
incurred by the plan sponsor (or predecessor plan
sponsor) during the preceding taxable year for group
health plans; or
``(II) $500,000.
``(E) Waiver by secretary.--In the case of a failure which
is due to reasonable cause and not to willful neglect, the
Secretary may waive part or all of the penalty imposed by
subparagraph (A) to the extent that the payment of such penalty
would be excessive relative to the failure involved.
``(F) Definitions.--Terms used in this paragraph which are
defined in section 733 shall have the meanings provided such
terms in such section.''.
(f) Regulations and Effective Date.--
(1) Regulations.--The Secretary of Labor shall issue final
regulations not later than 12 months after the date of enactment of
this Act to carry out the amendments made by this section.
(2) Effective date.--The amendments made by this section shall
apply with respect to group health plans for plan years beginning
after the date that is 1 year after the date of enactment of this
Act.
SEC. 102. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.
(a) Amendments Relating to the Group Market.--
(1) No discrimination in group premiums based on genetic
information.--Section 2702(b) of the Public Health Service Act (42
U.S.C. 300gg-1(b)) is amended--
(A) in paragraph (2)(A), by inserting before the semicolon
the following: ``except as provided in paragraph (3)''; and
(B) by adding at the end the following:
``(3) No group-based discrimination on basis of genetic
information.--
``(A) In general.--For purposes of this section, a group
health plan, and health insurance issuer offering group health
insurance coverage in connection with a group health plan, may
not adjust premium or contribution amounts for the group
covered under such plan on the basis of genetic information.
``(B) Rule of construction.--Nothing in subparagraph (A) or
in paragraphs (1) and (2) of subsection (d) shall be construed
to limit the ability of a health insurance issuer offering
health insurance coverage in connection with a group health
plan to increase the premium for an employer based on the
manifestation of a disease or disorder of an individual who is
enrolled in the plan. In such case, the manifestation of a
disease or disorder in one individual cannot also be used as
genetic information about other group members and to further
increase the premium for the employer.''.
(2) Limitations on genetic testing; prohibition on collection
of genetic information; application to all plans.--Section 2702 of
the Public Health Service Act (42 U.S.C. 300gg-1) is amended by
adding at the end the following:
``(c) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic testing.--A
group health plan, and a health insurance issuer offering health
insurance coverage in connection with a group health plan, shall
not request or require an individual or a family member of such
individual to undergo a genetic test.
``(2) Rule of construction.--Paragraph (1) shall not be
construed to limit the authority of a health care professional who
is providing health care services to an individual to request that
such individual undergo a genetic test.
``(3) Rule of construction regarding payment.--
``(A) In general.--Nothing in paragraph (1) shall be
construed to preclude a group health plan, or a health
insurance issuer offering health insurance coverage in
connection with a group health plan, from obtaining and using
the results of a genetic test in making a determination
regarding payment (as such term is defined for the purposes of
applying the regulations promulgated by the Secretary under
part C of title XI of the Social Security Act and section 264
of the Health Insurance Portability and Accountability Act of
1996, as may be revised from time to time) consistent with
subsection (a).
``(B) Limitation.--For purposes of subparagraph (A), a
group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, may
request only the minimum amount of information necessary to
accomplish the intended purpose.
``(4) Research exception.--Notwithstanding paragraph (1), a
group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, may
request, but not require, that a participant or beneficiary undergo
a genetic test if each of the following conditions is met:
``(A) The request is made pursuant to research that
complies with part 46 of title 45, Code of Federal Regulations,
or equivalent Federal regulations, and any applicable State or
local law or regulations for the protection of human subjects
in research.
``(B) The plan or issuer clearly indicates to each
participant or beneficiary, or in the case of a minor child, to
the legal guardian of such beneficiary, to whom the request is
made that--
``(i) compliance with the request is voluntary; and
``(ii) non-compliance will have no effect on enrollment
status or premium or contribution amounts.
``(C) No genetic information collected or acquired under
this paragraph shall be used for underwriting purposes.
``(D) The plan or issuer notifies the Secretary in writing
that the plan or issuer is conducting activities pursuant to
the exception provided for under this paragraph, including a
description of the activities conducted.
``(E) The plan or issuer complies with such other
conditions as the Secretary may by regulation require for
activities conducted under this paragraph.
``(d) Prohibition on Collection of Genetic Information.--
``(1) In general.--A group health plan, and a health insurance
issuer offering health insurance coverage in connection with a
group health plan, shall not request, require, or purchase genetic
information for underwriting purposes (as defined in section 2791).
``(2) Prohibition on collection of genetic information prior to
enrollment.--A group health plan, and a health insurance issuer
offering health insurance coverage in connection with a group
health plan, shall not request, require, or purchase genetic
information with respect to any individual prior to such
individual's enrollment under the plan or coverage in connection
with such enrollment.
``(3) Incidental collection.--If a group health plan, or a
health insurance issuer offering health insurance coverage in
connection with a group health plan, obtains genetic information
incidental to the requesting, requiring, or purchasing of other
information concerning any individual, such request, requirement,
or purchase shall not be considered a violation of paragraph (2) if
such request, requirement, or purchase is not in violation of
paragraph (1).
``(e) Application to All Plans.--The provisions of subsections
(a)(1)(F), (b)(3), (c) , and (d) and subsection (b)(1) and section 2701
with respect to genetic information, shall apply to group health plans
and health insurance issuers without regard to section 2721(a).''.
(3) Application to genetic information of a fetus or embryo.--
Such section is further amended by adding at the end the following:
``(f) Genetic Information of a Fetus or Embryo.--Any reference in
this part to genetic information concerning an individual or family
member of an individual shall--
``(1) with respect to such an individual or family member of an
individual who is a pregnant woman, include genetic information of
any fetus carried by such pregnant woman; and
``(2) with respect to an individual or family member utilizing
an assisted reproductive technology, include genetic information of
any embryo legally held by the individual or family member.''.
(4) Definitions.--Section 2791(d) of the Public Health Service
Act (42 U.S.C. 300gg-91(d)) is amended by adding at the end the
following:
``(15) Family member.--The term `family member' means, with
respect to any individual--
``(A) a dependent (as such term is used for purposes of
section 2701(f)(2)) of such individual; and
``(B) any other individual who is a first-degree, second-
degree, third-degree, or fourth-degree relative of such
individual or of an individual described in subparagraph (A).
``(16) Genetic information.--
``(A) In general.--The term `genetic information' means,
with respect to any individual, information about--
``(i) such individual's genetic tests,
``(ii) the genetic tests of family members of such
individual, and
``(iii) the manifestation of a disease or disorder in
family members of such individual.
``(B) Inclusion of genetic services and participation in
genetic research.--Such term includes, with respect to any
individual, any request for, or receipt of, genetic services,
or participation in clinical research which includes genetic
services, by such individual or any family member of such
individual.
``(C) Exclusions.--The term `genetic information' shall not
include information about the sex or age of any individual.
``(17) Genetic test.--
``(A) In general.--The term `genetic test' means an
analysis of human DNA, RNA, chromosomes, proteins, or
metabolites, that detects genotypes, mutations, or chromosomal
changes.
``(B) Exceptions.--The term `genetic test' does not mean--
``(i) an analysis of proteins or metabolites that does
not detect genotypes, mutations, or chromosomal changes; or
``(ii) an analysis of proteins or metabolites that is
directly related to a manifested disease, disorder, or
pathological condition that could reasonably be detected by
a health care professional with appropriate training and
expertise in the field of medicine involved.
``(18) Genetic services.--The term `genetic services' means--
``(A) a genetic test;
``(B) genetic counseling (including obtaining,
interpreting, or assessing genetic information); or
``(C) genetic education.
``(19) Underwriting purposes.--The term `underwriting purposes'
means, with respect to any group health plan, or health insurance
coverage offered in connection with a group health plan--
``(A) rules for, or determination of, eligibility
(including enrollment and continued eligibility) for benefits
under the plan or coverage;
``(B) the computation of premium or contribution amounts
under the plan or coverage;
``(C) the application of any pre-existing condition
exclusion under the plan or coverage; and
``(D) other activities related to the creation, renewal, or
replacement of a contract of health insurance or health
benefits.''.
(5) Remedies and enforcement.--Section 2722(b) of the Public
Health Service Act (42 U.S.C. 300gg-22(b)) is amended by adding at
the end the following:
``(3) Enforcement authority relating to genetic
discrimination.--
``(A) General rule.--In the cases described in paragraph
(1), notwithstanding the provisions of paragraph (2)(C), the
succeeding subparagraphs of this paragraph shall apply with
respect to an action under this subsection by the Secretary
with respect to any failure of a health insurance issuer in
connection with a group health plan, to meet the requirements
of subsection (a)(1)(F), (b)(3), (c), or (d) of section 2702 or
section 2701 or 2702(b)(1) with respect to genetic information
in connection with the plan.
``(B) Amount.--
``(i) In general.--The amount of the penalty imposed
under this paragraph shall be $100 for each day in the
noncompliance period with respect to each participant or
beneficiary to whom such failure relates.
``(ii) Noncompliance period.--For purposes of this
paragraph, the term `noncompliance period' means, with
respect to any failure, the period--
``(I) beginning on the date such failure first
occurs; and
``(II) ending on the date the failure is corrected.
``(C) Minimum penalties where failure discovered.--
Notwithstanding clauses (i) and (ii) of subparagraph (D):
``(i) In general.--In the case of 1 or more failures
with respect to an individual--
``(I) which are not corrected before the date on
which the plan receives a notice from the Secretary of
such violation; and
``(II) which occurred or continued during the
period involved;
the amount of penalty imposed by subparagraph (A) by reason
of such failures with respect to such individual shall not
be less than $2,500.
``(ii) Higher minimum penalty where violations are more
than de minimis.--To the extent violations for which any
person is liable under this paragraph for any year are more
than de minimis, clause (i) shall be applied by
substituting `$15,000' for `$2,500' with respect to such
person.
``(D) Limitations.--
``(i) Penalty not to apply where failure not discovered
exercising reasonable diligence.--No penalty shall be
imposed by subparagraph (A) on any failure during any
period for which it is established to the satisfaction of
the Secretary that the person otherwise liable for such
penalty did not know, and exercising reasonable diligence
would not have known, that such failure existed.
``(ii) Penalty not to apply to failures corrected
within certain periods.--No penalty shall be imposed by
subparagraph (A) on any failure if--
``(I) such failure was due to reasonable cause and
not to willful neglect; and
``(II) such failure is corrected during the 30-day
period beginning on the first date the person otherwise
liable for such penalty knew, or exercising reasonable
diligence would have known, that such failure existed.
``(iii) Overall limitation for unintentional
failures.--In the case of failures which are due to
reasonable cause and not to willful neglect, the penalty
imposed by subparagraph (A) for failures shall not exceed
the amount equal to the lesser of--
``(I) 10 percent of the aggregate amount paid or
incurred by the employer (or predecessor employer)
during the preceding taxable year for group health
plans; or
``(II) $500,000.
``(E) Waiver by secretary.--In the case of a failure which
is due to reasonable cause and not to willful neglect, the
Secretary may waive part or all of the penalty imposed by
subparagraph (A) to the extent that the payment of such penalty
would be excessive relative to the failure involved.''.
(b) Amendment Relating to the Individual Market.--
(1) In general.--The first subpart 3 of part B of title XXVII
of the Public Health Service Act (42 U.S.C. 300gg-51 et seq.)
(relating to other requirements) is amended--
(A) by redesignating such subpart as subpart 2; and
(B) by adding at the end the following:
``SEC. 2753. PROHIBITION OF HEALTH DISCRIMINATION ON THE BASIS OF
GENETIC INFORMATION.
``(a) Prohibition on Genetic Information as a Condition of
Eligibility.--
``(1) In general.--A health insurance issuer offering health
insurance coverage in the individual market may not establish rules
for the eligibility (including continued eligibility) of any
individual to enroll in individual health insurance coverage based
on genetic information.
``(2) Rule of construction.--Nothing in paragraph (1) or in
paragraphs (1) and (2) of subsection (e) shall be construed to
preclude a health insurance issuer from establishing rules for
eligibility for an individual to enroll in individual health
insurance coverage based on the manifestation of a disease or
disorder in that individual, or in a family member of such
individual where such family member is covered under the policy
that covers such individual.
``(b) Prohibition on Genetic Information in Setting Premium
Rates.--
``(1) In general.--A health insurance issuer offering health
insurance coverage in the individual market shall not adjust
premium or contribution amounts for an individual on the basis of
genetic information concerning the individual or a family member of
the individual.
``(2) Rule of construction.--Nothing in paragraph (1) or in
paragraphs (1) and (2) of subsection (e) shall be construed to
preclude a health insurance issuer from adjusting premium or
contribution amounts for an individual on the basis of a
manifestation of a disease or disorder in that individual, or in a
family member of such individual where such family member is
covered under the policy that covers such individual. In such case,
the manifestation of a disease or disorder in one individual cannot
also be used as genetic information about other individuals covered
under the policy issued to such individual and to further increase
premiums or contribution amounts.
``(c) Prohibition on Genetic Information as Preexisting
Condition.--
``(1) In general.--A health insurance issuer offering health
insurance coverage in the individual market may not, on the basis
of genetic information, impose any preexisting condition exclusion
(as defined in section 2701(b)(1)(A)) with respect to such
coverage.
``(2) Rule of construction.--Nothing in paragraph (1) or in
paragraphs (1) and (2) of subsection (e) shall be construed to
preclude a health insurance issuer from imposing any preexisting
condition exclusion for an individual with respect to health
insurance coverage on the basis of a manifestation of a disease or
disorder in that individual.
``(d) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic testing.--A
health insurance issuer offering health insurance coverage in the
individual market shall not request or require an individual or a
family member of such individual to undergo a genetic test.
``(2) Rule of construction.--Paragraph (1) shall not be
construed to limit the authority of a health care professional who
is providing health care services to an individual to request that
such individual undergo a genetic test.
``(3) Rule of construction regarding payment.--
``(A) In general.--Nothing in paragraph (1) shall be
construed to preclude a health insurance issuer offering health
insurance coverage in the individual market from obtaining and
using the results of a genetic test in making a determination
regarding payment (as such term is defined for the purposes of
applying the regulations promulgated by the Secretary under
part C of title XI of the Social Security Act and section 264
of the Health Insurance Portability and Accountability Act of
1996, as may be revised from time to time) consistent with
subsection (a) and (c).
``(B) Limitation.--For purposes of subparagraph (A), a
health insurance issuer offering health insurance coverage in
the individual market may request only the minimum amount of
information necessary to accomplish the intended purpose.
``(4) Research exception.--Notwithstanding paragraph (1), a
health insurance issuer offering health insurance coverage in the
individual market may request, but not require, that an individual
or a family member of such individual undergo a genetic test if
each of the following conditions is met:
``(A) The request is made pursuant to research that
complies with part 46 of title 45, Code of Federal Regulations,
or equivalent Federal regulations, and any applicable State or
local law or regulations for the protection of human subjects
in research.
``(B) The issuer clearly indicates to each individual, or
in the case of a minor child, to the legal guardian of such
child, to whom the request is made that--
``(i) compliance with the request is voluntary; and
``(ii) non-compliance will have no effect on enrollment
status or premium or contribution amounts.
``(C) No genetic information collected or acquired under
this paragraph shall be used for underwriting purposes.
``(D) The issuer notifies the Secretary in writing that the
issuer is conducting activities pursuant to the exception
provided for under this paragraph, including a description of
the activities conducted.
``(E) The issuer complies with such other conditions as the
Secretary may by regulation require for activities conducted
under this paragraph.
``(e) Prohibition on Collection of Genetic Information.--
``(1) In general.--A health insurance issuer offering health
insurance coverage in the individual market shall not request,
require, or purchase genetic information for underwriting purposes
(as defined in section 2791).
``(2) Prohibition on collection of genetic information prior to
enrollment.--A health insurance issuer offering health insurance
coverage in the individual market shall not request, require, or
purchase genetic information with respect to any individual prior
to such individual's enrollment under the plan in connection with
such enrollment.
``(3) Incidental collection.--If a health insurance issuer
offering health insurance coverage in the individual market obtains
genetic information incidental to the requesting, requiring, or
purchasing of other information concerning any individual, such
request, requirement, or purchase shall not be considered a
violation of paragraph (2) if such request, requirement, or
purchase is not in violation of paragraph (1).
``(f) Genetic Information of a Fetus or Embryo.--Any reference in
this part to genetic information concerning an individual or family
member of an individual shall--
``(1) with respect to such an individual or family member of an
individual who is a pregnant woman, include genetic information of
any fetus carried by such pregnant woman; and
``(2) with respect to an individual or family member utilizing
an assisted reproductive technology, include genetic information of
any embryo legally held by the individual or family member.''.
(2) Remedies and enforcement.--Section 2761(b) of the Public
Health Service Act (42 U.S.C. 300gg-61(b)) is amended to read as
follows:
``(b) Secretarial Enforcement Authority.--The Secretary shall have
the same authority in relation to enforcement of the provisions of this
part with respect to issuers of health insurance coverage in the
individual market in a State as the Secretary has under section
2722(b)(2), and section 2722(b)(3) with respect to violations of
genetic nondiscrimination provisions, in relation to the enforcement of
the provisions of part A with respect to issuers of health insurance
coverage in the small group market in the State.''.
(c) Elimination of Option of Non-Federal Governmental Plans To Be
Excepted From Requirements Concerning Genetic Information.--Section
2721(b)(2) of the Public Health Service Act (42 U.S.C. 300gg-21(b)(2))
is amended--
(1) in subparagraph (A), by striking ``If the plan sponsor''
and inserting ``Except as provided in subparagraph (D), if the plan
sponsor''; and
(2) by adding at the end the following:
``(D) Election not applicable to requirements concerning
genetic information.--The election described in subparagraph
(A) shall not be available with respect to the provisions of
subsections (a)(1)(F), (b)(3), (c), and (d) of section 2702 and
the provisions of sections 2701 and 2702(b) to the extent that
such provisions apply to genetic information.''.
(d) Regulations and Effective Date.--
(1) Regulations.--Not later than 12 months after the date of
enactment of this Act, the Secretary of Health and Human Services
shall issue final regulations to carry out the amendments made by
this section.
(2) Effective date.--The amendments made by this section shall
apply--
(A) with respect to group health plans, and health
insurance coverage offered in connection with group health
plans, for plan years beginning after the date that is 1 year
after the date of enactment of this Act; and
(B) with respect to health insurance coverage offered,
sold, issued, renewed, in effect, or operated in the individual
market after the date that is 1 year after the date of
enactment of this Act.
SEC. 103. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.
(a) No Discrimination in Group Premiums Based on Genetic
Information.--Subsection (b) of section 9802 of the Internal Revenue
Code of 1986 is amended--
(1) in paragraph (2)(A), by inserting before the semicolon the
following: ``except as provided in paragraph (3)''; and
(2) by adding at the end the following:
``(3) No group-based discrimination on basis of genetic
information.--
``(A) In general.--For purposes of this section, a group
health plan may not adjust premium or contribution amounts for
the group covered under such plan on the basis of genetic
information.
``(B) Rule of construction.--Nothing in subparagraph (A) or
in paragraphs (1) and (2) of subsection (d) shall be construed
to limit the ability of a group health plan to increase the
premium for an employer based on the manifestation of a disease
or disorder of an individual who is enrolled in the plan. In
such case, the manifestation of a disease or disorder in one
individual cannot also be used as genetic information about
other group members and to further increase the premium for the
employer.''.
(b) Limitations on Genetic Testing; Prohibition on Collection of
Genetic Information; Application to All Plans.--Section 9802 of such
Code is amended by redesignating subsection (c) as subsection (f) and
by inserting after subsection (b) the following new subsections:
``(c) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic testing.--A
group health plan may not request or require an individual or a
family member of such individual to undergo a genetic test.
``(2) Rule of construction.--Paragraph (1) shall not be
construed to limit the authority of a health care professional who
is providing health care services to an individual to request that
such individual undergo a genetic test.
``(3) Rule of construction regarding payment.--
``(A) In general.--Nothing in paragraph (1) shall be
construed to preclude a group health plan from obtaining and
using the results of a genetic test in making a determination
regarding payment (as such term is defined for the purposes of
applying the regulations promulgated by the Secretary of Health
and Human Services under part C of title XI of the Social
Security Act and section 264 of the Health Insurance
Portability and Accountability Act of 1996, as may be revised
from time to time) consistent with subsection (a).
``(B) Limitation.--For purposes of subparagraph (A), a
group health plan may request only the minimum amount of
information necessary to accomplish the intended purpose.
``(4) Research exception.--Notwithstanding paragraph (1), a
group health plan may request, but not require, that a participant
or beneficiary undergo a genetic test if each of the following
conditions is met:
``(A) The request is made pursuant to research that
complies with part 46 of title 45, Code of Federal Regulations,
or equivalent Federal regulations, and any applicable State or
local law or regulations for the protection of human subjects
in research.
``(B) The plan clearly indicates to each participant or
beneficiary, or in the case of a minor child, to the legal
guardian of such beneficiary, to whom the request is made
that--
``(i) compliance with the request is voluntary; and
``(ii) non-compliance will have no effect on enrollment
status or premium or contribution amounts.
``(C) No genetic information collected or acquired under
this paragraph shall be used for underwriting purposes.
``(D) The plan notifies the Secretary in writing that the
plan is conducting activities pursuant to the exception
provided for under this paragraph, including a description of
the activities conducted.
``(E) The plan complies with such other conditions as the
Secretary may by regulation require for activities conducted
under this paragraph.
``(d) Prohibition on Collection of Genetic Information.--
``(1) In general.--A group health plan shall not request,
require, or purchase genetic information for underwriting purposes
(as defined in section 9832).
``(2) Prohibition on collection of genetic information prior to
enrollment.--A group health plan shall not request, require, or
purchase genetic information with respect to any individual prior
to such individual's enrollment under the plan or in connection
with such enrollment.
``(3) Incidental collection.--If a group health plan obtains
genetic information incidental to the requesting, requiring, or
purchasing of other information concerning any individual, such
request, requirement, or purchase shall not be considered a
violation of paragraph (2) if such request, requirement, or
purchase is not in violation of paragraph (1).
``(e) Application to All Plans.--The provisions of subsections
(a)(1)(F), (b)(3), (c), and (d) and subsection (b)(1) and section 9801
with respect to genetic information, shall apply to group health plans
without regard to section 9831(a)(2).''.
(c) Application to Genetic Information of a Fetus or Embryo.--Such
section is further amended by adding at the end the following:
``(f) Genetic Information of a Fetus or Embryo.--Any reference in
this chapter to genetic information concerning an individual or family
member of an individual shall--
``(1) with respect to such an individual or family member of an
individual who is a pregnant woman, include genetic information of
any fetus carried by such pregnant woman; and
``(2) with respect to an individual or family member utilizing
an assisted reproductive technology, include genetic information of
any embryo legally held by the individual or family member.''.
(d) Definitions.--Subsection (d) of section 9832 of such Code is
amended by adding at the end the following:
``(6) Family member.--The term `family member' means, with
respect to any individual--
``(A) a dependent (as such term is used for purposes of
section 9801(f)(2)) of such individual, and
``(B) any other individual who is a first-degree, second-
degree, third-degree, or fourth-degree relative of such
individual or of an individual described in subparagraph (A).
``(7) Genetic information.--
``(A) In general.--The term `genetic information' means,
with respect to any individual, information about--
``(i) such individual's genetic tests,
``(ii) the genetic tests of family members of such
individual, and
``(iii) the manifestation of a disease or disorder in
family members of such individual.
``(B) Inclusion of genetic services and participation in
genetic research.--Such term includes, with respect to any
individual, any request for, or receipt of, genetic services,
or participation in clinical research which includes genetic
services, by such individual or any family member of such
individual.
``(C) Exclusions.--The term `genetic information' shall not
include information about the sex or age of any individual.
``(8) Genetic test.--
``(A) In general.--The term `genetic test' means an
analysis of human DNA, RNA, chromosomes, proteins, or
metabolites, that detects genotypes, mutations, or chromosomal
changes.
``(B) Exceptions.--The term `genetic test' does not mean--
``(i) an analysis of proteins or metabolites that does
not detect genotypes, mutations, or chromosomal changes, or
``(ii) an analysis of proteins or metabolites that is
directly related to a manifested disease, disorder, or
pathological condition that could reasonably be detected by
a health care professional with appropriate training and
expertise in the field of medicine involved.
``(9) Genetic services.--The term `genetic services' means--
``(A) a genetic test;
``(B) genetic counseling (including obtaining,
interpreting, or assessing genetic information); or
``(C) genetic education.
``(10) Underwriting purposes.--The term `underwriting purposes'
means, with respect to any group health plan, or health insurance
coverage offered in connection with a group health plan--
``(A) rules for, or determination of, eligibility
(including enrollment and continued eligibility) for benefits
under the plan or coverage;
``(B) the computation of premium or contribution amounts
under the plan or coverage;
``(C) the application of any pre-existing condition
exclusion under the plan or coverage; and
``(D) other activities related to the creation, renewal, or
replacement of a contract of health insurance or health
benefits.''.
(e) Enforcement.--
(1) In general.--Subchapter C of chapter 100 of the Internal
Revenue Code of 1986 (relating to general provisions) is amended by
adding at the end the following new section:
``SEC. 9834. ENFORCEMENT.
``For the imposition of tax on any failure of a group health plan
to meet the requirements of this chapter, see section 4980D.''.
(2) Conforming amendment.--The table of sections for subchapter
C of chapter 100 of such Code is amended by adding at the end the
following new item:
``Sec. 9834. Enforcement.''.
(f) Regulations and Effective Date.--
(1) Regulations.--The Secretary of the Treasury shall issue
final regulations or other guidance not later than 12 months after
the date of the enactment of this Act to carry out the amendments
made by this section.
(2) Effective date.--The amendments made by this section shall
apply with respect to group health plans for plan years beginning
after the date that is 1 year after the date of the enactment of
this Act.
SEC. 104. AMENDMENTS TO TITLE XVIII OF THE SOCIAL SECURITY ACT
RELATING TO MEDIGAP.
(a) Nondiscrimination.--Section 1882(s)(2) of the Social Security
Act (42 U.S.C. 1395ss(s)(2)) is amended by adding at the end the
following:
``(E) An issuer of a medicare supplemental policy shall not
deny or condition the issuance or effectiveness of the policy
(including the imposition of any exclusion of benefits under
the policy based on a pre-existing condition) and shall not
discriminate in the pricing of the policy (including the
adjustment of premium rates) of an individual on the basis of
the genetic information with respect to such individual.
``(F) Rule of construction.--Nothing in subparagraph (E) or
in subparagraphs (A) or (B) of subsection (x)(2) shall be
construed to limit the ability of an issuer of a medicare
supplemental policy from, to the extent otherwise permitted
under this title--
``(i) denying or conditioning the issuance or
effectiveness of the policy or increasing the premium for
an employer based on the manifestation of a disease or
disorder of an individual who is covered under the policy;
or
``(ii) increasing the premium for any policy issued to
an individual based on the manifestation of a disease or
disorder of an individual who is covered under the policy
(in such case, the manifestation of a disease or disorder
in one individual cannot also be used as genetic
information about other group members and to further
increase the premium for the employer).''.
(b) Limitations on Genetic Testing and Genetic Information.--
(1) In general.--Section 1882 of the Social Security Act (42
U.S.C. 1395ss) is amended by adding at the end the following:
``(x) Limitations on Genetic Testing and Information.--
``(1) Genetic testing.--
``(A) Limitation on requesting or requiring genetic
testing.--An issuer of a medicare supplemental policy shall not
request or require an individual or a family member of such
individual to undergo a genetic test.
``(B) Rule of construction.--Subparagraph (A) shall not be
construed to limit the authority of a health care professional
who is providing health care services to an individual to
request that such individual undergo a genetic test.
``(C) Rule of construction regarding payment.--
``(i) In general.--Nothing in subparagraph (A) shall be
construed to preclude an issuer of a medicare supplemental
policy from obtaining and using the results of a genetic
test in making a determination regarding payment (as such
term is defined for the purposes of applying the
regulations promulgated by the Secretary under part C of
title XI and section 264 of the Health Insurance
Portability and Accountability Act of 1996, as may be
revised from time to time) consistent with subsection
(s)(2)(E).
``(ii) Limitation.--For purposes of clause (i), an
issuer of a medicare supplemental policy may request only
the minimum amount of information necessary to accomplish
the intended purpose.
``(D) Research exception.--Notwithstanding subparagraph
(A), an issuer of a medicare supplemental policy may request,
but not require, that an individual or a family member of such
individual undergo a genetic test if each of the following
conditions is met:
``(i) The request is made pursuant to research that
complies with part 46 of title 45, Code of Federal
Regulations, or equivalent Federal regulations, and any
applicable State or local law or regulations for the
protection of human subjects in research.
``(ii) The issuer clearly indicates to each individual,
or in the case of a minor child, to the legal guardian of
such child, to whom the request is made that--
``(I) compliance with the request is voluntary; and
``(II) non-compliance will have no effect on
enrollment status or premium or contribution amounts.
``(iii) No genetic information collected or acquired
under this subparagraph shall be used for underwriting,
determination of eligibility to enroll or maintain
enrollment status, premium rating, or the creation,
renewal, or replacement of a plan, contract, or coverage
for health insurance or health benefits.
``(iv) The issuer notifies the Secretary in writing
that the issuer is conducting activities pursuant to the
exception provided for under this subparagraph, including a
description of the activities conducted.
``(v) The issuer complies with such other conditions as
the Secretary may by regulation require for activities
conducted under this subparagraph.
``(2) Prohibition on collection of genetic information.--
``(A) In general.--An issuer of a medicare supplemental
policy shall not request, require, or purchase genetic
information for underwriting purposes (as defined in paragraph
(3)).
``(B) Prohibition on collection of genetic information
prior to enrollment.--An issuer of a medicare supplemental
policy shall not request, require, or purchase genetic
information with respect to any individual prior to such
individual's enrollment under the policy in connection with
such enrollment.
``(C) Incidental collection.--If an issuer of a medicare
supplemental policy obtains genetic information incidental to
the requesting, requiring, or purchasing of other information
concerning any individual, such request, requirement, or
purchase shall not be considered a violation of subparagraph
(B) if such request, requirement, or purchase is not in
violation of subparagraph (A).
``(3) Definitions.--In this subsection:
``(A) Family member.--The term `family member' means with
respect to an individual, any other individual who is a first-
degree, second-degree, third-degree, or fourth-degree relative
of such individual.
``(B) Genetic information.--
``(i) In general.--The term `genetic information'
means, with respect to any individual, information about--
``(I) such individual's genetic tests,
``(II) the genetic tests of family members of such
individual, and
``(III) subject to clause (iv), the manifestation
of a disease or disorder in family members of such
individual.
``(ii) Inclusion of genetic services and participation
in genetic research.--Such term includes, with respect to
any individual, any request for, or receipt of, genetic
services, or participation in clinical research which
includes genetic services, by such individual or any family
member of such individual.
``(iii) Exclusions.--The term `genetic information'
shall not include information about the sex or age of any
individual.
``(C) Genetic test.--
``(i) In general.--The term `genetic test' means an
analysis of human DNA, RNA, chromosomes, proteins, or
metabolites, that detects genotypes, mutations, or
chromosomal changes.
``(ii) Exceptions.--The term `genetic test' does not
mean--
``(I) an analysis of proteins or metabolites that
does not detect genotypes, mutations, or chromosomal
changes; or
``(II) an analysis of proteins or metabolites that
is directly related to a manifested disease, disorder,
or pathological condition that could reasonably be
detected by a health care professional with appropriate
training and expertise in the field of medicine
involved.
``(D) Genetic services.--The term `genetic services'
means--
``(i) a genetic test;
``(ii) genetic counseling (including obtaining,
interpreting, or assessing genetic information); or
``(iii) genetic education.
``(E) Underwriting purposes.--The term `underwriting
purposes' means, with respect to a medicare supplemental
policy--
``(i) rules for, or determination of, eligibility
(including enrollment and continued eligibility) for
benefits under the policy;
``(ii) the computation of premium or contribution
amounts under the policy;
``(iii) the application of any pre-existing condition
exclusion under the policy; and
``(iv) other activities related to the creation,
renewal, or replacement of a contract of health insurance
or health benefits.
``(F) Issuer of a medicare supplemental policy.--The term
`issuer of a medicare supplemental policy' includes a third-
party administrator or other person acting for or on behalf of
such issuer.''.
(2) Application to genetic information of a fetus or embryo.--
Section 1882(x) of such Act, as added by paragraph (1), is further
amended by adding at the end the following:
``(4) Genetic information of a fetus or embryo.--Any reference
in this section to genetic information concerning an individual or
family member of an individual shall--
``(A) with respect to such an individual or family member
of an individual who is a pregnant woman, include genetic
information of any fetus carried by such pregnant woman; and
``(B) with respect to an individual or family member
utilizing an assisted reproductive technology, include genetic
information of any embryo legally held by the individual or
family member.''.
(3) Conforming amendment.--Section 1882(o) of the Social
Security Act (42 U.S.C. 1395ss(o)) is amended by adding at the end
the following:
``(4) The issuer of the medicare supplemental policy complies
with subsection (s)(2)(E) and subsection (x).''.
(c) Effective Date.--The amendments made by this section shall
apply with respect to an issuer of a medicare supplemental policy for
policy years beginning on or after the date that is 1 year after the
date of enactment of this Act.
(d) Transition Provisions.--
(1) In general.--If the Secretary of Health and Human Services
identifies a State as requiring a change to its statutes or
regulations to conform its regulatory program to the changes made
by this section, the State regulatory program shall not be
considered to be out of compliance with the requirements of section
1882 of the Social Security Act due solely to failure to make such
change until the date specified in paragraph (4).
(2) NAIC standards.--If, not later than October 31, 2008, the
National Association of Insurance Commissioners (in this subsection
referred to as the ``NAIC'') modifies its NAIC Model Regulation
relating to section 1882 of the Social Security Act (referred to in
such section as the 1991 NAIC Model Regulation, as subsequently
modified) to conform to the amendments made by this section, such
revised regulation incorporating the modifications shall be
considered to be the applicable NAIC model regulation (including
the revised NAIC model regulation and the 1991 NAIC Model
Regulation) for the purposes of such section.
(3) Secretary standards.--If the NAIC does not make the
modifications described in paragraph (2) within the period
specified in such paragraph, the Secretary of Health and Human
Services shall, not later than July 1, 2009, make the modifications
described in such paragraph and such revised regulation
incorporating the modifications shall be considered to be the
appropriate regulation for the purposes of such section.
(4) Date specified.--
(A) In general.--Subject to subparagraph (B), the date
specified in this paragraph for a State is the earlier of--
(i) the date the State changes its statutes or
regulations to conform its regulatory program to the
changes made by this section, or
(ii) July 1, 2009.
(B) Additional legislative action required.--In the case of
a State which the Secretary identifies as--
(i) requiring State legislation (other than legislation
appropriating funds) to conform its regulatory program to
the changes made in this section, but
(ii) having a legislature which is not scheduled to
meet in 2009 in a legislative session in which such
legislation may be considered, the date specified in this
paragraph is the first day of the first calendar quarter
beginning after the close of the first legislative session
of the State legislature that begins on or after July 1,
2009. For purposes of the previous sentence, in the case of
a State that has a 2-year legislative session, each year of
such session shall be deemed to be a separate regular
session of the State legislature.
SEC. 105. PRIVACY AND CONFIDENTIALITY.
(a) In General.--Part C of title XI of the Social Security Act is
amended by adding at the end the following new section:
``application of hipaa regulations to genetic information
``Sec. 1180. (a) In General.--The Secretary shall revise the HIPAA
privacy regulation (as defined in subsection (b)) so it is consistent
with the following:
``(1) Genetic information shall be treated as health
information described in section 1171(4)(B).
``(2) The use or disclosure by a covered entity that is a group
health plan, health insurance issuer that issues health insurance
coverage, or issuer of a medicare supplemental policy of protected
health information that is genetic information about an individual
for underwriting purposes under the group health plan, health
insurance coverage, or medicare supplemental policy shall not be a
permitted use or disclosure.
``(b) Definitions.--For purposes of this section:
``(1) Genetic information; genetic test; family member.--The
terms `genetic information', `genetic test', and `family member'
have the meanings given such terms in section 2791 of the Public
Health Service Act (42 U.S.C. 300gg-91), as amended by the Genetic
Information Nondiscrimination Act of 2007.
``(2) Group health plan; health insurance coverage; medicare
supplemental policy.--The terms `group health plan' and `health
insurance coverage' have the meanings given such terms under
section 2791 of the Public Health Service Act (42 U.S.C. 300gg-91),
and the term `medicare supplemental policy' has the meaning given
such term in section 1882(g).
``(3) HIPAA privacy regulation.--The term `HIPAA privacy
regulation' means the regulations promulgated by the Secretary
under this part and section 264 of the Health Insurance Portability
and Accountability Act of 1996 (42 U.S.C. 1320d-2 note).
``(4) Underwriting purposes.--The term `underwriting purposes'
means, with respect to a group health plan, health insurance
coverage, or a medicare supplemental policy--
``(A) rules for, or determination of, eligibility
(including enrollment and continued eligibility) for, or
determination of, benefits under the plan, coverage, or policy;
``(B) the computation of premium or contribution amounts
under the plan, coverage, or policy;
``(C) the application of any pre-existing condition
exclusion under the plan, coverage, or policy; and
``(D) other activities related to the creation, renewal, or
replacement of a contract of health insurance or health
benefits.
``(c) Procedure.--The revisions under subsection (a) shall be made
by notice in the Federal Register published not later than 60 days
after the date of the enactment of this section and shall be effective
upon publication, without opportunity for any prior public comment, but
may be revised, consistent with this section, after opportunity for
public comment.
``(d) Enforcement.--In addition to any other sanctions or remedies
that may be available under law, a covered entity that is a group
health plan, health insurance issuer, or issuer of a medicare
supplemental policy and that violates the HIPAA privacy regulation (as
revised under subsection (a) or otherwise) with respect to the use or
disclosure of genetic information shall be subject to the penalties
described in sections 1176 and 1177 in the same manner and to the same
extent that such penalties apply to violations of this part.''.
(b) Regulations; Effective Date.--
(1) Regulations.--Not later than 12 months after the date of
the enactment of this Act, the Secretary of Health and Human
Services shall issue final regulations to carry out the revision
required by section 1180(a) of the Social Security Act, as added by
subsection (a). The Secretary has the sole authority to promulgate
such regulations, but shall promulgate such regulations in
consultation with the Secretaries of Labor and the Treasury.
(2) Effective date.--The amendment made by subsection (a) shall
take effect on the date that is 1 year after the date of the
enactment of this Act.
SEC. 106. ASSURING COORDINATION.
Except as provided in section 105(b)(1), the Secretary of Health
and Human Services, the Secretary of Labor, and the Secretary of the
Treasury shall ensure, through the execution of an interagency
memorandum of understanding among such Secretaries, that--
(1) regulations, rulings, and interpretations issued by such
Secretaries relating to the same matter over which two or more such
Secretaries have responsibility under this title (and the
amendments made by this title) are administered so as to have the
same effect at all times; and
(2) coordination of policies relating to enforcing the same
requirements through such Secretaries in order to have a
coordinated enforcement strategy that avoids duplication of
enforcement efforts and assigns priorities in enforcement.
TITLE II--PROHIBITING EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENETIC
INFORMATION
SEC. 201. DEFINITIONS.
In this title:
(1) Commission.--The term ``Commission'' means the Equal
Employment Opportunity Commission as created by section 705 of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-4).
(2) Employee; employer; employment agency; labor organization;
member.--
(A) In general.--The term ``employee'' means--
(i) an employee (including an applicant), as defined in
section 701(f) of the Civil Rights Act of 1964 (42 U.S.C.
2000e(f));
(ii) a State employee (including an applicant)
described in section 304(a) of the Government Employee
Rights Act of 1991 (42 U.S.C. 2000e-16c(a));
(iii) a covered employee (including an applicant), as
defined in section 101 of the Congressional Accountability
Act of 1995 (2 U.S.C. 1301);
(iv) a covered employee (including an applicant), as
defined in section 411(c) of title 3, United States Code;
or
(v) an employee or applicant to which section 717(a) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a))
applies.
(B) Employer.--The term ``employer'' means--
(i) an employer (as defined in section 701(b) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e(b)));
(ii) an entity employing a State employee described in
section 304(a) of the Government Employee Rights Act of
1991;
(iii) an employing office, as defined in section 101 of
the Congressional Accountability Act of 1995;
(iv) an employing office, as defined in section 411(c)
of title 3, United States Code; or
(v) an entity to which section 717(a) of the Civil
Rights Act of 1964 applies.
(C) Employment agency; labor organization.--The terms
``employment agency'' and ``labor organization'' have the
meanings given the terms in section 701 of the Civil Rights Act
of 1964 (42 U.S.C. 2000e).
(D) Member.--The term ``member'', with respect to a labor
organization, includes an applicant for membership in a labor
organization.
(3) Family member.--The term ``family member'' means, with
respect to an individual--
(A) a dependent (as such term is used for purposes of
section 701(f)(2) of the Employee Retirement Income Security
Act of 1974) of such individual, and
(B) any other individual who is a first-degree, second-
degree, third-degree, or fourth-degree relative of such
individual or of an individual described in subparagraph (A).
(4) Genetic information.--
(A) In general.--The term ``genetic information'' means,
with respect to any individual, information about--
(i) such individual's genetic tests,
(ii) the genetic tests of family members of such
individual, and
(iii) the manifestation of a disease or disorder in
family members of such individual.
(B) Inclusion of genetic services and participation in
genetic research.--Such term includes, with respect to any
individual, any request for, or receipt of, genetic services,
or participation in clinical research which includes genetic
services, by such individual or any family member of such
individual.
(C) Exclusions.--The term ``genetic information'' shall not
include information about the sex or age of any individual.
(5) Genetic monitoring.--The term ``genetic monitoring'' means
the periodic examination of employees to evaluate acquired
modifications to their genetic material, such as chromosomal damage
or evidence of increased occurrence of mutations, that may have
developed in the course of employment due to exposure to toxic
substances in the workplace, in order to identify, evaluate, and
respond to the effects of or control adverse environmental
exposures in the workplace.
(6) Genetic services.--The term ``genetic services'' means--
(A) a genetic test;
(B) genetic counseling (including obtaining, interpreting,
or assessing genetic information); or
(C) genetic education.
(7) Genetic test.--
(A) In general.--The term ``genetic test'' means an
analysis of human DNA, RNA, chromosomes, proteins, or
metabolites, that detects genotypes, mutations, or chromosomal
changes.
(B) Exceptions.--The term ``genetic test'' does not mean an
analysis of proteins or metabolites that does not detect
genotypes, mutations, or chromosomal changes.
SEC. 202. EMPLOYER PRACTICES.
(a) Discrimination Based on Genetic Information.--It shall be an
unlawful employment practice for an employer--
(1) to fail or refuse to hire, or to discharge, any employee,
or otherwise to discriminate against any employee with respect to
the compensation, terms, conditions, or privileges of employment of
the employee, because of genetic information with respect to the
employee; or
(2) to limit, segregate, or classify the employees of the
employer in any way that would deprive or tend to deprive any
employee of employment opportunities or otherwise adversely affect
the status of the employee as an employee, because of genetic
information with respect to the employee.
(b) Acquisition of Genetic Information.--It shall be an unlawful
employment practice for an employer to request, require, or purchase
genetic information with respect to an employee or a family member of
the employee except--
(1) where an employer inadvertently requests or requires family
medical history of the employee or family member of the employee;
(2) where--
(A) health or genetic services are offered by the employer,
including such services offered as part of a wellness program;
(B) the employee provides prior, knowing, voluntary, and
written authorization;
(C) only the employee (or family member if the family
member is receiving genetic services) and the licensed health
care professional or board certified genetic counselor involved
in providing such services receive individually identifiable
information concerning the results of such services; and
(D) any individually identifiable genetic information
provided under subparagraph (C) in connection with the services
provided under subparagraph (A) is only available for purposes
of such services and shall not be disclosed to the employer
except in aggregate terms that do not disclose the identity of
specific employees;
(3) where an employer requests or requires family medical
history from the employee to comply with the certification
provisions of section 103 of the Family and Medical Leave Act of
1993 (29 U.S.C. 2613) or such requirements under State family and
medical leave laws;
(4) where an employer purchases documents that are commercially
and publicly available (including newspapers, magazines,
periodicals, and books, but not including medical databases or
court records) that include family medical history;
(5) where the information involved is to be used for genetic
monitoring of the biological effects of toxic substances in the
workplace, but only if--
(A) the employer provides written notice of the genetic
monitoring to the employee;
(B)(i) the employee provides prior, knowing, voluntary, and
written authorization; or
(ii) the genetic monitoring is required by Federal or State
law;
(C) the employee is informed of individual monitoring
results;
(D) the monitoring is in compliance with--
(i) any Federal genetic monitoring regulations,
including any such regulations that may be promulgated by
the Secretary of Labor pursuant to the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal
Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.),
or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.);
or
(ii) State genetic monitoring regulations, in the case
of a State that is implementing genetic monitoring
regulations under the authority of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.); and
(E) the employer, excluding any licensed health care
professional or board certified genetic counselor that is
involved in the genetic monitoring program, receives the
results of the monitoring only in aggregate terms that do not
disclose the identity of specific employees; or
(6) where the employer conducts DNA analysis for law
enforcement purposes as a forensic laboratory or for purposes of
human remains identification, and requests or requires genetic
information of such employer's employees, but only to the extent
that such genetic information is used for analysis of DNA
identification markers for quality control to detect sample
contamination.
(c) Preservation of Protections.--In the case of information to
which any of paragraphs (1) through (6) of subsection (b) applies, such
information may not be used in violation of paragraph (1) or (2) of
subsection (a) or treated or disclosed in a manner that violates
section 206.
SEC. 203. EMPLOYMENT AGENCY PRACTICES.
(a) Discrimination Based on Genetic Information.--It shall be an
unlawful employment practice for an employment agency--
(1) to fail or refuse to refer for employment, or otherwise to
discriminate against, any individual because of genetic information
with respect to the individual;
(2) to limit, segregate, or classify individuals or fail or
refuse to refer for employment any individual in any way that would
deprive or tend to deprive any individual of employment
opportunities, or otherwise adversely affect the status of the
individual as an employee, because of genetic information with
respect to the individual; or
(3) to cause or attempt to cause an employer to discriminate
against an individual in violation of this title.
(b) Acquisition of Genetic Information.--It shall be an unlawful
employment practice for an employment agency to request, require, or
purchase genetic information with respect to an individual or a family
member of the individual except--
(1) where an employment agency inadvertently requests or
requires family medical history of the individual or family member
of the individual;
(2) where--
(A) health or genetic services are offered by the
employment agency, including such services offered as part of a
wellness program;
(B) the individual provides prior, knowing, voluntary, and
written authorization;
(C) only the individual (or family member if the family
member is receiving genetic services) and the licensed health
care professional or board certified genetic counselor involved
in providing such services receive individually identifiable
information concerning the results of such services; and
(D) any individually identifiable genetic information
provided under subparagraph (C) in connection with the services
provided under subparagraph (A) is only available for purposes
of such services and shall not be disclosed to the employment
agency except in aggregate terms that do not disclose the
identity of specific individuals;
(3) where an employment agency requests or requires family
medical history from the individual to comply with the
certification provisions of section 103 of the Family and Medical
Leave Act of 1993 (29 U.S.C. 2613) or such requirements under State
family and medical leave laws;
(4) where an employment agency purchases documents that are
commercially and publicly available (including newspapers,
magazines, periodicals, and books, but not including medical
databases or court records) that include family medical history; or
(5) where the information involved is to be used for genetic
monitoring of the biological effects of toxic substances in the
workplace, but only if--
(A) the employment agency provides written notice of the
genetic monitoring to the individual;
(B)(i) the individual provides prior, knowing, voluntary,
and written authorization; or
(ii) the genetic monitoring is required by Federal or State
law;
(C) the individual is informed of individual monitoring
results;
(D) the monitoring is in compliance with--
(i) any Federal genetic monitoring regulations,
including any such regulations that may be promulgated by
the Secretary of Labor pursuant to the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal
Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.),
or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.);
or
(ii) State genetic monitoring regulations, in the case
of a State that is implementing genetic monitoring
regulations under the authority of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.); and
(E) the employment agency, excluding any licensed health
care professional or board certified genetic counselor that is
involved in the genetic monitoring program, receives the
results of the monitoring only in aggregate terms that do not
disclose the identity of specific individuals.
(c) Preservation of Protections.--In the case of information to
which any of paragraphs (1) through (5) of subsection (b) applies, such
information may not be used in violation of paragraph (1), (2), or (3)
of subsection (a) or treated or disclosed in a manner that violates
section 206.
SEC. 204. LABOR ORGANIZATION PRACTICES.
(a) Discrimination Based on Genetic Information.--It shall be an
unlawful employment practice for a labor organization--
(1) to exclude or to expel from the membership of the
organization, or otherwise to discriminate against, any member
because of genetic information with respect to the member;
(2) to limit, segregate, or classify the members of the
organization, or fail or refuse to refer for employment any member,
in any way that would deprive or tend to deprive any member of
employment opportunities, or otherwise adversely affect the status
of the member as an employee, because of genetic information with
respect to the member; or
(3) to cause or attempt to cause an employer to discriminate
against a member in violation of this title.
(b) Acquisition of Genetic Information.--It shall be an unlawful
employment practice for a labor organization to request, require, or
purchase genetic information with respect to a member or a family
member of the member except--
(1) where a labor organization inadvertently requests or
requires family medical history of the member or family member of
the member;
(2) where--
(A) health or genetic services are offered by the labor
organization, including such services offered as part of a
wellness program;
(B) the member provides prior, knowing, voluntary, and
written authorization;
(C) only the member (or family member if the family member
is receiving genetic services) and the licensed health care
professional or board certified genetic counselor involved in
providing such services receive individually identifiable
information concerning the results of such services; and
(D) any individually identifiable genetic information
provided under subparagraph (C) in connection with the services
provided under subparagraph (A) is only available for purposes
of such services and shall not be disclosed to the labor
organization except in aggregate terms that do not disclose the
identity of specific members;
(3) where a labor organization requests or requires family
medical history from the members to comply with the certification
provisions of section 103 of the Family and Medical Leave Act of
1993 (29 U.S.C. 2613) or such requirements under State family and
medical leave laws;
(4) where a labor organization purchases documents that are
commercially and publicly available (including newspapers,
magazines, periodicals, and books, but not including medical
databases or court records) that include family medical history; or
(5) where the information involved is to be used for genetic
monitoring of the biological effects of toxic substances in the
workplace, but only if--
(A) the labor organization provides written notice of the
genetic monitoring to the member;
(B)(i) the member provides prior, knowing, voluntary, and
written authorization; or
(ii) the genetic monitoring is required by Federal or State
law;
(C) the member is informed of individual monitoring
results;
(D) the monitoring is in compliance with--
(i) any Federal genetic monitoring regulations,
including any such regulations that may be promulgated by
the Secretary of Labor pursuant to the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal
Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.),
or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.);
or
(ii) State genetic monitoring regulations, in the case
of a State that is implementing genetic monitoring
regulations under the authority of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.); and
(E) the labor organization, excluding any licensed health
care professional or board certified genetic counselor that is
involved in the genetic monitoring program, receives the
results of the monitoring only in aggregate terms that do not
disclose the identity of specific members.
(c) Preservation of Protections.--In the case of information to
which any of paragraphs (1) through (5) of subsection (b) applies, such
information may not be used in violation of paragraph (1), (2), or (3)
of subsection (a) or treated or disclosed in a manner that violates
section 206.
SEC. 205. TRAINING PROGRAMS.
(a) Discrimination Based on Genetic Information.--It shall be an
unlawful employment practice for any employer, labor organization, or
joint labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs--
(1) to discriminate against any individual because of genetic
information with respect to the individual in admission to, or
employment in, any program established to provide apprenticeship or
other training or retraining;
(2) to limit, segregate, or classify the applicants for or
participants in such apprenticeship or other training or
retraining, or fail or refuse to refer for employment any
individual, in any way that would deprive or tend to deprive any
individual of employment opportunities, or otherwise adversely
affect the status of the individual as an employee, because of
genetic information with respect to the individual; or
(3) to cause or attempt to cause an employer to discriminate
against an applicant for or a participant in such apprenticeship or
other training or retraining in violation of this title.
(b) Acquisition of Genetic Information.--It shall be an unlawful
employment practice for an employer, labor organization, or joint
labor-management committee described in subsection (a) to request,
require, or purchase genetic information with respect to an individual
or a family member of the individual except--
(1) where the employer, labor organization, or joint labor-
management committee inadvertently requests or requires family
medical history of the individual or family member of the
individual;
(2) where--
(A) health or genetic services are offered by the employer,
labor organization, or joint labor-management committee,
including such services offered as part of a wellness program;
(B) the individual provides prior, knowing, voluntary, and
written authorization;
(C) only the individual (or family member if the family
member is receiving genetic services) and the licensed health
care professional or board certified genetic counselor involved
in providing such services receive individually identifiable
information concerning the results of such services; and
(D) any individually identifiable genetic information
provided under subparagraph (C) in connection with the services
provided under subparagraph (A) is only available for purposes
of such services and shall not be disclosed to the employer,
labor organization, or joint labor-management committee except
in aggregate terms that do not disclose the identity of
specific individuals;
(3) where the employer, labor organization, or joint labor-
management committee requests or requires family medical history
from the individual to comply with the certification provisions of
section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C.
2613) or such requirements under State family and medical leave
laws;
(4) where the employer, labor organization, or joint labor-
management committee purchases documents that are commercially and
publicly available (including newspapers, magazines, periodicals,
and books, but not including medical databases or court records)
that include family medical history;
(5) where the information involved is to be used for genetic
monitoring of the biological effects of toxic substances in the
workplace, but only if--
(A) the employer, labor organization, or joint labor-
management committee provides written notice of the genetic
monitoring to the individual;
(B)(i) the individual provides prior, knowing, voluntary,
and written authorization; or
(ii) the genetic monitoring is required by Federal or State
law;
(C) the individual is informed of individual monitoring
results;
(D) the monitoring is in compliance with--
(i) any Federal genetic monitoring regulations,
including any such regulations that may be promulgated by
the Secretary of Labor pursuant to the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal
Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.),
or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.);
or
(ii) State genetic monitoring regulations, in the case
of a State that is implementing genetic monitoring
regulations under the authority of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.); and
(E) the employer, labor organization, or joint labor-
management committee, excluding any licensed health care
professional or board certified genetic counselor that is
involved in the genetic monitoring program, receives the
results of the monitoring only in aggregate terms that do not
disclose the identity of specific individuals; or
(6) where the employer conducts DNA analysis for law
enforcement purposes as a forensic laboratory or for purposes of
human remains identification, and requests or requires genetic
information of such employer's apprentices or trainees, but only to
the extent that such genetic information is used for analysis of
DNA identification markers for quality control to detect sample
contamination.
(c) Preservation of Protections.--In the case of information to
which any of paragraphs (1) through (6) of subsection (b) applies, such
information may not be used in violation of paragraph (1), (2), or (3)
of subsection (a) or treated or disclosed in a manner that violates
section 206.
SEC. 206. CONFIDENTIALITY OF GENETIC INFORMATION.
(a) Treatment of Information as Part of Confidential Medical
Record.--If an employer, employment agency, labor organization, or
joint labor-management committee possesses genetic information about an
employee or member, such information shall be maintained on separate
forms and in separate medical files and be treated as a confidential
medical record of the employee or member. An employer, employment
agency, labor organization, or joint labor-management committee shall
be considered to be in compliance with the maintenance of information
requirements of this subsection with respect to genetic information
subject to this subsection that is maintained with and treated as a
confidential medical record under section 102(d)(3)(B) of the Americans
With Disabilities Act (42 U.S.C. 12112(d)(3)(B)).
(b) Limitation on Disclosure.--An employer, employment agency,
labor organization, or joint labor-management committee shall not
disclose genetic information concerning an employee or member except--
(1) to the employee or member of a labor organization (or
family member if the family member is receiving the genetic
services) at the written request of the employee or member of such
organization;
(2) to an occupational or other health researcher if the
research is conducted in compliance with the regulations and
protections provided for under part 46 of title 45, Code of Federal
Regulations;
(3) in response to an order of a court, except that--
(A) the employer, employment agency, labor organization, or
joint labor-management committee may disclose only the genetic
information expressly authorized by such order; and
(B) if the court order was secured without the knowledge of
the employee or member to whom the information refers, the
employer, employment agency, labor organization, or joint
labor-management committee shall inform the employee or member
of the court order and any genetic information that was
disclosed pursuant to such order;
(4) to government officials who are investigating compliance
with this title if the information is relevant to the
investigation;
(5) to the extent that such disclosure is made in connection
with the employee's compliance with the certification provisions of
section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C.
2613) or such requirements under State family and medical leave
laws; or
(6) to a Federal, State, or local public health agency only
with regard to information that is described in section
201(4)(A)(iii) and that concerns a contagious disease that presents
an imminent hazard of death or life-threatening illness, and that
the employee whose family member or family members is or are the
subject of a disclosure under this paragraph is notified of such
disclosure.
(c) Relationship to HIPAA Regulations.--With respect to the
regulations promulgated by the Secretary of Health and Human Services
under part C of title XI of the Social Security Act (42 U.S.C. 1320d et
seq.) and section 264 of the Health Insurance Portability and
Accountability Act of 1996 (42 U.S.C. 1320d-2 note), this title does
not prohibit a covered entity under such regulations from any use or
disclosure of health information that is authorized for the covered
entity under such regulations. The previous sentence does not affect
the authority of such Secretary to modify such regulations.
SEC. 207. REMEDIES AND ENFORCEMENT.
(a) Employees Covered by Title VII of the Civil Rights Act of
1964.--
(1) In general.--The powers, procedures, and remedies provided
in sections 705, 706, 707, 709, 710, and 711 of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-4 et seq.) to the Commission, the
Attorney General, or any person, alleging a violation of title VII
of that Act (42 U.S.C. 2000e et seq.) shall be the powers,
procedures, and remedies this title provides to the Commission, the
Attorney General, or any person, respectively, alleging an unlawful
employment practice in violation of this title against an employee
described in section 201(2)(A)(i), except as provided in paragraphs
(2) and (3).
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the Revised
Statutes of the United States (42 U.S.C. 1988), shall be powers,
remedies, and procedures this title provides to the Commission, the
Attorney General, or any person, alleging such a practice.
(3) Damages.--The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes of the United States (42
U.S.C. 1981a), including the limitations contained in subsection
(b)(3) of such section 1977A, shall be powers, remedies, and
procedures this title provides to the Commission, the Attorney
General, or any person, alleging such a practice (not an employment
practice specifically excluded from coverage under section
1977A(a)(1) of the Revised Statutes of the United States).
(b) Employees Covered by Government Employee Rights Act of 1991.--
(1) In general.--The powers, remedies, and procedures provided
in sections 302 and 304 of the Government Employee Rights Act of
1991 (42 U.S.C. 2000e-16b, 2000e-16c) to the Commission, or any
person, alleging a violation of section 302(a)(1) of that Act (42
U.S.C. 2000e-16b(a)(1)) shall be the powers, remedies, and
procedures this title provides to the Commission, or any person,
respectively, alleging an unlawful employment practice in violation
of this title against an employee described in section
201(2)(A)(ii), except as provided in paragraphs (2) and (3).
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the Revised
Statutes of the United States (42 U.S.C. 1988), shall be powers,
remedies, and procedures this title provides to the Commission, or
any person, alleging such a practice.
(3) Damages.--The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes of the United States (42
U.S.C. 1981a), including the limitations contained in subsection
(b)(3) of such section 1977A, shall be powers, remedies, and
procedures this title provides to the Commission, or any person,
alleging such a practice (not an employment practice specifically
excluded from coverage under section 1977A(a)(1) of the Revised
Statutes of the United States).
(c) Employees Covered by Congressional Accountability Act of
1995.--
(1) In general.--The powers, remedies, and procedures provided
in the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et
seq.) to the Board (as defined in section 101 of that Act (2 U.S.C.
1301)), or any person, alleging a violation of section 201(a)(1) of
that Act (42 U.S.C. 1311(a)(1)) shall be the powers, remedies, and
procedures this title provides to that Board, or any person,
alleging an unlawful employment practice in violation of this title
against an employee described in section 201(2)(A)(iii), except as
provided in paragraphs (2) and (3).
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the Revised
Statutes of the United States (42 U.S.C. 1988), shall be powers,
remedies, and procedures this title provides to that Board, or any
person, alleging such a practice.
(3) Damages.--The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes of the United States (42
U.S.C. 1981a), including the limitations contained in subsection
(b)(3) of such section 1977A, shall be powers, remedies, and
procedures this title provides to that Board, or any person,
alleging such a practice (not an employment practice specifically
excluded from coverage under section 1977A(a)(1) of the Revised
Statutes of the United States).
(4) Other applicable provisions.--With respect to a claim
alleging a practice described in paragraph (1), title III of the
Congressional Accountability Act of 1995 (2 U.S.C. 1381 et seq.)
shall apply in the same manner as such title applies with respect
to a claim alleging a violation of section 201(a)(1) of such Act (2
U.S.C. 1311(a)(1)).
(d) Employees Covered by Chapter 5 of Title 3, United States
Code.--
(1) In general.--The powers, remedies, and procedures provided
in chapter 5 of title 3, United States Code, to the President, the
Commission, the Merit Systems Protection Board, or any person,
alleging a violation of section 411(a)(1) of that title, shall be
the powers, remedies, and procedures this title provides to the
President, the Commission, such Board, or any person, respectively,
alleging an unlawful employment practice in violation of this title
against an employee described in section 201(2)(A)(iv), except as
provided in paragraphs (2) and (3).
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the Revised
Statutes of the United States (42 U.S.C. 1988), shall be powers,
remedies, and procedures this title provides to the President, the
Commission, such Board, or any person, alleging such a practice.
(3) Damages.--The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes of the United States (42
U.S.C. 1981a), including the limitations contained in subsection
(b)(3) of such section 1977A, shall be powers, remedies, and
procedures this title provides to the President, the Commission,
such Board, or any person, alleging such a practice (not an
employment practice specifically excluded from coverage under
section 1977A(a)(1) of the Revised Statutes of the United States).
(e) Employees Covered by Section 717 of the Civil Rights Act of
1964.--
(1) In general.--The powers, remedies, and procedures provided
in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16)
to the Commission, the Attorney General, the Librarian of Congress,
or any person, alleging a violation of that section shall be the
powers, remedies, and procedures this title provides to the
Commission, the Attorney General, the Librarian of Congress, or any
person, respectively, alleging an unlawful employment practice in
violation of this title against an employee or applicant described
in section 201(2)(A)(v), except as provided in paragraphs (2) and
(3).
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the Revised
Statutes of the United States (42 U.S.C. 1988), shall be powers,
remedies, and procedures this title provides to the Commission, the
Attorney General, the Librarian of Congress, or any person,
alleging such a practice.
(3) Damages.--The powers, remedies, and procedures provided in
section 1977A of the Revised Statutes of the United States (42
U.S.C. 1981a), including the limitations contained in subsection
(b)(3) of such section 1977A, shall be powers, remedies, and
procedures this title provides to the Commission, the Attorney
General, the Librarian of Congress, or any person, alleging such a
practice (not an employment practice specifically excluded from
coverage under section 1977A(a)(1) of the Revised Statutes of the
United States).
(f) Prohibition Against Retaliation.--No person shall discriminate
against any individual because such individual has opposed any act or
practice made unlawful by this title or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this title. The remedies
and procedures otherwise provided for under this section shall be
available to aggrieved individuals with respect to violations of this
subsection.
(g) Definition.--In this section, the term ``Commission'' means the
Equal Employment Opportunity Commission.
SEC. 208. DISPARATE IMPACT.
(a) General Rule.--Notwithstanding any other provision of this Act,
``disparate impact'', as that term is used in section 703(k) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-2(k)), on the basis of
genetic information does not establish a cause of action under this
Act.
(b) Commission.--On the date that is 6 years after the date of
enactment of this Act, there shall be established a commission, to be
known as the Genetic Nondiscrimination Study Commission (referred to in
this section as the ``Commission'') to review the developing science of
genetics and to make recommendations to Congress regarding whether to
provide a disparate impact cause of action under this Act.
(c) Membership.--
(1) In general.--The Commission shall be composed of 8 members,
of which--
(A) 1 member shall be appointed by the Majority Leader of
the Senate;
(B) 1 member shall be appointed by the Minority Leader of
the Senate;
(C) 1 member shall be appointed by the Chairman of the
Committee on Health, Education, Labor, and Pensions of the
Senate;
(D) 1 member shall be appointed by the ranking minority
member of the Committee on Health, Education, Labor, and
Pensions of the Senate;
(E) 1 member shall be appointed by the Speaker of the House
of Representatives;
(F) 1 member shall be appointed by the Minority Leader of
the House of Representatives;
(G) 1 member shall be appointed by the Chairman of the
Committee on Education and Labor of the House of
Representatives; and
(H) 1 member shall be appointed by the ranking minority
member of the Committee on Education and Labor of the House of
Representatives.
(2) Compensation and expenses.--The members of the Commission
shall not receive compensation for the performance of services for
the Commission, but shall be allowed travel expenses, including per
diem in lieu of subsistence, at rates authorized for employees of
agencies under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of business in
the performance of services for the Commission.
(d) Administrative Provisions.--
(1) Location.--The Commission shall be located in a facility
maintained by the Equal Employment Opportunity Commission.
(2) Detail of government employees.--Any Federal Government
employee may be detailed to the Commission without reimbursement,
and such detail shall be without interruption or loss of civil
service status or privilege.
(3) Information from federal agencies.--The Commission may
secure directly from any Federal department or agency such
information as the Commission considers necessary to carry out the
provisions of this section. Upon request of the Commission, the
head of such department or agency shall furnish such information to
the Commission.
(4) Hearings.--The Commission may hold such hearings, sit and
act at such times and places, take such testimony, and receive such
evidence as the Commission considers advisable to carry out the
objectives of this section, except that, to the extent possible,
the Commission shall use existing data and research.
(5) Postal services.--The Commission may use the United States
mails in the same manner and under the same conditions as other
departments and agencies of the Federal Government.
(e) Report.--Not later than 1 year after all of the members are
appointed to the Commission under subsection (c)(1), the Commission
shall submit to Congress a report that summarizes the findings of the
Commission and makes such recommendations for legislation as are
consistent with this Act.
(f) Authorization of Appropriations.--There are authorized to be
appropriated to the Equal Employment Opportunity Commission such sums
as may be necessary to carry out this section.
SEC. 209. CONSTRUCTION.
(a) In General.--Nothing in this title shall be construed to--
(1) limit the rights or protections of an individual under any
other Federal or State statute that provides equal or greater
protection to an individual than the rights or protections provided
for under this title, including the protections of an individual
under the Americans with Disabilities Act of 1990 (42 U.S.C. 12101
et seq.) (including coverage afforded to individuals under section
102 of such Act (42 U.S.C. 12112)), or under the Rehabilitation Act
of 1973 (29 U.S.C. 701 et seq.);
(2)(A) limit the rights or protections of an individual to
bring an action under this title against an employer, employment
agency, labor organization, or joint labor-management committee for
a violation of this title; or
(B) provide for enforcement of, or penalties for violation of,
any requirement or prohibition applicable to any employer,
employment agency, labor organization, or joint labor-management
committee subject to enforcement for a violation under--
(i) the amendments made by title I of this Act;
(ii)(I) subsection (a) of section 701 of the Employee
Retirement Income Security Act of 1974 as such section applies
with respect to genetic information pursuant to subsection
(b)(1)(B) of such section;
(II) section 702(a)(1)(F) of such Act; or
(III) section 702(b)(1) of such Act as such section applies
with respect to genetic information as a health status-related
factor;
(iii)(I) subsection (a) of section 2701 of the Public
Health Service Act as such section applies with respect to
genetic information pursuant to subsection (b)(1)(B) of such
section;
(II) section 2702(a)(1)(F) of such Act; or
(III) section 2702(b)(1) of such Act as such section
applies with respect to genetic information as a health status-
related factor; or
(iv)(I) subsection (a) of section 9801 of the Internal
Revenue Code of 1986 as such section applies with respect to
genetic information pursuant to subsection (b)(1)(B) of such
section;
(II) section 9802(a)(1)(F) of such Act; or
(III) section 9802(b)(1) of such Act as such section
applies with respect to genetic information as a health status-
related factor;
(3) apply to the Armed Forces Repository of Specimen Samples
for the Identification of Remains;
(4) limit or expand the protections, rights, or obligations of
employees or employers under applicable workers' compensation laws;
(5) limit the authority of a Federal department or agency to
conduct or sponsor occupational or other health research that is
conducted in compliance with the regulations contained in part 46
of title 45, Code of Federal Regulations (or any corresponding or
similar regulation or rule);
(6) limit the statutory or regulatory authority of the
Occupational Safety and Health Administration or the Mine Safety
and Health Administration to promulgate or enforce workplace safety
and health laws and regulations; or
(7) require any specific benefit for an employee or member or a
family member of an employee or member under any group health plan
or health insurance issuer offering group health insurance coverage
in connection with a group health plan.
(b) Genetic Information of a Fetus or Embryo.--Any reference in
this title to genetic information concerning an individual or family
member of an individual shall--
(1) with respect to such an individual or family member of an
individual who is a pregnant woman, include genetic information of
any fetus carried by such pregnant woman; and
(2) with respect to an individual or family member utilizing an
assisted reproductive technology, include genetic information of
any embryo legally held by the individual or family member.
(c) Relation to Authorities Under Title I.--With respect to a group
health plan, or a health insurance issuer offering group health
insurance coverage in connection with a group health plan, this title
does not prohibit any activity of such plan or issuer that is
authorized for the plan or issuer under any provision of law referred
to in clauses (i) through (iv) of subsection (a)(2)(B).
SEC. 210. MEDICAL INFORMATION THAT IS NOT GENETIC INFORMATION.
An employer, employment agency, labor organization, or joint labor-
management committee shall not be considered to be in violation of this
title based on the use, acquisition, or disclosure of medical
information that is not genetic information about a manifested disease,
disorder, or pathological condition of an employee or member, including
a manifested disease, disorder, or pathological condition that has or
may have a genetic basis.
SEC. 211. REGULATIONS.
Not later than 1 year after the date of enactment of this title,
the Commission shall issue final regulations to carry out this title.
SEC. 212. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title (except for section 208).
SEC. 213. EFFECTIVE DATE.
This title takes effect on the date that is 18 months after the
date of enactment of this Act.
TITLE III--MISCELLANEOUS PROVISIONS
SEC. 301. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this Act,
the amendments made by this Act, and the application of such provisions
to any person or circumstance shall not be affected thereby.
SEC. 302. CHILD LABOR PROTECTIONS.
(a) In General.--Section 16(e) of the Fair Labor Standards Act of
1938 (29 U.S.C. 216(e)) is amended to read as follows:
``(e)(1)(A) Any person who violates the provisions of sections 12
or 13(c), relating to child labor, or any regulation issued pursuant to
such sections, shall be subject to a civil penalty not to exceed--
``(i) $11,000 for each employee who was the subject of
such a violation; or
``(ii) $50,000 with regard to each such violation that
causes the death or serious injury of any employee under
the age of 18 years, which penalty may be doubled where the
violation is a repeated or willful violation.
``(B) For purposes of subparagraph (A), the term `serious injury'
means--
``(i) permanent loss or substantial impairment of one of the
senses (sight, hearing, taste, smell, tactile sensation);
``(ii) permanent loss or substantial impairment of the function
of a bodily member, organ, or mental faculty, including the loss of
all or part of an arm, leg, foot, hand or other body part; or
``(iii) permanent paralysis or substantial impairment that
causes loss of movement or mobility of an arm, leg, foot, hand or
other body part.
``(2) Any person who repeatedly or willfully violates section 6 or
7, relating to wages, shall be subject to a civil penalty not to exceed
$1,100 for each such violation.
``(3) In determining the amount of any penalty under this
subsection, the appropriateness of such penalty to the size of the
business of the person charged and the gravity of the violation shall
be considered. The amount of any penalty under this subsection, when
finally determined, may be--
``(A) deducted from any sums owing by the United States to the
person charged;
``(B) recovered in a civil action brought by the Secretary in
any court of competent jurisdiction, in which litigation the
Secretary shall be represented by the Solicitor of Labor; or
``(C) ordered by the court, in an action brought for a
violation of section 15(a)(4) or a repeated or willful violation of
section 15(a)(2), to be paid to the Secretary.
``(4) Any administrative determination by the Secretary of the
amount of any penalty under this subsection shall be final, unless
within 15 days after receipt of notice thereof by certified mail the
person charged with the violation takes exception to the determination
that the violations for which the penalty is imposed occurred, in which
event final determination of the penalty shall be made in an
administrative proceeding after opportunity for hearing in accordance
with section 554 of title 5, United States Code, and regulations to be
promulgated by the Secretary.
``(5) Except for civil penalties collected for violations of
section 12, sums collected as penalties pursuant to this section shall
be applied toward reimbursement of the costs of determining the
violations and assessing and collecting such penalties, in accordance
with the provision of section 2 of the Act entitled `An Act to
authorize the Department of Labor to make special statistical studies
upon payment of the cost thereof and for other purposes' (29 U.S.C.
9a). Civil penalties collected for violations of section 12 shall be
deposited in the general fund of the Treasury.''.
(b) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.