[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 493 Engrossed in House (EH)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
110th CONGRESS
  1st Session
                                H. R. 493

_______________________________________________________________________

                                 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 2007''.
    (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. Guarantee agency collection retention.
Sec. 302. Severability.

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.--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) 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) subject to subparagraph (D), the 
                        manifestation of a disease or disorder in 
                        family members of such individual.
                    ``(B) Inclusion of genetic services.--Such term 
                includes, with respect to any individual, any request 
                for, or receipt of, genetic services (including genetic 
                services received pursuant to participation in clinical 
                research) 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.
                    ``(D) Application to family members covered under 
                same plan.--Information described in clause (iii) of 
                subparagraph (A) shall not be treated as genetic 
                information to the extent that such information is 
                taken into account only with respect to the individual 
                in which such disease or disorder is manifested and not 
                as genetic information with respect to any other 
                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)''; and
            (2) 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 1 year 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 18 months 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.--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.''.
            (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) subject to subparagraph (D), the 
                        manifestation of a disease or disorder in 
                        family members of such individual.
                    ``(B) Inclusion of genetic services.--Such term 
                includes, with respect to any individual, any request 
                for, or receipt of, genetic services (including genetic 
                services received pursuant to participation in clinical 
                research) 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.
                    ``(D) Application to family members covered under 
                same plan.--Information described in clause (iii) of 
                subparagraph (A) shall not be treated as genetic 
                information to the extent that such information is 
                taken into account only with respect to the individual 
                in which such disease or disorder is manifested and not 
                as genetic information with respect to any other 
                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.--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.
    ``(b) Prohibition on Genetic Information in Setting Premium 
Rates.--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.
    ``(c) Prohibition on Genetic Information as Preexisting 
Condition.--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.
    ``(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 1 year 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 18 months 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 18 
                months 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.--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) 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) subject to subparagraph (D), the 
                        manifestation of a disease or disorder in 
                        family members of such individual.
                    ``(B) Inclusion of genetic services.--Such term 
                includes, with respect to any individual, any request 
                for, or receipt of, genetic services (including genetic 
                services received pursuant to participation in clinical 
                research) 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.
                    ``(D) Application to family members covered under 
                same plan.--Information described in clause (iii) of 
                subparagraph (A) shall not be treated as genetic 
                information to the extent that such information is 
                taken into account only with respect to the individual 
                in which such disease or disorder is manifested and not 
                as genetic information with respect to any other 
                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 1 year 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 18 months 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.''.
    (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.--Such 
                        term includes, with respect to any individual, 
                        any request for, or receipt of, genetic 
                        services (including genetic services received 
                        pursuant to participation in clinical research) 
                        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 18 months 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 June 30, 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 October 1, 2008, 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) October 1, 2008.
                    (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 2008 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, 
                        2008. 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 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 1 year 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 18 months 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) subject to subparagraph (D), the 
                        manifestation of a disease or disorder in 
                        family members of such individual.
                    (B) Inclusion of genetic services.--Such term 
                includes, with respect to any individual, any request 
                for, or receipt of, genetic services (including genetic 
                services received pursuant to participation in clinical 
                research) 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 
                bona fide 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, includes such 
        analysis in the Combined DNA Index System pursuant to section 
        210304 of the Violent Crime Control and Law Enforcement Act of 
        1994 (42 U.S.C. 14132), 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 bona fide 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 bona fide 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 
                bona fide 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, includes such 
        analysis in the Combined DNA Index System pursuant to section 
        210304 of the Violent Crime Control and Law Enforcement Act of 
        1994 (42 U.S.C. 14132), 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; or
            (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.
    (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, remedies, and procedures 
        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, remedies, and procedures 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) 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 the enforcement of which, or penalties for 
        which, are provided under the amendments made by title I;
            (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.

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. GUARANTEE AGENCY COLLECTION RETENTION.

    Clause (ii) of section 428(c)(6)(A) of the Higher Education Act of 
1965 (20 U.S.C. 1078(c)(6)(A)) is amended to read as follows:
                    ``(ii) an amount equal to 23 percent of such 
                payments for use in accordance with section 422B, 
                except that beginning October 1, 2007, and ending 
                September 30, 2008, this subparagraph shall be applied 
                by substituting `22 percent' for `23 percent'.''.

SEC. 302. 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.

            Passed the House of Representatives April 25, 2007.

            Attest:

                                                                 Clerk.
110th CONGRESS

  1st Session

                               H. R. 493

_______________________________________________________________________

                                 AN ACT

  To prohibit discrimination on the basis of genetic information with 
              respect to health insurance and employment.