[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 493 Enrolled Bill (ENR)]

        H.R.493

                       One Hundred Tenth Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Thursday,
            the third day of January, two thousand and eight


                                 An Act


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

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
    (a) Short Title.--This Act may be cited as the ``Genetic 
Information Nondiscrimination Act of 2008''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1.  Short title; table of contents.
Sec. 2. Findings.

         TITLE I--GENETIC NONDISCRIMINATION IN HEALTH INSURANCE

Sec. 101. Amendments to Employee Retirement Income Security Act of 1974.
Sec. 102. Amendments to the Public Health Service Act.
Sec. 103. Amendments to the Internal Revenue Code of 1986.
Sec. 104. Amendments to title XVIII of the Social Security Act relating 
          to medigap.
Sec. 105. Privacy and confidentiality.
Sec. 106. Assuring coordination.

TITLE II--PROHIBITING EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENETIC 
                               INFORMATION

Sec. 201. Definitions.
Sec. 202. Employer practices.
Sec. 203. Employment agency practices.
Sec. 204. Labor organization practices.
Sec. 205. Training programs.
Sec. 206. Confidentiality of genetic information.
Sec. 207. Remedies and enforcement.
Sec. 208. Disparate impact.
Sec. 209. Construction.
Sec. 210. Medical information that is not genetic information.
Sec. 211. Regulations.
Sec. 212. Authorization of appropriations.
Sec. 213. Effective date.

                   TITLE III--MISCELLANEOUS PROVISIONS

Sec. 301. Severability.
Sec. 302. Child labor protections.
SEC. 2. FINDINGS.
    Congress makes the following findings:
        (1) Deciphering the sequence of the human genome and other 
    advances in genetics open major new opportunities for medical 
    progress. New knowledge about the genetic basis of illness will 
    allow for earlier detection of illnesses, often before symptoms 
    have begun. Genetic testing can allow individuals to take steps to 
    reduce the likelihood that they will contract a particular 
    disorder. New knowledge about genetics may allow for the 
    development of better therapies that are more effective against 
    disease or have fewer side effects than current treatments. These 
    advances give rise to the potential misuse of genetic information 
    to discriminate in health insurance and employment.
        (2) The early science of genetics became the basis of State 
    laws that provided for the sterilization of persons having presumed 
    genetic ``defects'' such as mental retardation, mental disease, 
    epilepsy, blindness, and hearing loss, among other conditions. The 
    first sterilization law was enacted in the State of Indiana in 
    1907. By 1981, a majority of States adopted sterilization laws to 
    ``correct'' apparent genetic traits or tendencies. Many of these 
    State laws have since been repealed, and many have been modified to 
    include essential constitutional requirements of due process and 
    equal protection. However, the current explosion in the science of 
    genetics, and the history of sterilization laws by the States based 
    on early genetic science, compels Congressional action in this 
    area.
        (3) Although genes are facially neutral markers, many genetic 
    conditions and disorders are associated with particular racial and 
    ethnic groups and gender. Because some genetic traits are most 
    prevalent in particular groups, members of a particular group may 
    be stigmatized or discriminated against as a result of that genetic 
    information. This form of discrimination was evident in the 1970s, 
    which saw the advent of programs to screen and identify carriers of 
    sickle cell anemia, a disease which afflicts African-Americans. 
    Once again, State legislatures began to enact discriminatory laws 
    in the area, and in the early 1970s began mandating genetic 
    screening of all African Americans for sickle cell anemia, leading 
    to discrimination and unnecessary fear. To alleviate some of this 
    stigma, Congress in 1972 passed the National Sickle Cell Anemia 
    Control Act, which withholds Federal funding from States unless 
    sickle cell testing is voluntary.
        (4) Congress has been informed of examples of genetic 
    discrimination in the workplace. These include the use of pre-
    employment genetic screening at Lawrence Berkeley Laboratory, which 
    led to a court decision in favor of the employees in that case 
    Norman-Bloodsaw v. Lawrence Berkeley Laboratory (135 F.3d 1260, 
    1269 (9th Cir. 1998)). Congress clearly has a compelling public 
    interest in relieving the fear of discrimination and in prohibiting 
    its actual practice in employment and health insurance.
        (5) Federal law addressing genetic discrimination in health 
    insurance and employment is incomplete in both the scope and depth 
    of its protections. Moreover, while many States have enacted some 
    type of genetic non-discrimination law, these laws vary widely with 
    respect to their approach, application, and level of protection. 
    Congress has collected substantial evidence that the American 
    public and the medical community find the existing patchwork of 
    State and Federal laws to be confusing and inadequate to protect 
    them from discrimination. Therefore Federal legislation 
    establishing a national and uniform basic standard is necessary to 
    fully protect the public from discrimination and allay their 
    concerns about the potential for discrimination, thereby allowing 
    individuals to take advantage of genetic testing, technologies, 
    research, and new therapies.

         TITLE I--GENETIC NONDISCRIMINATION IN HEALTH INSURANCE

    SEC. 101. AMENDMENTS TO EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 
      1974.
    (a) No Discrimination in Group Premiums Based on Genetic 
Information.--Section 702(b) of the Employee Retirement Income Security 
Act of 1974 (29 U.S.C. 1182(b)) is amended--
        (1) in paragraph (2)(A), by inserting before the semicolon the 
    following: ``except as provided in paragraph (3)''; and
        (2) by adding at the end the following:
        ``(3) No group-based discrimination on basis of genetic 
    information.--
            ``(A) In general.--For purposes of this section, a group 
        health plan, and a health insurance issuer offering group 
        health insurance coverage in connection with a group health 
        plan, may not adjust premium or contribution amounts for the 
        group covered under such plan on the basis of genetic 
        information.
            ``(B) Rule of construction.--Nothing in subparagraph (A) or 
        in paragraphs (1) and (2) of subsection (d) shall be construed 
        to limit the ability of a health insurance issuer offering 
        health insurance coverage in connection with a group health 
        plan to increase the premium for an employer based on the 
        manifestation of a disease or disorder of an individual who is 
        enrolled in the plan. In such case, the manifestation of a 
        disease or disorder in one individual cannot also be used as 
        genetic information about other group members and to further 
        increase the premium for the employer.''.
    (b) Limitations on Genetic Testing; Prohibition on Collection of 
Genetic Information; Application to All Plans.--Section 702 of the 
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1182) is 
amended by adding at the end the following:
    ``(c) Genetic Testing.--
        ``(1) Limitation on requesting or requiring genetic testing.--A 
    group health plan, and a health insurance issuer offering health 
    insurance coverage in connection with a group health plan, shall 
    not request or require an individual or a family member of such 
    individual to undergo a genetic test.
        ``(2) Rule of construction.--Paragraph (1) shall not be 
    construed to limit the authority of a health care professional who 
    is providing health care services to an individual to request that 
    such individual undergo a genetic test.
        ``(3) Rule of construction regarding payment.--
            ``(A) In general.--Nothing in paragraph (1) shall be 
        construed to preclude a group health plan, or a health 
        insurance issuer offering health insurance coverage in 
        connection with a group health plan, from obtaining and using 
        the results of a genetic test in making a determination 
        regarding payment (as such term is defined for the purposes of 
        applying the regulations promulgated by the Secretary of Health 
        and Human Services under part C of title XI of the Social 
        Security Act and section 264 of the Health Insurance 
        Portability and Accountability Act of 1996, as may be revised 
        from time to time) consistent with subsection (a).
            ``(B) Limitation.--For purposes of subparagraph (A), a 
        group health plan, or a health insurance issuer offering health 
        insurance coverage in connection with a group health plan, may 
        request only the minimum amount of information necessary to 
        accomplish the intended purpose.
        ``(4) Research exception.--Notwithstanding paragraph (1), a 
    group health plan, or a health insurance issuer offering health 
    insurance coverage in connection with a group health plan, may 
    request, but not require, that a participant or beneficiary undergo 
    a genetic test if each of the following conditions is met:
            ``(A) The request is made, in writing, pursuant to research 
        that complies with part 46 of title 45, Code of Federal 
        Regulations, or equivalent Federal regulations, and any 
        applicable State or local law or regulations for the protection 
        of human subjects in research.
            ``(B) The plan or issuer clearly indicates to each 
        participant or beneficiary, or in the case of a minor child, to 
        the legal guardian of such beneficiary, to whom the request is 
        made that--
                ``(i) compliance with the request is voluntary; and
                ``(ii) non-compliance will have no effect on enrollment 
            status or premium or contribution amounts.
            ``(C) No genetic information collected or acquired under 
        this paragraph shall be used for underwriting purposes.
            ``(D) The plan or issuer notifies the Secretary in writing 
        that the plan or issuer is conducting activities pursuant to 
        the exception provided for under this paragraph, including a 
        description of the activities conducted.
            ``(E) The plan or issuer complies with such other 
        conditions as the Secretary may by regulation require for 
        activities conducted under this paragraph.
    ``(d) Prohibition on Collection of Genetic Information.--
        ``(1) In general.--A group health plan, and a health insurance 
    issuer offering health insurance coverage in connection with a 
    group health plan, shall not request, require, or purchase genetic 
    information for underwriting purposes (as defined in section 733).
        ``(2) Prohibition on collection of genetic information prior to 
    enrollment.--A group health plan, and a health insurance issuer 
    offering health insurance coverage in connection with a group 
    health plan, shall not request, require, or purchase genetic 
    information with respect to any individual prior to such 
    individual's enrollment under the plan or coverage in connection 
    with such enrollment.
        ``(3) Incidental collection.--If a group health plan, or a 
    health insurance issuer offering health insurance coverage in 
    connection with a group health plan, obtains genetic information 
    incidental to the requesting, requiring, or purchasing of other 
    information concerning any individual, such request, requirement, 
    or purchase shall not be considered a violation of paragraph (2) if 
    such request, requirement, or purchase is not in violation of 
    paragraph (1).
    ``(e) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), (c), and (d), and subsection (b)(1) and section 701 
with respect to genetic information, shall apply to group health plans 
and health insurance issuers without regard to section 732(a).''.
    (c) Application to Genetic Information of a Fetus or Embryo.--Such 
section is further amended by adding at the end the following:
    ``(f) Genetic Information of a Fetus or Embryo.--Any reference in 
this part to genetic information concerning an individual or family 
member of an individual shall--
        ``(1) with respect to such an individual or family member of an 
    individual who is a pregnant woman, include genetic information of 
    any fetus carried by such pregnant woman; and
        ``(2) with respect to an individual or family member utilizing 
    an assisted reproductive technology, include genetic information of 
    any embryo legally held by the individual or family member.''.
    (d) Definitions.--Section 733(d) of the Employee Retirement Income 
Security Act of 1974 (29 U.S.C. 1191b(d)) is amended by adding at the 
end the following:
        ``(5) Family member.--The term `family member' means, with 
    respect to an individual--
            ``(A) a dependent (as such term is used for purposes of 
        section 701(f)(2)) of such individual, and
            ``(B) any other individual who is a first-degree, second-
        degree, third-degree, or fourth-degree relative of such 
        individual or of an individual described in subparagraph (A).
        ``(6) Genetic information.--
            ``(A) In general.--The term `genetic information' means, 
        with respect to any individual, information about--
                ``(i) such individual's genetic tests,
                ``(ii) the genetic tests of family members of such 
            individual, and
                ``(iii) the manifestation of a disease or disorder in 
            family members of such individual.
            ``(B) Inclusion of genetic services and participation in 
        genetic research.--Such term includes, with respect to any 
        individual, any request for, or receipt of, genetic services, 
        or participation in clinical research which includes genetic 
        services, by such individual or any family member of such 
        individual.
            ``(C) Exclusions.--The term `genetic information' shall not 
        include information about the sex or age of any individual.
        ``(7) Genetic test.--
            ``(A) In general.--The term `genetic test' means an 
        analysis of human DNA, RNA, chromosomes, proteins, or 
        metabolites, that detects genotypes, mutations, or chromosomal 
        changes.
            ``(B) Exceptions.--The term `genetic test' does not mean--
                ``(i) an analysis of proteins or metabolites that does 
            not detect genotypes, mutations, or chromosomal changes; or
                ``(ii) an analysis of proteins or metabolites that is 
            directly related to a manifested disease, disorder, or 
            pathological condition that could reasonably be detected by 
            a health care professional with appropriate training and 
            expertise in the field of medicine involved.
        ``(8) Genetic services.--The term `genetic services' means--
            ``(A) a genetic test;
            ``(B) genetic counseling (including obtaining, 
        interpreting, or assessing genetic information); or
            ``(C) genetic education.
        ``(9) Underwriting purposes.--The term `underwriting purposes' 
    means, with respect to any group health plan, or health insurance 
    coverage offered in connection with a group health plan--
            ``(A) rules for, or determination of, eligibility 
        (including enrollment and continued eligibility) for benefits 
        under the plan or coverage;
            ``(B) the computation of premium or contribution amounts 
        under the plan or coverage;
            ``(C) the application of any pre-existing condition 
        exclusion under the plan or coverage; and
            ``(D) other activities related to the creation, renewal, or 
        replacement of a contract of health insurance or health 
        benefits.''.
    (e) ERISA Enforcement.--Section 502 of the Employee Retirement 
Income Security Act of 1974 (29 U.S.C. 1132) is amended--
        (1) in subsection (a)(6), by striking ``(7), or (8)'' and 
    inserting ``(7), (8), or (9)'';
        (2) in subsection (b)(3), by striking ``The Secretary'' and 
    inserting ``Except as provided in subsections (c)(9) and (a)(6) 
    (with respect to collecting civil penalties under subsection 
    (c)(9)), the Secretary''; and
        (3) in subsection (c), by redesignating paragraph (9) as 
    paragraph (10), and by inserting after paragraph (8) the following 
    new paragraph:
        ``(9) Secretarial enforcement authority relating to use of 
    genetic information.--
            ``(A) General rule.--The Secretary may impose a penalty 
        against any plan sponsor of a group health plan, or any health 
        insurance issuer offering health insurance coverage in 
        connection with the plan, for any failure by such sponsor or 
        issuer to meet the requirements of subsection (a)(1)(F), 
        (b)(3), (c), or (d) of section 702 or section 701 or 702(b)(1) 
        with respect to genetic information, in connection with the 
        plan.
            ``(B) Amount.--
                ``(i) In general.--The amount of the penalty imposed by 
            subparagraph (A) shall be $100 for each day in the 
            noncompliance period with respect to each participant or 
            beneficiary to whom such failure relates.
                ``(ii) Noncompliance period.--For purposes of this 
            paragraph, the term `noncompliance period' means, with 
            respect to any failure, the period--

                    ``(I) beginning on the date such failure first 
                occurs; and
                    ``(II) ending on the date the failure is corrected.

            ``(C) Minimum penalties where failure discovered.--
        Notwithstanding clauses (i) and (ii) of subparagraph (D):
                ``(i) In general.--In the case of 1 or more failures 
            with respect to a participant or beneficiary--

                    ``(I) which are not corrected before the date on 
                which the plan receives a notice from the Secretary of 
                such violation; and
                    ``(II) which occurred or continued during the 
                period involved;

            the amount of penalty imposed by subparagraph (A) by reason 
            of such failures with respect to such participant or 
            beneficiary shall not be less than $2,500.
                ``(ii) Higher minimum penalty where violations are more 
            than de minimis.--To the extent violations for which any 
            person is liable under this paragraph for any year are more 
            than de minimis, clause (i) shall be applied by 
            substituting `$15,000' for `$2,500' with respect to such 
            person.
            ``(D) Limitations.--
                ``(i) Penalty not to apply where failure not discovered 
            exercising reasonable diligence.--No penalty shall be 
            imposed by subparagraph (A) on any failure during any 
            period for which it is established to the satisfaction of 
            the Secretary that the person otherwise liable for such 
            penalty did not know, and exercising reasonable diligence 
            would not have known, that such failure existed.
                ``(ii) Penalty not to apply to failures corrected 
            within certain periods.--No penalty shall be imposed by 
            subparagraph (A) on any failure if--

                    ``(I) such failure was due to reasonable cause and 
                not to willful neglect; and
                    ``(II) such failure is corrected during the 30-day 
                period beginning on the first date the person otherwise 
                liable for such penalty knew, or exercising reasonable 
                diligence would have known, that such failure existed.

                ``(iii) Overall limitation for unintentional 
            failures.--In the case of failures which are due to 
            reasonable cause and not to willful neglect, the penalty 
            imposed by subparagraph (A) for failures shall not exceed 
            the amount equal to the lesser of--

                    ``(I) 10 percent of the aggregate amount paid or 
                incurred by the plan sponsor (or predecessor plan 
                sponsor) during the preceding taxable year for group 
                health plans; or
                    ``(II) $500,000.

            ``(E) Waiver by secretary.--In the case of a failure which 
        is due to reasonable cause and not to willful neglect, the 
        Secretary may waive part or all of the penalty imposed by 
        subparagraph (A) to the extent that the payment of such penalty 
        would be excessive relative to the failure involved.
            ``(F) Definitions.--Terms used in this paragraph which are 
        defined in section 733 shall have the meanings provided such 
        terms in such section.''.
    (f) Regulations and Effective Date.--
        (1) Regulations.--The Secretary of Labor shall issue final 
    regulations not later than 12 months after the date of enactment of 
    this Act to carry out the amendments made by this section.
        (2) Effective date.--The amendments made by this section shall 
    apply with respect to group health plans for plan years beginning 
    after the date that is 1 year after the date of enactment of this 
    Act.
    SEC. 102. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.
    (a) Amendments Relating to the Group Market.--
        (1) No discrimination in group premiums based on genetic 
    information.--Section 2702(b) of the Public Health Service Act (42 
    U.S.C. 300gg-1(b)) is amended--
            (A) in paragraph (2)(A), by inserting before the semicolon 
        the following: ``except as provided in paragraph (3)''; and
            (B) by adding at the end the following:
        ``(3) No group-based discrimination on basis of genetic 
    information.--
            ``(A) In general.--For purposes of this section, a group 
        health plan, and health insurance issuer offering group health 
        insurance coverage in connection with a group health plan, may 
        not adjust premium or contribution amounts for the group 
        covered under such plan on the basis of genetic information.
            ``(B) Rule of construction.--Nothing in subparagraph (A) or 
        in paragraphs (1) and (2) of subsection (d) shall be construed 
        to limit the ability of a health insurance issuer offering 
        health insurance coverage in connection with a group health 
        plan to increase the premium for an employer based on the 
        manifestation of a disease or disorder of an individual who is 
        enrolled in the plan. In such case, the manifestation of a 
        disease or disorder in one individual cannot also be used as 
        genetic information about other group members and to further 
        increase the premium for the employer.''.
        (2) Limitations on genetic testing; prohibition on collection 
    of genetic information; application to all plans.--Section 2702 of 
    the Public Health Service Act (42 U.S.C. 300gg-1) is amended by 
    adding at the end the following:
    ``(c) Genetic Testing.--
        ``(1) Limitation on requesting or requiring genetic testing.--A 
    group health plan, and a health insurance issuer offering health 
    insurance coverage in connection with a group health plan, shall 
    not request or require an individual or a family member of such 
    individual to undergo a genetic test.
        ``(2) Rule of construction.--Paragraph (1) shall not be 
    construed to limit the authority of a health care professional who 
    is providing health care services to an individual to request that 
    such individual undergo a genetic test.
        ``(3) Rule of construction regarding payment.--
            ``(A) In general.--Nothing in paragraph (1) shall be 
        construed to preclude a group health plan, or a health 
        insurance issuer offering health insurance coverage in 
        connection with a group health plan, from obtaining and using 
        the results of a genetic test in making a determination 
        regarding payment (as such term is defined for the purposes of 
        applying the regulations promulgated by the Secretary under 
        part C of title XI of the Social Security Act and section 264 
        of the Health Insurance Portability and Accountability Act of 
        1996, as may be revised from time to time) consistent with 
        subsection (a).
            ``(B) Limitation.--For purposes of subparagraph (A), a 
        group health plan, or a health insurance issuer offering health 
        insurance coverage in connection with a group health plan, may 
        request only the minimum amount of information necessary to 
        accomplish the intended purpose.
        ``(4) Research exception.--Notwithstanding paragraph (1), a 
    group health plan, or a health insurance issuer offering health 
    insurance coverage in connection with a group health plan, may 
    request, but not require, that a participant or beneficiary undergo 
    a genetic test if each of the following conditions is met:
            ``(A) The request is made pursuant to research that 
        complies with part 46 of title 45, Code of Federal Regulations, 
        or equivalent Federal regulations, and any applicable State or 
        local law or regulations for the protection of human subjects 
        in research.
            ``(B) The plan or issuer clearly indicates to each 
        participant or beneficiary, or in the case of a minor child, to 
        the legal guardian of such beneficiary, to whom the request is 
        made that--
                ``(i) compliance with the request is voluntary; and
                ``(ii) non-compliance will have no effect on enrollment 
            status or premium or contribution amounts.
            ``(C) No genetic information collected or acquired under 
        this paragraph shall be used for underwriting purposes.
            ``(D) The plan or issuer notifies the Secretary in writing 
        that the plan or issuer is conducting activities pursuant to 
        the exception provided for under this paragraph, including a 
        description of the activities conducted.
            ``(E) The plan or issuer complies with such other 
        conditions as the Secretary may by regulation require for 
        activities conducted under this paragraph.
    ``(d) Prohibition on Collection of Genetic Information.--
        ``(1) In general.--A group health plan, and a health insurance 
    issuer offering health insurance coverage in connection with a 
    group health plan, shall not request, require, or purchase genetic 
    information for underwriting purposes (as defined in section 2791).
        ``(2) Prohibition on collection of genetic information prior to 
    enrollment.--A group health plan, and a health insurance issuer 
    offering health insurance coverage in connection with a group 
    health plan, shall not request, require, or purchase genetic 
    information with respect to any individual prior to such 
    individual's enrollment under the plan or coverage in connection 
    with such enrollment.
        ``(3) Incidental collection.--If a group health plan, or a 
    health insurance issuer offering health insurance coverage in 
    connection with a group health plan, obtains genetic information 
    incidental to the requesting, requiring, or purchasing of other 
    information concerning any individual, such request, requirement, 
    or purchase shall not be considered a violation of paragraph (2) if 
    such request, requirement, or purchase is not in violation of 
    paragraph (1).
    ``(e) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), (c) , and (d) and subsection (b)(1) and section 2701 
with respect to genetic information, shall apply to group health plans 
and health insurance issuers without regard to section 2721(a).''.
        (3) Application to genetic information of a fetus or embryo.--
    Such section is further amended by adding at the end the following:
    ``(f) Genetic Information of a Fetus or Embryo.--Any reference in 
this part to genetic information concerning an individual or family 
member of an individual shall--
        ``(1) with respect to such an individual or family member of an 
    individual who is a pregnant woman, include genetic information of 
    any fetus carried by such pregnant woman; and
        ``(2) with respect to an individual or family member utilizing 
    an assisted reproductive technology, include genetic information of 
    any embryo legally held by the individual or family member.''.
        (4) Definitions.--Section 2791(d) of the Public Health Service 
    Act (42 U.S.C. 300gg-91(d)) is amended by adding at the end the 
    following:
        ``(15) Family member.--The term `family member' means, with 
    respect to any individual--
            ``(A) a dependent (as such term is used for purposes of 
        section 2701(f)(2)) of such individual; and
            ``(B) any other individual who is a first-degree, second-
        degree, third-degree, or fourth-degree relative of such 
        individual or of an individual described in subparagraph (A).
        ``(16) Genetic information.--
            ``(A) In general.--The term `genetic information' means, 
        with respect to any individual, information about--
                ``(i) such individual's genetic tests,
                ``(ii) the genetic tests of family members of such 
            individual, and
                ``(iii) the manifestation of a disease or disorder in 
            family members of such individual.
            ``(B) Inclusion of genetic services and participation in 
        genetic research.--Such term includes, with respect to any 
        individual, any request for, or receipt of, genetic services, 
        or participation in clinical research which includes genetic 
        services, by such individual or any family member of such 
        individual.
            ``(C) Exclusions.--The term `genetic information' shall not 
        include information about the sex or age of any individual.
        ``(17) Genetic test.--
            ``(A) In general.--The term `genetic test' means an 
        analysis of human DNA, RNA, chromosomes, proteins, or 
        metabolites, that detects genotypes, mutations, or chromosomal 
        changes.
            ``(B) Exceptions.--The term `genetic test' does not mean--
                ``(i) an analysis of proteins or metabolites that does 
            not detect genotypes, mutations, or chromosomal changes; or
                ``(ii) an analysis of proteins or metabolites that is 
            directly related to a manifested disease, disorder, or 
            pathological condition that could reasonably be detected by 
            a health care professional with appropriate training and 
            expertise in the field of medicine involved.
        ``(18) Genetic services.--The term `genetic services' means--
            ``(A) a genetic test;
            ``(B) genetic counseling (including obtaining, 
        interpreting, or assessing genetic information); or
            ``(C) genetic education.
        ``(19) Underwriting purposes.--The term `underwriting purposes' 
    means, with respect to any group health plan, or health insurance 
    coverage offered in connection with a group health plan--
            ``(A) rules for, or determination of, eligibility 
        (including enrollment and continued eligibility) for benefits 
        under the plan or coverage;
            ``(B) the computation of premium or contribution amounts 
        under the plan or coverage;
            ``(C) the application of any pre-existing condition 
        exclusion under the plan or coverage; and
            ``(D) other activities related to the creation, renewal, or 
        replacement of a contract of health insurance or health 
        benefits.''.
        (5) Remedies and enforcement.--Section 2722(b) of the Public 
    Health Service Act (42 U.S.C. 300gg-22(b)) is amended by adding at 
    the end the following:
        ``(3) Enforcement authority relating to genetic 
    discrimination.--
            ``(A) General rule.--In the cases described in paragraph 
        (1), notwithstanding the provisions of paragraph (2)(C), the 
        succeeding subparagraphs of this paragraph shall apply with 
        respect to an action under this subsection by the Secretary 
        with respect to any failure of a health insurance issuer in 
        connection with a group health plan, to meet the requirements 
        of subsection (a)(1)(F), (b)(3), (c), or (d) of section 2702 or 
        section 2701 or 2702(b)(1) with respect to genetic information 
        in connection with the plan.
            ``(B) Amount.--
                ``(i) In general.--The amount of the penalty imposed 
            under this paragraph shall be $100 for each day in the 
            noncompliance period with respect to each participant or 
            beneficiary to whom such failure relates.
                ``(ii) Noncompliance period.--For purposes of this 
            paragraph, the term `noncompliance period' means, with 
            respect to any failure, the period--

                    ``(I) beginning on the date such failure first 
                occurs; and
                    ``(II) ending on the date the failure is corrected.

            ``(C) Minimum penalties where failure discovered.--
        Notwithstanding clauses (i) and (ii) of subparagraph (D):
                ``(i) In general.--In the case of 1 or more failures 
            with respect to an individual--

                    ``(I) which are not corrected before the date on 
                which the plan receives a notice from the Secretary of 
                such violation; and
                    ``(II) which occurred or continued during the 
                period involved;

            the amount of penalty imposed by subparagraph (A) by reason 
            of such failures with respect to such individual shall not 
            be less than $2,500.
                ``(ii) Higher minimum penalty where violations are more 
            than de minimis.--To the extent violations for which any 
            person is liable under this paragraph for any year are more 
            than de minimis, clause (i) shall be applied by 
            substituting `$15,000' for `$2,500' with respect to such 
            person.
            ``(D) Limitations.--
                ``(i) Penalty not to apply where failure not discovered 
            exercising reasonable diligence.--No penalty shall be 
            imposed by subparagraph (A) on any failure during any 
            period for which it is established to the satisfaction of 
            the Secretary that the person otherwise liable for such 
            penalty did not know, and exercising reasonable diligence 
            would not have known, that such failure existed.
                ``(ii) Penalty not to apply to failures corrected 
            within certain periods.--No penalty shall be imposed by 
            subparagraph (A) on any failure if--

                    ``(I) such failure was due to reasonable cause and 
                not to willful neglect; and
                    ``(II) such failure is corrected during the 30-day 
                period beginning on the first date the person otherwise 
                liable for such penalty knew, or exercising reasonable 
                diligence would have known, that such failure existed.

                ``(iii) Overall limitation for unintentional 
            failures.--In the case of failures which are due to 
            reasonable cause and not to willful neglect, the penalty 
            imposed by subparagraph (A) for failures shall not exceed 
            the amount equal to the lesser of--

                    ``(I) 10 percent of the aggregate amount paid or 
                incurred by the employer (or predecessor employer) 
                during the preceding taxable year for group health 
                plans; or
                    ``(II) $500,000.

            ``(E) Waiver by secretary.--In the case of a failure which 
        is due to reasonable cause and not to willful neglect, the 
        Secretary may waive part or all of the penalty imposed by 
        subparagraph (A) to the extent that the payment of such penalty 
        would be excessive relative to the failure involved.''.
    (b) Amendment Relating to the Individual Market.--
        (1) In general.--The first subpart 3 of part B of title XXVII 
    of the Public Health Service Act (42 U.S.C. 300gg-51 et seq.) 
    (relating to other requirements) is amended--
            (A) by redesignating such subpart as subpart 2; and
            (B) by adding at the end the following:
``SEC. 2753. PROHIBITION OF HEALTH DISCRIMINATION ON THE BASIS OF 
GENETIC INFORMATION.
    ``(a) Prohibition on Genetic Information as a Condition of 
Eligibility.--
        ``(1) In general.--A health insurance issuer offering health 
    insurance coverage in the individual market may not establish rules 
    for the eligibility (including continued eligibility) of any 
    individual to enroll in individual health insurance coverage based 
    on genetic information.
        ``(2) Rule of construction.--Nothing in paragraph (1) or in 
    paragraphs (1) and (2) of subsection (e) shall be construed to 
    preclude a health insurance issuer from establishing rules for 
    eligibility for an individual to enroll in individual health 
    insurance coverage based on the manifestation of a disease or 
    disorder in that individual, or in a family member of such 
    individual where such family member is covered under the policy 
    that covers such individual.
    ``(b) Prohibition on Genetic Information in Setting Premium 
Rates.--
        ``(1) In general.--A health insurance issuer offering health 
    insurance coverage in the individual market shall not adjust 
    premium or contribution amounts for an individual on the basis of 
    genetic information concerning the individual or a family member of 
    the individual.
        ``(2) Rule of construction.--Nothing in paragraph (1) or in 
    paragraphs (1) and (2) of subsection (e) shall be construed to 
    preclude a health insurance issuer from adjusting premium or 
    contribution amounts for an individual on the basis of a 
    manifestation of a disease or disorder in that individual, or in a 
    family member of such individual where such family member is 
    covered under the policy that covers such individual. In such case, 
    the manifestation of a disease or disorder in one individual cannot 
    also be used as genetic information about other individuals covered 
    under the policy issued to such individual and to further increase 
    premiums or contribution amounts.
    ``(c) Prohibition on Genetic Information as Preexisting 
Condition.--
        ``(1) In general.--A health insurance issuer offering health 
    insurance coverage in the individual market may not, on the basis 
    of genetic information, impose any preexisting condition exclusion 
    (as defined in section 2701(b)(1)(A)) with respect to such 
    coverage.
        ``(2) Rule of construction.--Nothing in paragraph (1) or in 
    paragraphs (1) and (2) of subsection (e) shall be construed to 
    preclude a health insurance issuer from imposing any preexisting 
    condition exclusion for an individual with respect to health 
    insurance coverage on the basis of a manifestation of a disease or 
    disorder in that individual.
    ``(d) Genetic Testing.--
        ``(1) Limitation on requesting or requiring genetic testing.--A 
    health insurance issuer offering health insurance coverage in the 
    individual market shall not request or require an individual or a 
    family member of such individual to undergo a genetic test.
        ``(2) Rule of construction.--Paragraph (1) shall not be 
    construed to limit the authority of a health care professional who 
    is providing health care services to an individual to request that 
    such individual undergo a genetic test.
        ``(3) Rule of construction regarding payment.--
            ``(A) In general.--Nothing in paragraph (1) shall be 
        construed to preclude a health insurance issuer offering health 
        insurance coverage in the individual market from obtaining and 
        using the results of a genetic test in making a determination 
        regarding payment (as such term is defined for the purposes of 
        applying the regulations promulgated by the Secretary under 
        part C of title XI of the Social Security Act and section 264 
        of the Health Insurance Portability and Accountability Act of 
        1996, as may be revised from time to time) consistent with 
        subsection (a) and (c).
            ``(B) Limitation.--For purposes of subparagraph (A), a 
        health insurance issuer offering health insurance coverage in 
        the individual market may request only the minimum amount of 
        information necessary to accomplish the intended purpose.
        ``(4) Research exception.--Notwithstanding paragraph (1), a 
    health insurance issuer offering health insurance coverage in the 
    individual market may request, but not require, that an individual 
    or a family member of such individual undergo a genetic test if 
    each of the following conditions is met:
            ``(A) The request is made pursuant to research that 
        complies with part 46 of title 45, Code of Federal Regulations, 
        or equivalent Federal regulations, and any applicable State or 
        local law or regulations for the protection of human subjects 
        in research.
            ``(B) The issuer clearly indicates to each individual, or 
        in the case of a minor child, to the legal guardian of such 
        child, to whom the request is made that--
                ``(i) compliance with the request is voluntary; and
                ``(ii) non-compliance will have no effect on enrollment 
            status or premium or contribution amounts.
            ``(C) No genetic information collected or acquired under 
        this paragraph shall be used for underwriting purposes.
            ``(D) The issuer notifies the Secretary in writing that the 
        issuer is conducting activities pursuant to the exception 
        provided for under this paragraph, including a description of 
        the activities conducted.
            ``(E) The issuer complies with such other conditions as the 
        Secretary may by regulation require for activities conducted 
        under this paragraph.
    ``(e) Prohibition on Collection of Genetic Information.--
        ``(1) In general.--A health insurance issuer offering health 
    insurance coverage in the individual market shall not request, 
    require, or purchase genetic information for underwriting purposes 
    (as defined in section 2791).
        ``(2) Prohibition on collection of genetic information prior to 
    enrollment.--A health insurance issuer offering health insurance 
    coverage in the individual market shall not request, require, or 
    purchase genetic information with respect to any individual prior 
    to such individual's enrollment under the plan in connection with 
    such enrollment.
        ``(3) Incidental collection.--If a health insurance issuer 
    offering health insurance coverage in the individual market obtains 
    genetic information incidental to the requesting, requiring, or 
    purchasing of other information concerning any individual, such 
    request, requirement, or purchase shall not be considered a 
    violation of paragraph (2) if such request, requirement, or 
    purchase is not in violation of paragraph (1).
    ``(f) Genetic Information of a Fetus or Embryo.--Any reference in 
this part to genetic information concerning an individual or family 
member of an individual shall--
        ``(1) with respect to such an individual or family member of an 
    individual who is a pregnant woman, include genetic information of 
    any fetus carried by such pregnant woman; and
        ``(2) with respect to an individual or family member utilizing 
    an assisted reproductive technology, include genetic information of 
    any embryo legally held by the individual or family member.''.
        (2) Remedies and enforcement.--Section 2761(b) of the Public 
    Health Service Act (42 U.S.C. 300gg-61(b)) is amended to read as 
    follows:
    ``(b) Secretarial Enforcement Authority.--The Secretary shall have 
the same authority in relation to enforcement of the provisions of this 
part with respect to issuers of health insurance coverage in the 
individual market in a State as the Secretary has under section 
2722(b)(2), and section 2722(b)(3) with respect to violations of 
genetic nondiscrimination provisions, in relation to the enforcement of 
the provisions of part A with respect to issuers of health insurance 
coverage in the small group market in the State.''.
    (c) Elimination of Option of Non-Federal Governmental Plans To Be 
Excepted From Requirements Concerning Genetic Information.--Section 
2721(b)(2) of the Public Health Service Act (42 U.S.C. 300gg-21(b)(2)) 
is amended--
        (1) in subparagraph (A), by striking ``If the plan sponsor'' 
    and inserting ``Except as provided in subparagraph (D), if the plan 
    sponsor''; and
        (2) by adding at the end the following:
            ``(D) Election not applicable to requirements concerning 
        genetic information.--The election described in subparagraph 
        (A) shall not be available with respect to the provisions of 
        subsections (a)(1)(F), (b)(3), (c), and (d) of section 2702 and 
        the provisions of sections 2701 and 2702(b) to the extent that 
        such provisions apply to genetic information.''.
    (d) Regulations and Effective Date.--
        (1) Regulations.--Not later than 12 months after the date of 
    enactment of this Act, the Secretary of Health and Human Services 
    shall issue final regulations to carry out the amendments made by 
    this section.
        (2) Effective date.--The amendments made by this section shall 
    apply--
            (A) with respect to group health plans, and health 
        insurance coverage offered in connection with group health 
        plans, for plan years beginning after the date that is 1 year 
        after the date of enactment of this Act; and
            (B) with respect to health insurance coverage offered, 
        sold, issued, renewed, in effect, or operated in the individual 
        market after the date that is 1 year after the date of 
        enactment of this Act.
    SEC. 103. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.
    (a) No Discrimination in Group Premiums Based on Genetic 
Information.--Subsection (b) of section 9802 of the Internal Revenue 
Code of 1986 is amended--
        (1) in paragraph (2)(A), by inserting before the semicolon the 
    following: ``except as provided in paragraph (3)''; and
        (2) by adding at the end the following:
        ``(3) No group-based discrimination on basis of genetic 
    information.--
            ``(A) In general.--For purposes of this section, a group 
        health plan may not adjust premium or contribution amounts for 
        the group covered under such plan on the basis of genetic 
        information.
            ``(B) Rule of construction.--Nothing in subparagraph (A) or 
        in paragraphs (1) and (2) of subsection (d) shall be construed 
        to limit the ability of a group health plan to increase the 
        premium for an employer based on the manifestation of a disease 
        or disorder of an individual who is enrolled in the plan. In 
        such case, the manifestation of a disease or disorder in one 
        individual cannot also be used as genetic information about 
        other group members and to further increase the premium for the 
        employer.''.
    (b) Limitations on Genetic Testing; Prohibition on Collection of 
Genetic Information; Application to All Plans.--Section 9802 of such 
Code is amended by redesignating subsection (c) as subsection (f) and 
by inserting after subsection (b) the following new subsections:
    ``(c) Genetic Testing.--
        ``(1) Limitation on requesting or requiring genetic testing.--A 
    group health plan may not request or require an individual or a 
    family member of such individual to undergo a genetic test.
        ``(2) Rule of construction.--Paragraph (1) shall not be 
    construed to limit the authority of a health care professional who 
    is providing health care services to an individual to request that 
    such individual undergo a genetic test.
        ``(3) Rule of construction regarding payment.--
            ``(A) In general.--Nothing in paragraph (1) shall be 
        construed to preclude a group health plan from obtaining and 
        using the results of a genetic test in making a determination 
        regarding payment (as such term is defined for the purposes of 
        applying the regulations promulgated by the Secretary of Health 
        and Human Services under part C of title XI of the Social 
        Security Act and section 264 of the Health Insurance 
        Portability and Accountability Act of 1996, as may be revised 
        from time to time) consistent with subsection (a).
            ``(B) Limitation.--For purposes of subparagraph (A), a 
        group health plan may request only the minimum amount of 
        information necessary to accomplish the intended purpose.
        ``(4) Research exception.--Notwithstanding paragraph (1), a 
    group health plan may request, but not require, that a participant 
    or beneficiary undergo a genetic test if each of the following 
    conditions is met:
            ``(A) The request is made pursuant to research that 
        complies with part 46 of title 45, Code of Federal Regulations, 
        or equivalent Federal regulations, and any applicable State or 
        local law or regulations for the protection of human subjects 
        in research.
            ``(B) The plan clearly indicates to each participant or 
        beneficiary, or in the case of a minor child, to the legal 
        guardian of such beneficiary, to whom the request is made 
        that--
                ``(i) compliance with the request is voluntary; and
                ``(ii) non-compliance will have no effect on enrollment 
            status or premium or contribution amounts.
            ``(C) No genetic information collected or acquired under 
        this paragraph shall be used for underwriting purposes.
            ``(D) The plan notifies the Secretary in writing that the 
        plan is conducting activities pursuant to the exception 
        provided for under this paragraph, including a description of 
        the activities conducted.
            ``(E) The plan complies with such other conditions as the 
        Secretary may by regulation require for activities conducted 
        under this paragraph.
    ``(d) Prohibition on Collection of Genetic Information.--
        ``(1) In general.--A group health plan shall not request, 
    require, or purchase genetic information for underwriting purposes 
    (as defined in section 9832).
        ``(2) Prohibition on collection of genetic information prior to 
    enrollment.--A group health plan shall not request, require, or 
    purchase genetic information with respect to any individual prior 
    to such individual's enrollment under the plan or in connection 
    with such enrollment.
        ``(3) Incidental collection.--If a group health plan obtains 
    genetic information incidental to the requesting, requiring, or 
    purchasing of other information concerning any individual, such 
    request, requirement, or purchase shall not be considered a 
    violation of paragraph (2) if such request, requirement, or 
    purchase is not in violation of paragraph (1).
    ``(e) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), (c), and (d) and subsection (b)(1) and section 9801 
with respect to genetic information, shall apply to group health plans 
without regard to section 9831(a)(2).''.
    (c) Application to Genetic Information of a Fetus or Embryo.--Such 
section is further amended by adding at the end the following:
    ``(f) Genetic Information of a Fetus or Embryo.--Any reference in 
this chapter to genetic information concerning an individual or family 
member of an individual shall--
        ``(1) with respect to such an individual or family member of an 
    individual who is a pregnant woman, include genetic information of 
    any fetus carried by such pregnant woman; and
        ``(2) with respect to an individual or family member utilizing 
    an assisted reproductive technology, include genetic information of 
    any embryo legally held by the individual or family member.''.
    (d) Definitions.--Subsection (d) of section 9832 of such Code is 
amended by adding at the end the following:
        ``(6) Family member.--The term `family member' means, with 
    respect to any individual--
            ``(A) a dependent (as such term is used for purposes of 
        section 9801(f)(2)) of such individual, and
            ``(B) any other individual who is a first-degree, second-
        degree, third-degree, or fourth-degree relative of such 
        individual or of an individual described in subparagraph (A).
        ``(7) Genetic information.--
            ``(A) In general.--The term `genetic information' means, 
        with respect to any individual, information about--
                ``(i) such individual's genetic tests,
                ``(ii) the genetic tests of family members of such 
            individual, and
                ``(iii) the manifestation of a disease or disorder in 
            family members of such individual.
            ``(B) Inclusion of genetic services and participation in 
        genetic research.--Such term includes, with respect to any 
        individual, any request for, or receipt of, genetic services, 
        or participation in clinical research which includes genetic 
        services, by such individual or any family member of such 
        individual.
            ``(C) Exclusions.--The term `genetic information' shall not 
        include information about the sex or age of any individual.
        ``(8) Genetic test.--
            ``(A) In general.--The term `genetic test' means an 
        analysis of human DNA, RNA, chromosomes, proteins, or 
        metabolites, that detects genotypes, mutations, or chromosomal 
        changes.
            ``(B) Exceptions.--The term `genetic test' does not mean--
                ``(i) an analysis of proteins or metabolites that does 
            not detect genotypes, mutations, or chromosomal changes, or
                ``(ii) an analysis of proteins or metabolites that is 
            directly related to a manifested disease, disorder, or 
            pathological condition that could reasonably be detected by 
            a health care professional with appropriate training and 
            expertise in the field of medicine involved.
        ``(9) Genetic services.--The term `genetic services' means--
            ``(A) a genetic test;
            ``(B) genetic counseling (including obtaining, 
        interpreting, or assessing genetic information); or
            ``(C) genetic education.
        ``(10) Underwriting purposes.--The term `underwriting purposes' 
    means, with respect to any group health plan, or health insurance 
    coverage offered in connection with a group health plan--
            ``(A) rules for, or determination of, eligibility 
        (including enrollment and continued eligibility) for benefits 
        under the plan or coverage;
            ``(B) the computation of premium or contribution amounts 
        under the plan or coverage;
            ``(C) the application of any pre-existing condition 
        exclusion under the plan or coverage; and
            ``(D) other activities related to the creation, renewal, or 
        replacement of a contract of health insurance or health 
        benefits.''.
    (e) Enforcement.--
        (1) In general.--Subchapter C of chapter 100 of the Internal 
    Revenue Code of 1986 (relating to general provisions) is amended by 
    adding at the end the following new section:
``SEC. 9834. ENFORCEMENT.
    ``For the imposition of tax on any failure of a group health plan 
to meet the requirements of this chapter, see section 4980D.''.
        (2) Conforming amendment.--The table of sections for subchapter 
    C of chapter 100 of such Code is amended by adding at the end the 
    following new item:

``Sec. 9834. Enforcement.''.

    (f) Regulations and Effective Date.--
        (1) Regulations.--The Secretary of the Treasury shall issue 
    final regulations or other guidance not later than 12 months after 
    the date of the enactment of this Act to carry out the amendments 
    made by this section.
        (2) Effective date.--The amendments made by this section shall 
    apply with respect to group health plans for plan years beginning 
    after the date that is 1 year after the date of the enactment of 
    this Act.
    SEC. 104. AMENDMENTS TO TITLE XVIII OF THE SOCIAL SECURITY ACT 
      RELATING TO MEDIGAP.
    (a) Nondiscrimination.--Section 1882(s)(2) of the Social Security 
Act (42 U.S.C. 1395ss(s)(2)) is amended by adding at the end the 
following:
            ``(E) An issuer of a medicare supplemental policy shall not 
        deny or condition the issuance or effectiveness of the policy 
        (including the imposition of any exclusion of benefits under 
        the policy based on a pre-existing condition) and shall not 
        discriminate in the pricing of the policy (including the 
        adjustment of premium rates) of an individual on the basis of 
        the genetic information with respect to such individual.
            ``(F) Rule of construction.--Nothing in subparagraph (E) or 
        in subparagraphs (A) or (B) of subsection (x)(2) shall be 
        construed to limit the ability of an issuer of a medicare 
        supplemental policy from, to the extent otherwise permitted 
        under this title--
                ``(i) denying or conditioning the issuance or 
            effectiveness of the policy or increasing the premium for 
            an employer based on the manifestation of a disease or 
            disorder of an individual who is covered under the policy; 
            or
                ``(ii) increasing the premium for any policy issued to 
            an individual based on the manifestation of a disease or 
            disorder of an individual who is covered under the policy 
            (in such case, the manifestation of a disease or disorder 
            in one individual cannot also be used as genetic 
            information about other group members and to further 
            increase the premium for the employer).''.
    (b) Limitations on Genetic Testing and Genetic Information.--
        (1) In general.--Section 1882 of the Social Security Act (42 
    U.S.C. 1395ss) is amended by adding at the end the following:
    ``(x) Limitations on Genetic Testing and Information.--
        ``(1) Genetic testing.--
            ``(A) Limitation on requesting or requiring genetic 
        testing.--An issuer of a medicare supplemental policy shall not 
        request or require an individual or a family member of such 
        individual to undergo a genetic test.
            ``(B) Rule of construction.--Subparagraph (A) shall not be 
        construed to limit the authority of a health care professional 
        who is providing health care services to an individual to 
        request that such individual undergo a genetic test.
            ``(C) Rule of construction regarding payment.--
                ``(i) In general.--Nothing in subparagraph (A) shall be 
            construed to preclude an issuer of a medicare supplemental 
            policy from obtaining and using the results of a genetic 
            test in making a determination regarding payment (as such 
            term is defined for the purposes of applying the 
            regulations promulgated by the Secretary under part C of 
            title XI and section 264 of the Health Insurance 
            Portability and Accountability Act of 1996, as may be 
            revised from time to time) consistent with subsection 
            (s)(2)(E).
                ``(ii) Limitation.--For purposes of clause (i), an 
            issuer of a medicare supplemental policy may request only 
            the minimum amount of information necessary to accomplish 
            the intended purpose.
            ``(D) Research exception.--Notwithstanding subparagraph 
        (A), an issuer of a medicare supplemental policy may request, 
        but not require, that an individual or a family member of such 
        individual undergo a genetic test if each of the following 
        conditions is met:
                ``(i) The request is made pursuant to research that 
            complies with part 46 of title 45, Code of Federal 
            Regulations, or equivalent Federal regulations, and any 
            applicable State or local law or regulations for the 
            protection of human subjects in research.
                ``(ii) The issuer clearly indicates to each individual, 
            or in the case of a minor child, to the legal guardian of 
            such child, to whom the request is made that--

                    ``(I) compliance with the request is voluntary; and
                    ``(II) non-compliance will have no effect on 
                enrollment status or premium or contribution amounts.

                ``(iii) No genetic information collected or acquired 
            under this subparagraph shall be used for underwriting, 
            determination of eligibility to enroll or maintain 
            enrollment status, premium rating, or the creation, 
            renewal, or replacement of a plan, contract, or coverage 
            for health insurance or health benefits.
                ``(iv) The issuer notifies the Secretary in writing 
            that the issuer is conducting activities pursuant to the 
            exception provided for under this subparagraph, including a 
            description of the activities conducted.
                ``(v) The issuer complies with such other conditions as 
            the Secretary may by regulation require for activities 
            conducted under this subparagraph.
        ``(2) Prohibition on collection of genetic information.--
            ``(A) In general.--An issuer of a medicare supplemental 
        policy shall not request, require, or purchase genetic 
        information for underwriting purposes (as defined in paragraph 
        (3)).
            ``(B) Prohibition on collection of genetic information 
        prior to enrollment.--An issuer of a medicare supplemental 
        policy shall not request, require, or purchase genetic 
        information with respect to any individual prior to such 
        individual's enrollment under the policy in connection with 
        such enrollment.
            ``(C) Incidental collection.--If an issuer of a medicare 
        supplemental policy obtains genetic information incidental to 
        the requesting, requiring, or purchasing of other information 
        concerning any individual, such request, requirement, or 
        purchase shall not be considered a violation of subparagraph 
        (B) if such request, requirement, or purchase is not in 
        violation of subparagraph (A).
        ``(3) Definitions.--In this subsection:
            ``(A) Family member.--The term `family member' means with 
        respect to an individual, any other individual who is a first-
        degree, second-degree, third-degree, or fourth-degree relative 
        of such individual.
            ``(B) Genetic information.--
                ``(i) In general.--The term `genetic information' 
            means, with respect to any individual, information about--

                    ``(I) such individual's genetic tests,
                    ``(II) the genetic tests of family members of such 
                individual, and
                    ``(III) subject to clause (iv), the manifestation 
                of a disease or disorder in family members of such 
                individual.

                ``(ii) Inclusion of genetic services and participation 
            in genetic research.--Such term includes, with respect to 
            any individual, any request for, or receipt of, genetic 
            services, or participation in clinical research which 
            includes genetic services, by such individual or any family 
            member of such individual.
                ``(iii) Exclusions.--The term `genetic information' 
            shall not include information about the sex or age of any 
            individual.
            ``(C) Genetic test.--
                ``(i) In general.--The term `genetic test' means an 
            analysis of human DNA, RNA, chromosomes, proteins, or 
            metabolites, that detects genotypes, mutations, or 
            chromosomal changes.
                ``(ii) Exceptions.--The term `genetic test' does not 
            mean--

                    ``(I) an analysis of proteins or metabolites that 
                does not detect genotypes, mutations, or chromosomal 
                changes; or
                    ``(II) an analysis of proteins or metabolites that 
                is directly related to a manifested disease, disorder, 
                or pathological condition that could reasonably be 
                detected by a health care professional with appropriate 
                training and expertise in the field of medicine 
                involved.

            ``(D) Genetic services.--The term `genetic services' 
        means--
                ``(i) a genetic test;
                ``(ii) genetic counseling (including obtaining, 
            interpreting, or assessing genetic information); or
                ``(iii) genetic education.
            ``(E) Underwriting purposes.--The term `underwriting 
        purposes' means, with respect to a medicare supplemental 
        policy--
                ``(i) rules for, or determination of, eligibility 
            (including enrollment and continued eligibility) for 
            benefits under the policy;
                ``(ii) the computation of premium or contribution 
            amounts under the policy;
                ``(iii) the application of any pre-existing condition 
            exclusion under the policy; and
                ``(iv) other activities related to the creation, 
            renewal, or replacement of a contract of health insurance 
            or health benefits.
            ``(F) Issuer of a medicare supplemental policy.--The term 
        `issuer of a medicare supplemental policy' includes a third-
        party administrator or other person acting for or on behalf of 
        such issuer.''.
        (2) Application to genetic information of a fetus or embryo.--
    Section 1882(x) of such Act, as added by paragraph (1), is further 
    amended by adding at the end the following:
        ``(4) Genetic information of a fetus or embryo.--Any reference 
    in this section to genetic information concerning an individual or 
    family member of an individual shall--
            ``(A) with respect to such an individual or family member 
        of an individual who is a pregnant woman, include genetic 
        information of any fetus carried by such pregnant woman; and
            ``(B) with respect to an individual or family member 
        utilizing an assisted reproductive technology, include genetic 
        information of any embryo legally held by the individual or 
        family member.''.
        (3) Conforming amendment.--Section 1882(o) of the Social 
    Security Act (42 U.S.C. 1395ss(o)) is amended by adding at the end 
    the following:
        ``(4) The issuer of the medicare supplemental policy complies 
    with subsection (s)(2)(E) and subsection (x).''.
    (c) Effective Date.--The amendments made by this section shall 
apply with respect to an issuer of a medicare supplemental policy for 
policy years beginning on or after the date that is 1 year after the 
date of enactment of this Act.
    (d) Transition Provisions.--
        (1) In general.--If the Secretary of Health and Human Services 
    identifies a State as requiring a change to its statutes or 
    regulations to conform its regulatory program to the changes made 
    by this section, the State regulatory program shall not be 
    considered to be out of compliance with the requirements of section 
    1882 of the Social Security Act due solely to failure to make such 
    change until the date specified in paragraph (4).
        (2) NAIC standards.--If, not later than October 31, 2008, the 
    National Association of Insurance Commissioners (in this subsection 
    referred to as the ``NAIC'') modifies its NAIC Model Regulation 
    relating to section 1882 of the Social Security Act (referred to in 
    such section as the 1991 NAIC Model Regulation, as subsequently 
    modified) to conform to the amendments made by this section, such 
    revised regulation incorporating the modifications shall be 
    considered to be the applicable NAIC model regulation (including 
    the revised NAIC model regulation and the 1991 NAIC Model 
    Regulation) for the purposes of such section.
        (3) Secretary standards.--If the NAIC does not make the 
    modifications described in paragraph (2) within the period 
    specified in such paragraph, the Secretary of Health and Human 
    Services shall, not later than July 1, 2009, make the modifications 
    described in such paragraph and such revised regulation 
    incorporating the modifications shall be considered to be the 
    appropriate regulation for the purposes of such section.
        (4) Date specified.--
            (A) In general.--Subject to subparagraph (B), the date 
        specified in this paragraph for a State is the earlier of--
                (i) the date the State changes its statutes or 
            regulations to conform its regulatory program to the 
            changes made by this section, or
                (ii) July 1, 2009.
            (B) Additional legislative action required.--In the case of 
        a State which the Secretary identifies as--
                (i) requiring State legislation (other than legislation 
            appropriating funds) to conform its regulatory program to 
            the changes made in this section, but
                (ii) having a legislature which is not scheduled to 
            meet in 2009 in a legislative session in which such 
            legislation may be considered, the date specified in this 
            paragraph is the first day of the first calendar quarter 
            beginning after the close of the first legislative session 
            of the State legislature that begins on or after July 1, 
            2009. For purposes of the previous sentence, in the case of 
            a State that has a 2-year legislative session, each year of 
            such session shall be deemed to be a separate regular 
            session of the State legislature.
    SEC. 105. PRIVACY AND CONFIDENTIALITY.
    (a) In General.--Part C of title XI of the Social Security Act is 
amended by adding at the end the following new section:


        ``application of hipaa regulations to genetic information

    ``Sec. 1180.  (a) In General.--The Secretary shall revise the HIPAA 
privacy regulation (as defined in subsection (b)) so it is consistent 
with the following:
        ``(1) Genetic information shall be treated as health 
    information described in section 1171(4)(B).
        ``(2) The use or disclosure by a covered entity that is a group 
    health plan, health insurance issuer that issues health insurance 
    coverage, or issuer of a medicare supplemental policy of protected 
    health information that is genetic information about an individual 
    for underwriting purposes under the group health plan, health 
    insurance coverage, or medicare supplemental policy shall not be a 
    permitted use or disclosure.
    ``(b) Definitions.--For purposes of this section:
        ``(1) Genetic information; genetic test; family member.--The 
    terms `genetic information', `genetic test', and `family member' 
    have the meanings given such terms in section 2791 of the Public 
    Health Service Act (42 U.S.C. 300gg-91), as amended by the Genetic 
    Information Nondiscrimination Act of 2007.
        ``(2) Group health plan; health insurance coverage; medicare 
    supplemental policy.--The terms `group health plan' and `health 
    insurance coverage' have the meanings given such terms under 
    section 2791 of the Public Health Service Act (42 U.S.C. 300gg-91), 
    and the term `medicare supplemental policy' has the meaning given 
    such term in section 1882(g).
        ``(3) HIPAA privacy regulation.--The term `HIPAA privacy 
    regulation' means the regulations promulgated by the Secretary 
    under this part and section 264 of the Health Insurance Portability 
    and Accountability Act of 1996 (42 U.S.C. 1320d-2 note).
        ``(4) Underwriting purposes.--The term `underwriting purposes' 
    means, with respect to a group health plan, health insurance 
    coverage, or a medicare supplemental policy--
            ``(A) rules for, or determination of, eligibility 
        (including enrollment and continued eligibility) for, or 
        determination of, benefits under the plan, coverage, or policy;
            ``(B) the computation of premium or contribution amounts 
        under the plan, coverage, or policy;
            ``(C) the application of any pre-existing condition 
        exclusion under the plan, coverage, or policy; and
            ``(D) other activities related to the creation, renewal, or 
        replacement of a contract of health insurance or health 
        benefits.
    ``(c) Procedure.--The revisions under subsection (a) shall be made 
by notice in the Federal Register published not later than 60 days 
after the date of the enactment of this section and shall be effective 
upon publication, without opportunity for any prior public comment, but 
may be revised, consistent with this section, after opportunity for 
public comment.
    ``(d) Enforcement.--In addition to any other sanctions or remedies 
that may be available under law, a covered entity that is a group 
health plan, health insurance issuer, or issuer of a medicare 
supplemental policy and that violates the HIPAA privacy regulation (as 
revised under subsection (a) or otherwise) with respect to the use or 
disclosure of genetic information shall be subject to the penalties 
described in sections 1176 and 1177 in the same manner and to the same 
extent that such penalties apply to violations of this part.''.
    (b) Regulations; Effective Date.--
        (1) Regulations.--Not later than 12 months after the date of 
    the enactment of this Act, the Secretary of Health and Human 
    Services shall issue final regulations to carry out the revision 
    required by section 1180(a) of the Social Security Act, as added by 
    subsection (a). The Secretary has the sole authority to promulgate 
    such regulations, but shall promulgate such regulations in 
    consultation with the Secretaries of Labor and the Treasury.
        (2) Effective date.--The amendment made by subsection (a) shall 
    take effect on the date that is 1 year after the date of the 
    enactment of this Act.
    SEC. 106. ASSURING COORDINATION.
    Except as provided in section 105(b)(1), the Secretary of Health 
and Human Services, the Secretary of Labor, and the Secretary of the 
Treasury shall ensure, through the execution of an interagency 
memorandum of understanding among such Secretaries, that--
        (1) regulations, rulings, and interpretations issued by such 
    Secretaries relating to the same matter over which two or more such 
    Secretaries have responsibility under this title (and the 
    amendments made by this title) are administered so as to have the 
    same effect at all times; and
        (2) coordination of policies relating to enforcing the same 
    requirements through such Secretaries in order to have a 
    coordinated enforcement strategy that avoids duplication of 
    enforcement efforts and assigns priorities in enforcement.

TITLE II--PROHIBITING EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENETIC 
                              INFORMATION

    SEC. 201. DEFINITIONS.
    In this title:
        (1) Commission.--The term ``Commission'' means the Equal 
    Employment Opportunity Commission as created by section 705 of the 
    Civil Rights Act of 1964 (42 U.S.C. 2000e-4).
        (2) Employee; employer; employment agency; labor organization; 
    member.--
            (A) In general.--The term ``employee'' means--
                (i) an employee (including an applicant), as defined in 
            section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 
            2000e(f));
                (ii) a State employee (including an applicant) 
            described in section 304(a) of the Government Employee 
            Rights Act of 1991 (42 U.S.C. 2000e-16c(a));
                (iii) a covered employee (including an applicant), as 
            defined in section 101 of the Congressional Accountability 
            Act of 1995 (2 U.S.C. 1301);
                (iv) a covered employee (including an applicant), as 
            defined in section 411(c) of title 3, United States Code; 
            or
                (v) an employee or applicant to which section 717(a) of 
            the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) 
            applies.
            (B) Employer.--The term ``employer'' means--
                (i) an employer (as defined in section 701(b) of the 
            Civil Rights Act of 1964 (42 U.S.C. 2000e(b)));
                (ii) an entity employing a State employee described in 
            section 304(a) of the Government Employee Rights Act of 
            1991;
                (iii) an employing office, as defined in section 101 of 
            the Congressional Accountability Act of 1995;
                (iv) an employing office, as defined in section 411(c) 
            of title 3, United States Code; or
                (v) an entity to which section 717(a) of the Civil 
            Rights Act of 1964 applies.
            (C) Employment agency; labor organization.--The terms 
        ``employment agency'' and ``labor organization'' have the 
        meanings given the terms in section 701 of the Civil Rights Act 
        of 1964 (42 U.S.C. 2000e).
            (D) Member.--The term ``member'', with respect to a labor 
        organization, includes an applicant for membership in a labor 
        organization.
        (3) Family member.--The term ``family member'' means, with 
    respect to an individual--
            (A) a dependent (as such term is used for purposes of 
        section 701(f)(2) of the Employee Retirement Income Security 
        Act of 1974) of such individual, and
            (B) any other individual who is a first-degree, second-
        degree, third-degree, or fourth-degree relative of such 
        individual or of an individual described in subparagraph (A).
        (4) Genetic information.--
            (A) In general.--The term ``genetic information'' means, 
        with respect to any individual, information about--
                (i) such individual's genetic tests,
                (ii) the genetic tests of family members of such 
            individual, and
                (iii) the manifestation of a disease or disorder in 
            family members of such individual.
            (B) Inclusion of genetic services and participation in 
        genetic research.--Such term includes, with respect to any 
        individual, any request for, or receipt of, genetic services, 
        or participation in clinical research which includes genetic 
        services, by such individual or any family member of such 
        individual.
            (C) Exclusions.--The term ``genetic information'' shall not 
        include information about the sex or age of any individual.
        (5) Genetic monitoring.--The term ``genetic monitoring'' means 
    the periodic examination of employees to evaluate acquired 
    modifications to their genetic material, such as chromosomal damage 
    or evidence of increased occurrence of mutations, that may have 
    developed in the course of employment due to exposure to toxic 
    substances in the workplace, in order to identify, evaluate, and 
    respond to the effects of or control adverse environmental 
    exposures in the workplace.
        (6) Genetic services.--The term ``genetic services'' means--
            (A) a genetic test;
            (B) genetic counseling (including obtaining, interpreting, 
        or assessing genetic information); or
            (C) genetic education.
        (7) Genetic test.--
            (A) In general.--The term ``genetic test'' means an 
        analysis of human DNA, RNA, chromosomes, proteins, or 
        metabolites, that detects genotypes, mutations, or chromosomal 
        changes.
            (B) Exceptions.--The term ``genetic test'' does not mean an 
        analysis of proteins or metabolites that does not detect 
        genotypes, mutations, or chromosomal changes.
    SEC. 202. EMPLOYER PRACTICES.
    (a) Discrimination Based on Genetic Information.--It shall be an 
unlawful employment practice for an employer--
        (1) to fail or refuse to hire, or to discharge, any employee, 
    or otherwise to discriminate against any employee with respect to 
    the compensation, terms, conditions, or privileges of employment of 
    the employee, because of genetic information with respect to the 
    employee; or
        (2) to limit, segregate, or classify the employees of the 
    employer in any way that would deprive or tend to deprive any 
    employee of employment opportunities or otherwise adversely affect 
    the status of the employee as an employee, because of genetic 
    information with respect to the employee.
    (b) Acquisition of Genetic Information.--It shall be an unlawful 
employment practice for an employer to request, require, or purchase 
genetic information with respect to an employee or a family member of 
the employee except--
        (1) where an employer inadvertently requests or requires family 
    medical history of the employee or family member of the employee;
        (2) where--
            (A) health or genetic services are offered by the employer, 
        including such services offered as part of a wellness program;
            (B) the employee provides prior, knowing, voluntary, and 
        written authorization;
            (C) only the employee (or family member if the family 
        member is receiving genetic services) and the licensed health 
        care professional or board certified genetic counselor involved 
        in providing such services receive individually identifiable 
        information concerning the results of such services; and
            (D) any individually identifiable genetic information 
        provided under subparagraph (C) in connection with the services 
        provided under subparagraph (A) is only available for purposes 
        of such services and shall not be disclosed to the employer 
        except in aggregate terms that do not disclose the identity of 
        specific employees;
        (3) where an employer requests or requires family medical 
    history from the employee to comply with the certification 
    provisions of section 103 of the Family and Medical Leave Act of 
    1993 (29 U.S.C. 2613) or such requirements under State family and 
    medical leave laws;
        (4) where an employer purchases documents that are commercially 
    and publicly available (including newspapers, magazines, 
    periodicals, and books, but not including medical databases or 
    court records) that include family medical history;
        (5) where the information involved is to be used for genetic 
    monitoring of the biological effects of toxic substances in the 
    workplace, but only if--
            (A) the employer provides written notice of the genetic 
        monitoring to the employee;
            (B)(i) the employee provides prior, knowing, voluntary, and 
        written authorization; or
            (ii) the genetic monitoring is required by Federal or State 
        law;
            (C) the employee is informed of individual monitoring 
        results;
            (D) the monitoring is in compliance with--
                (i) any Federal genetic monitoring regulations, 
            including any such regulations that may be promulgated by 
            the Secretary of Labor pursuant to the Occupational Safety 
            and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal 
            Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), 
            or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.); 
            or
                (ii) State genetic monitoring regulations, in the case 
            of a State that is implementing genetic monitoring 
            regulations under the authority of the Occupational Safety 
            and Health Act of 1970 (29 U.S.C. 651 et seq.); and
            (E) the employer, excluding any licensed health care 
        professional or board certified genetic counselor that is 
        involved in the genetic monitoring program, receives the 
        results of the monitoring only in aggregate terms that do not 
        disclose the identity of specific employees; or
        (6) where the employer conducts DNA analysis for law 
    enforcement purposes as a forensic laboratory or for purposes of 
    human remains identification, and requests or requires genetic 
    information of such employer's employees, but only to the extent 
    that such genetic information is used for analysis of DNA 
    identification markers for quality control to detect sample 
    contamination.
    (c) Preservation of Protections.--In the case of information to 
which any of paragraphs (1) through (6) of subsection (b) applies, such 
information may not be used in violation of paragraph (1) or (2) of 
subsection (a) or treated or disclosed in a manner that violates 
section 206.
    SEC. 203. EMPLOYMENT AGENCY PRACTICES.
    (a) Discrimination Based on Genetic Information.--It shall be an 
unlawful employment practice for an employment agency--
        (1) to fail or refuse to refer for employment, or otherwise to 
    discriminate against, any individual because of genetic information 
    with respect to the individual;
        (2) to limit, segregate, or classify individuals or fail or 
    refuse to refer for employment any individual in any way that would 
    deprive or tend to deprive any individual of employment 
    opportunities, or otherwise adversely affect the status of the 
    individual as an employee, because of genetic information with 
    respect to the individual; or
        (3) to cause or attempt to cause an employer to discriminate 
    against an individual in violation of this title.
    (b) Acquisition of Genetic Information.--It shall be an unlawful 
employment practice for an employment agency to request, require, or 
purchase genetic information with respect to an individual or a family 
member of the individual except--
        (1) where an employment agency inadvertently requests or 
    requires family medical history of the individual or family member 
    of the individual;
        (2) where--
            (A) health or genetic services are offered by the 
        employment agency, including such services offered as part of a 
        wellness program;
            (B) the individual provides prior, knowing, voluntary, and 
        written authorization;
            (C) only the individual (or family member if the family 
        member is receiving genetic services) and the licensed health 
        care professional or board certified genetic counselor involved 
        in providing such services receive individually identifiable 
        information concerning the results of such services; and
            (D) any individually identifiable genetic information 
        provided under subparagraph (C) in connection with the services 
        provided under subparagraph (A) is only available for purposes 
        of such services and shall not be disclosed to the employment 
        agency except in aggregate terms that do not disclose the 
        identity of specific individuals;
        (3) where an employment agency requests or requires family 
    medical history from the individual to comply with the 
    certification provisions of section 103 of the Family and Medical 
    Leave Act of 1993 (29 U.S.C. 2613) or such requirements under State 
    family and medical leave laws;
        (4) where an employment agency purchases documents that are 
    commercially and publicly available (including newspapers, 
    magazines, periodicals, and books, but not including medical 
    databases or court records) that include family medical history; or
        (5) where the information involved is to be used for genetic 
    monitoring of the biological effects of toxic substances in the 
    workplace, but only if--
            (A) the employment agency provides written notice of the 
        genetic monitoring to the individual;
            (B)(i) the individual provides prior, knowing, voluntary, 
        and written authorization; or
            (ii) the genetic monitoring is required by Federal or State 
        law;
            (C) the individual is informed of individual monitoring 
        results;
            (D) the monitoring is in compliance with--
                (i) any Federal genetic monitoring regulations, 
            including any such regulations that may be promulgated by 
            the Secretary of Labor pursuant to the Occupational Safety 
            and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal 
            Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), 
            or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.); 
            or
                (ii) State genetic monitoring regulations, in the case 
            of a State that is implementing genetic monitoring 
            regulations under the authority of the Occupational Safety 
            and Health Act of 1970 (29 U.S.C. 651 et seq.); and
            (E) the employment agency, excluding any licensed health 
        care professional or board certified genetic counselor that is 
        involved in the genetic monitoring program, receives the 
        results of the monitoring only in aggregate terms that do not 
        disclose the identity of specific individuals.
    (c) Preservation of Protections.--In the case of information to 
which any of paragraphs (1) through (5) of subsection (b) applies, such 
information may not be used in violation of paragraph (1), (2), or (3) 
of subsection (a) or treated or disclosed in a manner that violates 
section 206.
    SEC. 204. LABOR ORGANIZATION PRACTICES.
    (a) Discrimination Based on Genetic Information.--It shall be an 
unlawful employment practice for a labor organization--
        (1) to exclude or to expel from the membership of the 
    organization, or otherwise to discriminate against, any member 
    because of genetic information with respect to the member;
        (2) to limit, segregate, or classify the members of the 
    organization, or fail or refuse to refer for employment any member, 
    in any way that would deprive or tend to deprive any member of 
    employment opportunities, or otherwise adversely affect the status 
    of the member as an employee, because of genetic information with 
    respect to the member; or
        (3) to cause or attempt to cause an employer to discriminate 
    against a member in violation of this title.
    (b) Acquisition of Genetic Information.--It shall be an unlawful 
employment practice for a labor organization to request, require, or 
purchase genetic information with respect to a member or a family 
member of the member except--
        (1) where a labor organization inadvertently requests or 
    requires family medical history of the member or family member of 
    the member;
        (2) where--
            (A) health or genetic services are offered by the labor 
        organization, including such services offered as part of a 
        wellness program;
            (B) the member provides prior, knowing, voluntary, and 
        written authorization;
            (C) only the member (or family member if the family member 
        is receiving genetic services) and the licensed health care 
        professional or board certified genetic counselor involved in 
        providing such services receive individually identifiable 
        information concerning the results of such services; and
            (D) any individually identifiable genetic information 
        provided under subparagraph (C) in connection with the services 
        provided under subparagraph (A) is only available for purposes 
        of such services and shall not be disclosed to the labor 
        organization except in aggregate terms that do not disclose the 
        identity of specific members;
        (3) where a labor organization requests or requires family 
    medical history from the members to comply with the certification 
    provisions of section 103 of the Family and Medical Leave Act of 
    1993 (29 U.S.C. 2613) or such requirements under State family and 
    medical leave laws;
        (4) where a labor organization purchases documents that are 
    commercially and publicly available (including newspapers, 
    magazines, periodicals, and books, but not including medical 
    databases or court records) that include family medical history; or
        (5) where the information involved is to be used for genetic 
    monitoring of the biological effects of toxic substances in the 
    workplace, but only if--
            (A) the labor organization provides written notice of the 
        genetic monitoring to the member;
            (B)(i) the member provides prior, knowing, voluntary, and 
        written authorization; or
            (ii) the genetic monitoring is required by Federal or State 
        law;
            (C) the member is informed of individual monitoring 
        results;
            (D) the monitoring is in compliance with--
                (i) any Federal genetic monitoring regulations, 
            including any such regulations that may be promulgated by 
            the Secretary of Labor pursuant to the Occupational Safety 
            and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal 
            Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), 
            or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.); 
            or
                (ii) State genetic monitoring regulations, in the case 
            of a State that is implementing genetic monitoring 
            regulations under the authority of the Occupational Safety 
            and Health Act of 1970 (29 U.S.C. 651 et seq.); and
            (E) the labor organization, excluding any licensed health 
        care professional or board certified genetic counselor that is 
        involved in the genetic monitoring program, receives the 
        results of the monitoring only in aggregate terms that do not 
        disclose the identity of specific members.
    (c) Preservation of Protections.--In the case of information to 
which any of paragraphs (1) through (5) of subsection (b) applies, such 
information may not be used in violation of paragraph (1), (2), or (3) 
of subsection (a) or treated or disclosed in a manner that violates 
section 206.
    SEC. 205. TRAINING PROGRAMS.
    (a) Discrimination Based on Genetic Information.--It shall be an 
unlawful employment practice for any employer, labor organization, or 
joint labor-management committee controlling apprenticeship or other 
training or retraining, including on-the-job training programs--
        (1) to discriminate against any individual because of genetic 
    information with respect to the individual in admission to, or 
    employment in, any program established to provide apprenticeship or 
    other training or retraining;
        (2) to limit, segregate, or classify the applicants for or 
    participants in such apprenticeship or other training or 
    retraining, or fail or refuse to refer for employment any 
    individual, in any way that would deprive or tend to deprive any 
    individual of employment opportunities, or otherwise adversely 
    affect the status of the individual as an employee, because of 
    genetic information with respect to the individual; or
        (3) to cause or attempt to cause an employer to discriminate 
    against an applicant for or a participant in such apprenticeship or 
    other training or retraining in violation of this title.
    (b) Acquisition of Genetic Information.--It shall be an unlawful 
employment practice for an employer, labor organization, or joint 
labor-management committee described in subsection (a) to request, 
require, or purchase genetic information with respect to an individual 
or a family member of the individual except--
        (1) where the employer, labor organization, or joint labor-
    management committee inadvertently requests or requires family 
    medical history of the individual or family member of the 
    individual;
        (2) where--
            (A) health or genetic services are offered by the employer, 
        labor organization, or joint labor-management committee, 
        including such services offered as part of a wellness program;
            (B) the individual provides prior, knowing, voluntary, and 
        written authorization;
            (C) only the individual (or family member if the family 
        member is receiving genetic services) and the licensed health 
        care professional or board certified genetic counselor involved 
        in providing such services receive individually identifiable 
        information concerning the results of such services; and
            (D) any individually identifiable genetic information 
        provided under subparagraph (C) in connection with the services 
        provided under subparagraph (A) is only available for purposes 
        of such services and shall not be disclosed to the employer, 
        labor organization, or joint labor-management committee except 
        in aggregate terms that do not disclose the identity of 
        specific individuals;
        (3) where the employer, labor organization, or joint labor-
    management committee requests or requires family medical history 
    from the individual to comply with the certification provisions of 
    section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C. 
    2613) or such requirements under State family and medical leave 
    laws;
        (4) where the employer, labor organization, or joint labor-
    management committee purchases documents that are commercially and 
    publicly available (including newspapers, magazines, periodicals, 
    and books, but not including medical databases or court records) 
    that include family medical history;
        (5) where the information involved is to be used for genetic 
    monitoring of the biological effects of toxic substances in the 
    workplace, but only if--
            (A) the employer, labor organization, or joint labor-
        management committee provides written notice of the genetic 
        monitoring to the individual;
            (B)(i) the individual provides prior, knowing, voluntary, 
        and written authorization; or
            (ii) the genetic monitoring is required by Federal or State 
        law;
            (C) the individual is informed of individual monitoring 
        results;
            (D) the monitoring is in compliance with--
                (i) any Federal genetic monitoring regulations, 
            including any such regulations that may be promulgated by 
            the Secretary of Labor pursuant to the Occupational Safety 
            and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal 
            Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), 
            or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.); 
            or
                (ii) State genetic monitoring regulations, in the case 
            of a State that is implementing genetic monitoring 
            regulations under the authority of the Occupational Safety 
            and Health Act of 1970 (29 U.S.C. 651 et seq.); and
            (E) the employer, labor organization, or joint labor-
        management committee, excluding any licensed health care 
        professional or board certified genetic counselor that is 
        involved in the genetic monitoring program, receives the 
        results of the monitoring only in aggregate terms that do not 
        disclose the identity of specific individuals; or
        (6) where the employer conducts DNA analysis for law 
    enforcement purposes as a forensic laboratory or for purposes of 
    human remains identification, and requests or requires genetic 
    information of such employer's apprentices or trainees, but only to 
    the extent that such genetic information is used for analysis of 
    DNA identification markers for quality control to detect sample 
    contamination.
    (c) Preservation of Protections.--In the case of information to 
which any of paragraphs (1) through (6) of subsection (b) applies, such 
information may not be used in violation of paragraph (1), (2), or (3) 
of subsection (a) or treated or disclosed in a manner that violates 
section 206.
    SEC. 206. CONFIDENTIALITY OF GENETIC INFORMATION.
    (a) Treatment of Information as Part of Confidential Medical 
Record.--If an employer, employment agency, labor organization, or 
joint labor-management committee possesses genetic information about an 
employee or member, such information shall be maintained on separate 
forms and in separate medical files and be treated as a confidential 
medical record of the employee or member. An employer, employment 
agency, labor organization, or joint labor-management committee shall 
be considered to be in compliance with the maintenance of information 
requirements of this subsection with respect to genetic information 
subject to this subsection that is maintained with and treated as a 
confidential medical record under section 102(d)(3)(B) of the Americans 
With Disabilities Act (42 U.S.C. 12112(d)(3)(B)).
    (b) Limitation on Disclosure.--An employer, employment agency, 
labor organization, or joint labor-management committee shall not 
disclose genetic information concerning an employee or member except--
        (1) to the employee or member of a labor organization (or 
    family member if the family member is receiving the genetic 
    services) at the written request of the employee or member of such 
    organization;
        (2) to an occupational or other health researcher if the 
    research is conducted in compliance with the regulations and 
    protections provided for under part 46 of title 45, Code of Federal 
    Regulations;
        (3) in response to an order of a court, except that--
            (A) the employer, employment agency, labor organization, or 
        joint labor-management committee may disclose only the genetic 
        information expressly authorized by such order; and
            (B) if the court order was secured without the knowledge of 
        the employee or member to whom the information refers, the 
        employer, employment agency, labor organization, or joint 
        labor-management committee shall inform the employee or member 
        of the court order and any genetic information that was 
        disclosed pursuant to such order;
        (4) to government officials who are investigating compliance 
    with this title if the information is relevant to the 
    investigation;
        (5) to the extent that such disclosure is made in connection 
    with the employee's compliance with the certification provisions of 
    section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C. 
    2613) or such requirements under State family and medical leave 
    laws; or
        (6) to a Federal, State, or local public health agency only 
    with regard to information that is described in section 
    201(4)(A)(iii) and that concerns a contagious disease that presents 
    an imminent hazard of death or life-threatening illness, and that 
    the employee whose family member or family members is or are the 
    subject of a disclosure under this paragraph is notified of such 
    disclosure.
    (c) Relationship to HIPAA Regulations.--With respect to the 
regulations promulgated by the Secretary of Health and Human Services 
under part C of title XI of the Social Security Act (42 U.S.C. 1320d et 
seq.) and section 264 of the Health Insurance Portability and 
Accountability Act of 1996 (42 U.S.C. 1320d-2 note), this title does 
not prohibit a covered entity under such regulations from any use or 
disclosure of health information that is authorized for the covered 
entity under such regulations. The previous sentence does not affect 
the authority of such Secretary to modify such regulations.
    SEC. 207. REMEDIES AND ENFORCEMENT.
    (a) Employees Covered by Title VII of the Civil Rights Act of 
1964.--
        (1) In general.--The powers, procedures, and remedies provided 
    in sections 705, 706, 707, 709, 710, and 711 of the Civil Rights 
    Act of 1964 (42 U.S.C. 2000e-4 et seq.) to the Commission, the 
    Attorney General, or any person, alleging a violation of title VII 
    of that Act (42 U.S.C. 2000e et seq.) shall be the powers, 
    procedures, and remedies this title provides to the Commission, the 
    Attorney General, or any person, respectively, alleging an unlawful 
    employment practice in violation of this title against an employee 
    described in section 201(2)(A)(i), except as provided in paragraphs 
    (2) and (3).
        (2) Costs and fees.--The powers, remedies, and procedures 
    provided in subsections (b) and (c) of section 722 of the Revised 
    Statutes of the United States (42 U.S.C. 1988), shall be powers, 
    remedies, and procedures this title provides to the Commission, the 
    Attorney General, or any person, alleging such a practice.
        (3) Damages.--The powers, remedies, and procedures provided in 
    section 1977A of the Revised Statutes of the United States (42 
    U.S.C. 1981a), including the limitations contained in subsection 
    (b)(3) of such section 1977A, shall be powers, remedies, and 
    procedures this title provides to the Commission, the Attorney 
    General, or any person, alleging such a practice (not an employment 
    practice specifically excluded from coverage under section 
    1977A(a)(1) of the Revised Statutes of the United States).
    (b) Employees Covered by Government Employee Rights Act of 1991.--
        (1) In general.--The powers, remedies, and procedures provided 
    in sections 302 and 304 of the Government Employee Rights Act of 
    1991 (42 U.S.C. 2000e-16b, 2000e-16c) to the Commission, or any 
    person, alleging a violation of section 302(a)(1) of that Act (42 
    U.S.C. 2000e-16b(a)(1)) shall be the powers, remedies, and 
    procedures this title provides to the Commission, or any person, 
    respectively, alleging an unlawful employment practice in violation 
    of this title against an employee described in section 
    201(2)(A)(ii), except as provided in paragraphs (2) and (3).
        (2) Costs and fees.--The powers, remedies, and procedures 
    provided in subsections (b) and (c) of section 722 of the Revised 
    Statutes of the United States (42 U.S.C. 1988), shall be powers, 
    remedies, and procedures this title provides to the Commission, or 
    any person, alleging such a practice.
        (3) Damages.--The powers, remedies, and procedures provided in 
    section 1977A of the Revised Statutes of the United States (42 
    U.S.C. 1981a), including the limitations contained in subsection 
    (b)(3) of such section 1977A, shall be powers, remedies, and 
    procedures this title provides to the Commission, or any person, 
    alleging such a practice (not an employment practice specifically 
    excluded from coverage under section 1977A(a)(1) of the Revised 
    Statutes of the United States).
    (c) Employees Covered by Congressional Accountability Act of 
1995.--
        (1) In general.--The powers, remedies, and procedures provided 
    in the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et 
    seq.) to the Board (as defined in section 101 of that Act (2 U.S.C. 
    1301)), or any person, alleging a violation of section 201(a)(1) of 
    that Act (42 U.S.C. 1311(a)(1)) shall be the powers, remedies, and 
    procedures this title provides to that Board, or any person, 
    alleging an unlawful employment practice in violation of this title 
    against an employee described in section 201(2)(A)(iii), except as 
    provided in paragraphs (2) and (3).
        (2) Costs and fees.--The powers, remedies, and procedures 
    provided in subsections (b) and (c) of section 722 of the Revised 
    Statutes of the United States (42 U.S.C. 1988), shall be powers, 
    remedies, and procedures this title provides to that Board, or any 
    person, alleging such a practice.
        (3) Damages.--The powers, remedies, and procedures provided in 
    section 1977A of the Revised Statutes of the United States (42 
    U.S.C. 1981a), including the limitations contained in subsection 
    (b)(3) of such section 1977A, shall be powers, remedies, and 
    procedures this title provides to that Board, or any person, 
    alleging such a practice (not an employment practice specifically 
    excluded from coverage under section 1977A(a)(1) of the Revised 
    Statutes of the United States).
        (4) Other applicable provisions.--With respect to a claim 
    alleging a practice described in paragraph (1), title III of the 
    Congressional Accountability Act of 1995 (2 U.S.C. 1381 et seq.) 
    shall apply in the same manner as such title applies with respect 
    to a claim alleging a violation of section 201(a)(1) of such Act (2 
    U.S.C. 1311(a)(1)).
    (d) Employees Covered by Chapter 5 of Title 3, United States 
Code.--
        (1) In general.--The powers, remedies, and procedures provided 
    in chapter 5 of title 3, United States Code, to the President, the 
    Commission, the Merit Systems Protection Board, or any person, 
    alleging a violation of section 411(a)(1) of that title, shall be 
    the powers, remedies, and procedures this title provides to the 
    President, the Commission, such Board, or any person, respectively, 
    alleging an unlawful employment practice in violation of this title 
    against an employee described in section 201(2)(A)(iv), except as 
    provided in paragraphs (2) and (3).
        (2) Costs and fees.--The powers, remedies, and procedures 
    provided in subsections (b) and (c) of section 722 of the Revised 
    Statutes of the United States (42 U.S.C. 1988), shall be powers, 
    remedies, and procedures this title provides to the President, the 
    Commission, such Board, or any person, alleging such a practice.
        (3) Damages.--The powers, remedies, and procedures provided in 
    section 1977A of the Revised Statutes of the United States (42 
    U.S.C. 1981a), including the limitations contained in subsection 
    (b)(3) of such section 1977A, shall be powers, remedies, and 
    procedures this title provides to the President, the Commission, 
    such Board, or any person, alleging such a practice (not an 
    employment practice specifically excluded from coverage under 
    section 1977A(a)(1) of the Revised Statutes of the United States).
    (e) Employees Covered by Section 717 of the Civil Rights Act of 
1964.--
        (1) In general.--The powers, remedies, and procedures provided 
    in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) 
    to the Commission, the Attorney General, the Librarian of Congress, 
    or any person, alleging a violation of that section shall be the 
    powers, remedies, and procedures this title provides to the 
    Commission, the Attorney General, the Librarian of Congress, or any 
    person, respectively, alleging an unlawful employment practice in 
    violation of this title against an employee or applicant described 
    in section 201(2)(A)(v), except as provided in paragraphs (2) and 
    (3).
        (2) Costs and fees.--The powers, remedies, and procedures 
    provided in subsections (b) and (c) of section 722 of the Revised 
    Statutes of the United States (42 U.S.C. 1988), shall be powers, 
    remedies, and procedures this title provides to the Commission, the 
    Attorney General, the Librarian of Congress, or any person, 
    alleging such a practice.
        (3) Damages.--The powers, remedies, and procedures provided in 
    section 1977A of the Revised Statutes of the United States (42 
    U.S.C. 1981a), including the limitations contained in subsection 
    (b)(3) of such section 1977A, shall be powers, remedies, and 
    procedures this title provides to the Commission, the Attorney 
    General, the Librarian of Congress, or any person, alleging such a 
    practice (not an employment practice specifically excluded from 
    coverage under section 1977A(a)(1) of the Revised Statutes of the 
    United States).
    (f) Prohibition Against Retaliation.--No person shall discriminate 
against any individual because such individual has opposed any act or 
practice made unlawful by this title or because such individual made a 
charge, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under this title. The remedies 
and procedures otherwise provided for under this section shall be 
available to aggrieved individuals with respect to violations of this 
subsection.
    (g) Definition.--In this section, the term ``Commission'' means the 
Equal Employment Opportunity Commission.
    SEC. 208. DISPARATE IMPACT.
    (a) General Rule.--Notwithstanding any other provision of this Act, 
``disparate impact'', as that term is used in section 703(k) of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e-2(k)), on the basis of 
genetic information does not establish a cause of action under this 
Act.
    (b) Commission.--On the date that is 6 years after the date of 
enactment of this Act, there shall be established a commission, to be 
known as the Genetic Nondiscrimination Study Commission (referred to in 
this section as the ``Commission'') to review the developing science of 
genetics and to make recommendations to Congress regarding whether to 
provide a disparate impact cause of action under this Act.
    (c) Membership.--
        (1) In general.--The Commission shall be composed of 8 members, 
    of which--
            (A) 1 member shall be appointed by the Majority Leader of 
        the Senate;
            (B) 1 member shall be appointed by the Minority Leader of 
        the Senate;
            (C) 1 member shall be appointed by the Chairman of the 
        Committee on Health, Education, Labor, and Pensions of the 
        Senate;
            (D) 1 member shall be appointed by the ranking minority 
        member of the Committee on Health, Education, Labor, and 
        Pensions of the Senate;
            (E) 1 member shall be appointed by the Speaker of the House 
        of Representatives;
            (F) 1 member shall be appointed by the Minority Leader of 
        the House of Representatives;
            (G) 1 member shall be appointed by the Chairman of the 
        Committee on Education and Labor of the House of 
        Representatives; and
            (H) 1 member shall be appointed by the ranking minority 
        member of the Committee on Education and Labor of the House of 
        Representatives.
        (2) Compensation and expenses.--The members of the Commission 
    shall not receive compensation for the performance of services for 
    the Commission, but shall be allowed travel expenses, including per 
    diem in lieu of subsistence, at rates authorized for employees of 
    agencies under subchapter I of chapter 57 of title 5, United States 
    Code, while away from their homes or regular places of business in 
    the performance of services for the Commission.
    (d) Administrative Provisions.--
        (1) Location.--The Commission shall be located in a facility 
    maintained by the Equal Employment Opportunity Commission.
        (2) Detail of government employees.--Any Federal Government 
    employee may be detailed to the Commission without reimbursement, 
    and such detail shall be without interruption or loss of civil 
    service status or privilege.
        (3) Information from federal agencies.--The Commission may 
    secure directly from any Federal department or agency such 
    information as the Commission considers necessary to carry out the 
    provisions of this section. Upon request of the Commission, the 
    head of such department or agency shall furnish such information to 
    the Commission.
        (4) Hearings.--The Commission may hold such hearings, sit and 
    act at such times and places, take such testimony, and receive such 
    evidence as the Commission considers advisable to carry out the 
    objectives of this section, except that, to the extent possible, 
    the Commission shall use existing data and research.
        (5) Postal services.--The Commission may use the United States 
    mails in the same manner and under the same conditions as other 
    departments and agencies of the Federal Government.
    (e) Report.--Not later than 1 year after all of the members are 
appointed to the Commission under subsection (c)(1), the Commission 
shall submit to Congress a report that summarizes the findings of the 
Commission and makes such recommendations for legislation as are 
consistent with this Act.
    (f) Authorization of Appropriations.--There are authorized to be 
appropriated to the Equal Employment Opportunity Commission such sums 
as may be necessary to carry out this section.
    SEC. 209. CONSTRUCTION.
    (a) In General.--Nothing in this title shall be construed to--
        (1) limit the rights or protections of an individual under any 
    other Federal or State statute that provides equal or greater 
    protection to an individual than the rights or protections provided 
    for under this title, including the protections of an individual 
    under the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 
    et seq.) (including coverage afforded to individuals under section 
    102 of such Act (42 U.S.C. 12112)), or under the Rehabilitation Act 
    of 1973 (29 U.S.C. 701 et seq.);
        (2)(A) limit the rights or protections of an individual to 
    bring an action under this title against an employer, employment 
    agency, labor organization, or joint labor-management committee for 
    a violation of this title; or
        (B) provide for enforcement of, or penalties for violation of, 
    any requirement or prohibition applicable to any employer, 
    employment agency, labor organization, or joint labor-management 
    committee subject to enforcement for a violation under--
            (i) the amendments made by title I of this Act;
            (ii)(I) subsection (a) of section 701 of the Employee 
        Retirement Income Security Act of 1974 as such section applies 
        with respect to genetic information pursuant to subsection 
        (b)(1)(B) of such section;
            (II) section 702(a)(1)(F) of such Act; or
            (III) section 702(b)(1) of such Act as such section applies 
        with respect to genetic information as a health status-related 
        factor;
            (iii)(I) subsection (a) of section 2701 of the Public 
        Health Service Act as such section applies with respect to 
        genetic information pursuant to subsection (b)(1)(B) of such 
        section;
            (II) section 2702(a)(1)(F) of such Act; or
            (III) section 2702(b)(1) of such Act as such section 
        applies with respect to genetic information as a health status-
        related factor; or
            (iv)(I) subsection (a) of section 9801 of the Internal 
        Revenue Code of 1986 as such section applies with respect to 
        genetic information pursuant to subsection (b)(1)(B) of such 
        section;
            (II) section 9802(a)(1)(F) of such Act; or
            (III) section 9802(b)(1) of such Act as such section 
        applies with respect to genetic information as a health status-
        related factor;
        (3) apply to the Armed Forces Repository of Specimen Samples 
    for the Identification of Remains;
        (4) limit or expand the protections, rights, or obligations of 
    employees or employers under applicable workers' compensation laws;
        (5) limit the authority of a Federal department or agency to 
    conduct or sponsor occupational or other health research that is 
    conducted in compliance with the regulations contained in part 46 
    of title 45, Code of Federal Regulations (or any corresponding or 
    similar regulation or rule);
        (6) limit the statutory or regulatory authority of the 
    Occupational Safety and Health Administration or the Mine Safety 
    and Health Administration to promulgate or enforce workplace safety 
    and health laws and regulations; or
        (7) require any specific benefit for an employee or member or a 
    family member of an employee or member under any group health plan 
    or health insurance issuer offering group health insurance coverage 
    in connection with a group health plan.
    (b) Genetic Information of a Fetus or Embryo.--Any reference in 
this title to genetic information concerning an individual or family 
member of an individual shall--
        (1) with respect to such an individual or family member of an 
    individual who is a pregnant woman, include genetic information of 
    any fetus carried by such pregnant woman; and
        (2) with respect to an individual or family member utilizing an 
    assisted reproductive technology, include genetic information of 
    any embryo legally held by the individual or family member.
    (c) Relation to Authorities Under Title I.--With respect to a group 
health plan, or a health insurance issuer offering group health 
insurance coverage in connection with a group health plan, this title 
does not prohibit any activity of such plan or issuer that is 
authorized for the plan or issuer under any provision of law referred 
to in clauses (i) through (iv) of subsection (a)(2)(B).
    SEC. 210. MEDICAL INFORMATION THAT IS NOT GENETIC INFORMATION.
    An employer, employment agency, labor organization, or joint labor-
management committee shall not be considered to be in violation of this 
title based on the use, acquisition, or disclosure of medical 
information that is not genetic information about a manifested disease, 
disorder, or pathological condition of an employee or member, including 
a manifested disease, disorder, or pathological condition that has or 
may have a genetic basis.
    SEC. 211. REGULATIONS.
    Not later than 1 year after the date of enactment of this title, 
the Commission shall issue final regulations to carry out this title.
    SEC. 212. AUTHORIZATION OF APPROPRIATIONS.
    There are authorized to be appropriated such sums as may be 
necessary to carry out this title (except for section 208).
    SEC. 213. EFFECTIVE DATE.
    This title takes effect on the date that is 18 months after the 
date of enactment of this Act.

                  TITLE III--MISCELLANEOUS PROVISIONS

    SEC. 301. SEVERABILITY.
    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act, 
the amendments made by this Act, and the application of such provisions 
to any person or circumstance shall not be affected thereby.
    SEC. 302. CHILD LABOR PROTECTIONS.
    (a) In General.--Section 16(e) of the Fair Labor Standards Act of 
1938 (29 U.S.C. 216(e)) is amended to read as follows:
    ``(e)(1)(A) Any person who violates the provisions of sections 12 
or 13(c), relating to child labor, or any regulation issued pursuant to 
such sections, shall be subject to a civil penalty not to exceed--
                ``(i) $11,000 for each employee who was the subject of 
            such a violation; or
                ``(ii) $50,000 with regard to each such violation that 
            causes the death or serious injury of any employee under 
            the age of 18 years, which penalty may be doubled where the 
            violation is a repeated or willful violation.
    ``(B) For purposes of subparagraph (A), the term `serious injury' 
means--
        ``(i) permanent loss or substantial impairment of one of the 
    senses (sight, hearing, taste, smell, tactile sensation);
        ``(ii) permanent loss or substantial impairment of the function 
    of a bodily member, organ, or mental faculty, including the loss of 
    all or part of an arm, leg, foot, hand or other body part; or
        ``(iii) permanent paralysis or substantial impairment that 
    causes loss of movement or mobility of an arm, leg, foot, hand or 
    other body part.
    ``(2) Any person who repeatedly or willfully violates section 6 or 
7, relating to wages, shall be subject to a civil penalty not to exceed 
$1,100 for each such violation.
    ``(3) In determining the amount of any penalty under this 
subsection, the appropriateness of such penalty to the size of the 
business of the person charged and the gravity of the violation shall 
be considered. The amount of any penalty under this subsection, when 
finally determined, may be--
        ``(A) deducted from any sums owing by the United States to the 
    person charged;
        ``(B) recovered in a civil action brought by the Secretary in 
    any court of competent jurisdiction, in which litigation the 
    Secretary shall be represented by the Solicitor of Labor; or
        ``(C) ordered by the court, in an action brought for a 
    violation of section 15(a)(4) or a repeated or willful violation of 
    section 15(a)(2), to be paid to the Secretary.
    ``(4) Any administrative determination by the Secretary of the 
amount of any penalty under this subsection shall be final, unless 
within 15 days after receipt of notice thereof by certified mail the 
person charged with the violation takes exception to the determination 
that the violations for which the penalty is imposed occurred, in which 
event final determination of the penalty shall be made in an 
administrative proceeding after opportunity for hearing in accordance 
with section 554 of title 5, United States Code, and regulations to be 
promulgated by the Secretary.
    ``(5) Except for civil penalties collected for violations of 
section 12, sums collected as penalties pursuant to this section shall 
be applied toward reimbursement of the costs of determining the 
violations and assessing and collecting such penalties, in accordance 
with the provision of section 2 of the Act entitled `An Act to 
authorize the Department of Labor to make special statistical studies 
upon payment of the cost thereof and for other purposes' (29 U.S.C. 
9a). Civil penalties collected for violations of section 12 shall be 
deposited in the general fund of the Treasury.''.
    (b) Effective Date.--The amendments made by this section shall take 
effect on the date of the enactment of this Act.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.