[House Report 110-28]
[From the U.S. Government Publishing Office]



110th Congress                                             Rept. 110-28
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
           GENETIC INFORMATION NONDISCRIMINATION ACT OF 2007

                                _______
                                

                 March 5, 2007.--Ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 493]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and Labor, to whom was referred 
the bill (H.R. 493) to prohibit discrimination on the basis of 
genetic information with respect to health insurance and 
employment, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Genetic 
Information Nondiscrimination Act of 2007''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

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

         TITLE I--GENETIC NONDISCRIMINATION IN HEALTH INSURANCE

Sec. 101. Amendments to Employee Retirement Income Security Act of 
1974.
Sec. 102. Amendments to the Public Health Service Act.
Sec. 103. Amendments to title XVIII of the Social Security Act relating 
to medigap.
Sec. 104. Privacy and confidentiality.
Sec. 105. Assuring coordination.
Sec. 106. Regulations; effective date.

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 PROVISION

Sec. 301. Severability.

SEC. 2. FINDINGS.

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

         TITLE I--GENETIC NONDISCRIMINATION IN HEALTH INSURANCE

SEC. 101. AMENDMENTS TO EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 
                    1974.

    (a) Prohibition of Health Discrimination on the Basis of Genetic 
Information or Genetic Services.--
          (1) No enrollment restriction for genetic services.--Section 
        702(a)(1)(F) of the Employee Retirement Income Security Act of 
        1974 (29 U.S.C. 1182(a)(1)(F)) is amended by inserting before 
        the period the following: ``(including information about a 
        request for or receipt of genetic services by an individual or 
        family member of such individual)''.
          (2) 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--
                  (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 discrimination in group premiums based on genetic 
        information.--For purposes of this section, a group health 
        plan, or a health insurance issuer offering group health 
        insurance coverage in connection with a group health plan, 
        shall not adjust premium or contribution amounts for a group on 
        the basis of genetic information concerning an individual in 
        the group or a family member of the individual (including 
        information about a request for or receipt of genetic services 
        by an individual or family member of such individual).''.
    (b) Limitations on Genetic Testing.--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, or 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.--Nothing in this part shall be 
        construed to--
                  ``(A) limit the authority of a health care 
                professional who is providing health care services with 
                respect to an individual to request that such 
                individual or a family member of such individual 
                undergo a genetic test;
                  ``(B) limit the authority of a health care 
                professional who is employed by or affiliated with a 
                group health plan or a health insurance issuer and who 
                is providing health care services to an individual as 
                part of a bona fide wellness program to notify such 
                individual of the availability of a genetic test or to 
                provide information to such individual regarding such 
                genetic test; or
                  ``(C) authorize or permit a health care professional 
                to require that an individual undergo a genetic test.
    ``(d) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), and (c) shall apply to group health plans and health 
insurance issuers without regard to section 732(a).
    ``(e) Genetic Information of a Fetus.--Any reference in this 
section to genetic information concerning an individual or family 
member of an individual shall, 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.''.
    (c) 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) the spouse of the individual;
                  ``(B) a dependent child of the individual; and
                  ``(C) any other individual who is a first-degree, 
                second-degree, third-degree, or fourth-degree relative 
                of an individual described in subparagraph (A) or (B).
          ``(6) Genetic information.--
                  ``(A) In general.--Except as provided in subparagraph 
                (B), the term `genetic information' means information 
                about--
                          ``(i) an individual's genetic tests;
                          ``(ii) the genetic tests of family members of 
                        the individual; or
                          ``(iii) the occurrence of a disease or 
                        disorder in family members of the individual.
                  ``(B) Exclusions.--The term `genetic information' 
                shall not include information about the sex or age of 
                an 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.''.
    (d) ERISA Enforcement.--Section 502 of the Employee Retirement 
Income Security Act of 1974 (29 U.S.C. 1132) is amended--
          (1) in subsection (a)(6), by striking ``(7), or (8)'' and 
        inserting ``(7), (8), or (9)''; and
          (2) in subsection (c), by redesignating paragraph (9) as 
        paragraph (10), and by inserting after paragraph (8) the 
        following new paragraph:
          ``(9) Secretarial enforcement authority relating to use of 
        genetic information.--
                  ``(A) General rule.--The Secretary may impose a 
                penalty against any plan sponsor of a group health 
                plan, or any health insurance issuer offering health 
                insurance coverage in connection with the plan, for any 
                failure by such sponsor or issuer to meet the 
                requirements of subsection (a)(1)(F), (b)(3), or (c) of 
                section 702 or of section 714 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 such 
                                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.''.
    (e) Regulations and Effective Date.--
          (1) Regulations.--The Secretary of Labor shall issue final 
        regulations not later than 1 year after the date of enactment 
        of this Act to carry out the amendments made by this section.
          (2) Effective date.--The amendments made by this section 
        shall apply with respect to group health plans for plan years 
        beginning after the date that is 18 months after the date of 
        enactment of this title.

SEC. 102. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.

    (a) Amendments Relating to the Group Market.--
          (1) Prohibition of health discrimination on the basis of 
        genetic information or genetic services.--
                  (A) No enrollment restriction for genetic services.--
                Section 2702(a)(1)(F) of the Public Health Service Act 
                (42 U.S.C. 300gg-1(a)(1)(F)) is amended by inserting 
                before the period the following: ``(including 
                information about a request for or receipt of genetic 
                services by an individual or family member of such 
                individual)''.
                  (B) 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--
                          (i) in paragraph (2)(A), by inserting before 
                        the semicolon the following: ``, except as 
                        provided in paragraph (3)''; and
                          (ii) by adding at the end the following:
          ``(3) No discrimination in group premiums based on genetic 
        information.--For purposes of this section, a group health 
        plan, or a health insurance issuer offering group health 
        insurance coverage in connection with a group health plan, 
        shall not adjust premium or contribution amounts for a group on 
        the basis of genetic information concerning an individual in 
        the group or a family member of the individual (including 
        information about a request for or receipt of genetic services 
        by an individual or family member of such individual).''.
          (2) Limitations on genetic testing.--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, or 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.--Nothing in this part shall be 
        construed to--
                  ``(A) limit the authority of a health care 
                professional who is providing health care services with 
                respect to an individual to request that such 
                individual or a family member of such individual 
                undergo a genetic test;
                  ``(B) limit the authority of a health care 
                professional who is employed by or affiliated with a 
                group health plan or a health insurance issuer and who 
                is providing health care services to an individual as 
                part of a bona fide wellness program to notify such 
                individual of the availability of a genetic test or to 
                provide information to such individual regarding such 
                genetic test; or
                  ``(C) authorize or permit a health care professional 
                to require that an individual undergo a genetic test.
    ``(d) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), and (c) shall apply to group health plans and health 
insurance issuers without regard to section 2721(a).''.
          (3) 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 following provisions 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), or (c) of section 2702.
                  ``(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 individual 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 such 
                                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.''.
          (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 an individual--
                  ``(A) the spouse of the individual;
                  ``(B) a dependent child of the individual, including 
                a child who is born to or placed for adoption with the 
                individual; and
                  ``(C) all other individuals related by blood to the 
                individual or the spouse or child described in 
                subparagraph (A) or (B).
          ``(16) Genetic information.--
                  ``(A) In general.--Except as provided in subparagraph 
                (B), the term `genetic information' means information 
                about--
                          ``(i) an individual's genetic tests;
                          ``(ii) the genetic tests of family members of 
                        the individual; or
                          ``(iii) the occurrence of a disease or 
                        disorder in family members of the individual.
                  ``(B) Exclusions.--The term `genetic information' 
                shall not include information about the sex or age of 
                an 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 (such as obtaining, 
                interpreting, or assessing genetic information); or
                  ``(C) genetic education.''.
    (b) Amendment Relating to the Individual Market.--
          (1) In general.--The first subpart 3 of part B of title XXVII 
        of the Public Health Service Act (42 U.S.C. 300gg-51 et seq.) 
        (relating to other requirements) is amended--
                  (A) by redesignating such subpart as subpart 2; and
                  (B) by adding at the end the following:

``SEC. 2753. PROHIBITION OF HEALTH DISCRIMINATION ON THE BASIS OF 
                    GENETIC INFORMATION.

    ``(a) Prohibition on Genetic Information as a Condition of 
Eligibility.--A health insurance issuer offering health insurance 
coverage in the individual market may not establish rules for the 
eligibility (including continued eligibility) of any individual to 
enroll in individual health insurance coverage based on genetic 
information (including information about a request for or receipt of 
genetic services by an individual or family member of such individual).
    ``(b) Prohibition on Genetic Information in Setting Premium 
Rates.--A health insurance issuer offering health insurance coverage in 
the individual market shall not adjust premium or contribution amounts 
for an individual on the basis of genetic information concerning the 
individual or a family member of the individual (including information 
about a request for or receipt of genetic services by an individual or 
family member of such individual).
    ``(c) 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.--Nothing in this part shall be 
        construed to--
                  ``(A) limit the authority of a health care 
                professional who is providing health care services with 
                respect to an individual to request that such 
                individual or a family member of such individual 
                undergo a genetic test;
                  ``(B) limit the authority of a health care 
                professional who is employed by or affiliated with a 
                health insurance issuer and who is providing health 
                care services to an individual as part of a bona fide 
                wellness program to notify such individual of the 
                availability of a genetic test or to provide 
                information to such individual regarding such genetic 
                test; or
                  ``(C) authorize or permit a health care professional 
                to require that an individual undergo a genetic 
                test.''.
          (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) and (c) of 
                section 2702 and the provisions of section 2702(b) to 
                the extent that such provisions apply to genetic 
                information (or information about a request for or the 
                receipt of genetic services by an individual or a 
                family member of such individual).''.
    (d) Regulations and Effective Date.--
          (1) Regulations.--Not later than 1 year after the date of 
        enactment of this title, the Secretary of Health and Human 
        Services shall issue final regulations to carry out the 
        amendments made by this section.
          (2) Effective date.--The amendments made by this section 
        shall apply--
                  (A) with respect to group health plans, and health 
                insurance coverage offered in connection with group 
                health plans, for plan years beginning after the date 
                that is 18 months after the date of enactment of this 
                title; and
                  (B) with respect to health insurance coverage 
                offered, sold, issued, renewed, in effect, or operated 
                in the individual market after the date that is 18 
                months after the date of enactment of this title.

SEC. 103. AMENDMENTS TO TITLE XVIII OF THE SOCIAL SECURITY ACT RELATING 
                    TO MEDIGAP.

    (a) Nondiscrimination.--
          (1) In general.--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)(i) An issuer of a medicare supplemental policy 
                shall not deny or condition the issuance or 
                effectiveness of the policy, and shall not discriminate 
                in the pricing of the policy (including the adjustment 
                of premium rates) of an eligible individual on the 
                basis of genetic information concerning the individual 
                (or information about a request for, or the receipt of, 
                genetic services by such individual or family member of 
                such individual).
                  ``(ii) For purposes of clause (i), the terms `family 
                member', `genetic services', and `genetic information' 
                shall have the meanings given such terms in subsection 
                (x).''.
          (2) Effective date.--The amendment made by paragraph (1) 
        shall apply with respect to a policy for policy years beginning 
        after the date that is 18 months after the date of enactment of 
        this Act.
    (b) Limitations on Genetic Testing.--
          (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.--
          ``(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.--Nothing in this title 
                shall be construed to--
                          ``(i) limit the authority of a health care 
                        professional who is providing health care 
                        services with respect to an individual to 
                        request that such individual or a family member 
                        of such individual undergo a genetic test;
                          ``(ii) limit the authority of a health care 
                        professional who is employed by or affiliated 
                        with an issuer of a medicare supplemental 
                        policy and who is providing health care 
                        services to an individual as part of a bona 
                        fide wellness program to notify such individual 
                        of the availability of a genetic test or to 
                        provide information to such individual 
                        regarding such genetic test; or
                          ``(iii) authorize or permit a health care 
                        professional to require that an individual 
                        undergo a genetic test.
          ``(2) Definitions.--In this subsection:
                  ``(A) Family member.--The term `family member' means 
                with respect to an individual--
                          ``(i) the spouse of the individual;
                          ``(ii) a dependent child of the individual, 
                        including a child who is born to or placed for 
                        adoption with the individual; or
                          ``(iii) any other individuals related by 
                        blood to the individual or to the spouse or 
                        child described in clause (i) or (ii).
                  ``(B) Genetic information.--
                          ``(i) In general.--Except as provided in 
                        clause (ii), the term `genetic information' 
                        means information about--
                                  ``(I) an individual's genetic tests;
                                  ``(II) the genetic tests of family 
                                members of the individual; or
                                  ``(III) the occurrence of a disease 
                                or disorder in family members of the 
                                individual.
                          ``(ii) Exclusions.--The term `genetic 
                        information' shall not include information 
                        about the sex or age of an 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 (such as obtaining, 
                        interpreting, or assessing genetic 
                        information); or
                          ``(iii) genetic education.
                  ``(E) 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) 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).''.
          (3) Effective date.--The amendments made by this subsection 
        shall apply with respect to an issuer of a medicare 
        supplemental policy for policy years beginning on or after the 
        date that is 18 months after the date of enactment of this Act.
    (c) Transition Provisions.--
          (1) In general.--If the Secretary of Health and Human 
        Services identifies a State as requiring a change to its 
        statutes or regulations to conform its regulatory program to 
        the changes made by this section, the State regulatory program 
        shall not be considered to be out of compliance with the 
        requirements of section 1882 of the Social Security Act due 
        solely to failure to make such change until the date specified 
        in paragraph (4).
          (2) NAIC standards.--If, not later than June 30, 2008, the 
        National Association of Insurance Commissioners (in this 
        subsection referred to as the ``NAIC'') modifies its NAIC Model 
        Regulation relating to section 1882 of the Social Security Act 
        (referred to in such section as the 1991 NAIC Model Regulation, 
        as subsequently modified) to conform to the amendments made by 
        this section, such revised regulation incorporating the 
        modifications shall be considered to be the applicable NAIC 
        model regulation (including the revised NAIC model regulation 
        and the 1991 NAIC Model Regulation) for the purposes of such 
        section.
          (3) Secretary standards.--If the NAIC does not make the 
        modifications described in paragraph (2) within the period 
        specified in such paragraph, the Secretary of Health and Human 
        Services shall, not later than October 1, 2008, make the 
        modifications described in such paragraph and such revised 
        regulation incorporating the modifications shall be considered 
        to be the appropriate regulation for the purposes of such 
        section.
          (4) Date specified.--
                  (A) In general.--Subject to subparagraph (B), the 
                date specified in this paragraph for a State is the 
                earlier of--
                          (i) the date the State changes its statutes 
                        or regulations to conform its regulatory 
                        program to the changes made by this section, or
                          (ii) October 1, 2008.
                  (B) Additional legislative action required.--In the 
                case of a State which the Secretary identifies as--
                          (i) requiring State legislation (other than 
                        legislation appropriating funds) to conform its 
                        regulatory program to the changes made in this 
                        section, but
                          (ii) having a legislature which is not 
                        scheduled to meet in 2008 in a legislative 
                        session in which such legislation may be 
                        considered, the date specified in this 
                        paragraph is the first day of the first 
                        calendar quarter beginning after the close of 
                        the first legislative session of the State 
                        legislature that begins on or after July 1, 
                        2008. For purposes of the previous sentence, in 
                        the case of a State that has a 2-year 
                        legislative session, each year of such session 
                        shall be deemed to be a separate regular 
                        session of the State legislature.

SEC. 104. PRIVACY AND CONFIDENTIALITY.

    (a) Rules for Public Health Service Act and Internal Revenue Code 
of 1986.--
          (1) Applicability.--Except as provided in paragraph (4), the 
        provisions of this subsection shall apply to group health plans 
        (other than group health plans to which section 714 of the 
        Employee Retirement Income Security Act of 1974 applies), 
        health insurance issuers (including issuers in connection with 
        group health plans or individual health coverage), and issuers 
        of medicare supplemental policies, without regard to--
                  (A) section 2721(a) of the Public Health Service Act 
                (42 U.S.C. 300gg-21(a)); and
                  (B) section 9831(a)(2) of the Internal Revenue Code 
                of 1986.
          (2) Compliance with certain confidentiality standards with 
        respect to genetic information.--
                  (A) In general.--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) shall apply to the use or disclosure of 
                genetic information.
                  (B) Prohibition on underwriting and premium rating.--
                Notwithstanding subparagraph (A), a group health plan, 
                a health insurance issuer, or issuer of a medicare 
                supplemental policy shall not use or disclose genetic 
                information (including information about a request for 
                or a receipt of genetic services by an individual or 
                family member of such individual) for purposes of 
                underwriting, determinations of eligibility to enroll, 
                premium rating, or the creation, renewal or replacement 
                of a plan, contract or coverage for health insurance or 
                health benefits.
          (3) Prohibition on collection of genetic information.--
                  (A) In general.--A group health plan, health 
                insurance issuer, or issuer of a medicare supplemental 
                policy shall not request, require, or purchase genetic 
                information (including information about a request for 
                or a receipt of genetic services by an individual or 
                family member of such individual) for purposes of 
                underwriting, determinations of eligibility to enroll, 
                premium rating, or the creation, renewal or replacement 
                of a plan, contract or coverage for health insurance or 
                health benefits.
                  (B) Limitation relating to the collection of genetic 
                information prior to enrollment.--A group health plan, 
                health insurance issuer, or issuer of a medicare 
                supplemental policy shall not request, require, or 
                purchase genetic information (including information 
                about a request for or a receipt of genetic services by 
                an individual or family member of such individual) 
                concerning a participant, beneficiary, or enrollee 
                prior to the enrollment, and in connection with such 
                enrollment, of such individual under the plan, 
                coverage, or policy.
                  (C) Incidental collection.--Where a group health 
                plan, health insurance issuer, or issuer of a medicare 
                supplemental policy obtains genetic information 
                incidental to the requesting, requiring, or purchasing 
                of other information concerning a participant, 
                beneficiary, or enrollee, such request, requirement, or 
                purchase shall not be considered a violation of this 
                paragraph if--
                          (i) such request, requirement, or purchase is 
                        not in violation of subparagraph (A); and
                          (ii) any genetic information (including 
                        information about a request for or receipt of 
                        genetic services) requested, required, or 
                        purchased is not used or disclosed in violation 
                        of paragraph (2).
          (4) Application of confidentiality standards.--The provisions 
        of paragraphs (2) and (3) shall not apply--
                  (A) to group health plans, health insurance issuers, 
                or issuers of medicare supplemental policies that are 
                not otherwise covered under 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); and
                  (B) to genetic information that is not considered to 
                be individually-identifiable health information under 
                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).
          (5) Enforcement.--A group health plan, health insurance 
        issuer, or issuer of a medicare supplemental policy that 
        violates a provision of this subsection shall be subject to the 
        penalties described in sections 1176 and 1177 of the Social 
        Security Act (42 U.S.C. 1320d-5 and 1320d-6) in the same manner 
        and to the same extent that such penalties apply to violations 
        of part C of title XI of such Act.
          (6) Preemption.--
                  (A) In general.--A provision or requirement under 
                this subsection or a regulation promulgated under this 
                subsection shall supersede any contrary provision of 
                State law unless such provision of State law imposes 
                requirements, standards, or implementation 
                specifications that are more stringent than the 
                requirements, standards, or implementation 
                specifications imposed under this subsection or such 
                regulations. No penalty, remedy, or cause of action to 
                enforce such a State law that is more stringent shall 
                be preempted by this subsection.
                  (B) Rule of construction.--Nothing in subparagraph 
                (A) shall be construed to establish a penalty, remedy, 
                or cause of action under State law if such penalty, 
                remedy, or cause of action is not otherwise available 
                under such State law.
          (7) Coordination with privacy regulations.--The Secretary 
        shall implement and administer this subsection in a manner that 
        is consistent with the implementation and administration by the 
        Secretary of 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).
          (8) Definitions.--In this subsection:
                  (A) Genetic information; genetic services.--The terms 
                ``family member'', ``genetic information'', ``genetic 
                services'', and ``genetic test'' have the meanings 
                given such terms in section 2791 of the Public Health 
                Service Act (42 U.S.C. 300gg-91), as amended by this 
                Act.
                  (B) Group health plan; health insurance issuer.--The 
                terms ``group health plan'' and ``health insurance 
                issuer'' include only those plans and issuers that are 
                covered under the regulations described in paragraph 
                (4)(A).
                  (C) Issuer of a medicare supplemental policy.--The 
                term ``issuer of a medicare supplemental policy'' means 
                an issuer described in section 1882 of the Social 
                Security Act (42 U.S.C. 1395ss).
                  (D) Secretary.--The term ``Secretary'' means the 
                Secretary of Health and Human Services.
    (b) Amendments to ERISA.--
          (1) In general.--Subpart B of part 7 of subtitle B of title I 
        of the Employee Retirement Income Security Act of 1974 is 
        amended by adding after section 713 (29 U.S.C. 1185b) the 
        following new section:

``SEC. 714. PRIVACY AND CONFIDENTIALITY OF GENETIC INFORMATION.

    ``(a) Applicability.--Except as provided in subsection (d), the 
provisions of this section shall apply to group health plans, and 
health insurance issuers offering health insurance coverage in 
connection with such plans, without regard to section 732(a).
    ``(b) Prohibition on Underwriting, Eligibility Termination, Premium 
Rating, and Plan Formulation.--Notwithstanding section 104(a)(2)(A) of 
the Genetic Information Nondiscrimination Act of 2007, a group health 
plan, or a health insurance issuer offering health insurance coverage 
in connection with such a plan, shall not use or disclose genetic 
information (including information about a request for or a receipt of 
genetic services by an individual or family member of such individual) 
for purposes of underwriting, determinations of eligibility to enroll, 
premium rating, or the creation, renewal, or replacement of a group 
health plan or health insurance coverage offered in connection with 
such a plan.
    ``(c) Prohibition on Collection of Genetic Information.--
          ``(1) In general.--A group health plan, or a health insurance 
        issuer offering health insurance coverage in connection with 
        such a plan, shall not request, require, or purchase genetic 
        information (including information about a request for or a 
        receipt of genetic services by an individual or family member 
        of such individual) for purposes of underwriting, 
        determinations of eligibility to enroll, premium rating, or the 
        creation, renewal or replacement of a plan, contract or 
        coverage for health insurance or health benefits.
          ``(2) Limitation relating to the collection of genetic 
        information prior to enrollment.--A group health plan, or a 
        health insurance issuer offering health insurance coverage in 
        connection with such a plan, shall not request, require, or 
        purchase genetic information (including information about a 
        request for or a receipt of genetic services by an individual 
        or family member of such individual) concerning a participant 
        or beneficiary prior to the enrollment, and in connection with 
        such enrollment, of such participant or beneficiary under the 
        plan or coverage.
          ``(3) Incidental collection.--Where a group health plan, or a 
        health insurance issuer offering health insurance coverage in 
        connection with such a plan, obtains genetic information 
        incidental to the requesting, requiring, or purchasing of other 
        information concerning a participant or beneficiary, such 
        request, requirement, or purchase shall not be considered a 
        violation of this subsection if--
                  ``(A) such request, requirement, or purchase is not 
                in violation of paragraph (1); and
                  ``(B) any genetic information (including information 
                about a request for or receipt of genetic services) 
                requested, required, or purchased is not used or 
                disclosed in violation of subsection (b).
    ``(d) Application of Confidentiality Standards.--The provisions of 
subsections (b) and (c) shall not apply--
          ``(1) to group health plans, or health insurance issuers 
        offering health insurance coverage in connection with such 
        plans, that are not otherwise covered under 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); and
          ``(2) to genetic information that is not considered to be 
        individually-identifiable health information under 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).
    ``(e) Definitions.--In this section:
          ``(1) Genetic information; genetic services.--The terms 
        `family member', `genetic information', `genetic services', and 
        `genetic test' have the meanings given such terms in section 
        733(d).
          ``(2) Group health plan; health insurance issuer.--The terms 
        `group health plan' and `health insurance issuer' include only 
        those plans and issuers that are covered under the regulations 
        described in subsection (d)(1).''.
          (2) Preemption.--Section 731 of such Act (29 U.S.C. 1191) is 
        amended--
                  (A) by redesignating subsections (c) and (d) as 
                subsections (d) and (e), respectively;
                  (B) in subsection (a)(1), by striking ``subsection 
                (b)'' and inserting ``subsections (b) and (c)''; and
                  (C) by inserting after subsection (b) the following 
                new subsection:
    ``(c) Special Rules Relating to Privacy and Confidentiality of 
Genetic Information.--
          ``(1) In general.--A provision or requirement under section 
        714 or a regulation promulgated under such section shall 
        supersede any contrary provision of State law unless such 
        provision of State law imposes requirements, standards, or 
        implementation specifications that are more stringent than the 
        requirements, standards, or implementation specifications 
        imposed under such section or such regulations. No penalty, 
        remedy, or cause of action to enforce such a State law that is 
        more stringent shall be preempted by such section.
          ``(2) Rule of construction.--Nothing in paragraph (1) shall 
        be construed to establish a penalty, remedy, or cause of action 
        under State law if such penalty, remedy, or cause of action is 
        not otherwise available under such State law.''.
          (3) Conforming amendment.--The table of contents in section 1 
        of such Act is amended by inserting after the item relating to 
        section 713 the following new item:

``Sec. 714.  Privacy and confidentiality of genetic information.''.

SEC. 105. ASSURING COORDINATION.

    (a) In General.--Except as provided in subsection (b), 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.
    (b) Authority of the Secretary.--The Secretary of Health and Human 
Services has the sole authority to promulgate regulations to implement 
section 104(a).

SEC. 106. REGULATIONS; EFFECTIVE DATE.

    (a) Regulations.--Not later than 1 year after the date of enactment 
of this title, the Secretary of Health and Human Services, the 
Secretary of Labor, and the Secretary of the Treasury shall issue final 
regulations to carry out this title.
    (b) Effective Date.--Except as provided in section 103, the 
amendments made by this title shall take effect on the date that is 18 
months after the date of enactment of this Act.

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) the spouse of the individual;
                  (B) a dependent child of the individual; and
                  (C) any other individual who is a first-degree, 
                second-degree, third-degree, or fourth-degree relative 
                of an individual described in subparagraph (A) or (B).
          (4) Genetic information.--
                  (A) In general.--Except as provided in subparagraph 
                (B), the term ``genetic information'' means information 
                about--
                          (i) an individual's genetic tests;
                          (ii) the genetic tests of family members of 
                        the individual; or
                          (iii) the occurrence of a disease or disorder 
                        in family members of the individual.
                  (B) Exceptions.--The term ``genetic information'' 
                shall not include information about the sex or age of 
                an 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 the 
                analysis of human DNA, RNA, chromosomes, proteins, or 
                metabolites, that detects genotypes, mutations, or 
                chromosomal changes.
                  (B) Exception.--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 information about a request for or 
        the receipt of genetic services by such employee or family 
        member of such 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 (or 
        information about a request for or the receipt of genetic 
        services by such employee or family member of such 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 (or information about a request for the receipt of genetic 
services by such employee or a family member of such employee) except--
          (1) where an employer inadvertently requests or requires 
        family medical history of the employee or family member of the 
        employee;
          (2) where--
                  (A) health or genetic services are offered by the 
                employer, including such services offered as part of a 
                bona fide wellness program;
                  (B) the employee provides prior, knowing, voluntary, 
                and written authorization;
                  (C) only the employee (or family member if the family 
                member is receiving genetic services) and the licensed 
                health care professional or board certified genetic 
                counselor involved in providing such services receive 
                individually identifiable information concerning the 
                results of such services; and
                  (D) any individually identifiable genetic information 
                provided under subparagraph (C) in connection with the 
                services provided under subparagraph (A) is only 
                available for purposes of such services and shall not 
                be disclosed to the employer except in aggregate terms 
                that do not disclose the identity of specific 
                employees;
          (3) where an employer requests or requires family medical 
        history from the employee to comply with the certification 
        provisions of section 103 of the Family and Medical Leave Act 
        of 1993 (29 U.S.C. 2613), 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; 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 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;
    (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) 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 (or information 
        about a request for or the receipt of genetic services by such 
        individual or family member of such 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 information about a request for 
        or the receipt of genetic services by such individual or family 
        member of such 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 (or information about a request for the 
receipt of genetic services by such individual or a family member of 
such individual) except--
          (1) where an employment agency inadvertently requests or 
        requires family medical history of the individual or family 
        member of the individual;
          (2) where--
                  (A) health or genetic services are offered by the 
                employment agency, including such services offered as 
                part of a bona fide wellness program;
                  (B) the individual provides prior, knowing, 
                voluntary, and written authorization;
                  (C) only the individual (or family member if the 
                family member is receiving genetic services) and the 
                licensed health care professional or board certified 
                genetic counselor involved in providing such services 
                receive individually identifiable information 
                concerning the results of such services; and
                  (D) any individually identifiable genetic information 
                provided under subparagraph (C) in connection with the 
                services provided under subparagraph (A) is only 
                available for purposes of such services and shall not 
                be disclosed to the employment agency except in 
                aggregate terms that do not disclose the identity of 
                specific individuals;
          (3) where an employment agency requests or requires family 
        medical history from the individual to comply with the 
        certification provisions of section 103 of the Family and 
        Medical Leave Act of 1993 (29 U.S.C. 2613) or such requirements 
        under State family and medical leave laws;
          (4) where an employment agency purchases documents that are 
        commercially and publicly available (including newspapers, 
        magazines, periodicals, and books, but not including medical 
        databases or court records) that include family medical 
        history; or
          (5) where the information involved is to be used for genetic 
        monitoring of the biological effects of toxic substances in the 
        workplace, but only if--
                  (A) the employment agency provides written notice of 
                the genetic monitoring to the individual;
                  (B)(i) the individual provides prior, knowing, 
                voluntary, and written authorization; or
                  (ii) the genetic monitoring is required by Federal or 
                State law;
                  (C) the individual is informed of individual 
                monitoring results;
                  (D) the monitoring is in compliance with--
                          (i) any Federal genetic monitoring 
                        regulations, including any such regulations 
                        that may be promulgated by the Secretary of 
                        Labor pursuant to the Occupational Safety and 
                        Health Act of 1970 (29 U.S.C. 651 et seq.), the 
                        Federal Mine Safety and Health Act of 1977 (30 
                        U.S.C. 801 et seq.), or the Atomic Energy Act 
                        of 1954 (42 U.S.C. 2011 et seq.); or
                          (ii) State genetic monitoring regulations, in 
                        the case of a State that is implementing 
                        genetic monitoring regulations under the 
                        authority of the Occupational Safety and Health 
                        Act of 1970 (29 U.S.C. 651 et seq.); and
                  (E) the employment agency, excluding any licensed 
                health care professional or board certified genetic 
                counselor that is involved in the genetic monitoring 
                program, receives the results of the monitoring only in 
                aggregate terms that do not disclose the identity of 
                specific individuals;
    (c) Preservation of Protections.--In the case of information to 
which any of paragraphs (1) through (5) of subsection (b) applies, such 
information may not be used in violation of paragraph (1) or (2) 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 (or 
        information about a request for or the receipt of genetic 
        services by such member or family member of such 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 information 
        about a request for or the receipt of genetic services by such 
        member or family member of such 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 (or information about a request for the receipt of 
genetic services by such member or a family member of such member) 
except--
          (1) where a labor organization inadvertently requests or 
        requires family medical history of the member or family member 
        of the member;
          (2) where--
                  (A) health or genetic services are offered by the 
                labor organization, including such services offered as 
                part of a bona fide wellness program;
                  (B) the member provides prior, knowing, voluntary, 
                and written authorization;
                  (C) only the member (or family member if the family 
                member is receiving genetic services) and the licensed 
                health care professional or board certified genetic 
                counselor involved in providing such services receive 
                individually identifiable information concerning the 
                results of such services; and
                  (D) any individually identifiable genetic information 
                provided under subparagraph (C) in connection with the 
                services provided under subparagraph (A) is only 
                available for purposes of such services and shall not 
                be disclosed to the labor organization except in 
                aggregate terms that do not disclose the identity of 
                specific members;
          (3) where a labor organization requests or requires family 
        medical history from the members to comply with the 
        certification provisions of section 103 of the Family and 
        Medical Leave Act of 1993 (29 U.S.C. 2613) or such requirements 
        under State family and medical leave laws;
          (4) where a labor organization purchases documents that are 
        commercially and publicly available (including newspapers, 
        magazines, periodicals, and books, but not including medical 
        databases or court records) that include family medical 
        history; or
          (5) where the information involved is to be used for genetic 
        monitoring of the biological effects of toxic substances in the 
        workplace, but only if--
                  (A) the labor organization provides written notice of 
                the genetic monitoring to the member;
                  (B)(i) the member provides prior, knowing, voluntary, 
                and written authorization; or
                  (ii) the genetic monitoring is required by Federal or 
                State law;
                  (C) the member is informed of individual monitoring 
                results;
                  (D) the monitoring is in compliance with--
                          (i) any Federal genetic monitoring 
                        regulations, including any such regulations 
                        that may be promulgated by the Secretary of 
                        Labor pursuant to the Occupational Safety and 
                        Health Act of 1970 (29 U.S.C. 651 et seq.), the 
                        Federal Mine Safety and Health Act of 1977 (30 
                        U.S.C. 801 et seq.), or the Atomic Energy Act 
                        of 1954 (42 U.S.C. 2011 et seq.); or
                          (ii) State genetic monitoring regulations, in 
                        the case of a State that is implementing 
                        genetic monitoring regulations under the 
                        authority of the Occupational Safety and Health 
                        Act of 1970 (29 U.S.C. 651 et seq.); and
                  (E) the labor organization, excluding any licensed 
                health care professional or board certified genetic 
                counselor that is involved in the genetic monitoring 
                program, receives the results of the monitoring only in 
                aggregate terms that do not disclose the identity of 
                specific members;
    (c) Preservation of Protections.--In the case of information to 
which any of paragraphs (1) through (5) of subsection (b) applies, such 
information may not be used in violation of paragraph (1) or (2) 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 (or information 
        about a request for or the receipt of genetic services by such 
        individual or a family member of such 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 information about a request for or receipt of genetic 
        services by such individual or family member of such 
        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 (or information about a request 
for the receipt of genetic services by such individual or a family 
member of such individual) except--
          (1) where the employer, labor organization, or joint labor-
        management committee inadvertently requests or requires family 
        medical history of the individual or family member of the 
        individual;
          (2) where--
                  (A) health or genetic services are offered by the 
                employer, labor organization, or joint labor-management 
                committee, including such services offered as part of a 
                bona fide wellness program;
                  (B) the individual provides prior, knowing, 
                voluntary, and written authorization;
                  (C) only the individual (or family member if the 
                family member is receiving genetic services) and the 
                licensed health care professional or board certified 
                genetic counselor involved in providing such services 
                receive individually identifiable information 
                concerning the results of such services; and
                  (D) any individually identifiable genetic information 
                provided under subparagraph (C) in connection with the 
                services provided under subparagraph (A) is only 
                available for purposes of such services and shall not 
                be disclosed to the employer, labor organization, or 
                joint labor-management committee except in aggregate 
                terms that do not disclose the identity of specific 
                individuals;
          (3) where the employer, labor organization, or joint labor-
        management committee requests or requires family medical 
        history from the individual to comply with the certification 
        provisions of section 103 of the Family and Medical Leave Act 
        of 1993 (29 U.S.C. 2613) or such requirements under State 
        family and medical leave laws;
          (4) where the employer, labor organization, or joint labor-
        management committee purchases documents that are commercially 
        and publicly available (including newspapers, magazines, 
        periodicals, and books, but not including medical databases or 
        court records) that include family medical history; 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 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;
    (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) or (2) 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 (or information about a request for or receipt of 
genetic services by such employee or member or family member of such 
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 (or 
information about a request for or receipt of genetic services by such 
employee or member or family member of such employee or member) 
except--
          (1) to the employee or member of a labor organization (or 
        family member if the family member is receiving the genetic 
        services) at the written request of the employee or member of 
        such organization;
          (2) to an occupational or other health researcher if the 
        research is conducted in compliance with the regulations and 
        protections provided for under part 46 of title 45, Code of 
        Federal Regulations;
          (3) in response to an order of a court, except that--
                  (A) the employer, employment agency, labor 
                organization, or joint labor-management committee may 
                disclose only the genetic information expressly 
                authorized by such order; and
                  (B) if the court order was secured without the 
                knowledge of the employee or member to whom the 
                information refers, the employer, employment agency, 
                labor organization, or joint labor-management committee 
                shall inform the employee or member of the court order 
                and any genetic information that was disclosed pursuant 
                to such order;
          (4) to government officials who are investigating compliance 
        with this title if the information is relevant to the 
        investigation; or
          (5) to the extent that such disclosure is made in connection 
        with the employee's compliance with the certification 
        provisions of section 103 of the Family and Medical Leave Act 
        of 1993 (29 U.S.C. 2613) or such requirements under State 
        family and medical leave laws.

SEC. 207. REMEDIES AND ENFORCEMENT.

    (a) Employees Covered by Title VII of the Civil Rights Act of 
1964.--
          (1) In general.--The powers, remedies, and procedures 
        provided in sections 705, 706, 707, 709, 710, and 711 of the 
        Civil Rights Act of 1964 (42 U.S.C. 2000e-4 et seq.) to the 
        Commission, the Attorney General, or any person, alleging a 
        violation of title VII of that Act (42 U.S.C. 2000e et seq.) 
        shall be the powers, remedies, and procedures this title 
        provides to the Commission, the Attorney General, or any 
        person, respectively, alleging an unlawful employment practice 
        in violation of this title against an employee described in 
        section 201(2)(A)(i), except as provided in paragraphs (2) and 
        (3).
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes of the United States (42 U.S.C. 1988), shall 
        be powers, remedies, and procedures this title provides to the 
        Commission, the Attorney General, or any person, alleging such 
        a practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes of the United States 
        (42 U.S.C. 1981a), including the limitations contained in 
        subsection (b)(3) of such section 1977A, shall be powers, 
        remedies, and procedures this title provides to the Commission, 
        the Attorney General, or any person, alleging such a practice 
        (not an employment practice specifically excluded from coverage 
        under section 1977A(a)(1) of the Revised Statutes of the United 
        States).
    (b) Employees Covered by Government Employee Rights Act of 1991.--
          (1) In general.--The powers, remedies, and procedures 
        provided in sections 302 and 304 of the Government Employee 
        Rights Act of 1991 (42 U.S.C. 2000e-16b, 2000e-16c) to the 
        Commission, or any person, alleging a violation of section 
        302(a)(1) of that Act (42 U.S.C. 2000e-16b(a)(1)) shall be the 
        powers, remedies, and procedures this title provides to the 
        Commission, or any person, respectively, alleging an unlawful 
        employment practice in violation of this title against an 
        employee described in section 201(2)(A)(ii), except as provided 
        in paragraphs (2) and (3).
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes of the United States (42 U.S.C. 1988), shall 
        be powers, remedies, and procedures this title provides to the 
        Commission, or any person, alleging such a practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes of the United States 
        (42 U.S.C. 1981a), including the limitations contained in 
        subsection (b)(3) of such section 1977A, shall be powers, 
        remedies, and procedures this title provides to the Commission, 
        or any person, alleging such a practice (not an employment 
        practice specifically excluded from coverage under section 
        1977A(a)(1) of the Revised Statutes of the United States).
    (c) Employees Covered by Congressional Accountability Act of 
1995.--
          (1) In general.--The powers, remedies, and procedures 
        provided in the Congressional Accountability Act of 1995 (2 
        U.S.C. 1301 et seq.) to the Board (as defined in section 101 of 
        that Act (2 U.S.C. 1301)), or any person, alleging a violation 
        of section 201(a)(1) of that Act (42 U.S.C. 1311(a)(1)) shall 
        be the powers, remedies, and procedures this title provides to 
        that Board, or any person, alleging an unlawful employment 
        practice in violation of this title against an employee 
        described in section 201(2)(A)(iii), except as provided in 
        paragraphs (2) and (3).
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes of the United States (42 U.S.C. 1988), shall 
        be powers, remedies, and procedures this title provides to that 
        Board, or any person, alleging such a practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes of the United States 
        (42 U.S.C. 1981a), including the limitations contained in 
        subsection (b)(3) of such section 1977A, shall be powers, 
        remedies, and procedures this title provides to that Board, or 
        any person, alleging such a practice (not an employment 
        practice specifically excluded from coverage under section 
        1977A(a)(1) of the Revised Statutes of the United States).
          (4) Other applicable provisions.--With respect to a claim 
        alleging a practice described in paragraph (1), title III of 
        the Congressional Accountability Act of 1995 (2 U.S.C. 1381 et 
        seq.) shall apply in the same manner as such title applies with 
        respect to a claim alleging a violation of section 201(a)(1) of 
        such Act (2 U.S.C. 1311(a)(1)).
    (d) Employees Covered by Chapter 5 of Title 3, United States 
Code.--
          (1) In general.--The powers, remedies, and procedures 
        provided in chapter 5 of title 3, United States Code, to the 
        President, the Commission, the Merit Systems Protection Board, 
        or any person, alleging a violation of section 411(a)(1) of 
        that title, shall be the powers, remedies, and procedures this 
        title provides to the President, the Commission, such Board, or 
        any person, respectively, alleging an unlawful employment 
        practice in violation of this title against an employee 
        described in section 201(2)(A)(iv), except as provided in 
        paragraphs (2) and (3).
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes of the United States (42 U.S.C. 1988), shall 
        be powers, remedies, and procedures this title provides to the 
        President, the Commission, such Board, or any person, alleging 
        such a practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes of the United States 
        (42 U.S.C. 1981a), including the limitations contained in 
        subsection (b)(3) of such section 1977A, shall be powers, 
        remedies, and procedures this title provides to the President, 
        the Commission, such Board, or any person, alleging such a 
        practice (not an employment practice specifically excluded from 
        coverage under section 1977A(a)(1) of the Revised Statutes of 
        the United States).
    (e) Employees Covered by Section 717 of the Civil Rights Act of 
1964.--
          (1) In general.--The powers, remedies, and procedures 
        provided in section 717 of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e-16) to the Commission, the Attorney General, the 
        Librarian of Congress, or any person, alleging a violation of 
        that section shall be the powers, remedies, and procedures this 
        title provides to the Commission, the Attorney General, the 
        Librarian of Congress, or any person, respectively, alleging an 
        unlawful employment practice in violation of this title against 
        an employee or applicant described in section 201(2)(A)(v), 
        except as provided in paragraphs (2) and (3).
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes of the United States (42 U.S.C. 1988), shall 
        be powers, remedies, and procedures this title provides to the 
        Commission, the Attorney General, the Librarian of Congress, or 
        any person, alleging such a practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes of the United States 
        (42 U.S.C. 1981a), including the limitations contained in 
        subsection (b)(3) of such section 1977A, shall be powers, 
        remedies, and procedures this title provides to the Commission, 
        the Attorney General, the Librarian of Congress, or any person, 
        alleging such a practice (not an employment practice 
        specifically excluded from coverage under section 1977A(a)(1) 
        of the Revised Statutes of the United States).
    (f) Definition.--In this section, the term ``Commission'' means the 
Equal Employment Opportunity Commission.

SEC. 208. DISPARATE IMPACT.

    (a) General Rule.--Notwithstanding any other provision of this Act, 
``disparate impact'', as that term is used in section 703(k) of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e-2(k)), on the basis of 
genetic information does not establish a cause of action under this 
Act.
    (b) Commission.--On the date that is 6 years after the date of 
enactment of this Act, there shall be established a commission, to be 
known as the Genetic Nondiscrimination Study Commission (referred to in 
this section as the ``Commission'') to review the developing science of 
genetics and to make recommendations to Congress regarding whether to 
provide a disparate impact cause of action under this Act.
    (c) Membership.--
          (1) In general.--The Commission shall be composed of 8 
        members, of which--
                  (A) 1 member shall be appointed by the Majority 
                Leader of the Senate;
                  (B) 1 member shall be appointed by the Minority 
                Leader of the Senate;
                  (C) 1 member shall be appointed by the Chairman of 
                the Committee on Health, Education, Labor, and Pensions 
                of the Senate;
                  (D) 1 member shall be appointed by the ranking 
                minority member of the Committee on Health, Education, 
                Labor, and Pensions of the Senate;
                  (E) 1 member shall be appointed by the Speaker of the 
                House of Representatives;
                  (F) 1 member shall be appointed by the Minority 
                Leader of the House of Representatives;
                  (G) 1 member shall be appointed by the Chairman of 
                the Committee on Education and Labor of the House of 
                Representatives; and
                  (H) 1 member shall be appointed by the ranking 
                minority member of the Committee on Education and Labor 
                of the House of Representatives.
          (2) Compensation and expenses.--The members of the Commission 
        shall not receive compensation for the performance of services 
        for the Commission, but shall be allowed travel expenses, 
        including per diem in lieu of subsistence, at rates authorized 
        for employees of agencies under subchapter I of chapter 57 of 
        title 5, United States Code, while away from their homes or 
        regular places of business in the performance of services for 
        the Commission.
    (d) Administrative Provisions.--
          (1) Location.--The Commission shall be located in a facility 
        maintained by the Equal Employment Opportunity Commission.
          (2) Detail of government employees.--Any Federal Government 
        employee may be detailed to the Commission without 
        reimbursement, and such detail shall be without interruption or 
        loss of civil service status or privilege.
          (3) Information from federal agencies.--The Commission may 
        secure directly from any Federal department or agency such 
        information as the Commission considers necessary to carry out 
        the provisions of this section. Upon request of the Commission, 
        the head of such department or agency shall furnish such 
        information to the Commission.
          (4) Hearings.--The Commission may hold such hearings, sit and 
        act at such times and places, take such testimony, and receive 
        such evidence as the Commission considers advisable to carry 
        out the objectives of this section, except that, to the extent 
        possible, the Commission shall use existing data and research.
          (5) Postal services.--The Commission may use the United 
        States mails in the same manner and under the same conditions 
        as other departments and agencies of the Federal Government.
    (e) Report.--Not later than 1 year after all of the members are 
appointed to the Commission under subsection (c)(1), the Commission 
shall submit to Congress a report that summarizes the findings of the 
Commission and makes such recommendations for legislation as are 
consistent with this Act.
    (f) Authorization of Appropriations.--There are authorized to be 
appropriated to the Equal Employment Opportunity Commission such sums 
as may be necessary to carry out this section.

SEC. 209. CONSTRUCTION.

    (a) In General.--Nothing in this title shall be construed to--
          (1) limit the rights or protections of an individual under 
        any other Federal or State statute that provides equal or 
        greater protection to an individual than the rights or 
        protections provided for under this title, including the 
        protections of an individual under the Americans with 
        Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) (including 
        coverage afforded to individuals under section 102 of such Act 
        (42 U.S.C. 12112)), or under the Rehabilitation Act of 1973 (29 
        U.S.C. 701 et seq.);
          (2)(A) limit the rights or protections of an individual to 
        bring an action under this title against an employer, 
        employment agency, labor organization, or joint labor-
        management committee for a violation of this title; or
          (B) provide for enforcement of, or penalties for violation 
        of, any requirement or prohibition applicable to any employer, 
        employment agency, labor organization, or joint labor-
        management committee the enforcement of which, or penalties for 
        which, are provided under the amendments made by title I;
          (3) apply to the Armed Forces Repository of Specimen Samples 
        for the Identification of Remains;
          (4) limit or expand the protections, rights, or obligations 
        of employees or employers under applicable workers' 
        compensation laws;
          (5) limit the authority of a Federal department or agency to 
        conduct or sponsor occupational or other health research that 
        is conducted in compliance with the regulations contained in 
        part 46 of title 45, Code of Federal Regulations (or any 
        corresponding or similar regulation or rule);
          (6) limit the statutory or regulatory authority of the 
        Occupational Safety and Health Administration or the Mine 
        Safety and Health Administration to promulgate or enforce 
        workplace safety and health laws and regulations; or
          (7) require any specific benefit for an employee or member or 
        a family member of an employee or member under any group health 
        plan or health insurance issuer offering group health insurance 
        coverage in connection with a group health plan.
    (b) Genetic Information of a Fetus.--Any reference in this title to 
genetic information about or with respect to an employee, individual, 
or family member of an individual shall, with respect to such an 
employee, individual, or family member of an individual who is a 
pregnant woman, include genetic information of any fetus carried by 
such pregnant woman.

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 PROVISION

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.

                               I. Purpose

    The purpose of this legislation is to protect individuals 
from discrimination in health insurance and employment on the 
basis of genetic information. Establishing these protections 
will allay concerns about the potential for discrimination and 
encourage individuals to participate in genetic research and to 
take advantage of genetic testing and new therapies. The 
legislation will provide substantive protections to those 
individuals who may suffer from actual genetic discrimination 
now and in the future. These steps are essential to fulfilling 
the promise of the human genome project and improving the 
health and longevity of the American people.

    II. Committee Action Including Legislative History and Votes in 
                               Committee


                         104TH-108TH CONGRESSES

    Congresswoman Louise Slaughter introduced the first genetic 
information bill during the 104th Congress. The Genetic 
Information Nondiscrimination in Health Insurance Act of 1995, 
H.R. 2748, garnered 76 cosponsors.
    During the 104th, the Senate Committee on Health, 
Education, Labor and Pensions began to hold hearings on the 
topic. The first hearing examined the public policy 
implications of advances in genetics research. In 1996, the 
Congress took a first step toward passing comprehensive genetic 
nondiscrimination legislation as part of the Health Insurance 
Portability and Accountability Act (HIPAA). HIPAA was signed 
into law in 1996 (P.L. 104-191; August 21, 1996). It prohibits 
discrimination against an individual in a group based on health 
status, including genetic information, and it primarily applies 
to group health plans and health insurance issuers in the group 
market.
    Congresswoman Slaughter reintroduced the Genetic 
Information Nondiscrimination in Health Insurance Act in the 
105th Congress as H.R. 306 with 213 cosponsors. Mrs. Slaughter 
filed a Motion to Discharge Committee on 6/11/1998 (Petition 
No: 105-4), but the motion was not considered.
    In the 106th Congress, Congresswoman Slaughter introduced 
the Genetic Nondiscrimination in Health Insurance and 
Employment Act of 1999, H.R. 2457, on July 1, 1999 and garnered 
164 cosponsors. The bill was reintroduced in the 107th Congress 
on February 13, 2001, as H.R. 602 with 266 cosponsors.

                             108TH CONGRESS

    The Genetic Nondiscrimination in Health Insurance and 
Employment Act, H.R. 1910, was introduced by Congresswoman 
Slaughter on May 1, 2003 and garnered 242 cosponsors. The bill 
was referred to the Committees on Education and the Workforce, 
Energy and Commerce and Ways and Means. The Subcommittee on 
Employer-Employee Relations of this Committee held a hearing on 
``Genetic Non-Discrimination: Examining the Implications for 
Workers and Employers'' on July 22, 2004. Witnesses testifying 
included: Dr. Kathy Hudson, Director, The Genetic and Public 
Policy Center, Johns Hopkins University, Washington, DC; Dr. 
Jane Massey Licata, partner, Licata & Tyrell, Marlton, New 
Jersey; Lawrence Lorber, partner, Proskauer Rose, on behalf of 
the US Chamber of Commerce, Washington, DC; and Tom Wildsmith, 
chairman, Genetic Testing Taskforce, American Academy of 
Actuaries, Washington, DC.

                             109TH CONGRESS

    The Genetic Information Nondiscrimination Act of 2005, H.R. 
1227, was introduced by Congresswoman Judy Biggert on March 10, 
2005 and garnered 244 cosponsors. No action was taken in the 
House during the 109th Congress.

                             110TH CONGRESS

    The Genetic Information Nondiscrimination Act of 2007, H.R. 
493, was introduced by Congresswoman Slaughter on January 16, 
2007. The bill has 205 cosponsors. The bill was referred to the 
Committees on Education and Labor, Energy and Commerce and Ways 
and Means. The Subcommittee on Health, Employment, Labor and 
Pensions held a hearing on January 30, 2007. The witnesses 
included: Congresswoman Louise Slaughter; Congresswoman Judy 
Biggert; Karen Rothenberg, Dean and Marjorie Cook Professor of 
Law, University of Maryland School of Law, Baltimore, MD; David 
Escher, former employee, Burlington Northern Santa Fe Railroad, 
Reno, NV; Harriet Pearson, Vice President, Corporate Affairs 
and Chief Privacy Officer, IBM Corporation, Washington, DC; and 
Burton J. Fishman, Partner, Fortney Scott, Genetic Information 
Nondiscrimination in Employment (GINE) Coalition, Washington, 
DC.

                   FULL COMMITTEE MARK-UP OF HR. 493

    On February 14, 2007, the Committee on Education and Labor 
convened to markup H.R. 493, the Genetic Information 
Nondiscrimination Act. An amendment in the nature of a 
substitute was offered by Chairman Miller. An amendment to 
coordinate the recordkeeping requirements for genetic 
information with other laws was offered by Mr. Kline and 
accepted by unanimous consent. An amendment to specify 
application of the bill to a ``child to be born'' offered by 
Reps. Wahlberg and Hoekstra was defeated by a vote of 20 to 27. 
The Committee voted to report favorably H.R. 493 by voice vote.

                        III. Summary of the Bill


         THE GENETIC INFORMATION NONDISCRIMINATION ACT OF 2007

         Title I--Genetic Nondiscrimination in Health Insurance

    The legislation applies to employer-sponsored group health 
plans, health insurance issuers in the group and individual 
markets, Medigap insurance, and State and local non-federal 
governmental plans.

Nondiscrimination in enrollment and group premiums

Group health plan protections

    The Employee Retirement and Security Act (ERISA) currently 
prohibits a group health plan or health insurance issuer 
offering coverage in connection with a group health plan from 
discriminating against an individual in the group in setting 
eligibility or premium or contribution amounts based on the 
individual's genetic information.
    This legislation clarifies that genetic information 
includes ``information about a request for or a receipt of 
genetic services by an individual or family member of such 
individual.'' It also prohibits a health insurance issuer 
offering health coverage in connection with a group health plan 
from adjusting premium or contribution amounts for a group on 
the basis of genetic information concerning an individual in 
the group or a family member of the individual.

Individual health insurance market protections

    The bill prohibits health insurance issuers in the 
individual market from using genetic information about 
enrollees or their family members to adjust premium or 
contribution amounts, using genetic information as a condition 
of eligibility for insurance coverage.

Medicare supplemental protections

    The bill prohibits an issuer of a Medicare supplemental 
policy from denying or conditioning the issuance of a policy, 
or discriminating in the price of the policy, based on genetic 
information.

Limitation on requesting or requiring genetic testing

    Group health plans, health insurance issuers in the group 
and individual market, and issuers of Medicare supplemental 
policies covered under this Title are prohibited from 
requesting or requiring an individual to take a genetic test. 
The legislation makes it clear that this provision is not 
intended to interfere with the delivery of health care 
services. For instance, the provision does not limit the 
authority of the treating health care professional to request 
that an individual or family member undergo a genetic test. Nor 
does it limit the authority of a health care professional who 
is employed by or affiliated with a health plan or issuer from 
notifying an individual about genetic tests or providing 
information about a genetic test, if such actions are carried 
out as part of a bona fide wellness program. However, the 
legislation does prohibit a health care professional from 
requiring that an individual undergo a genetic test.

Privacy and confidentiality of genetic information

    The HHS Standards for Privacy of Individually Identifiable 
Health Information (medical privacy regulations) (45 CFR Parts 
160 and 164; final rule) protect the use and disclosure of all 
individually-identifiable health information, including genetic 
information. However, a permitted ``use'' of health information 
under the privacy rules (i.e., a specific item under ``health 
care operations'') is underwriting, a practice that is 
inherently discriminatory. HR 493 expressly bans the use or 
disclosure of genetic information for purposes of underwriting. 
In addition, the bill bans health plans and insurance issuers 
from collecting (i.e., requesting or requiring) genetic 
information in the first place for purposes of underwriting.
    The bill further protects the privacy of genetic 
information by prohibiting plans and insurance issuers from 
collecting (i.e., requesting, requiring, or purchasing) genetic 
information prior to enrollment under the plan.

Enforcement

    Title I generally uses the same mechanisms to enforce the 
protections established under this legislation as apply to 
other violations of these underlying statutes (i.e. the 
Employee Retirement Income Security Act (ERISA), Public Health 
Service Act (PHSA), and Social Security Act). In addition, the 
bill ensures that similarly situated individuals are provided 
the same protection under the law, regardless of whether they 
are currently sick or disabled, or currently healthy. All 
individuals (healthy and sick) have genetic information that 
could be used to discriminate against them.
    With respect to the nondiscrimination requirements, the 
bill is based on the same penalty and enforcement structure as 
Title I of HIPAA, which addresses insurance portability and 
discrimination based on health-status. Aggrieved participants 
may seek redress either from the Secretary of Labor or the 
courts.
    In addition, for group health plans and health insurance 
issuers in the individual and group markets, the appropriate 
Secretary may impose penalties of $100 per day/per person, with 
a minimum penalty of $2,500--up to $15,000 for multiple 
violations that are more than de minimis with an outside cap of 
up to $500,000 for a violation of the protections against 
genetic discrimination.
    With regard to the privacy provisions established by this 
legislation, the same enforcement structure and penalties 
created by the Social Security Act for the HHS privacy 
standards. Under this legislation, the genetic privacy 
provisions are enforced by the HHS Office of Civil Rights. The 
Secretary of HHS may impose civil monetary penalties of $100 
per violation--up to $250,000 and 10 years in prison for 
violations committed for commercial advantage, personal gain, 
or malicious harm.

Title II--Prohibiting Employment Discrimination on the Basis of Genetic 
                              Information


Prohibition on discrimination

    The legislation prohibits the use of genetic information in 
employment decisions, such as hiring, firing, job assignments, 
and promotions. This prohibition extends to employers, unions, 
employment agencies, and labor-management training programs.

Limitation on acquisition

    Employers, labor organizations, employment agencies, and 
joint labor-management committees are prohibited from 
requesting, requiring, or purchasing genetic information about 
an employee or family member, except for the following 
legitimate reasons: (1) for genetic monitoring of biological 
effects of toxic substances in the workplace, (2) if the 
employer provides genetic services, such as through a wellness 
program, with the employee's prior consent, or (3) for 
compliance with the certification provision of the Family and 
Medical Leave Act or its state equivalent. The purchase of 
commercially and publicly available documents or inadvertently 
requesting or requiring family medical history would not 
violate this title. Under each of these exceptions, however, 
the genetic information still could not be used or disclosed.

Confidentiality protections

    The legislation safeguards the confidentiality of genetic 
information in the employment setting. If an employer (acting 
as an employer) acquires genetic information, such information 
shall be treated and maintained as part of the employee's 
confidential medical records. Moreover, such information shall 
not be disclosed except in limited situations, such as to the 
individual or in order to comply with the certification 
provisions of Federal or State family and medical leave laws, 
or a court order.

Enforcement

    The legislation protects applicants or employees of 
employers defined under the Civil Rights Act of 1964 (42 U.S.C. 
2000e(f)), State employees, Federal employees, Congressional 
employees, and employees as defined in 3 U.S.C. 411(c)0. 
Aggrieved individuals are required to file a charge with the 
appropriate enforcement agency within a certain time period, 
prior to filing a suit in court. The bill provides for the same 
compensatory and punitive damages available to prevailing 
plaintiffs under 42 U.S.C. 1981a.

Disparate impact

    The bill does not cover claims based on disparate impact 
and establishes a commission to review the science of genetics 
and advise the Congress on the need for establishing a separate 
disparate impact cause of action in the future.

      DEFINITIONS--(GENERALLY APPLY TO BOTH TITLE I AND TITLE II)

    Genetic information is defined to include information about 
an individual's genetic tests; the genetic tests of family 
members of the individual; or the occurrence of a disease or 
disorder in family members of the individual. Genetic 
information does not include information about the sex or age 
of an individual for purposes of this legislation.
    Genetic test is defined as an analysis of DNA, RNA, 
chromosomes, proteins, or metabolites, that detects genotypes, 
mutations, or chromosomal changes. A genetic test does not mean 
an analysis of (1) proteins or metabolites that does not detect 
genotypes, mutations, or chromosomal changes; or (2) 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. The second exception to genetic test only applies to 
Title I of the legislation.
    Genetic Services is defined as a genetic test; genetic 
counseling (including obtaining, interpreting, or assessing 
genetic information), or genetic education.
    Family Member includes the spouse of an individual, a 
dependent child, and any other individual who is a first 
degree, second degree, third degree or fourth degree individual 
described above.

                        Title III--Severability

    If a court strikes down a provision of the bill, it shall 
not affect the legality of other provisions of the bill.

                   IV. Statement and Committee Views


                      SEQUENCING THE HUMAN GENOME

    Although genetic science has been developing rapidly over 
the past 20 years, one of the most prominent symbols of our 
newfound understanding of genetics was the announcement in 
April 2003 that a vast team of scientists had determined the 
exact sequence of the human genetic code and placed that 
information in public databases. Each day, the practice of 
medicine is benefiting from new discoveries about the links 
between genetic mutations and particular diseases.
    This new understanding of the genetic basis of disease 
holds dangers as well as opportunities. The knowledge that a 
person carries a mutation in a disease-related gene may be used 
to inform future medical treatment or as a stimulus to seek 
preventive care; that same knowledge, however, could also be 
used for harmful purposes. A health insurance company might 
wrongly view the presence of the gene mutation to mean that the 
person would definitely contract the disease with which that 
gene is associated and improperly deny that person insurance 
coverage. An employer might use information about an employee's 
genetic profile to deny employment to an individual who is 
healthy and able to perform the job.
    With these misconceptions so prevalent, employers may come 
to rely on genetic testing to ``weed out'' those employees who 
carry genes associated with diseases. Similarly, genetic traits 
may come to be used by health insurance companies to deny 
coverage to those who are seen as ``bad genetic risks.'' 
Enabling employers, health insurers and others to base 
decisions about individuals on the characteristics that are 
assumed to be their genetic destiny would be an undesirable 
outcome of our national investment in genetic research, and may 
significantly diminish the benefits that this research offers.

              CONCERNS ABOUT MISUSE OF GENETIC INFORMATION

    The appropriate use of genetic information offers enormous 
opportunities to save lives and prevent the onset of disease. 
However, the medical progress made possible by genetic research 
is dependent on the willingness of study volunteers and 
patients to undergo genetic testing. Yet, such consent may be 
difficult to obtain today. Fears about the possible misuse or 
unauthorized disclosure of genetic information appear to 
adversely impact the desire of individuals to participate in 
genetic research. Such fears also extend to clinical practice, 
discouraging both patients and providers from taking full 
advantage of genetic tests and technologies.
    A study conducted from 2001 to 2003, by Mr. Mark Hall and 
published in Genetic Med., surveyed 86,859 adults about their 
willingness to undergo genetic testing. The results revealed 
that 40 percent felt genetic testing was not a good idea for 
fear that health insurance companies might deny or drop them 
from their insurance plan.
    The Genetics and Public Policy Center at Johns Hopkins 
University conducted similar surveys. In 2002, 85 percent of 
those surveyed did not want employers to have access to their 
genetic information. By 2004, that number had risen to 92 
percent. In 2002, 68 percent of those surveyed said their 
genetic information should be kept private from health 
insurers; by 2004, it had increased to 80 percent.
    A 2003 study of 470 people with a family history of 
colorectal cancer showed that nearly half rated their level of 
concern about genetic discrimination as ``high.'' Those 
individuals with high levels of concern indicated that they 
would be significantly less likely to consider meeting with a 
health care professional to discuss genetic testing, or to 
undergo testing, thus jeopardizing their ability to prevent 
this deadly disease (Mr. D.W. Hadley, et. al., Journal of 
Clinical Oncology).
    In a recent 2006 Cogent Research poll, 66 percent of 
respondents said they had concerns about how their genetic 
information would be stored and who would have access. Sixty-
five percent said they were concerned about health insurance 
companies, and 54 percent were concerned with employers gaining 
unauthorized access. Seventy-two percent agreed that the 
government should establish laws and regulations to protect the 
privacy of individuals' genetic information. And 85% said that 
without amending the law, employers would discriminate.
    Health care professionals are also hesitant to make their 
genetic information available. In one survey of genetic 
counselors, 108 out of 159 indicated that they would not submit 
charges for a genetic test to their insurance companies 
primarily because of the fear of discrimination. Twenty-five 
percent responded that they would use an alias to obtain a 
genetic test so as to reduce the risk of discrimination and 
maximize confidentiality. And 60 percent indicated they would 
not share the information with a colleague because of the need 
for privacy and fear of job discrimination. (E.T. Matloff, et. 
al., Journal of Clinical Oncology, 2000.)

       FEDERAL LAW ON GENETIC DISCRIMINATION IN HEALTH INSURANCE

    The Health Insurance Portability and Accountability Act 
(HIPAA) affords some protection against discriminatory 
practices in health insurance based on an individual's genetic 
information. In general, HIPAA ensures that individuals who 
change health insurance carriers (usually after switching jobs 
or losing employment) do not have their coverage denied or 
unduly restricted because of preexisting medical conditions. 
HIPAA also prohibits a health insurance carrier from charging 
one individual within a group higher rates than other 
``similarly situated'' individuals in the same group or 
determining eligibility to enroll in health insurance coverage, 
based on a health status-related factor. HIPAA includes genetic 
information as part of its definition of a ``health status-
related factor'' which cannot be used to deny coverage, and 
excludes genetic information (in the absence of a diagnosis) 
from its definition of a preexisting medical condition. 
Nonetheless, the Act has several important limitations in 
protecting Americans against genetic discrimination in health 
insurance. First, its protections against denying coverage on 
the basis of factors related to health status apply only to the 
group insurance market. HIPAA does not address discrimination 
in the individual market, and state laws vary considerably with 
regard to restrictions on using genetic information to set 
premiums or determine eligibility. In addition, HIPAA does not 
prohibit an insurance company from raising the premiums for the 
group health plan as a whole, based on the genetic information 
of an individual in that group.

    FEDERAL PROTECTIONS AGAINST GENETIC DISCRIMINATION IN EMPLOYMENT

    Federal employees have considerable protection against 
genetic discrimination under the terms of Executive Order 13145 
issued on February 10, 2000, 65 CFR 6877. Under this order, 
Federal employees may not be discharged or otherwise subjected 
to restrictions in their employment or their employment-related 
benefits on the basis of protected genetic information. The 
Executive Order also provides protections against improper 
collection of employees' genetic information and against 
unauthorized disclosure of that information. Despite these 
protections, the Executive Order has no enforcement provisions.
    Most employees in the private sector, however, enjoy no 
similar protections. In hearings, the Committee heard testimony 
that existing Federal employment laws, the Americans with 
Disabilities Act (ADA) and Title VII of the Civil Rights Act of 
1964 (Title VII) provide limited or uncertain protections 
against the discriminatory use of genetic information in the 
workplace.

               TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

    Title VII of the Civil Rights Act of 1964 makes it illegal 
for an employer, labor organization, employment agency, or 
training program to ``discriminate against any individual * * * 
because of such individual's race, color, religion, sex, or 
national origin.'' While this law provides express guarantees 
against discrimination on the basis of these characteristics, 
its applicability to genetic discrimination is limited. The 
plain language of the statute provides no obvious protection 
against genetic discrimination. Still, Title VII may indirectly 
offer some protections against discrimination on the basis of a 
person's genetic makeup when that discrimination 
disproportionately affects individuals on the basis of one of 
the characteristics specified in the Act.
    For example, the genetic mutation associated with Tay-Sachs 
Disease is found most commonly in persons with an Eastern 
European Jewish ethnic background. If an employer were to 
selectively refuse to hire carriers of the Tay-Sachs mutation, 
this actionwould have a disproportionate effect on people with 
a specific national or ethnic origin. In this limited circumstance, the 
individuals experiencing such discrimination might have a claim under 
Title VII. However, for acts of genetic discrimination that do not have 
a discriminatory effect on members of class of individuals named in the 
Civil Rights Act, Title VII would provide no apparent protection.

                  STATE LAW ON GENETIC DISCRIMINATION

    To fill the void created by the absence of clear 
protections at the Federal level, many states have enacted laws 
that seek to prohibit genetic discrimination in health 
insurance and/or employment. To date, 34 states have passed 
laws on genetic discrimination in employment and 46 have passed 
laws on genetic discrimination in health insurance (see, 
National Conference of State Legislatures Genetic Technologies 
Project). Among the states that prohibit discrimination in the 
issuing of health insurance, many cover only the group health 
insurance market and exclude individual health insurance 
policies, while others do the reverse. Many states exclude 
family medical histories from their definition of genetic 
information or include only the results of tests that are 
performed with announced intention of detecting genetic 
mutations.

         Title I--Genetic Nondiscrimination in Health Insurance


     AMENDMENTS TO EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974

    The Committee recognizes that ERISA Section 702(a)(1)(F) 
and 702(b) currently prohibit a group health plan and a health 
insurance issuer offering group health insurance coverage in 
connection with a group health plan from discriminating--in 
eligibility for enrollment or premium contributions--against an 
individual in the group based on the individual's health 
status-related factors, including genetic information. With 
this section, the Committee intends to clarify and expand these 
protections, and the remedies and enforcement provided for 
these protections, for group health plan participants and 
beneficiaries governed by ERISA.

                            GENETIC SERVICES

    The Committee believes that, in addition to discrimination 
based on actual genetic information, there is potential for 
discrimination based on the mere action of requesting or 
receiving a genetic service. For example, a health plan could 
potentially assume that a participant has a genetic disorder, 
such as Huntington's disease, because the participant, or his 
or her family member, requested or received a genetic test for 
the disease. This provision clarifies, within the existing 
prohibition banning discrimination in enrollment against an 
individual in the group, that the term genetic information 
includes ``information about a request for or receipt of 
genetics services by an individual or family member of such 
individual.''
    The Committee's interpretation regarding the inclusion of 
``information about a request for or receipt of genetics 
services by an individual or family member of such individual'' 
applies in each section in which this provision appears, 
including Sec. 102(a)(1)(B) with respect to health insurance 
issuers offering coverage in connection with a group health 
plan, Sec. 2753(a) with respect to a health insurance issuer in 
the individual market, Section 103(a)(2) with respect to group 
health plans governed by the Internal Revenue Code, and Section 
104 with respect to an issuer of a Medicare supplemental 
policy.
    The Committee believes that fear of discrimination in 
health insurance and employment is causing large numbers of 
people to opt out of participating in clinical research for 
treatments of genetic diseases. Fewer participants in genetic 
research lead to slower development of treatments, beneficial 
drugs, and cures. The Committee seeks to provide assurances 
that participants in genetic clinical trials will not be 
subject to genetic discrimination in health insurance and 
employment. Therefore, the Committee intends for this 
legislation to prohibit discrimination on the basis of 
participation in clinical research that involves subjects with 
an elevated genetic risk for disease.
    Similar concerns exist in the growing field of genetic 
counseling and advice. It has been reported that many 
individuals avoid even the most general genetic services for 
fear of the consequences. The Committee bill seeks to protect 
all genetic counseling or advice to consider or pursue medical 
interventions to reduce risk of future onset of hereditary 
diseases.

        DISCRIMINATION IN PREMIUMS AGAINST THE GROUP AS A WHOLE

    While current law protects individuals in a group from 
being charged premiums or contributions that are higher than 
the premiums or contributions for similarly situated 
individuals, there is no such protection in current law for the 
group as a whole. Thus, this section prohibits a health 
insurance issuer offering health coverage in connection with a 
group health plan from adjusting premium or contribution 
amounts for a group on the basis of genetic information 
concerning an individual in the group or a family member of the 
individual.

                     LIMITATION ON GENETIC TESTING

    Section 101(b) places limits on a group health plan's 
ability to request or require an individual, or the family 
member of the individual, to take a genetic test. As the 
decision to take a genetic test is a personal one influenced by 
many factors, including whether any treatment exists for a 
particular disease, the Committee included this prohibition to 
ensure that individuals would not feel compelled to take a 
genetic test. However, the Committee also wishes to ensure that 
this provision does not interfere with health care practices 
that could be beneficial to the individual. Accordingly, 
several clarifications of this provision are included in the 
legislation. For instance this provision does not limit in any 
manner the authority of the treating health care professional 
to request that an individual or family member undergo a 
genetic test. However, the treating health care professional 
may not require the individual or family member to undergo a 
genetic test.
    The Committee believes that, given different motivations by 
and perceptions of health plans versus treating health care 
professionals, this distinction is warranted. However, the 
Committee is also aware that some health plans go beyond the 
insurance function and engage in wellness and disease 
management programs; and the Committee does not wish to 
discourage such efforts. Thus, Section 101(b) makes clear that 
this legislation does not limit the authority of a health care 
professional who is employed by or affiliated with the group 
health plan or health insurance issuer who is providing health 
care services to the enrolled individual as part of a bona fide 
wellness program from notifying such individual about the 
availability of a genetic test or providing information about 
the genetic test.
    The provision prohibiting a health plan from requesting or 
requiring an individual to undergo a genetic test was included 
to protect health plan participants from actions that would 
allow a health plan to obtain genetic information to be used 
for the purposes of insurance discrimination. It only addresses 
the act of requesting or requiring an individual to undergo a 
test. The Committee recognizes that this provision does not 
address the use, disclosure, or collection of existing test 
results and intends for the flow of genetic information to be 
governed by the HHS medical privacy rules and Section 104 of 
Title I of this legislation.

                        ENFORCEMENT AND REMEDIES

    The Committee modified the provisions of the bill with 
respect to remedies. HR 493 as introduced relied on ERISA's 
existing enforcement scheme plus the addition of specific 
injunctive relief requirements and administrative penalties to 
protect victims of genetic information discrimination and 
related violations. While the Committee supports clarifying and 
strengthening the legal protections afforded to individuals 
under ERISA, the Committee was concerned that providing relief 
solely for genetic information violations would create an 
uneven legal structure and could be interpreted to undermine 
existing ERISA enforcement.
    The Committee is painfully aware of the narrow 
interpretation that the courts have given to the remedies 
available for violations of ERISA. The Committee reiterates its 
view that ERISA itself and its legislative history demonstrate 
that Congress used the terms ``appropriate relief'' or 
``appropriate equitable relief'' intending for those terms to 
be interpreted broadly so as to provide meaningful redress to 
aggrieved individuals.
    The Committee does not find it practicable to use genetic 
information legislation to address broader weaknesses resulting 
from judicial interpretations of ERISA's enforcement scheme. 
For this reason, the bill reported by the Committee relies on 
the existing enforcement scheme to redress violations of the 
Act. Enforcement of this section relies on section 502 of 
ERISA, which provides ERISA plan participants with a private 
right of action, as well as Secretarial enforcement mechanisms.
    The bill encourages the Secretary of Labor to assist 
individuals aggrieved under the Act and provides the Secretary 
specific monetary penalty authority to redress and discourage 
violations of the law.

                      PRIVACY AND CONFIDENTIALITY

    In general, the Committee believes that treating all health 
information in a consistent or similar matter will encourage 
third-party payers to cover genetics tests, technologies, and 
services. Consistent treatment of all medical information is 
important in enabling genetics to become part of main stream 
medicine. Thus, the Committee has concluded, especially with 
respect to the ``use and disclosure'' of information, that it 
is inherently difficult to separate genetic information from 
other medical information in the delivery of health care and 
medical research, and therefore inconsistent rules for the 
``use and disclosure'' of different categories of health 
information would likely be burdensome and potentially harmful 
to patient care.
    The legislation generally recognizes that the HHS medical 
privacy regulations apply to the ``use and disclosure'' of 
genetic information, provided that such regulations are not in 
conflict with this Title. However, a provision in the medical 
privacy regulations pertaining to underwriting and insurance 
rating is inherently discriminatory, and thus inconsistent with 
the purpose of this legislation. Specifically, there is a 
provision in the privacy regulations, under the heading of 
``health care operations,'' that allows, without prior consent, 
a covered entity to ``use or disclose'' genetic information for 
purposes of premium rating, underwriting, or establishing or 
renewing a contract for coverage or insurance. Since one of the 
purposes of this legislation is to prevent discrimination in 
premium rates, this provision prohibits a plan or issuer from 
using or disclosing genetic information for purposes of 
underwriting, determining eligibility to enroll, premium 
rating, or the creation, renewal or replacement of a plan, 
contract or coverage for health insurance or benefits.
    In addition, the legislation states that a covered entity 
shall not request, require, or purchase genetic information 
concerning a participant, beneficiary, or enrollee prior to the 
enrollment and in connection with such enrollment under the 
plan, coverage, or policy. This language was included because 
the HHS medical privacy regulations presume that covered health 
care entities possess health care information and thus the 
regulations focus on the ``use and disclosure'' of protected 
health information. Since health insurance issuers typically 
treat underwriting as a separate business function and process 
from coverage decisions and medical management, the Committee 
believes that this important layer of protection will not 
adversely impact the delivery of patient care and health care 
improvement activities.
    The Committee believes that if a covered entity is barred 
from using or disclosing genetic information for purposes of 
underwriting, it should not be able to collect such information 
in the first place as part of the underwriting, application, or 
some other pre-enrollment process or interaction. Underwriting 
includes modification or imposition of preexisting condition 
exclusion periods or other coverage limitations.
    However, the Committee also recognizes that there may be 
situations in which a health plan or insurance issuer obtains 
genetic information prior to enrollment, but not in connection 
with that particular enrollment. For instance, an individual 
seeking coverage under a plan currently may have been enrolled 
in the plan previously, and therefore the plan has likely, in 
making coverage determinations or conducting disease management 
activities, collected genetic information prior to the 
individual's current enrollment. Or, if a family member of an 
individual enrolling for coverage under a plan is already a 
member of the plan, such plan would likely have collected 
genetic information ``prior to enrollment.'' The Committee does 
not intend to prohibit this type of collection and thus 
includes in the legislation the phrase ``and in connection with 
such enrollment'' to clarify. However, the Committee emphasizes 
that, regardless of the means by which genetic information is 
collected, whether in connection with enrollment or not, 
Sections 101-103 of the legislation prohibits health plans and 
health insurance issuers from using genetic information to 
adjust premiums or determine eligibility.
    The Committee understands that genetic information 
permeates health information and that covered entities may 
inadvertently or unintentionally acquire genetic information. 
For instance, a health insurance issuer may purchase another 
health plan and all of its medical records, or request medical 
records or previously taken lab tests for purposes of 
underwriting. Or, in filling out an application for insurance 
that includes a medical questionnaire, an individual may 
voluntarily offer additional health information, such as family 
medical information which is considered genetic information 
under this bill. Thus, a provision addressing ``incidental 
collection'' is included in the legislation to make clear that 
if a plan, or an issuer obtains genetic information incidental 
to the requesting, requiring, or purchasing of other 
information concerning an individual, such request, 
requirement, or purchase shall not be considered a violation if 
it is not obtained for purposes of underwriting and any genetic 
information obtained incidentally is not used or disclosed in 
violation of the HHS medical privacy regulations.
    The legislation applies to all group health plans and 
issuers that are otherwise covered by the HHS medical privacy 
rules. Therefore, there are a very limited number of plans and 
issuers that are covered by the nondiscrimination provisions of 
this bill, but not under this section (such as a group health 
plan with less than 50 participants that self-administers). The 
Committee believes that since the privacy provisions contained 
in this legislation are inextricably linked to and coordinated 
with the HHS privacy regulations, it would be difficult for an 
entity to comply with the requirements of this section without 
also complying with all of the medical privacy regulations. The 
Committee did not wish to introduce for the first time such a 
substantial burden on very small plans. Covered entities under 
the genetic privacy and confidentiality standards of this 
legislation are subject to the same penalties and enforcement 
structure that exist for the HHS privacy regulations under 
sections 1176 and 1177 of the Social Security Act.
    The Committee believes that long term care insurance is not 
intended to be subject to Section 104. Since benefits for long 
term care are ``excepted benefits'' under Section 733(c)(2)(B) 
of ERISA, Section 2791(c)(2)(B) of the PHSA, and Section 
9832(c)(2)(B) of the Internal Revenue Code, it has never been 
the intent of the bill to subject long term care insurance to 
any of the bill's prohibitions with respect to health insurance 
discrimination on the basis of genetic information or genetic 
services.

                          Title II--Employment


                              DEFINITIONS

    As a guiding principle, the Genetic Information 
Nondiscrimination Act of 2007 is designed to extend to 
individuals in the area of genetic discrimination the same 
procedures and remedies as are provided under Title VII of the 
Civil Rights Act of 1964, as amended. These individuals include 
employees and applicants working in the private sector, in 
federal and state governments (including presidential and 
gubernatorial appointees), as well as congressional employees. 
The corresponding employers of these individuals, as well as 
employment agencies, labor organizations, and joint labor-
management committees are covered by the legislation in the 
same manner as current law.
    As in Title I of the legislation, ``genetic information'' 
is defined as information about an individual's or family 
member's genetic tests, or information about the occurrence of 
a disease or disorder in family members of the individual. 
Likewise, ``genetic test'' is defined in the same way under 
Titles I and II, except that the Employment title does not 
include an exception for an analysis that is directly related 
to a manifested disease, disorder, or pathological condition. 
In making this distinction, the Committee recognizes there are 
important and necessary uses for non-genetic health information 
in the health insurance setting that are not applicable in the 
employment context.
    Section 210 specifically provides that the parties ``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.''
    As stated in the discussion of Title I, the Committee 
realizes that a family medical history could be used as a 
surrogate for genetic traits by a health plan or health 
insurance issuer. A consistent history of a heritable disease 
in a patient's family may be viewed to indicate that the 
patient himself or herself is at increased risk for that 
disease. For this reason, the Committee deems it important to 
include family medical history in the definition of ``genetic 
information.'' In so doing, the Committee followed the 
recommendations of numerous leading experts in genetic science. 
Further, the bill applies to spouses and adopted children of an 
individual because of the potential discrimination an employee 
or member could face because of an employer's or other 
entities' concern over potential medical or other costs and 
their effect on insurance rates.

                          PROHIBITED PRACTICES

    Generally, employers, labor organizations, employment 
agencies, and joint labor-management committees are prohibited 
from using, acquiring or disclosing the genetic information of 
an individual or his/her family members.

Use of genetic information

    ``Use'' of genetic information, as drafted in the 
legislation, utilizes the language of Section 703 of the Civil 
Rights Act of 1964, as amended, and the same forms of 
discriminatory acts are outlawed. These acts include refusing 
to hire or discharging a person based on the genetic 
information including family history of disease. For example, 
it would be unlawful for an employer to refuse to hire an 
otherwise healthy applicant because of a fear that he may 
develop Parkinson's disease because of a family history of such 
disease. The prohibition also extends to limiting, segregating, 
or classifying an individual in a way that would deprive him or 
her of employment opportunities.

Acquisition of genetic information

    Banning the use of genetic information alone would not 
reach the full range of serious concerns that the Genetic 
Information Nondiscrimination Act is seeking to address. The 
Committee recognizes that the fear of misuse of genetic 
information and privacy concerns deter individuals from being 
tested for genetic disorders, seeking genetic services, or 
participating in important genetic research. Scientific 
advances in the field of genetics hold great promise for 
medical prevention and new treatments and therapies. As a 
matter of sound public policy, the Committee is concerned that 
this promise will go unfulfilled if individuals decline to get 
genetic tests or seek genetic counseling out of fear that they 
will face discrimination in their employment.
    To this end, the legislation makes it unlawful for an 
employer, labor organization, employment agency, or joint 
labor-management committee to request, require, or purchase 
genetic information, except under limited circumstances. Most 
notably, this prohibition addresses the concerns raised in the 
case against Burlington Northern Santa Fe Railroad (BNSF). The 
company, allegedly without employees' consent or knowledge, 
conducted genetic tests on blood samples it had previously 
received from some workers. The U.S. Equal Employment 
Opportunity Commission filed suit against the company under the 
Americans with Disabilities Act, relying on the third prong of 
the definition of ``disability'' as ``being regarded as having 
such an impairment.'' The case was ultimately settled so the 
courts have not had the opportunity to interpret the full 
application of the ``regarded as'' prone to genetics 
discrimination.
    The unlawful employment practices specified under section 
202 (a)(1) and (2) prohibit employer conduct directed at 
prospective employees in the hiring process, current employees 
of the employer and former employees. The prohibited practices 
are intended to be very broad, making it an unlawful practice 
to refuse to hire or to discharge an employee on the basis of 
genetic information or to discriminate against an employee with 
respect to compensation, terms, conditions and privileges of 
employment on the basis of that information. Also unlawful are 
any employment practices that would limit, segregate or 
classify an employee in any way that would deprive the employee 
of employment opportunities or otherwise adversely affect the 
status of the employee on the basis of genetic information.
    The Committee intends this bill to prohibit the practice of 
utilizing genetic information in the evaluation and 
determination of eligibility of a claim for workers 
compensation for a work-related injury or illness, as was done 
in the Burlington-Northern and Santa Fe Railway Company (BNSF) 
case; a case which prompted passage of this bill. In BNSF, the 
employer sought to require employees to undergo genetic tests 
in the evaluation of carpal tunnel syndrome related to 
employment. Although the company denied that it had engaged in 
any unlawful practice with respect to the collection of genetic 
information, the U.S. Equal Employment Opportunity Commission 
mediated a $2.2 million dollar settlement on behalf of 36 
affected workers. The EEOC considered the mere gathering of 
employees' genetic information to constitute a violation of the 
Americans with Disabilities Act. The Committee believes that 
section 202 clearly prohibits such a practice. The prohibition 
on the use of genetic information for the evaluation of a work-
related injury or illness or determination of eligibility for 
workers compensation is intended to apply to employers and any 
entity or person acting on the employer's behalf.
    The first exception addresses the so-called ``water cooler 
problem,'' in which an employer unwittingly receives otherwise 
protected genetic information in the form of family medical 
history through casual conversations with a worker. The 
Committee recognizes that conversations among co-workers about 
the health of a family member are common and intends to prevent 
such normal interaction from becoming the basis of litigation 
under this Act. Without the exception, the Committee is 
concerned that discussion in the workplace of a family member's 
health condition that is genetically based could be interpreted 
as an employer requesting or requiring genetic information from 
an individual. Under the legislation, an employer, labor 
organization, employment agency, or joint labor-management 
committee will not violate the ban on acquiring genetic 
information where it ``inadvertently requests or requires 
family medical history'' of the individual or family member of 
the individual.
    The second exception--which preserves employer-sponsored 
wellness programs--is necessary to achieve the bill's stated 
goal of encouraging employees to take advantage of genetic 
technologies and opportunities to improve human health without 
fear of discrimination by their employer. To qualify for the 
exception, this program must be a bona fide wellness program as 
defined under Section 702 of ERISA. Participation in the 
program must be voluntary and confidential, and safeguards must 
be in place to ensure that the sponsoring employer, labor 
organization, employment agency, or joint labor-management 
committee does not have access to individually identifiable 
health information, as defined under the HHS medical privacy 
regulations.
    The Committee did not want restrictions on information 
about the health condition of a family member to conflict with 
the certification procedures under federal and state family and 
medical leave laws. For example, an employee seeking time off 
to care for a sick family member may be required to certify the 
request with a note from the treating physician. The doctor's 
note may contain genetic information, which is defined for the 
purposes of this legislation to include family medical history. 
The third exception eliminates the potential for conflict with 
existing laws by exempting requests or requirements for family 
medical history when sought ``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.''
    The Committee recognizes that family medical history can 
easily and inadvertently be obtained. The fourth exception, 
like the first, relates to the inadvertent acquisition of 
family medical history. The Committee is concerned that the 
proscriptions of the legislation would be violated, for 
example, through the purchase of a local newspaper containing 
the obituary of an employee's parent who died of breast cancer. 
This exception was included to satisfy the principle underlying 
the bill that the rules be clear and that the bill not provide 
a basis for frivolous claims. Specifically, the fourth 
exception provides an exemption where an employer, labor 
organization, employment agency, 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.'' In 
referring to ``documents,'' the Committee is mindful of Rule 34 
of the Federal Rules of Civil Procedure that includes the same 
materials that are electronically available.
    The final exception to the rule against requesting, 
requiring, or purchasing genetic information protects genetic 
monitoring of biological effects of toxic substances in the 
workplace, but only in limited circumstances. The employer, 
labor organization, employment agency, or joint labor-
management committee must give written notice. Unless the 
monitoring is required by federal or state law, the individual 
must provide prior, knowing, voluntary and written 
authorization. The individual must be provided the results of 
the monitoring. The monitoring must be conducted in compliance 
with any genetic monitoring regulations, whether promulgated 
under the Occupational Safety and Health Act (or its state 
equivalent), the Federal Mine Safety and Health Act, or the 
Atomic Energy Act. Finally, the monitoring results may only be 
disclosed to the employer, labor organization, employment 
agency, or joint labor-management committee in the aggregate 
and where no individually identifiable information is included. 
Regardless of whether an exception applies, the bill makes 
clear that genetic information, once acquired, may not be used 
or disclosed in violation of the legislation.

Confidentiality of genetic information

    Faced with concerns about the disclosure of confidential 
genetic information, individuals may not take advantage of 
genetic tests, services or counseling, or participate in 
genetic research. The Committee believes that there are very 
few instances when an employer,labor organization, employment 
agency, or joint labor-management committee would have a legitimate 
need to divulge the genetic information that may be in its possession. 
The legislation adopts the general rule that such information shall be 
maintained on separate forms and in separate medical files and be 
treated as a confidential medical record. This system is intended to be 
consistent with the ADA's requirements regarding the maintenance and 
treatment of medical information.
    Also as a general rule, an employer, labor organization, 
employment agency, or joint labor-management committee is 
prohibited under this legislation from disclosing genetic 
information. Both for practical reasons and in order not to 
subject these entities to conflicting legal obligations, five 
exceptions have been included in the legislation. The genetic 
information may be provided directly to an individual who 
receives genetic services. The information may also be 
disclosed to an occupational or health researcher for research 
in compliance with 45 CFR Part 46, in response to a court order 
(with certain limitations), to government officials 
investigating compliance with this title, and in connection 
with federal or state family and medical leave certification 
provisions.

                        REMEDIES AND ENFORCEMENT

    The Committee recognizes that an effective remedial scheme 
and proper enforcement are a necessary element in ensuring that 
the protections in this legislation are realized in the 
workplace.
    To this end, the Committee has taken advantage of the 
expertise and process of the EEOC. The legislation protects 
applicants or employees of employers defined under the Civil 
Rights Act of 1964, 42 U.S.C. 2000e(f), state employees, 
federal employees, Congressional employees, and employees as 
defined in 3 U.S.C. 411(c). Claimants are required to file a 
charge with the appropriate enforcement agency, within a 
certain time period, prior to filing a suit in court. The bill 
provides for the same compensatory and punitive damages 
available to prevailing plaintiffs under 42 U.S.C. 1981a.
    Because the legislation expressly covers state employees, 
the Committee notes the record of state discrimination in 
genetics. Based on early genetic science, states enacted laws 
that provided for the sterilization of ``undesirable'' 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. In the years following, many 
States enacted legislation that either incorporated provisions 
or drew inspiration from the first sterilization law. 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. The Supreme Court's earliest decision on 
the constitutionality of state sterilization statutes certainly 
does not reflect contemporary norms, but the case has never 
been officially overruled by the Court. Skinner v. Oklahoma, 
316 U.S. 535 (1942). 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.

                              CONSTRUCTION

    The Committee clarified the rules of construction of this 
bill with other existing laws and added a provision making 
clear that nothing in Title II should be construed to 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. This same 
exception was included in Executive Order 13145.

                     V. Section-by-Section Analysis


        Title I--Genetic Non-Discrimination in Health Insurance

    Sec. 101.--Amendments to Employee Retirement Income 
Security Act of 1974 Subsection (a). Prohibition of Health 
Discrimination on the Basis of Genetic Information or Genetic 
Services.
    Sec. 101(a)(1)--No Enrollment Restriction for Genetic 
Services. This provision amends ERISA 702(a)(1)(F) to include 
``information about a request for or receipt of genetics 
services by an individual or family member of such 
individual.''
    Sec. 101(a)(2)--No Discrimination in Group Premiums Based 
on Genetic Information. This provision amends ERISA 702(b) to 
prohibit a health insurance issuer offering group health 
coverage in connection with a group health plan from adjusting 
premium or contribution amounts for a group on the basis of 
genetic information concerning an individual in the group or a 
family member of the individual.
    Sec. 101(b)--Limitations on Genetic Testing. This section 
amends Section 702 of ERISA to include a prohibition on genetic 
testing. Specifically, this provision prohibits a group health 
plan or a health insurance issuer offering group health 
insurance coverage in connection with a group health plan from 
requesting or requiring an individual or a family member of 
such individual to undergo a genetic test. This section does 
not limit the authority of the treating health care 
professional to request that such individual or family member 
undergo a genetic test. Nor does it limit the authority of a 
health care professional who is employed by or affiliated with 
the group health plan or health insurance issuer and who is 
providing health care services to the enrolled individual as 
part of a bona fide wellness program from notifying such 
individual about the availability of a genetic test or 
providing information about the genetic test. Finally, this 
section does not authorize or permit a health care professional 
to require that an individual undergo a genetic test.
    Application to All Plans.--This provision applies the 
requirements of the amendments made by section 101 of the 
Genetic Information Nondiscrimination Act to small group health 
plans (and group health insurance coverage offered in 
connection with a group health plan) that are otherwise exempt, 
under Section 732(a) of ERISA, from the other non-
discrimination prohibitions under Section 702 of ERISA. 
Therefore, the requirements of such amendments apply to a group 
health plan (and group health insurance coverage offered in 
connection with a group health plan) that, on the first day of 
the plan year, has less than two participants who are current 
employees for any plan year. Such amendments also apply to 
retiree only group health plans (and group health insurance 
coverage offered in connection with a group health plan).
    Sec. 101(c)--Definitions. This section adds new definitions 
to Section 733(d) of ERISA with respect to genetic non-
discrimination.
    Family Member.--Means the spouse of the individual, a 
dependent child, including adopted children; and all other 
individuals related to the individual by up to four degrees.
    Genetic Information.--Means information about an 
individual's genetic tests, the genetic tests of family members 
of the individual, or the occurrence of a disease or disorder 
in family members of the individual. It does not include 
information about the sex or age of an individual.
    Genetic Test.--Means an analysis of human DNA, RNA, 
chromosomes, proteins, or metabolites, that detects genotypes, 
mutations, or chromosomal changes. It does not mean an analysis 
of proteins or metabolites that does not detect genotypes, 
mutations, or chromosomal changes or 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.
    Genetic Services.--Means a genetic test; genetic counseling 
(including obtaining, interpreting, or assessing genetic 
information or providing genetic advice); or genetic education.
    Section 101(d)--Remedies and Enforcement. This section 
amends Section 502 of ERISA to clarify and strengthen remedies 
available to group health plan participants for violations of 
the genetic nondiscrimination provisions added by Title I.
    Secretarial Enforcement Authority.--The Secretary is 
provided specific authority to issue administrative penalties 
for violation of the sections 101 and 104(b).
    Amount of Penalty.--Specifically, the Secretary of Labor 
may impose a civil penalty against a group health plan sponsor 
or issuer for any violation of this Section in the amount of 
$100 for each day in the noncompliance with respect to each 
individual to whom such failure relates. A higher penalty of 
$2,500 for each day of non-compliance shall be applied where 
there is one or more failure with respect to an individual 
involved and where the plan did not correct the failure within 
the specified time. A penalty of $15,000 shall be applied if 
the violation under this Title in any year is more than de 
minimis.
    Sec. 101(e)--Regulations and Effective Date. The Secretary 
of Labor shall issue final regulations not later than one year 
after enactment. The amendments made by this act shall apply to 
group health plans for plan years beginning 18 months after 
enactment.
    Sec. 104(b)--Privacy and Confidentiality.
    Applicability.--The provisions in this section apply to 
health insurance issuers (including issuers offering coverage 
in connection with group health plans).
    Prohibition on Underwriting and Premium Rating.--A group 
health plan or health insurance issuer of a group health plan 
shall not use or disclose genetic information (including 
information about a request for or a receipt of genetic 
services by an individual or family member of such individual) 
for purposes of underwriting, determining eligibility to 
enroll, premium rating, or the creation, renewal or replacement 
of a plan, contract or coverage for health insurance or 
benefits.
    Prohibition on Collection of Genetic Information.
    (A) In General.--A group health plan or health insurance 
issuer shall not request, require, or purchase genetic 
information for purposes of underwriting, determining 
eligibility to enroll, premium rating, or the creation, renewal 
or replacement of a plan, contract or coverage under the plan 
or for health insurance or benefits.
    (B) Limitation Relating to the Collection of Genetic 
Information Prior to Enrollment.--A group health plan or health 
insurance issuer shall not request, require, or purchase 
genetic information concerning a participant, beneficiary, or 
enrollee prior to the enrollment, and in connection with such 
enrollment, of such individual under the plan, coverage, or 
policy.
    (C) Incidental Collection.--Where a group health plan or 
health insurance issuer obtains genetic information incidental 
to the requesting, requiring, or purchasing of other 
information concerning an individual, such request, 
requirement, or purchase shall not be considered a violation if 
it is not obtained for purposes of underwriting as defined 
under paragraph (1) and any genetic information obtained 
incidentally is not used or disclosed in violation of the HHS 
medical privacy regulations.
    Application of Confidentiality Standards.--The requirements 
of this Section apply only to group health plans and health 
insurance issuers that are otherwise covered under the HHS 
medical privacy regulations. Therefore, the health plan 
exceptions contained in the medical privacy regulations also 
apply with respect to the requirements under this Section. The 
requirements of this section do not apply to genetic 
information that is not considered to be individually-
identifiable under HHS medical privacy regulations.
    Definitions.--The definitions of ``family member,'' 
``genetic information,'' ``genetic services,'' and ``genetic 
test'' are identical to the definitions in Section 101 of this 
bill. However, a new definition of group health plan is 
included.
    Enforcement.--Covered entities under this section are 
subject to the same penalties that exist for medical privacy 
regulations under sections 1176 and 1177 of the Social Security 
Act for privacy and confidentiality violations of genetic 
information under Section 104.
    Preemption.--The preemption provision for this section is 
the same standard that exists for the medical privacy 
regulations. Specifically, a requirement under this section 
shall supersede any contrary provision of State law unless such 
provision of State law imposes requirements, standards, or 
implementation specifications that are more stringent than 
those imposed under this section.
    Sec. 105. Assuring Coordination.--The Secretaries of Health 
and Human Services, Labor and Treasury shall ensure, through 
the execution of an interagency memorandum of understanding, 
that regulations, rulings, and interpretations are administered 
to have the same effect when there are two or more agencies of 
jurisdiction. Such Secretaries shall pursue coordinated 
enforcement strategies and assign priorities in enforcement.
    Sec. 106. Regulations and Effective Date.--No later than 
one year after the date of enactment, the Secretaries of HHS, 
Labor and Treasury shall issue final regulations. The 
requirements of this Act shall take effect 18 months after 
enactment.

Title II--Prohibiting Employment Discrimination on the Basis of Genetic 
                              Information

    Sec. 201. Definitions.--The section defines the parties 
covered by the act--employer, employment agency, labor 
organization--and ensures that state, federal and congressional 
employees receive the same protections. Family members are 
defined as the spouse or dependent child of an individual, 
including adopted children, and all other individuals related 
by blood to the individual or his/her spouse. Genetic 
information is defined as information about genetic tests of an 
individual or his/her family member. Genetic information also 
means information about the occurrence of disease or disorder 
in family members of the individual. It does not, however, 
include information about the sex or age of an individual. The 
section defines genetic monitoring, services and tests 
consistent with Title I.
    Sec. 202. Employer Practices.--An employer is prohibited 
from using genetic information to discriminate against an 
individual in employment. The section also makes it unlawful 
for an employer to request, require or purchase genetic 
information. Several specific exceptions are included: where an 
employer inadvertently requests or requires family medical 
history information; pursuant to an employer-sponsored wellness 
program; where the information relating to a family member is 
requested or required to comply with the certification 
provisions of federal or state family and medical leave laws; 
where an employer purchases family medical history information 
that is publicly available through such items as newspapers, 
periodicals and books; or where the information is used for 
genetic monitoring of the biological effects of toxic 
substances in the workplace. Despite lawful acquisition of the 
information through these exceptions, the section makes clear 
that the employer still may not use or disclose the information 
in violation of the Title.
    Sec. 203. Employment Agency Practices.--This section 
extends parallel obligations and exceptions to employment 
agencies as apply to employers under Sec. 202.
    Sec. 204. Labor Organization Practices.--This section 
extends parallel obligations and exceptions to labor 
organizations as apply to employers under Sec. 202.
    Sec. 205. Training Programs.--This section extends parallel 
obligations and exceptions to joint labor-management committees 
as apply to employers under Sec. 202.
    Sec. 206. Confidentiality of Genetic Information.--The 
section provides that an individual's genetic information shall 
be treated and maintained as part of the individual's 
confidential medical records. The recordkeeping requirements 
shall be consistent with the recordkeeping requirements of the 
ADA.
    Disclosure is prohibited, except to: the individual; an 
occupational or health researcher; in response to an order of a 
court; to government officials investigating compliance with 
this Title; or to the extent that disclosure is made in 
connection with the employee's compliance with the 
certification provisions of Section 103 of the Family and 
Medical Leave Act, or such requirements under state family and 
medical leave laws.
    Sec. 207. Remedies and Enforcement.--The bill incorporates 
by reference the powers, remedies, and procedures set forth in 
Title VII of the Civil Rights Act of 1964, as amended. Similar 
powers, remedies and procedures are specified for state, 
federal and congressional employees.
    Sec. 208. Disparate Impact.--The bill prohibits claims 
based on disparate impact, and establishes a commission to 
review the science of genetics and make recommendations to 
Congress regarding whether to provide a disparate impact cause 
of action under this Act.
    Sec. 209. Construction.--This section provides several 
rules of construction to clarify the intent of the Committee 
and to assist courts in interpreting the Title. The section 
makes clear that this Title shall not be construed to limit the 
rights or protections of individuals under the Americans with 
Disabilities Act or the Rehabilitation Act of 1973. Similarly, 
the section clarifies that Title II does not create violations 
for employers, employment agencies, labor organizations, or 
joint labor-management committees of provisions under Title I. 
The section clarifies that the Act sets the floor for 
individual rights and protections and does not limit the rights 
and protections under other federal or state laws. Workers 
compensation laws are neither expanded nor restricted by the 
bill. Finally, the section provides rules of construction to 
ensure the proper operation of federal programsand laws, 
including the Armed Services Repository of Specimen Samples, 
occupational health and safety research, and workplace safety and 
health laws and regulations.
    Sec. 210. Medical Information.--That Is Not Genetic 
Information.--The section makes clear that the Act does not 
extend to manifested diseases and illnesses.
    Sec. 211. Regulations.--Not later than one year after the 
date of enactment of this title, the Commission shall issue 
final regulations to carry out this title.
    Sec. 212. Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this 
title.
    Sec. 213. Effective date.--This title takes effect on the 
date that is 18 months after the date of enactment.

                        Title III--Miscellaneous

    Sec. 301. Severability.--If any provision of this Act is 
held to be unconstitutional, the remainder of the Act shall not 
be affected thereby.

                     VI. Explanation of Amendments

    An amendment by Mr. Kline was accepted to ensure record 
keeping of confidential genetic information was consistent with 
ADA's requirements for medical files containing confidential 
information to be maintained separate from employee files.
    Reps. Walberg/Hoekstra offered an amendment to modify the 
definition of family member. This amendment would have changed 
the definition of family member (b) from ``a dependent child of 
the individual'' to ``a dependent child of the individual, 
including a child to be born to or to be adopted''. The 
amendment failed by a vote of 20 to 27.

           VII. Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. H.R. 493 prohibits 
discrimination on the basis of genetic information with respect 
to health insurance and employment for Congressional and 
Executive Branch employees. With respect to health insurance, 
the provisions of H.R. 493 would indirectly apply to the 
Federal Employees Health Benefits Program (FEHBP) which 
contracts with insurance issuers and provides coverage to 
Members and employees of the legislative branch. The impact of 
this legislation on the FEHBP likely will not be relevant, 
however, given that the FEHBP already has broad non-
discrimination rules in place, and given the fact that, 
pursuant to existing laws and regulations, eligibility for 
enrollment in the FEHBP is based solely on employment with the 
Federal Government, not medical conditions. With respect to 
employment, Executive Order 13145, issued February 10, 2000, 
prohibits discrimination in Federal employment based on genetic 
information, and current laws and regulations ensure that 
disqualification for Federal employment can only be based on 
job-related criteria.

                   VIII. Regulatory Impact Statement

    The Committee has determined that there will be minimal 
increases in the regulatory burden imposed by this bill.
    Title I of the bill generally builds on existing regulatory 
structures and industry practices. It is composed of several 
sections and applies to group health plans, group health 
insurance, insurers in the individual market, and issuers of 
Medicare supplemental policies. All non-governmental and many 
non-Federal State and local governmental group health plans are 
subject to existing protections under ERISA, PHSA, and IRC that 
pertain to discrimination based on health-status. These plans 
are also currently subject to the HHS medical privacy rules. 
While the legislation adds to the substance of these existing 
requirements, it does not add any major new concepts or 
requirements, such as a notice requirement. Based on these 
factors, the Committee has determined that there will be 
negligible regulatory impact with respect to group health 
plans.
    Although insurance issuers of Medicare supplemental 
policies and individual policies are not subject to Federal law 
banning genetic discrimination, many States have already passed 
laws in this area. In addition, the majority of these issuers 
are currently subject to the HHS medical privacy rules. Thus, 
the Committee has determined that there will be minimal 
regulatory burden imposed with respect to insurance issuers 
Medicare supplemental policies and individual policies.

                     IX. Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates.
    See CBO estimate.

                          X. Earmark Statement

    H.R. 493 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.


                      XI. Committee Correspondence

    None.

    XII. Statement of Oversight Findings and Recommendations of the 
                               Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

            XIII. New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974 and with respect to 
requirements of 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following estimate for 
H.R. 493 from the Director of the Congressional Budget Office:

H.R. 493--Genetic Information Nondiscrimination Act of 2007

    H.R. 493 would amend the Employee Retirement Income 
Security Act of 1974 (ERISA), the Public Health Service Act, 
and Title XVIII of the Social Security Act to prohibit the use 
of genetic information (including results of genetic tests and 
family history of disease) by employers in employment decisions 
and by health insurers and health plans in making enrollment 
determinations and setting insurance premiums.
    CBO estimates that enacting the bill would increase the 
number of individuals who obtain health insurance by about 600 
people per year, nearly all of whom would obtain insurance in 
the individual market. The bill would affect federal revenues 
because the premiums paid by some of those newly insured 
individuals would be tax-deductible.
    CBO estimates that enacting H.R. 493 would reduce revenues 
by less than $500,000 in each year from 2008 through 2017, by 
$1 million over the 2008-2012 period, and by $2 million over 
the 2008-2017 period. (These estimates include reductions in 
off-budget receipts from Social Security payroll taxes of less 
than $500,000 over the 2008-2012 period, and slightly less than 
$1 million over the 2008-2017 period.) The bill's requirements 
would apply to Medicare Supplemental Insurance, which could 
affect direct spending for Medicare. However, we estimate that 
the bill would have no significant effect on direct spending.
    The bill would require the Secretaries of Health and Human 
Services (HHS), Labor, and the Treasury to issue regulations to 
carry out the provisions of this bill, and would require the 
Secretaries of HHS and Labor to enforce those provisions. In 
addition, six years after enactment, the bill would establish a 
commission to review the science of genetics and to make 
recommendations to the Congress on the need to establish a 
disparate impact standard for genetic discrimination. The bill 
would authorize the appropriation of such sums as necessary to 
establish the commission and to carry out the other provisions 
of the bill. Assuming the appropriation of the necessary 
amounts, CBO estimates that implementing H.R. 493 would 
increase discretionary spending by less than $500,000 in 2008 
and by $2 million over the 2008-2017 period.
    H.R. 493 would preempt some state laws that establish 
confidentiality standards for genetic information, and would 
restrict how state and local governments use such information 
in employment practices and in the provision of health care to 
employees. The preemption and the limitations on state and 
local actions would be intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA), but there is little 
indication that state, local, or tribal governments currently 
engage in or are likely to engage in the activities that would 
be prohibited by the bill. Consequently, CBO estimates that the 
costs of the mandates would not be significant and would not 
exceed the threshold established in UMRA ($66 million in 2007, 
adjusted annually for inflation).
    The bill contains private-sector mandates on health 
insurers, health plans, employers, labor unions, and other 
organizations. CBO estimates that the direct cost of those 
requirements would not exceed the annual threshold specified in 
UMRA ($131 million in 2007, adjusted annually for inflation) in 
any of the first five years the mandates would be effective.
    The CBO staff contacts for this estimate are Shinobu Suzuki 
(for federal costs), Leo Lex (for the state and local impact), 
and David Auerbach (for the private-sector impact). This 
estimate was approved by Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

       XIV. Statement of General Performance Goals and Objectives

    In accordance with clause 3(c) of House Rule XIII, the goal 
of H.R. 493 is to protect individuals from discrimination in 
health insurance and employment on the basis of genetic 
information.

                 XV. Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 493. The 
Committee believes that the amendments made by this bill, which 
amends ERISA and provides protections against employment 
discrimination are within Congress' authority under Article I, 
section 8, clause 1 and clause 3.

                        XVI. Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 493. However, 
clause 3(d)(3)(B) of that rule provides that this requirement 
does not apply when the Committee has included in its report a 
timely submitted cost estimate of the bill prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act.

      XVII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

            EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974


                 AN ACT To provide for pension reform.

  Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled,

                   SHORT TITLE AND TABLE OF CONTENTS

  Section 1. This Act may be cited as the ``Employee Retirement 
Income Security Act of 1974''.

                            TABLE OF CONTENTS

Sec. 1. Short title and table of contents.

             TITLE I--PROTECTION OF EMPLOYEE BENEFIT RIGHTS

     * * * * * * *

                    Subtitle B--Regulatory Provisions

     * * * * * * *

                 Part 7--Group Health Plan Requirements

     * * * * * * *

                      Subpart B--Other Requirements

     * * * * * * *
Sec. 714.  Privacy and confidentiality of genetic information.
     * * * * * * *

TITLE I--PROTECTION OF EMPLOYEE BENEFIT RIGHTS

           *       *       *       *       *       *       *


Subtitle B--Regulatory Provisions

           *       *       *       *       *       *       *


                 Part 5--Administration and Enforcement

                           CIVIL ENFORCEMENT

  Sec. 502. (a) A civil action may be brought--
          (1) * * *

           *       *       *       *       *       *       *

          (6) by the Secretary to collect any civil penalty 
        under paragraph (2), (4), (5), (6), [(7), or (8)] (7), 
        (8), or (9) of subsection (c) or under subsection (i) 
        or (l);

           *       *       *       *       *       *       *

  (c)(1) * * *

           *       *       *       *       *       *       *

          (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), or (c) of 
                section 702 or of section 714 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 such 
                                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.
  [(9)] (10) The Secretary and the Secretary of Health and 
Human Services shall maintain such ongoing consultation as may 
be necessary and appropriate to coordinate enforcement under 
this subsection with enforcement under section 1144(c)(8) of 
the Social Security Act.

           *       *       *       *       *       *       *


                 Part 7--Group Health Plan Requirements

     Subpart A--Requirements Relating to Portability, Access, and 
Renewability

           *       *       *       *       *       *       *


SEC. 702. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL PARTICIPANTS 
                    AND BENEFICIARIES BASED ON HEALTH STATUS.

  (a) In Eligibility To Enroll.--
          (1) In general.--Subject to paragraph (2), a group 
        health plan, and a health insurance issuer offering 
        group health insurance coverage in connection with a 
        group health plan, may not establish rules for 
        eligibility (including continued eligibility) of any 
        individual to enroll under the terms of the plan based 
        on any of the following health status-related factors 
        in relation to the individual or a dependent of the 
        individual:
                  (A) * * *

           *       *       *       *       *       *       *

                  (F) Genetic information (including 
                information about a request for or receipt of 
                genetic services by an individual or family 
                member of such individual).

           *       *       *       *       *       *       *

  (b) In Premium Contributions.--
          (1) * * *
          (2) Construction.--Nothing in paragraph (1) shall be 
        construed--
                  (A) to restrict the amount that an employer 
                may be charged for coverage under a group 
                health plan except as provided in paragraph 
                (3); or

           *       *       *       *       *       *       *

          (3) No discrimination in group premiums based on 
        genetic information.--For purposes of this section, a 
        group health plan, or a health insurance issuer 
        offering group health insurance coverage in connection 
        with a group health plan, shall not adjust premium or 
        contribution amounts for a group on the basis of 
        genetic information concerning an individual in the 
        group or a family member of the individual (including 
        information about a request for or receipt of genetic 
        services by an individual or family member of such 
        individual).
  (c) Genetic Testing.--
          (1) Limitation on requesting or requiring genetic 
        testing.--A group health plan, or 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.--Nothing in this part shall 
        be construed to--
                  (A) limit the authority of a health care 
                professional who is providing health care 
                services with respect to an individual to 
                request that such individual or a family member 
                of such individual undergo a genetic test;
                  (B) limit the authority of a health care 
                professional who is employed by or affiliated 
                with a group health plan or a health insurance 
                issuer and who is providing health care 
                services to an individual as part of a bona 
                fide wellness program to notify such individual 
                of the availability of a genetic test or to 
                provide information to such individual 
                regarding such genetic test; or
                  (C) authorize or permit a health care 
                professional to require that an individual 
                undergo a genetic test.
  (d) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), and (c) shall apply to group health plans 
and health insurance issuers without regard to section 732(a).
  (e) Genetic Information of a Fetus.--Any reference in this 
section to genetic information concerning an individual or 
family member of an individual shall, 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.

           *       *       *       *       *       *       *


Subpart B--Other Requirements

           *       *       *       *       *       *       *


SEC. 714. PRIVACY AND CONFIDENTIALITY OF GENETIC INFORMATION.

  (a) Applicability.--Except as provided in subsection (d), the 
provisions of this section shall apply to group health plans, 
and health insurance issuers offering health insurance coverage 
in connection with such plans, without regard to section 
732(a).
  (b) Prohibition on Underwriting, Eligibility Termination, 
Premium Rating, and Plan Formulation.--Notwithstanding section 
104(a)(2)(A) of the Genetic Information Nondiscrimination Act 
of 2007, a group health plan, or a health insurance issuer 
offering health insurance coverage in connection with such a 
plan, shall not use or disclose genetic information (including 
information about a request for or a receipt of genetic 
services by an individual or family member of such individual) 
for purposes of underwriting, determinations of eligibility to 
enroll, premium rating, or the creation, renewal, or 
replacement of a group health plan or health insurance coverage 
offered in connection with such a plan.
  (c) Prohibition on Collection of Genetic Information.--
          (1) In general.--A group health plan, or a health 
        insurance issuer offering health insurance coverage in 
        connection with such a plan, shall not request, 
        require, or purchase genetic information (including 
        information about a request for or a receipt of genetic 
        services by an individual or family member of such 
        individual) for purposes of underwriting, 
        determinations of eligibility to enroll, premium 
        rating, or the creation, renewal or replacement of a 
        plan, contract or coverage for health insurance or 
        health benefits.
          (2) Limitation relating to the collection of genetic 
        information prior to enrollment.--A group health plan, 
        or a health insurance issuer offering health insurance 
        coverage in connection with such a plan, shall not 
        request, require, or purchase genetic information 
        (including information about a request for or a receipt 
        of genetic services by an individual or family member 
        of such individual) concerning a participant or 
        beneficiary prior to the enrollment, and in connection 
        with such enrollment, of such participant or 
        beneficiary under the plan or coverage.
          (3) Incidental collection.--Where a group health 
        plan, or a health insurance issuer offering health 
        insurance coverage in connection with such a plan, 
        obtains genetic information incidental to the 
        requesting, requiring, or purchasing of other 
        information concerning a participant or beneficiary, 
        such request, requirement, or purchase shall not be 
        considered a violation of this subsection if--
                  (A) such request, requirement, or purchase is 
                not in violation of paragraph (1); and
                  (B) any genetic information (including 
                information about a request for or receipt of 
                genetic services) requested, required, or 
                purchased is not used or disclosed in violation 
                of subsection (b).
  (d) Application of Confidentiality Standards.--The provisions 
of subsections (b) and (c) shall not apply--
          (1) to group health plans, or health insurance 
        issuers offering health insurance coverage in 
        connection with such plans, that are not otherwise 
        covered under 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); and
          (2) to genetic information that is not considered to 
        be individually-identifiable health information under 
        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).
  (e) Definitions.--In this section:
          (1) Genetic information; genetic services.--The terms 
        ``family member'', ``genetic information'', ``genetic 
        services'', and ``genetic test'' have the meanings 
        given such terms in section 733(d).
          (2) Group health plan; health insurance issuer.--The 
        terms ``group health plan'' and ``health insurance 
        issuer'' include only those plans and issuers that are 
        covered under the regulations described in subsection 
        (d)(1).

                     Subpart C--General Provisions

SEC. 731. PREEMPTION; STATE FLEXIBILITY; CONSTRUCTION.

  (a) Continued Applicability of State Law With Respect to 
Health Insurance Issuers.--
          (1) In general.--Subject to paragraph (2) and except 
        as provided in [subsection (b)] subsections (b) and 
        (c), this part shall not be construed to supersede any 
        provision of State law which establishes, implements, 
        or continues in effect any standard or requirement 
        solely relating to health insurance issuers in 
        connection with group health insurance coverage except 
        to the extent that such standard or requirement 
        prevents the application of a requirement of this part.

           *       *       *       *       *       *       *

  (c) Special Rules Relating to Privacy and Confidentiality of 
Genetic Information.--
          (1) In general.--A provision or requirement under 
        section 714 or a regulation promulgated under such 
        section shall supersede any contrary provision of State 
        law unless such provision of State law imposes 
        requirements, standards, or implementation 
        specifications that are more stringent than the 
        requirements, standards, or implementation 
        specifications imposed under such section or such 
        regulations. No penalty, remedy, or cause of action to 
        enforce such a State law that is more stringent shall 
        be preempted by such section.
          (2) Rule of construction.--Nothing in paragraph (1) 
        shall be construed to establish a penalty, remedy, or 
        cause of action under State law if such penalty, 
        remedy, or cause of action is not otherwise available 
        under such State law.
  [(c)] (d) Rules of Construction.--Except as provided in 
section 711, nothing in this part shall be construed as 
requiring a group health plan or health insurance coverage to 
provide specific benefits under the terms of such plan or 
coverage.
  [(d)] (e) Definitions.--For purposes of this section--
          (1) State law.--The term ``State law'' includes all 
        laws, decisions, rules, regulations, or other State 
        action having the effect of law, of any State. A law of 
        the United States applicable only to the District of 
        Columbia shall be treated as a State law rather than a 
        law of the United States.

           *       *       *       *       *       *       *


SEC. 733. DEFINITIONS.

  (a) * * *

           *       *       *       *       *       *       *

  (d) Other Definitions.--For purposes of this part--
          (1) * * *

           *       *       *       *       *       *       *

          (5) Family member.--The term ``family member'' means 
        with respect to an individual--
                  (A) the spouse of the individual;
                  (B) a dependent child of the individual; and
                  (C) any other individual who is a first-
                degree, second-degree, third-degree, or fourth-
                degree relative of an individual described in 
                subparagraph (A) or (B).
          (6) Genetic information.--
                  (A) In general.--Except as provided in 
                subparagraph (B), the term ``genetic 
                information'' means information about--
                          (i) an individual's genetic tests;
                          (ii) the genetic tests of family 
                        members of the individual; or
                          (iii) the occurrence of a disease or 
                        disorder in family members of the 
                        individual.
                  (B) Exclusions.--The term ``genetic 
                information'' shall not include information 
                about the sex or age of an 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.
                              ----------                              


                       PUBLIC HEALTH SERVICE ACT



           *       *       *       *       *       *       *
    TITLE XXVII--REQUIREMENTS RELATING TO HEALTH INSURANCE COVERAGE

                      Part A--Group Market Reforms

Subpart 1--Portability, Access, and Renewability Requirements

           *       *       *       *       *       *       *


SEC. 2702. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL PARTICIPANTS 
                    AND BENEFICIARIES BASED ON HEALTH STATUS.

  (a) In Eligibility To Enroll.--
          (1) In general.--Subject to paragraph (2), a group 
        health plan, and a health insurance issuer offering 
        group health insurance coverage in connection with a 
        group health plan, may not establish rules for 
        eligibility (including continued eligibility) of any 
        individual to enroll under the terms of the plan based 
        on any of the following health status-related factors 
        in relation to the individual or a dependent of the 
        individual:
                  (A) * * *

           *       *       *       *       *       *       *

                  (F) Genetic information (including 
                information about a request for or receipt of 
                genetic services by an individual or family 
                member of such individual).

           *       *       *       *       *       *       *

  (b) In Premium Contributions.--
          (1) * * *
          (2) Construction.--Nothing in paragraph (1) shall be 
        construed--
                  (A) to restrict the amount that an employer 
                may be charged for coverage under a group 
                health plan, except as provided in paragraph 
                (3); or

           *       *       *       *       *       *       *

          (3) No discrimination in group premiums based on 
        genetic information.--For purposes of this section, a 
        group health plan, or a health insurance issuer 
        offering group health insurance coverage in connection 
        with a group health plan, shall not adjust premium or 
        contribution amounts for a group on the basis of 
        genetic information concerning an individual in the 
        group or a family member of the individual (including 
        information about a request for or receipt of genetic 
        services by an individual or family member of such 
        individual).
  (c) Genetic Testing.--
          (1) Limitation on requesting or requiring genetic 
        testing.--A group health plan, or 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.--Nothing in this part shall 
        be construed to--
                  (A) limit the authority of a health care 
                professional who is providing health care 
                services with respect to an individual to 
                request that such individual or a family member 
                of such individual undergo a genetic test;
                  (B) limit the authority of a health care 
                professional who is employed by or affiliated 
                with a group health plan or a health insurance 
                issuer and who is providing health care 
                services to an individual as part of a bona 
                fide wellness program to notify such individual 
                of the availability of a genetic test or to 
                provide information to such individual 
                regarding such genetic test; or
                  (C) authorize or permit a health care 
                professional to require that an individual 
                undergo a genetic test.
  (d) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), and (c) shall apply to group health plans 
and health insurance issuers without regard to section 2721(a).

           *       *       *       *       *       *       *


         Subpart 4--Exclusion of Plans; Enforcement; Preemption

SEC. 2721. EXCLUSION OF CERTAIN PLANS.

  (a) * * *
  (b) Limitation on Application of Provisions Relating to Group 
Health Plans.--
          (1) * * *
          (2) Treatment of nonfederal governmental plans.--
                  (A) Election to be excluded.--[If the plan 
                sponsor] Except as provided in subparagraph 
                (D), if the plan sponsor of a nonfederal 
                governmental plan which is a group health plan 
                to which the provisions of subparts 1 through 3 
                otherwise apply makes an election under this 
                subparagraph (in such form and manner as the 
                Secretary may by regulations prescribe), then 
                the requirements of such subparts insofar as 
                they apply directly to group health plans (and 
                not merely to group health insurance coverage) 
                shall not apply to such governmental plans for 
                such period except as provided in this 
                paragraph.

           *       *       *       *       *       *       *

                  (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) and (c) of section 2702 
                and the provisions of section 2702(b) to the 
                extent that such provisions apply to genetic 
                information (or information about a request for 
                or the receipt of genetic services by an 
                individual or a family member of such 
                individual).

           *       *       *       *       *       *       *


SEC. 2722. ENFORCEMENT.

  (a) * * *
  (b) Secretarial Enforcement Authority.--
          (1) * * *

           *       *       *       *       *       *       *

          (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 following provisions 
                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), or (c) of section 2702.
                  (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 individual 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 such 
                                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.

           *       *       *       *       *       *       *


Subpart [3] 2--Other Requirements

           *       *       *       *       *       *       *


SEC. 2753. PROHIBITION OF HEALTH DISCRIMINATION ON THE BASIS OF GENETIC 
                    INFORMATION.

  (a) Prohibition on Genetic Information as a Condition of 
Eligibility.--A health insurance issuer offering health 
insurance coverage in the individual market may not establish 
rules for the eligibility (including continued eligibility) of 
any individual to enroll in individual health insurance 
coverage based on genetic information (including information 
about a request for or receipt of genetic services by an 
individual or family member of such individual).
  (b) Prohibition on Genetic Information in Setting Premium 
Rates.--A health insurance issuer offering health insurance 
coverage in the individual market shall not adjust premium or 
contribution amounts for an individual on the basis of genetic 
information concerning the individual or a family member of the 
individual (including information about a request for or 
receipt of genetic services by an individual or family member 
of such individual).
  (c) 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.--Nothing in this part shall 
        be construed to--
                  (A) limit the authority of a health care 
                professional who is providing health care 
                services with respect to an individual to 
                request that such individual or a family member 
                of such individual undergo a genetic test;
                  (B) limit the authority of a health care 
                professional who is employed by or affiliated 
                with a health insurance issuer and who is 
                providing health care services to an individual 
                as part of a bona fide wellness program to 
                notify such individual of the availability of a 
                genetic test or to provide information to such 
                individual regarding such genetic test; or
                  (C) authorize or permit a health care 
                professional to require that an individual 
                undergo a genetic test.

                     Subpart 3--General Provisions

SEC. 2761. ENFORCEMENT.

  (a) * * *
  [(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) 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.]
  (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.

           *       *       *       *       *       *       *


             Part C--Definitions; Miscellaneous Provisions

SEC. 2791. DEFINITIONS.

  (a) * * *

           *       *       *       *       *       *       *

  (d) Other Definitions.--
          (1) * * *

           *       *       *       *       *       *       *

          (15) Family member.--The term ``family member'' means 
        with respect to an individual--
                  (A) the spouse of the individual;
                  (B) a dependent child of the individual, 
                including a child who is born to or placed for 
                adoption with the individual; and
                  (C) all other individuals related by blood to 
                the individual or the spouse or child described 
                in subparagraph (A) or (B).
          (16) Genetic information.--
                  (A) In general.--Except as provided in 
                subparagraph (B), the term ``genetic 
                information'' means information about--
                          (i) an individual's genetic tests;
                          (ii) the genetic tests of family 
                        members of the individual; or
                          (iii) the occurrence of a disease or 
                        disorder in family members of the 
                        individual.
                  (B) Exclusions.--The term ``genetic 
                information'' shall not include information 
                about the sex or age of an 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 (such as obtaining, 
                interpreting, or assessing genetic 
                information); or
                  (C) genetic education.

           *       *       *       *       *       *       *

                              ----------                              


                SECTION 1882 OF THE SOCIAL SECURITY ACT

    CERTIFICATION OF MEDICARE SUPPLEMENTAL HEALTH INSURANCE POLICIES

  Sec. 1882. (a) * * *

           *       *       *       *       *       *       *

  (o) The requirements of this subsection are as follows:
          (1) * * *

           *       *       *       *       *       *       *

          (4) The issuer of the medicare supplemental policy 
        complies with subsection (s)(2)(E) and subsection (x).

           *       *       *       *       *       *       *

  (s)(1) * * *
  (2)(A) * * *

           *       *       *       *       *       *       *

  (E)(i) An issuer of a medicare supplemental policy shall not 
deny or condition the issuance or effectiveness of the policy, 
and shall not discriminate in the pricing of the policy 
(including the adjustment of premium rates) of an eligible 
individual on the basis of genetic information concerning the 
individual (or information about a request for, or the receipt 
of, genetic services by such individual or family member of 
such individual).
  (ii) For purposes of clause (i), the terms ``family member'', 
``genetic services'', and ``genetic information'' shall have 
the meanings given such terms in subsection (x).

           *       *       *       *       *       *       *

  (x) Limitations on Genetic Testing.--
          (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.--Nothing in this 
                title shall be construed to--
                          (i) limit the authority of a health 
                        care professional who is providing 
                        health care services with respect to an 
                        individual to request that such 
                        individual or a family member of such 
                        individual undergo a genetic test;
                          (ii) limit the authority of a health 
                        care professional who is employed by or 
                        affiliated with an issuer of a medicare 
                        supplemental policy and who is 
                        providing health care services to an 
                        individual as part of a bona fide 
                        wellness program to notify such 
                        individual of the availability of a 
                        genetic test or to provide information 
                        to such individual regarding such 
                        genetic test; or
                          (iii) authorize or permit a health 
                        care professional to require that an 
                        individual undergo a genetic test.
          (2) Definitions.--In this subsection:
                  (A) Family member.--The term ``family 
                member'' means with respect to an individual--
                          (i) the spouse of the individual;
                          (ii) a dependent child of the 
                        individual, including a child who is 
                        born to or placed for adoption with the 
                        individual; or
                          (iii) any other individuals related 
                        by blood to the individual or to the 
                        spouse or child described in clause (i) 
                        or (ii).
                  (B) Genetic information.--
                          (i) In general.--Except as provided 
                        in clause (ii), the term ``genetic 
                        information'' means information about--
                                  (I) an individual's genetic 
                                tests;
                                  (II) the genetic tests of 
                                family members of the 
                                individual; or
                                  (III) the occurrence of a 
                                disease or disorder in family 
                                members of the individual.
                          (ii) Exclusions.--The term ``genetic 
                        information'' shall not include 
                        information about the sex or age of an 
                        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 (such as 
                        obtaining, interpreting, or assessing 
                        genetic information); or
                          (iii) genetic education.
                  (E) 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.

                             MINORITY VIEWS

                              Introduction

    H.R. 493, the ``Genetic Information Nondiscrimination 
Act''--embodies a proposition that all members of the Committee 
and, indeed, Congress would likely endorse. Simply put, no 
employee should face discrimination on the basis of his or her 
genetic makeup or on any characteristic other than his or her 
ability to do the job. Similarly, no employee should risk his 
or her health insurance status simply because of the 
possibility that they might someday develop an illness. The 
bill was drafted with those fundamental principles in mind, and 
as it has worked its way through the legislative process, it 
includes a number of provisions to ensure that those principles 
are fulfilled, while minimizing the potential for unintended 
consequences.
    In many ways, H.R. 493 provides a model for how a Committee 
process is meant to work. Members were presented with well-
intentioned legislation; heard meaningful testimony on it and 
its potential impact on employers and employees alike; raised 
and debated legitimate concerns; and worked together to bridge 
the gap between where possible. That said, there remain issues 
within the bill on which persons of good conscience can and 
will disagree. Not all concerns raised with the bill have been 
addressed, including several significant ones. It is the hope 
of Committee Republicans that as this bill continues its way 
through the legislative process, these discussions will 
continue. We set forth our concerns, and highlight other areas 
in which the bill has been significantly approved, in these 
Minority Views below.

   Summary of H.R. 493, the Genetic Information Nondiscrimination Act

    H.R. 493 is divided into two titles. Title I, relating to 
discrimination in health insurance, includes amendments to the 
Employee Retirement Income Security Act (ERISA) which fall 
within the jurisdiction of the Committee on Education and 
Labor. Other provisions relating to the Public Health Service 
Act and the Social Security Act fall within the jurisdiction of 
the Committees on Energy and Commerce and Ways and Means, 
respectively.
    Title II, relating to discrimination in employment, falls 
solely within the jurisdiction of the Committee on Education 
and Labor.

                       TITLE I: HEALTH INSURANCE

    Title I applies to employer-sponsored group health plans, 
health insurance issuers in the group market, and state and 
local non-federal governmental plans. It generally prohibits 
group health plans and health insurance issuers from adjusting 
premiums or contribution amounts or establishing enrollment 
restrictions on the basis of genetic information, and from 
seeking or requesting certain genetic information from covered 
individuals.

                    TITLE II: EMPLOYMENT PROVISIONS

    In general, Title II prohibits the use of genetic 
information in employment decisions, such as hiring, firing, 
job assignments, promotions, and the like. This prohibition 
extends to employers, unions, employment agencies, and labor 
management training programs. In addition, under the bill, an 
employer is prohibited from requesting, requiring, or 
purchasing genetic information about an employee or family 
member, except with employee consent, and only for specific 
reasons such as genetic monitoring of biological effects of 
toxic substances in the workplace, use in wellness programs, or 
compliance with the Family and Medical Leave Act or its state 
equivalent. Finally, section 206 of the bill adopts broad 
restrictions and confidentiality requirements with respect to 
the collection and dissemination of genetic information.

                         Concerns With H.R. 493

    Advocates of federal genetic nondiscrimination legislation 
argue that such legislation is necessary to ensure that 
individuals avail themselves of genetic testing without fear of 
reprisal in their employment or health insurance coverage. 
Others argue that the case has not yet been made that federal 
legislation is prudent or necessary--there has been no evidence 
of large-scale employer genetic testing or discrimination--and 
in any case, if federal legislation is to be adopted, it should 
be carefully drawn to address real concerns and not lead to 
frivolous litigation, inconsistent or contradictory standards, 
or undue burden on employers. Finally, many question whether 
existing federal laws and regulations provide adequate 
protection from the potential of genetic nondiscrimination. In 
addition, more than half of the states have enacted laws that 
restrict the use of genetic information in health insurance and 
employment decisions.
    It was made clear at the Subcommittee on Health, 
Employment, Labor and Pensions hearing held on February 14, 
2007 that both Republicans and Democrats share the same view--
that discrimination on the basis of genetic information or 
makeup should be unlawful. That said, with respect to H.R. 493 
in particular, a number of provisions within the bill has 
raised concerns among stakeholders and many Members, in both 
Title I (covering health insurance) and Title II (covering 
discrimination in employment by various actors).
    With respect to Title I, many have expressed concern that 
the bill may discourage rather than encourage medically-
indicated testing, and may limit consumer access to appropriate 
coverage and treatment. Genetic tests often need to be done to 
confirm a suspected diagnosis or to predict an appropriate 
response and therapy. Some types of treatment, as well as 
coverage decisions by health insurance plans, require 
identification of an individual's genotype in order to evaluate 
a course of treatment and eligibility for coverage under a 
health benefits plan. For example, National Institutes of 
Health (NIH) guidelines state that hepatitis C virus should be 
treated for a longer duration if the viral genotype guide has 
been identified (i.e., 24 weeks vs. 48 weeks of therapy). While 
a health care provider will need this genetic information to 
determine the appropriate treatment, most individuals will be 
unable to access the therapy unless their health insurance plan 
pays for it under the benefits plan or contract. By forbidding 
the health plan or health insurer to ``request or require'' 
genetic information necessary to make a decision about benefits 
coverage, the bill can have the unintended consequence of 
limiting consumer access to life-saving treatment.
    Similarly, others have expressed concern that the bill 
prevents health insurance plans from using ``genetic tests'' to 
promote preventive screening and disease management, contrary 
to the Health Insurance Portability and Access Act (HIPAA). The 
bill may serve to undermine thevery valid concerns expressed in 
HIPAA that health insurance plans need certain kinds of medical 
information to assure appropriate treatment and coverage. While 
claiming that it does not restrict legitimate uses and disclosures of 
information as allowed by HIPAA by and between ``covered entities'' 
(which includes health care providers and health insurance plans), the 
bill's language unfortunately prohibits health insurance plans from 
recommending to either an individual and/or his or her treating 
provider that a genetic test be performed--a test, as noted above, that 
may be necessary to confirm a suspected diagnosis or predict response 
to therapy.
    For example, if an individual is enrolled in a disease 
management program (e.g., for breast cancer), or needs coverage 
for an illness or disease (discussed above), the health 
insurance plan is restricted from ``requesting or requiring'' 
an individual to undergo a genetic test. The result is that 
health insurance plans may not be allowed access to relevant 
information about an individual's genetic tests. This 
restriction sets up a conflict with HIPAA and regulations which 
do not set restrictions about the categories of information 
that can be permissibly shared between HIPAA covered entities 
when needed for treatment, payment, or health care operations.
    Despite improvements in the text made during Committee 
consideration, discussed infra, significant concerns remain 
among some Members and stakeholders with Title II of the bill, 
as well. Again, we hope good faith efforts can be made to 
resolve at least some of these issues before the bill comes to 
the Floor of the House.
    First and foremost, the legislation would create a new 
cause of action against employers based on claims of genetic 
discrimination, including punitive and compensatory damages 
(for potentially even minor infractions, such as recordkeeping 
or paperwork violations). The prospect of these penalties could 
well invite additional litigation. As was noted at the 
Subcommittee on Health, Employment, Labor and Pensions hearing 
on January 30, 2007, by one witness:

        All parties share the goal of eliminating 
        discrimination any [sic] in the workplace, from the 
        hiring process to providing benefits. When a company 
        intentionally discriminates, remedies should be 
        available. However, the [Genetic Information 
        Nondiscrimination in Employment] Coalition opposes 
        legislation that that would expose employers to 
        baseless litigation and would provide punitive and 
        compensatory damages absent actual discrimination. The 
        receipt of genetic information as part of an ADA 
        accommodation dialogue should not create even the 
        possibility of conduct violating any law. Assisting an 
        employee receive health insurance coverage should never 
        give rise to a cause of action. Given the availability 
        of significant protections under other laws, 
        administrative enforcement and equitably based remedies 
        (including loss of wages and benefits) should be 
        sufficient to allay fear of possible discrimination 
        while mitigating the risk of a dramatic increase in 
        baseless and inherently expensive litigation. 
        Unfortunately, [H.R. 493] resorts to jury trials with 
        punitive and compensatory damages for any violation, 
        without distinction, which will necessarily invite 
        additional litigation.

    Testimony of Burton J. Fishman, on behalf of the Genetic 
Information Nondiscrimination in Employment Coalition, 
Subcommittee Hearing, ``Protecting Workers from Genetic 
Discrimination,'' January 30, 2007 (emphasis added).
    Under the legislation, separate state laws that set higher 
standards on genetic information would not be preempted. Thus, 
employers and health plans that operate in multiple states 
would potentially be subject to multiple and conflicting state 
and federal requirements governing the same subject matter and 
activities. Again, as Mr. Fishman testified:

        H.R. 493 would not create a single federal standard, 
        but unfortunately would allow a patchwork of state 
        standards to impose inconsistent requirements. Any 
        Federal legislation should recognize the problems faced 
        by employers as they try to comply with the numerous 
        genetic discrimination laws already in existence. More 
        than 30 states have enacted laws prohibiting 
        discrimination based on genetic information. However, 
        these laws vary widely. If Congress enacts legislation 
        barring employment discrimination based on genetic 
        information then it should include a safe harbor 
        providing that employers in compliance with the federal 
        standards cannot be liable under state or local laws 
        banning such discrimination. There should be only one 
        standard, your standard.
    Id.
    Finally, the bill provides for an employer to collect 
certain specified genetic information in connection with a 
request for leave certification under the federal Family and 
Medical Leave Act (FMLA) or state law analogues. The employer 
community has expressed concern that this definition is unduly 
restrictive and may not permit the collection of information in 
other leave situations not expressly covered by the FMLA or 
state law. Many have also expressed concerns that the bill's 
provisions in section 206 governing the confidential treatment 
of information may, in fact, be unduly limiting, and limit an 
employer's ability to share genetic information within the 
ambit of legitimate, professional duty.

                  Committee Consideration of H.R. 493

    H.R. 493 was considered by the full Committee on Wednesday, 
February 14, 2007. Two amendments to the text of the bill as 
introduced were adopted by the Committee, apart from those 
fundamental concerns set forth above. These amendments address 
several of the concerns that have been raised with the bill. A 
third amendment was not adopted, leaving at least one critical 
issue unresolved. We are hopeful that these issues will be 
resolved as this legislation continues to work its way through 
the various committees of jurisdiction in the House, and prior 
to its consideration on the House Floor.

                            CHAIRMAN'S MARK

    The Committee adopted without objection an Amendment in the 
Nature of a Substitute offered by Chairman George Miller as his 
Chairman's mark. Chairman Miller's mark incorporates several 
important changes to the text of H.R. 493 as introduced.
    Foremost, the Chairman's mark provides a critical 
protection to ensure that H.R. 493 is not construed to require 
an employer to provide health care coverage for any specific 
genetic condition. In doing so, the mark adopts the existing 
standard of Executive Order 13145, whichprovides protection 
from genetic discrimination to federal employees, but expressly states 
that: ``Nothing in this order shall be construed to * * * require 
specific benefits for an employee or dependent under the Federal 
Employees Health Benefits Program or similar program.'' See Executive 
Order No. 13145, ``To Prohibit Discrimination in Federal Employment 
Based on Genetic Information,'' (February 8, 2000), sec. 1-402. The 
Chairman's mark mirrors this important protection by adding a new 
clause (7) to section 209 of the bill (relating to Rules of 
Construction), which clause expressly provides that nothing in the bill 
shall be construed to ``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.'' In this manner, the 
mark makes clear that under H.R. 493, no employer can be compelled (by 
lawsuit or otherwise) to provide a specific health benefit to any 
employee or beneficiary based on his or her genetic status.
    The Chairman's mark also cabins H.R. 493's nearly limitless 
definition of ``family member'' to provide that the family 
member of an individual includes only the individual's spouse 
or dependent child, and those relatives related within the 
first-, second-, third-, or fourth-degree. By doing so, the 
mark insures that claims of genetic discrimination on the basis 
of genetic information regarding family members who are so far 
removed and attenuated so as to be without meaning are excluded 
from the bill's coverage.
    Finally, the Chairman's mark ensures that long-term care 
insurance is not inadvertently subject to the privacy and 
confidentiality requirements contained in section 104 of H.R. 
439. As long-term care insurance is an ``excepted benefit'' 
under Section 733(c)(2)(B) of ERISA, the placement of section 
104's restrictions within Subpart B of part 7 of subtitle B of 
title I of ERISA will ensure that those exclusions are imported 
into H.R. 493.
    Committee Republicans welcome and support each of these 
changes, which address some, if not all, of the concerns that 
have been raised with the legislation.

                   THE KLINE RECORDKEEPING AMENDMENT

    During consideration of the bill, the Committee adopted by 
voice vote an amendment offered by Representative Kline of 
Minnesota. During the January 30, 2007 Subcommittee hearing on 
H.R. 493, concern was expressed that the bill's recordkeeping 
requirements could be construed to require employers to adopt a 
new set of recordkeeping requirements for employee records 
containing genetic information, while maintaining existing 
rules for employee records that contain health information, but 
do not contain genetic health information (as is currently 
required under federal law, by, e.g., the Americans with 
Disabilities Act). As one witness testified:

          H.R. 493 would require employers to follow one set of 
        rules for handling genetic information and a different 
        set for handling health care information. As a result, 
        employers would have to distinguish between genetic 
        information and other health care information they 
        collect in the course of providing benefits, 
        accommodations for the disabled, and a safe workplace, 
        in general. Indeed, in many cases, employers might be 
        required to keep two or more sets of confidential 
        health care files for employees--one for records with 
        genetic information, one for records with other health 
        care information, one for insurance matters.

    Testimony of Burton J. Fishman, on behalf of the Genetic 
Information Nondiscrimination in Employment Coalition, 
Subcommittee Hearing, ``Protecting Workers from Genetic 
Discrimination,'' January 30, 2007 (emphasis added).
    The Kline Amendment addresses this issue, and ensures that 
H.R. 493 does not create a duplicative, costly, and complicated 
set of additional recordkeeping requirements for employers. The 
Kline Amendment simply provides that with respect to the 
employer recordkeeping requirements of the bill, an employer 
will meets its obligations under H.R. 493 if it maintains 
employee health records containing genetic information in the 
same manner that it maintains and treats confidential medical 
records under section 102(d)(3)(B) of the Americans With 
Disabilities Act. The Kline Amendment ensures that employee 
health records containing genetic information are protected and 
safeguarded from disclosure, while eliminating the possibility 
that H.R. 493 would be construed to require a new recordkeeping 
system to be adopted.

     ENSURING THAT THE BILL PROTECTS ALL INDIVIDUALS FROM GENETIC 
DISCRIMINATION, INCLUDING THOSE IN UTERO, EX UTERO, AND THROUGHOUT THE 
            ADOPTION PROCESS: THE WALBERG/HOEKSTRA AMENDMENT

    In general, the protections of H.R. 493 from discrimination 
on the basis of information are extended not only to covered 
individuals, but, as defined in various sections of the 
statute, to those individuals' ``family members.'' As 
introduced, H.R. 493 defined ``family member'' to include, 
inter alia, ``a dependent child of the individual, including a 
child who is born to or placed for adoption with the 
individual'' (emphasis added). The inclusion of the phrase 
``born to'' raised significant concern among many Republicans, 
including supporters of the bill, insofar as it could readily 
be read to exclude children not yet born, whether in utero or 
otherwise. Similarly, the phrase ``placed for adoption with'' 
raised concern that a child who was in the process of an 
adoption placement--but who had not yet completed the process 
and thus was not as a matter of law ``placed'' for adoption--
would be excluded from the bill's protections.
    During the Subcommittee hearing on genetic discrimination 
on January 30, 2007, a number of Members of the Committee 
raised concern with this particular phrasing, and that it would 
exclude, e.g., protection from genetic discrimination based on 
the results of a child's in utero genetic testing, or that an 
embryo being prepared for transfer to the uterus after in vitro 
fertilization might be excluded from the bill's coverage. For 
their part, supporters of the bill, including Members of both 
parties, appeared confident that the bill's language, as 
drafted, protected against those scenarios, but that they were, 
in any case, amenable to examining the issue more closely.
    The Chairman's mark made two substantive changes to the 
definitions contained within the bill that bear some relevance 
to this point. First, the mark modified the definition of 
``family member'' in relevant sections of the bill \1\ in an 
attempt to address the issue. Under the Chairman's mark, a 
``family member'' is defined to include only ``a dependent 
child of the individual''--the phrase ``born to or placed for 
adoption with''--is wholly deleted from the definition. Second, 
the bill added a new section relating to the ``Genetic 
Information of a Fetus'' which provides that: ``Any reference 
in this section to genetic information concerning an individual 
or family member of an individual shall, 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.''
---------------------------------------------------------------------------
    \1\ Note that changes were made to the language in the bill only 
insofar as that language arose within sections of the bill within the 
Committee's jurisdiction. The Chairman's mark did not, for example, 
address the ``born to'' issue in definitional sections of the bill 
within the jurisdiction of other committees of the House.
---------------------------------------------------------------------------
    While the Chairman's mark appears to be an effort to 
address the concerns with the definition of ``family member'' 
this language falls short of addressing a number of Members' 
concerns. Namely, it remains unclear under the Chairman's mark 
whether the protections of the bill apply to children still in 
utero, embryos outside of the body of the mother (for example, 
being prepared for transfer to the uterus after in vitro 
fertilization), and, in the absence of language on the point, 
to adopted children or least those in the adoption process.
    At best, the new provision is ambiguous. It is not clear 
from the definition of ``genetic information of a fetus'' 
whether genetic information of an unborn fetus would cover the 
unborn at the earliest stages of pregnancy. Medically, the term 
``fetus'' is often used to encompass the unborn from nine weeks 
of pregnancy on, while the term ``embryo'' is used to describe 
the unborn from conception to eight weeks of age. The term 
``fetus'' in human subject protection regulations explicitly 
includes an embryo or fetus at any stage of pregnancy. See, 
e.g., Human Subject Protection Regulations, 45 C.F.R. Part 46 
section 46.202(c) (defining ``fetus'' as ``the product of 
conception from implantation until delivery''). In the absence 
of a similar and specific inclusion, the Chairman's mark thus 
could be interpreted to exclude protection of the genetic 
information about the unborn in a pregnant woman from 
conception to eight weeks of age, and thus allow discrimination 
against the embryo as well as family members.
    Second, it is plain from the text that the provision 
excludes an embryo outside of a woman's uterus. Parents 
undergoing in vitro fertilization may have pre-implantation 
genetic diagnosis performed on the embryo ex utero to determine 
potential genetic disorders in the embryo. Since such genetic 
information about the embryo is obtained from an embryo outside 
of a pregnant woman, it would be excluded from protection under 
the Chairman's mark. As such, health insurance companies or 
employers could potentially discriminate against individuals 
based on genetic information obtained from an embryo ex utero.
    Finally, while the original definition of dependent child 
would have included children ``who are placed for adoption 
with'' the individual, the Chairman's mark removes that clause, 
leaving it unclear whether adopted children (including those in 
the adoptive process) are covered under the non-discrimination 
provisions.
    For these reasons, Representative Walberg, joined by 
Representative Hoekstra, offered an amendment that would simply 
have provided that the definition of a ``family member'' 
includes a dependent child of the individual, ``including a 
child who is to be born to or to be placed for adoption with 
the individual.'' The Walberg/Hoekstra Amendment was rejected 
on a recorded vote of 20-27.
    The bill was reported favorably from the Committee on 
February 14, 2007 by a voice vote. That fact notwithstanding, 
the issue of whether the bill's protections apply to 
individuals based on genetic information from children in utero 
irrespective of age (thus protecting not only those children 
but conceivably their family members from discrimination on the 
basis of genetic information); whether genetic information 
about embryos outside of a pregnant women are protected under 
the legislation; and whether adopted children shall be covered 
under the bill at all stages of the adoptive process, raise 
grave substantive concerns for numerous Republican Members. In 
that light, the bill's approval by voice vote on a motion to 
report should not be construed as satisfaction with the 
language contained in the mark, and if the issue is not more 
clearly addressed and resolved prior to the bill coming to the 
Floor, we expect the question to raise serious questions as to 
whether Republican Members can, in good faith, support this 
bill on the House Floor.

                     OTHER ISSUES: CLINICAL TRIALS

    Insofar as one of the factors motivating this legislation 
is the fear expressed that individuals may be dissuaded from 
participating in clinical trials of new genetic therapies for 
fear of discrimination in the workplace or in the provision of 
their health benefits, Committee Republicans support 
construction of the bill's broad protections against the use of 
genetic information by health insurers and employers to 
explicitly protect those who participate in clinical trials. It 
is our position--and we understand, a view shared by the 
Majority--that the legislation's provisions include these 
individuals without the need for specific reference. 
Nevertheless, we would take this opportunity to make clear our 
view that the bill's protections expressly include these 
individuals.

                               Conclusion

    As we noted at the outset, Committee Republicans are united 
in their belief that no individual should be discriminated on 
the basis of his or her genetic makeup, nor should they be 
dissuaded from seeking the best and most thorough medical 
screening, testing, and treatment for fear that the results may 
be used to discriminate against them in their workplace, or in 
the provision of their health insurance and benefits. In that 
light, we fully support the intent of H.R. 493, but recognize 
that areas of the bill remain open to improvement. As this bill 
continues to work its way through the legislative process, we 
stand ready to work with our Committee Majority colleagues, 
with other committees of jurisdiction, and with all interested 
stakeholders to ensure that any legislation that comes to the 
House Floor represents the best product it can be.

                                   Howard P. McKeon.
                                   Tom Petri.
                                   Pete Hoekstra.
                                   Mark Souder.
                                   Ric Keller.
                                   Joe Wilson.
                                   John Kline.
                                   K. Marchant.
                                   Tom Price.
                                   Luis Fortuno.
                                   Charles W. Boustany, Jr.
                                   Rob Bishop.
                                   David Davis.
                                   Tim Walberg.

                                  
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