0001| HOUSE BUSINESS AND INDUSTRY COMMITTEE SUBSTITUTE FOR | 0002| HOUSE BILL 395 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO HEALTH; ENACTING NEW SECTIONS OF THE NMSA 1978 TO | 0013| PROTECT CITIZENS' PRIVACY; PROVIDING FOR LIMITATIONS ON GENETIC | 0014| ANALYSIS AND THE COLLECTION, RETENTION, DISCLOSURE AND USE OF | 0015| GENETIC INFORMATION; PROHIBITING DISCRIMINATION BY INSURERS | 0016| BASED ON GENETIC INFORMATION; PROVIDING PENALTIES. | 0017| | 0018| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0019| Section 1. SHORT TITLE.--This act may be cited as the | 0020| "Genetic Information Privacy Act". | 0021| Section 2. DEFINITIONS.--As used in the Genetic | 0022| Information Privacy Act: | 0023| A. "DNA" means deoxyribonucleic acid, including | 0024| mitochondrial DNA, complementary DNA and any DNA derived from | 0025| ribonucleic acid; | 0001| B. "gene products" means gene fragments, | 0002| ribonucleic acids or proteins derived from DNA that would be a | 0003| reflection of or indicate DNA sequence information; | 0004| C. "genetic analysis" means a test of the | 0005| individual's DNA, gene products or chromosomes that indicates a | 0006| propensity for or susceptibility to illness, disease, | 0007| impairment or other disorders, whether physical or mental, or | 0008| that demonstrates genetic or chromosomal damage due to | 0009| environmental factors, or carrier status for disease or | 0010| disorder; | 0011| D. "genetic information" means information about | 0012| the genetic makeup of an individual or members of an | 0013| individual's family resulting from genetic analysis, DNA | 0014| composition, participation in genetic research or use of | 0015| genetic services; | 0016| E. "genetic propensity" means the presence in an | 0017| individual or members of an individual's family of real or | 0018| perceived variations in DNA or other genetic material from that | 0019| of the normal genome that do not represent the outward | 0020| physical, medical signs of a genetic disease at the time of | 0021| consideration; F. "insurer" means an insurance company, | 0022| insurance service or insurance organization that is licensed to | 0023| engage in the business of insurance in the state and that is | 0024| subject to state law that regulates insurance within the | 0025| meaning of Paragraph (2) of Subsection (b) of Section 514 of | 0001| the federal Employee Retirement Income Security Act of 1974, as | 0002| amended. "Insurer" does not include an insurance company that | 0003| is licensed under the Prepaid Dental Plan Law or a company that | 0004| is solely engaged in the sale of dental insurance and is not | 0005| licensed under that act, but under another provision of the New | 0006| Mexico Insurance Code; and | 0007| G. "person" means an individual or any other legal | 0008| entity. | 0009| Section 3. GENETIC ANALYSIS PROHIBITED WITHOUT INFORMED | 0010| CONSENT--EXCEPTIONS.-- | 0011| A. Except as provided in Subsection C of this section, | 0012| no person shall obtain genetic information or samples for genetic | 0013| analysis from an individual without first obtaining informed | 0014| consent from the individual or the individual's authorized | 0015| representative. | 0016| B. Except as provided in Subsection C of this section, | 0017| genetic analysis of an individual and collection, retention, | 0018| transmission or use of genetic information without the written | 0019| informed consent of the individual or the individual's authorized | 0020| representative is prohibited. | 0021| C. An individual's DNA or genetic information or the | 0022| results of genetic analysis may be obtained or retained without | 0023| the individual's written and informed consent only as authorized | 0024| by law or rules of the department of health: | 0025| (1) to identify an individual in the course of a | 0001| criminal investigation by a law enforcement agency; | 0002| (2) if the individual has been convicted of a | 0003| felony and is in the custody of the corrections department, for | 0004| purposes of maintaining a DNA database for law enforcement | 0005| purposes; | 0006| (3) to identify deceased individuals; | 0007| (4) to establish parental identity; | 0008| (5) to screen newborns; | 0009| (6) if the DNA, genetic analysis, results or | 0010| genetic information is not identified with the individual or | 0011| individual's family member; | 0012| (7) by a court for determination of damage | 0013| awards pursuant to this subsection; | 0014| (8) by medical repositories or registries, as | 0015| authorized by federal or state law or regulation; | 0016| (9) for the purpose of medical or scientific | 0017| research and education, including retention of genetic analysis, | 0018| information, results and tissues, where the identity of | 0019| individuals or individuals' family members will not be disclosed; | 0020| or | 0021| (10) for the purpose of emergency medical | 0022| treatment consistent with applicable law. | 0023| D. Actions of an insurer and third parties dealing | 0024| with an insurer in the ordinary course of conducting and | 0025| administering the business of life, disability income or long-term | 0001| care insurance are exempt from the provisions of this section. | 0002| However, before or at the time of collecting genetic information | 0003| for use in conducting and administering life, disability income or | 0004| long-term care insurance, the insurer shall notify in writing an | 0005| applicant for insurance or the insured that the information may be | 0006| used, transmitted or retained. | 0007| Section 4. GENETIC DISCRIMINATION PROHIBITED.-- | 0008| A. Discrimination by an insurer against an individual | 0009| or member of the individual's family on the basis of genetic | 0010| analysis for genetic propensity, susceptibility or carrier status | 0011| for a disease or disorder or genetic information regarding the | 0012| participation in genetic research or use of genetic services is | 0013| prohibited. No insurer shall use any genetic analysis or any | 0014| genetic information for any purpose other than in the ordinary | 0015| conduct of business in connection with life, disability income or | 0016| long-term care insurance. | 0017| B. The provisions of this section do not require a | 0018| health insurer to provide particular benefits other than those | 0019| provided under the terms of the plan or coverage or prevent the | 0020| plan or coverage from establishing limitations or restrictions on | 0021| the amount, level, extent or nature of the benefits or coverage | 0022| for similarly situated individuals. Individuals are similarly | 0023| situated if they have manifested similar physical or mental | 0024| conditions whether or not they have genetic propensity, | 0025| susceptibility or carrier status. A health insurer shall not | 0001| consider a genetic propensity, susceptibility or carrier status as | 0002| a preexisting condition for the purpose of limiting or excluding | 0003| benefits in the absence of a diagnosis of the condition related to | 0004| or resulting from the genetic propensity, susceptibility or | 0005| carrier status. | 0006| C. The provisions of this section do not prohibit use | 0007| of any genetic analysis of any genetic information by an insurer | 0008| in the ordinary conduct of business in connection with life, | 0009| disability income or long-term care insurance, provided that any | 0010| underwriting action taken in connection with life, disability | 0011| income or long-term care insurance on the basis of any genetic | 0012| analysis or any genetic information is based on sound actuarial | 0013| principles or related to actual or reasonably anticipated | 0014| experience. | 0015| Section 5. PENALTIES.-- | 0016| A. The attorney general or district attorney may bring | 0017| a civil action against a person for violating the provisions of | 0018| the Genetic Information Privacy Act or to otherwise enforce those | 0019| provisions. | 0020| B. An individual whose rights pursuant to the | 0021| provisions of the Genetic Information Privacy Act have been | 0022| violated may bring a civil action for damages or other relief. | 0023| C. The court may order a person who violates the | 0024| provisions of the Genetic Information Privacy Act to comply with | 0025| those provisions and may order other appropriate relief, | 0001| including: | 0002| (1) directing an insurer to provide a policy for | 0003| hospital and medical expenses, including health insurance, group | 0004| disability insurance or long-term-care coverage, to the injured | 0005| individual under the same terms and conditions as would have | 0006| applied had the violation not occurred; | 0007| (2) damages for economic, bodily or emotional | 0008| harm; | 0009| (3) damages for economic losses sustained as a | 0010| result of negligent violation of that act; | 0011| (4) damages of up to five thousand dollars | 0012| ($5,000) in addition to any economic loss if the violation results | 0013| from willful or grossly negligent conduct; or | 0014| (5) if the plaintiff prevails, recovery of | 0015| reasonable attorney fees and all appropriate court costs from the | 0016| defendant. | 0017| D. Pursuant to Subsection C of Section 3 of the | 0018| Genetic Information Privacy Act, the court may use genetic | 0019| information to determine the cause of damage or injury and penalty | 0020| awards. | 0021| E. Each instance of collection, analysis, retention, | 0022| disclosure or use of genetic information constitutes a separate | 0023| and actionable violation of the Genetic Information Privacy Act. | 0024| Section 6. RIGHTS OF RETENTION.-- | 0025| A. Unless otherwise authorized by Subsection C of | 0001| Section 3 of the Genetic Information Privacy Act, no person shall | 0002| retain an individual's genetic information, gene product or | 0003| samples for genetic analysis without first obtaining informed | 0004| consent from the individual or the individual's authorized | 0005| representative. This subsection does not affect the status of | 0006| original medical records of individual patients and the rules of | 0007| confidentiality and accessibility applicable to thee records | 0008| continue in force. | 0009| B. An individual's genetic information or samples for | 0010| genetic analysis shall be destroyed promptly upon the specific | 0011| request of that individual or that individual's authorized | 0012| representative, unless: | 0013| (1) retention is necessary for the purposes of a | 0014| criminal or death investigation or a criminal or juvenile | 0015| proceeding; | 0016| (2) retention is authorized by order of a court | 0017| of competent jurisdiction; | 0018| (3) retention is authorized under a research | 0019| protocol approved by an institutional review board pursuant to | 0020| federal law or a medical registry or repository authorized by | 0021| state or federal law; or | 0022| (4) the genetic information or samples for | 0023| genetic analysis have been obtained pursuant to Subsection C of | 0024| Section 3 of the Genetic Information Privacy Act. | 0025| C. Actions of an insurer and third parties dealing | 0001| with an insurer in the ordinary course of conducting and | 0002| administering the business of life, disability income or long-term | 0003| care insurance are exempt from the provisions of this section. | 0004| However, before or at the time of collecting genetic information | 0005| for use in conducting and administering life, disability income or | 0006| long-term care insurance, the insurer shall notify in writing an | 0007| applicant for insurance or the insured that the information may be | 0008| used, transmitted or retained. |