0001|                            HOUSE BILL 331
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0002|     43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003|                            INTRODUCED BY
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0004|                            DANICE PICRAUX
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO HEALTH; ENACTING THE GENETIC INFORMATION PRIVACY
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0012|     ACT; PROVIDING FOR LIMITATIONS ON GENETIC ANALYSIS AND THE
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0013|     COLLECTION, RETENTION, DISCLOSURE AND USE OF GENETIC
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0014|     INFORMATION; PROHIBITING DISCRIMINATION BY INSURERS BASED ON
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0015|     GENETIC INFORMATION; PROVIDING PENALTIES. 
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0016|     
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0017|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0018|          Section 1.  SHORT TITLE.--This act may be cited as the
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0019|     "Genetic Information Privacy Act".
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0020|          Section 2.  DEFINITIONS.--As used in the Genetic
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0021|     Information Privacy Act:
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0022|               A.  "DNA" means deoxyribonucleic acid, including
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0023|     mitochondrial DNA, complementary DNA and DNA derived from
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0024|     ribonucleic acid;
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0025|               B.  "gene products" means gene fragments,
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0001|     ribonucleic acids or proteins derived from DNA that would be a
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0002|     reflection of or indicate DNA sequence information;
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0003|               C.  "genetic analysis" means a test of a person's
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0004|     DNA, gene products or chromosomes that indicates a propensity
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0005|     for or susceptibility to illness, disease, impairment or other
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0006|     disorders, whether physical or mental; that demonstrates
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0007|     genetic or chromosomal damage due to environmental factors; or
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0008|     that indicates carrier status for disease or disorder;
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0009|               D.  "genetic information" means information about
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0010|     the genetic makeup of a person or members of a person's
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0011|     family, including information resulting from genetic analysis,
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0012|     DNA composition, participation in genetic research or use of
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0013|     genetic services;
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0014|               E.  "genetic propensity" means the presence in a
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0015|     person or members of a person's family of real or perceived
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0016|     variations in DNA or other genetic material from that of the
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0017|     normal genome that do not represent the outward physical or
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0018|     medical signs of a genetic disease at the time of
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0019|     consideration; and
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0020|               F.  "insurer" means an insurance company, insurance
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0021|     service or insurance organization that is licensed to engage
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0022|     in the business of insurance in the state and that is subject
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0023|     to state law that regulates insurance within the meaning of
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0024|     Paragraph (2) of Subsection (b) of Section 514 of the federal
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0025|     Employee Retirement Income Security Act of 1974, as amended. 
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0001|     "Insurer" does not include an insurance company that is
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0002|     licensed under the Prepaid Dental Plan Law or a company that
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0003|     is solely engaged in the sale of dental insurance and is not
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0004|     licensed under the Prepaid Dental Plan Law, but under another
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0005|     provision of the New Mexico Insurance Code.
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0006|          Section 3.  GENETIC ANALYSIS PROHIBITED WITHOUT INFORMED
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0007|     CONSENT--EXCEPTIONS.--
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0008|               A.  Except as provided in Subsection C of this
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0009|     section, no person shall obtain genetic information or samples
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0010|     for genetic analysis from a person without first obtaining
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0011|     informed and written consent from the person or the person's
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0012|     authorized representative.
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0013|               B.  Except as provided in Subsection C of this
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0014|     section, genetic analysis of a person or collection,
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0015|     retention, transmission or use of genetic information without
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0016|     the informed and written consent of the person or the person's
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0017|     authorized representative is prohibited.
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0018|               C.  A person's DNA, genetic information or the
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0019|     results of genetic analysis may be obtained, retained,
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0020|     transmitted or used without the person's written and informed
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0021|     consent only:
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0022|                    (1)  to identify a person in the course of a
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0023|     criminal investigation by a law enforcement agency;
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0024|                    (2)  if the person has been convicted of a
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0025|     felony, for purposes of maintaining a DNA database for law
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0001|     enforcement purposes;
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0002|                    (3)  to identify deceased persons;
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0003|                    (4)  to establish parental identity;
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0004|                    (5)  to screen newborns;
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0005|                    (6)  if the DNA, genetic information or
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0006|     results of genetic analysis are not identified with the person
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0007|     or person's family members;
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0008|                    (7)  by a court for determination of damage
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0009|     awards pursuant to the Genetic Information Privacy Act;
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0010|                    (8)  by medical repositories or registries as
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0011|     authorized by federal or state law or regulation;
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0012|                    (9)  for the purpose of medical or scientific
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0013|     research and education, including retention of gene products,
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0014|     genetic information or genetic analysis if the identity of the
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0015|     person or person's family members is not disclosed; or
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0016|                    (10)  for the purpose of emergency medical
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0017|     treatment consistent with applicable law.  
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0018|               D.  Actions of an insurer and third parties dealing
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0019|     with an insurer in the ordinary course of conducting and
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0020|     administering the business of life, disability income or long-
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0021|     term care insurance are exempt from the provisions of this
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0022|     section if the use of genetic analysis or genetic information
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0023|     is based on sound actuarial principles or related to actual or
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0024|     reasonably anticipated experience.  However, before or at the
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0025|     time of collecting genetic information for use in conducting
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0001|     and administering the business of life, disability income or
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0002|     long-term care insurance, the insurer shall notify in writing
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0003|     an applicant for insurance or the insured that the information
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0004|     may be used, transmitted or retained solely for the purpose of
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0005|     conducting and administering the business of life, disability
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0006|     income or long-term care insurance.
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0007|          Section 4.  GENETIC DISCRIMINATION PROHIBITED.--
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0008|               A.  Discrimination by an insurer against a person
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0009|     or member of the person's family on the basis of genetic
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0010|     analysis, genetic information, genetic propensity or
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0011|     participation in genetic research or use of genetic services
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0012|     is prohibited. 
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0013|               B.  The provisions of this section do not require a
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0014|     health insurer to provide particular benefits other than those
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0015|     provided under the terms of the plan or coverage.  A health
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0016|     insurer shall not consider a genetic propensity, susceptibility
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0017|     or carrier status as a pre-existing condition for the purpose of
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0018|     limiting or excluding benefits, establishing rates or providing
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0019|     coverage.
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0020|               C.  The provisions of this section do not prohibit
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0021|     use of genetic analysis or genetic information by an insurer
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0022|     in the ordinary conduct of business in connection with life,
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0023|     disability income or long-term care insurance if use of
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0024|     genetic analysis or genetic information is based on sound
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0025|     actuarial principles or related to actual or reasonably
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0001|     anticipated experience.
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0002|          Section 5.  RIGHTS OF RETENTION.--
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0003|               A.  Unless otherwise authorized by Subsection C of
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0004|     Section 3 of the Genetic Information Privacy Act, no person
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0005|     shall retain a person's genetic information, gene products or
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0006|     samples for genetic analysis without first obtaining informed
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0007|     and written consent from the person or the person's authorized
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0008|     representative.  This subsection does not affect the status of
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0009|     original medical records of patients, and the rules of
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0010|     confidentiality and accessibility applicable to the records
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0011|     continue in force.
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0012|               B.  A person's genetic information or samples for
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0013|     genetic analysis shall be destroyed promptly upon the specific
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0014|     request by that person or that person's authorized
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0015|     representative unless:
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0016|                    (1)  retention is necessary for the purposes
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0017|     of a criminal or death investigation or a criminal or juvenile
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0018|     proceeding;
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0019|                    (2)  retention is authorized by order of a
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0020|     court of competent jurisdiction;
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0021|                    (3)  retention is authorized under a research
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0022|     protocol approved by an institution review board pursuant to
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0023|     federal law or a medical registry or repository authorized by
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0024|     state or federal law; or
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0025|                    (4)  the genetic information or samples for
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0001|     genetic analysis have been obtained pursuant to Subsection C
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0002|     of Section 3 of the Genetic Information Privacy Act.
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0003|               C.  Actions of an insurer and third parties dealing
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0004|     with an insurer in the ordinary course of conducting and
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0005|     administering the business of life, disability income or long-
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0006|     term care insurance are exempt from the provisions of this
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0007|     section.  However, before or at the time of collecting genetic
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0008|     information for use in conducting and administering the
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0009|     business of life, disability income or long-term care
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0010|     insurance, the insurer shall notify in writing an applicant
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0011|     for insurance or the insured that the information may be used,
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0012|     transmitted or retained solely for the purpose of conducting
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0013|     and administering the business of life, disability income or
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0014|     long-term care insurance.
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0015|          Section 6.  PENALTIES.--
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0016|               A.  The attorney general or district attorney may
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0017|     bring a civil action against a person for violating the
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0018|     provisions of the Genetic Information Privacy Act or to
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0019|     otherwise enforce those provisions.
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0020|               B.  A person whose rights under the provisions of
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0021|     the Genetic Information Privacy Act have been violated may
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0022|     bring a civil action for damages or other relief.
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0023|               C.  The court may order a person who violates the
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0024|     provisions of the Genetic Information Privacy Act to comply
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0025|     with those provisions and may order other appropriate relief,
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0001|     including:
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0002|                    (1)  directing an insurer to provide a policy
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0003|     for hospital and medical expenses, including health insurance,
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0004|     group disability insurance or long-term care coverage, to the
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0005|     injured person under the same terms and conditions as would
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0006|     have applied had the violation not occurred;
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0007|                    (2)  damages for economic, bodily or emotional
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0008|     harm;
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0009|                    (3)  damages for economic losses sustained as
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0010|     a result of negligent violation of that act;
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0011|                    (4)  damages of up to five thousand dollars
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0012|     ($5,000) in addition to any economic loss if the violation
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0013|     results from willful or grossly negligent conduct; or
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0014|                    (5)  reasonable attorney fees and appropriate
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0015|     court costs.
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0016|               D.  Pursuant to Subsection C of Section 3 of the
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0017|     Genetic Information Privacy Act, the court may use genetic
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0018|     information to determine the cause of damage or injury and
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0019|     penalty awards.
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0020|               E.  Each instance of wrongful collection, analysis,
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0021|     retention, disclosure or use of genetic information
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0022|     constitutes a separate and actionable violation of the Genetic
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0023|     Information Privacy Act.
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0024|                              
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