SB58INTRODUCED
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SB58
YTEI66N-1
By Senators Orr, Melson
RFD: Banking and Insurance
First Read: 06-Feb-24
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5 YTEI66N-1 01/25/2024 JC (L)tgw 2024-10
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First Read: 06-Feb-24
SYNOPSIS:
Existing law does not provide general privacy
protections for an individual's DNA.
This bill would make it a crime, with exceptions
including criminal investigation and certain legal
proceedings, to collect, analyze, or transfer an
individual's DNA without the individual's express
consent. The bill would require notice to an individual
of results of a genetic test undergone by the
individual when applying for employment, a loan,
credit, an educational opportunity, and certain types
of insurance.
This bill would also prohibit health, life, and
long-term care insurers from using the results of an
individual's DNA analysis to make coverage and premium
decisions, and authorize the Commissioner of Insurance
to enforce the prohibition.
Section 111.05 of the Constitution of Alabama of
2022, prohibits a general law whose purpose or effect
would be to require a new or increased expenditure of
local funds from becoming effective with regard to a
local governmental entity without enactment by a 2/3
vote unless: it comes within one of a number of
specified exemptions; it is approved by the affected
entity; or the Legislature appropriates funds, or
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entity; or the Legislature appropriates funds, or
provides a local source of revenue, to the entity for
the purpose.
The purpose or effect of this bill would be to
require a new or increased expenditure of local funds
within the meaning of the section. However, this bill
does not require approval of a local government entity
or enactment by a 2/3 vote to become effective because
it comes within one of the specified exceptions
contained in the section.
A BILL
TO BE ENTITLED
AN ACT
Relating to genetic privacy; to make it unlawful with
certain exceptions to procure, use, or transfer an
individual's DNA without the individual's express consent; to
provide criminal penalties for violations; to prohibit
entities that issue health, life, and long-term care insurance
coverage from discriminating against individuals on the basis
of genetic test results; and to authorize the Commissioner of
Insurance to enforce the prohibition; and in connection
therewith would have as its purpose or effect the requirement
of a new or increased expenditure of local funds within the
meaning of Section 111.05 of the Constitution of Alabama of
2022.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
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BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. For the purposes of Sections 1 and 2, the
following terms have the following meanings:
(1) DNA ANALYSIS. The medical and biological
examination and analysis of an individual's DNA to identify
the presence and composition of genes in that individual's
body. The term includes DNA typing and genetic testing.
(2) DNA SAMPLE. Any human biological specimen from
which DNA can be extracted, or the DNA extracted from the
specimen. The term does not include a routine chemical, blood,
or urine analysis unless conducted for the purpose of DNA
analysis.
(3) EXCLUSIVE PROPERTY. The right of the individual
whose DNA has been extracted or analyzed to exercise control
over his or her DNA sample and any results of his or her DNA
analysis with regard to the collection, use, retention,
maintenance, disclosure, or destruction of the sample or
analysis results.
(4) EXPRESS CONSENT. An authorization by an individual
whose DNA is to be extracted or analyzed, or by that
individual's legal guardian or authorized representative,
which is memorialized in writing or in an electronic format
demonstrating an intentional decision, after the individual
receives a clear and prominent disclosure in writing regarding
the manner of collection, use, retention, maintenance, or
disclosure of a DNA sample or results of a DNA analysis for
specified purposes. A single express consent may authorize
every instance of a specified purpose or use.
Section 2. (a) Except as provided in this section or in
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Section 2. (a) Except as provided in this section or in
Section 3, an individual may only perform a DNA analysis with
express consent. The results of a DNA analysis, whether held
by a public or private entity, are the exclusive property of
the individual tested, are confidential, and may not be
disclosed without express consent.
(b) A person who performs a DNA analysis or receives
records, results, or findings of a DNA analysis shall provide
the individual tested with notice in writing that the analysis
was performed or that the records, results, or findings were
received. The notice shall state any of the following that may
be applicable under the express consent given by the
individual:
(1) That upon the written request of the individual
tested, the information will be made available to his or her
physician.
(2)a. That if the DNA sample was taken and the DNA
analysis was performed as part of the individual's application
for an educational opportunity, employment, loan, mortgage,
credit, or insurance other than health insurance, life
insurance, or long-term care insurance, the notice shall state
that the results of the DNA analysis were used in a decision
to grant or deny the individual's application for any of the
same.
b. That if the information was used in any decision
that resulted in a denial, the analysis shall be repeated to
verify the accuracy of the first analysis, and if the first
analysis is found to be inaccurate, the denial shall be
reviewed.
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reviewed.
(c) This act does not apply to the collection of a DNA
sample, performance of a DNA analysis, or the results of a DNA
analysis used for the purposes of any of the following:
(1) Criminal investigation or prosecution.
(2) Compliance with a subpoena, summons, or other
lawful court order.
(3) Compliance with federal law.
(4) Medical diagnosis, conducting quality assessments,
improvement activities, or treatment of a patient when either
of the following are true:
a. Express consent for clinical laboratory analysis of
the DNA sample was obtained by the health care practitioner
who collected the DNA sample.
b. The medical diagnosis, quality assessments,
improvement activities, or treatment of a patient was
performed by a clinical laboratory certified by the Centers
for Medicare and Medicaid Services.
(5) Determination of paternity pursuant to Chapter 17
of Title 26 of the Code of Alabama 1975, or custody pursuant
to Chapter 3 of Title 30 of the Code of Alabama 1975.
(6) Any purpose authorized pursuant to Article 2 of
Chapter 18 of Title 36, Code of Alabama 1975, or Section
12-15-135, Code of Alabama 1975.
(7) Conducting research, and designing and preparing
the research, subject to the requirements of, and in
compliance with, 21 C.F.R. Parts 50 and 56, and 45 C.F.R.
Parts 46, 160, and 164; or using information that is
deidentified consistent with 45 C.F.R. Parts 160 and 164 and
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deidentified consistent with 45 C.F.R. Parts 160 and 164 and
that is originally collected and maintained for research
subject to the requirements of, and in compliance with, 21
C.F.R. Parts 50 and 56, and 45 C.F.R. Parts 46, 160, and 164.
Section 3. (a)(1) It is unlawful for a person to
willfully, and without express consent, collect or retain an
individual's DNA sample with the intent to perform DNA
analysis.
(2) A violation of this subsection is a Class A
misdemeanor.
(b)(1) It is unlawful for a person to willfully, and
without express consent, submit an individual's DNA sample for
DNA analysis or analyze an individual's DNA sample or arrange
for the analysis of the same.
(2) A violation of this subsection is a Class D felony.
(c)(1) It is unlawful for a person to willfully, and
without express consent, disclose an individual's DNA analysis
results to a third party.
(2) A violation of this subsection is a Class D felony.
(3) It is not a violation of this subsection to
disclose an individual's DNA analysis results if the results
were previously voluntarily disclosed by either the individual
whose DNA was analyzed or his or her legal guardian or
authorized representative.
(d)(1) It is unlawful for a person to willfully, and
without express consent, sell or otherwise transfer an
individual's DNA sample or the results of an individual's DNA
analysis to a third party, regardless of whether the DNA
sample was originally collected, retained, or analyzed with
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sample was originally collected, retained, or analyzed with
express consent.
(2) A violation of this subsection is a Class C felony.
(e) Each instance of collection or retention,
submission or analysis, or disclosure, sale, or transfer in
violation of this section constitutes a separate violation for
which a separate penalty is authorized.
Section 4. (a) For the purposes of this section, the
following terms have the following meanings:
(1) DNA Analysis. The same meaning as in Section 1 of
this act.
(2) GENETIC INFORMATION. Information derived from DNA
analysis to determine the presence or absence of a
scientifically identifiable gene, chromosome, or mutation,
including carrier status, in an individual's DNA sample which
is believed to cause a disease, disorder, or syndrome, or is
associated with a statistically increased risk of developing
the disease, disorder, or syndrome, for which the individual
is asymptomatic at the time the DNA sample was taken.
(3) HEALTH INSURER. Any person that offers for sale or
administers a health insurance plan in this state, or
contracts with health care providers to furnish specified
health care services including hospital, physician, and
medical treatment to enrollees covered under a health
insurance plan, including preferred provider policies and
health maintenance organization subscriber contracts.
(4) LIFE INSURER. Any person that offers or administers
contracts that pay money to a designated beneficiary in one
lump sum or in installments upon the death of the insured,
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lump sum or in installments upon the death of the insured,
including annuity contracts, combined life and health and
accident insurance, and including but not limited to those
policies regulated by Chapters 15, 16, and 18 of Title 27,
Code of Alabama 1975.
(5) LONG-TERM CARE INSURER. Any person that offers or
administers long-term care insurance policies as defined in
Section 27-19-103, Code of Alabama 1975.
(b)(1) In the absence of a diagnosis of a condition
related to genetic information, a health insurer, life
insurer, or long-term care insurer authorized to transact
business in this state may not cancel, limit, or deny
coverage, or establish differentials in premium rates, based
on the information.
(2) A health insurer, life insurer, or long-term care
insurer may not require or solicit genetic information, use
the results of DNA analysis, or consider an individual's
decisions or actions relating to DNA analysis or genetic
information provided to the individual in any manner for any
insurance purpose.
(3) This section does not apply to the underwriting or
issuance of an accident-only policy, dental policy, vision
policy, or supplemental insurance such as a hospital indemnity
or fixed indemnity policy, or any other actions of an insurer
directly related to an accident-only policy, dental policy,
vision policy, or supplemental insurance such as a hospital
indemnity or fixed indemnity policy.
(4) Nothing in this section shall be construed as
preventing a health insurer, life insurer, or long-term care
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preventing a health insurer, life insurer, or long-term care
insurer from accessing an individual's medical record as part
of an application exam. Nothing in this section prohibits a
health insurer, life insurer, or long-term care insurer from
considering a medical diagnosis included in an individual's
medical record, even if a diagnosis was made based on the
results of a DNA analysis.
(c) A certificate of authority issued by the Department
of Insurance to an insurer is subject to suspension,
revocation, or other administrative penalty provided by law at
the discretion of the Commissioner of Insurance for any
violation of this section.
Section 5. Although this bill would have as its purpose
or effect the requirement of a new or increased expenditure of
local funds, this bill is excluded from further requirements
and application under Section 111.05 of the Constitution of
Alabama 2022, because the bill defines a new crime or amends
the definition of an existing crime.
Section 6. This act shall become effective on October
1, 2024.
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