State of Illinois
90th General Assembly
Legislation

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90_HB0008ham003

                                           LRB9000863JSgcam07
 1                      AMENDMENT TO HOUSE BILL 8
 2        AMENDMENT NO.     .  Amend House Bill 8, AS  AMENDED,  by
 3    replacing  everything  after  the  enacting  clause  with the
 4    following:
 5        "Section 1.  Short title.  This Act may be cited  as  the
 6    Genetic Information Privacy Act.
 7        Section  5.  Legislative  findings;  intent.  The General
 8    Assembly finds that:
 9             (1)  The use of genetic testing can be  valuable  to
10        an individual.
11             (2)  Despite   existing   laws,   regulations,   and
12        professional standards which require or promote voluntary
13        and confidential use of genetic testing information, many
14        members  of  the public are deterred from seeking genetic
15        testing  because  of  fear  that  test  results  will  be
16        disclosed without consent or be used in a  discriminatory
17        manner.
18             (3)  The   public   health   will   be   served   by
19        facilitating voluntary and confidential nondiscriminatory
20        use of genetic testing information.
21        Section 10.  Definitions.  As used in this Act:
                            -2-            LRB9000863JSgcam07
 1        "Genetic  testing" means a test of a person's genes, gene
 2    products, or chromosomes for abnormalities  or  deficiencies,
 3    including  carrier status, that (i) are linked to physical or
 4    mental   disorders   or   impairments,   (ii)   indicate    a
 5    susceptibility  to  illness,  disease,  impairment,  or other
 6    disorders, whether physical or mental, or  (iii)  demonstrate
 7    genetic  or  chromosomal damage due to environmental factors.
 8    Genetic   testing   does   not   include   routine   physical
 9    measurements; chemical, blood and  urine  analyses  that  are
10    widely  accepted  and  in use in clinical practice; tests for
11    use of drugs;  and  tests  for  the  presence  of  the  human
12    immunodeficiency virus.
13        "Insurer" means (i) an entity that transacts an insurance
14    business and (ii) a managed care plan.
15        "Managed  care  plan"  means  a  plan  that  establishes,
16    operates,  or  maintains  a  network of health care providers
17    that have entered into agreements with the  plan  to  provide
18    health  care  services  to  enrollees  where the plan has the
19    ultimate and direct contractual obligation to the enrollee to
20    arrange for the provision of or pay for services through:
21             (1)  organizational arrangements for ongoing quality
22        assurance,  utilization  review  programs,   or   dispute
23        resolution; or
24             (2)  financial  incentives  for  persons enrolled in
25        the  plan  to  use  the   participating   providers   and
26        procedures covered by the plan.
27        A managed care plan may be established or operated by any
28    entity  including  a  licensed insurance company, hospital or
29    medical  service  plan,  health   maintenance   organization,
30    limited   health  service  organization,  preferred  provider
31    organization, third party administrator, or  an  employer  or
32    employee organization.
33        Section 15.  Confidentiality of genetic information.
                            -3-            LRB9000863JSgcam07
 1        (a)  Except  as  otherwise  provided in this Act, genetic
 2    testing and  information  derived  from  genetic  testing  is
 3    confidential  and  privileged and may be released only to the
 4    individual tested and to persons specifically authorized,  in
 5    writing in accordance with Section 30,  by that individual to
 6    receive  the  information.   Except  as otherwise provided in
 7    subsection (b) and in Section 30, this information shall  not
 8    be  admissible as evidence, nor discoverable in any action of
 9    any kind in any court, or before any tribunal, board, agency,
10    or person pursuant to Part 21 of Article VIII of the Code  of
11    Civil  Procedure.  No liability shall attach to any hospital,
12    physician, or other health care provider for compliance  with
13    the  provisions  of  this  Act  including  a specific written
14    release by the individual in accordance with this Act.
15        (b)  When a biological sample is legally  obtained  by  a
16    peace   officer  for  use  in  a  criminal  investigation  or
17    prosecution, information derived from genetic testing of that
18    sample  may  be  disclosed  for  identification  purposes  to
19    appropriate  law  enforcement  authorities   conducting   the
20    investigation  or  prosecution  and may be used in accordance
21    with Section 5-4-3 of the Unified Code of  Corrections.   The
22    information  may  be  used for identification purposes during
23    the course of the investigation or prosecution  with  respect
24    to   the   individual  tested  without  the  consent  of  the
25    individual and shall be admissible as evidence in court.
26        The  information  shall  be  confidential  and   may   be
27    disclosed  only  for  purposes  of  criminal investigation or
28    prosecution.
29        (c)  If the subject of the information requested  by  law
30    enforcement is found innocent of the offense or otherwise not
31    criminally   penalized,  then  the  court  records  shall  be
32    expunged by the court within 30 days after  the  final  legal
33    proceeding.    The  court  shall  notify  the  subject of the
34    information  of the expungement of the records in writing.
                            -4-            LRB9000863JSgcam07
 1        (d)  Results of genetic testing that  indicate  that  the
 2    individual tested is at the time of the test afflicted with a
 3    disease,  whether  or  not  currently  symptomatic,  are  not
 4    subject to the confidentiality requirements of this Act.
 5        Section  20.  Use  of  genetic  testing  information  for
 6    insurance purposes.
 7        (a)  An  insurer  may  not  seek information derived from
 8    genetic testing for  use  in  connection  with  a  policy  of
 9    accident   and  health  insurance.   Except  as  provided  in
10    subsection (b), an insurer that receives information  derived
11    from  genetic  testing  may  not  use  the  information for a
12    nontherapeutic purpose as it relates to a policy of  accident
13    and health insurance.
14        (b)  An  insurer  may  consider  the  results  of genetic
15    testing in connection with a policy of  accident  and  health
16    insurance  if  the individual voluntarily submits the results
17    and the results are favorable to the individual.
18        (c)  An insurer that possesses information  derived  from
19    genetic  testing  may  not release the information to a third
20    party, except as specified in Section 30.
21        Section 22.  Tests to determine inherited characteristics
22    in paternity proceedings.   Nothing  in  this  Act  shall  be
23    construed to affect or restrict in any way the ordering of or
24    use  of  results  from deoxyribonucleic acid (DNA) testing or
25    other tests to determine  inherited  characteristics  by  the
26    court  in  a judicial proceeding under the Illinois Parentage
27    Act of 1984 or by the Illinois Department of Public Aid in an
28    administrative paternity proceeding under Article  X  of  the
29    Illinois  Public  Aid  Code  and rules promulgated under that
30    Article.
31        Section  25.  Use  of  genetic  testing  information   by
                            -5-            LRB9000863JSgcam07
 1    employers.
 2        (a)  An  employer shall treat genetic testing information
 3    in such a manner that is consistent with the requirements  of
 4    federal  law, including but not limited to the Americans with
 5    Disabilities Act.
 6        (b)  An employer may release genetic testing  information
 7    only in accordance with Section 30.
 8        Section   30.  Disclosure   of  person  tested  and  test
 9    results.
10        (a)  No person may disclose or be compelled  to  disclose
11    the  identity  of  any  person  upon  whom  a genetic test is
12    performed or the results of a genetic test in a  manner  that
13    permits  identification of the subject of the test, except to
14    the following persons:
15             (1)  The  subject  of  the  test  or  the  subject's
16        legally authorized representative.  This  paragraph  does
17        not create a duty or obligation under which a health care
18        provider  must  notify  the  subject's  spouse  or  legal
19        guardian  of  the  test  results,  and  no  such  duty or
20        obligation shall  be  implied.   No  civil  liability  or
21        criminal sanction under this Act shall be imposed for any
22        disclosure  or nondisclosure of a test result to a spouse
23        by a physician acting in good faith under this paragraph.
24        For the purpose of any proceedings,  civil  or  criminal,
25        the  good  faith  of  any  physician  acting  under  this
26        paragraph shall be presumed.
27             (2)  Any  person  designated  in  a specific written
28        legally effective release of the test results executed by
29        the  subject  of  the  test  or  the  subject's   legally
30        authorized representative.
31             (3)  An  authorized  agent  or  employee of a health
32        facility or health care provider if the  health  facility
33        or  health  care  provider itself is authorized to obtain
                            -6-            LRB9000863JSgcam07
 1        the test results, the agent or employee provides  patient
 2        care,  and  the  agent or employee has a need to know the
 3        information in order to conduct the tests or provide care
 4        or treatment.
 5             (4)  A health facility or health care provider  that
 6        procures, processes, distributes, or uses:
 7                  (A)  a  human  body part from a deceased person
 8             with respect to medical information  regarding  that
 9             person; or
10                  (B)  semen provided prior to the effective date
11             of   this   Act   for   the  purpose  of  artificial
12             insemination.
13             (5)  Health  facility  staff  committees   for   the
14        purposes   of   conducting  program  monitoring,  program
15        evaluation, or service reviews.
16             (6)  In the case of a minor under 18 years  of  age,
17        the  health care provider who ordered the test shall make
18        a reasonable effort to notify the minor's parent or legal
19        guardian if, in the professional judgment of  the  health
20        care provider, notification would be in the best interest
21        of  the  minor  and  the  health  care provider has first
22        sought unsuccessfully to persuade the minor to notify the
23        parent or legal guardian or after a reasonable time after
24        the minor has  agreed  to  notify  the  parent  or  legal
25        guardian,  the health care provider has reason to believe
26        that the minor  has  not  made  the  notification.   This
27        paragraph  shall  not  create  a duty or obligation under
28        which a health care  provider  must  notify  the  minor's
29        parent or legal guardian of the test results, nor shall a
30        duty  or  obligation  be  implied.  No civil liability or
31        criminal sanction under this Act shall be imposed for any
32        notification or non-notification of a minor's test result
33        by a health care provider acting in good faith under this
34        paragraph.  For the purpose of any proceeding,  civil  or
                            -7-            LRB9000863JSgcam07
 1        criminal,  the  good  faith  of  any health care provider
 2        acting under this paragraph shall be presumed.
 3             (7)  All information and records  held  by  a  State
 4        agency  or  local  health authority pertaining to genetic
 5        information shall be  strictly  confidential  and  exempt
 6        from   copying   and  inspection  under  the  Freedom  of
 7        Information Act.  The information and records  shall  not
 8        be  released  or made public by the State agency or local
 9        health authority and shall not be admissible as  evidence
10        nor  discoverable  in any action of any kind in any court
11        or before any tribunal,  board,  agency,  or  person  and
12        shall  be  treated  in the same manner as the information
13        and those records subject to the provisions of Part 21 of
14        Article VIII of the Code of Civil Procedure except  under
15        the following circumstances:
16                  (A)  when  made with the written consent of all
17             persons to whom the information pertains;
18                  (B)  when authorized by Section  5-4-3  of  the
19             Unified Code of Corrections;
20                  (C)  when   made   for   the  sole  purpose  of
21             implementing the  Phenylketonuria  Testing  Act  and
22             rules; or
23                  (D)  when  made  under the authorization of the
24             Illinois Parentage Act of 1984.
25        Disclosure shall be limited to those who have a  need  to
26    know  the  information,  and no additional disclosures may be
27    made.
28        (b)  Disclosure by an  insurer  in  accordance  with  the
29    requirements of the Article XL of the Illinois Insurance Code
30    shall be deemed compliance with this Section.
31        Section  35.  Disclosure  by  person to whom results have
32    been disclosed.  No person to whom the results of a test have
33    been disclosed may  disclose  the  test  results  to  another
                            -8-            LRB9000863JSgcam07
 1    person except as authorized by Section 30.
 2        Section 40.  Right of action.
 3        (a)  Any  person  aggrieved  by  a  violation of this Act
 4    shall have a right of action in the  circuit  court  and  may
 5    recover for each violation:
 6             (1)  Against  any  person who negligently violates a
 7        provision of this Act, liquidated damages  of  $1,000  or
 8        actual damages, whichever is greater.
 9             (2)  Against   any   person   who  intentionally  or
10        recklessly violates a provision of this  Act,  liquidated
11        damages   of  $5,000  or  actual  damages,  whichever  is
12        greater.
13             (3)  Reasonable attorney fees.
14             (4)  Such other relief, including an injunction,  as
15        the court may deem appropriate.
16        (b)  Article  XL  of  the  Illinois  Insurance Code shall
17    provide the exclusive remedy for violations of Section 30  by
18    insurers.
19        Section  45.   Damages  or other relief.  Nothing in this
20    Act limits the right of the subject  of  a  test  to  recover
21    damages or other relief under any other applicable law.
22        Section  91.  The  Illinois  Insurance Code is amended by
23    adding Section 356t as follows:
24        (215 ILCS 5/356t new)
25        Sec.  356t.  Use  of  information  derived  from  genetic
26    testing. After the effective date of this amendatory  Act  of
27    1997,  an  insurer  must  comply  with  the provisions of the
28    Genetic  Information  Privacy  Act  in  connection  with  the
29    amendment, delivery, issuance, or renewal of, or  claims  for
30    or denial of coverage under, an individual or group policy of
                            -9-            LRB9000863JSgcam07
 1    accident and health insurance.
 2        Section  93.  The  Health Maintenance Organization Act is
 3    amended by changing Section 5-3 as follows:
 4        (215 ILCS 125/5-3) (from Ch. 111 1/2, par. 1411.2)
 5        Sec. 5-3.  Insurance Code provisions.
 6        (a)  Health Maintenance Organizations shall be subject to
 7    the provisions of Sections 133, 134, 137, 140, 141.1,  141.2,
 8    141.3,  143,  143c, 147, 148, 149, 151, 152, 153, 154, 154.5,
 9    154.6, 154.7, 154.8, 155.04, 355.2, 356m,  356t,  367i,  401,
10    401.1,  402, 403, 403A, 408, 408.2, and 412, paragraph (c) of
11    subsection (2) of Section 367, and Articles  VIII  1/2,  XII,
12    XII  1/2,  XIII, XIII 1/2, and XXVI of the Illinois Insurance
13    Code.
14        (b)  For purposes of the Illinois Insurance Code,  except
15    for   Articles   XIII   and   XIII  1/2,  Health  Maintenance
16    Organizations in the following categories are  deemed  to  be
17    "domestic companies":
18             (1)  a  corporation  authorized  under  the  Medical
19        Service Plan Act, the Dental Service Plan Act, the Vision
20        Service  Plan  Act,  the Pharmaceutical Service Plan Act,
21        the Voluntary Health Services Plan Act, or the  Nonprofit
22        Health Care Service Plan Act;
23             (2)  a  corporation organized under the laws of this
24        State; or
25             (3)  a  corporation  organized  under  the  laws  of
26        another state, 30% or more of the enrollees of which  are
27        residents  of this State, except a corporation subject to
28        substantially the  same  requirements  in  its  state  of
29        organization  as  is  a  "domestic company" under Article
30        VIII 1/2 of the Illinois Insurance Code.
31        (c)  In considering the merger, consolidation,  or  other
32    acquisition  of  control of a Health Maintenance Organization
                            -10-           LRB9000863JSgcam07
 1    pursuant to Article VIII 1/2 of the Illinois Insurance Code,
 2             (1)  the Director shall give  primary  consideration
 3        to  the  continuation  of  benefits  to enrollees and the
 4        financial conditions of the acquired  Health  Maintenance
 5        Organization  after  the  merger, consolidation, or other
 6        acquisition of control takes effect;
 7             (2)(i)  the criteria specified in subsection  (1)(b)
 8        of Section 131.8 of the Illinois Insurance Code shall not
 9        apply  and (ii) the Director, in making his determination
10        with respect  to  the  merger,  consolidation,  or  other
11        acquisition  of  control,  need not take into account the
12        effect on competition of the  merger,  consolidation,  or
13        other acquisition of control;
14             (3)  the  Director  shall  have the power to require
15        the following information:
16                  (A)  certification by an independent actuary of
17             the  adequacy  of  the  reserves   of   the   Health
18             Maintenance Organization sought to be acquired;
19                  (B)  pro  forma financial statements reflecting
20             the combined balance sheets of the acquiring company
21             and the Health Maintenance Organization sought to be
22             acquired as of the end of the preceding year and  as
23             of  a date 90 days prior to the acquisition, as well
24             as  pro  forma   financial   statements   reflecting
25             projected  combined  operation  for  a  period  of 2
26             years;
27                  (C)  a pro forma  business  plan  detailing  an
28             acquiring   party's   plans   with  respect  to  the
29             operation of  the  Health  Maintenance  Organization
30             sought  to be acquired for a period of not less than
31             3 years; and
32                  (D)  such other  information  as  the  Director
33             shall require.
34        (d)  The  provisions  of Article VIII 1/2 of the Illinois
                            -11-           LRB9000863JSgcam07
 1    Insurance Code and this Section 5-3 shall apply to  the  sale
 2    by any health maintenance organization of greater than 10% of
 3    its  enrollee  population  (including  without limitation the
 4    health maintenance organization's right, title, and  interest
 5    in and to its health care certificates).
 6        (e)  In  considering  any  management contract or service
 7    agreement subject to Section 141.1 of the Illinois  Insurance
 8    Code,  the  Director  (i)  shall, in addition to the criteria
 9    specified in Section 141.2 of the  Illinois  Insurance  Code,
10    take  into  account  the effect of the management contract or
11    service  agreement  on  the  continuation  of   benefits   to
12    enrollees   and   the   financial  condition  of  the  health
13    maintenance organization to be managed or serviced, and  (ii)
14    need  not  take  into  account  the  effect of the management
15    contract or service agreement on competition.
16        (f)  Except for small employer groups as defined  in  the
17    Small  Employer  Rating,  Renewability and Portability Health
18    Insurance Act and except for medicare supplement policies  as
19    defined  in  Section  363  of  the Illinois Insurance Code, a
20    Health Maintenance Organization may by contract agree with  a
21    group  or  other  enrollment unit to effect refunds or charge
22    additional premiums under the following terms and conditions:
23             (i)  the amount of, and other terms  and  conditions
24        with respect to, the refund or additional premium are set
25        forth  in the group or enrollment unit contract agreed in
26        advance of the period for which a refund is to be paid or
27        additional premium is to be charged (which  period  shall
28        not be less than one year); and
29             (ii)  the amount of the refund or additional premium
30        shall   not   exceed   20%   of  the  Health  Maintenance
31        Organization's profitable or unprofitable experience with
32        respect to the group or other  enrollment  unit  for  the
33        period  (and,  for  purposes  of  a  refund or additional
34        premium, the profitable or unprofitable experience  shall
                            -12-           LRB9000863JSgcam07
 1        be calculated taking into account a pro rata share of the
 2        Health   Maintenance  Organization's  administrative  and
 3        marketing expenses, but shall not include any  refund  to
 4        be made or additional premium to be paid pursuant to this
 5        subsection (f)).  The Health Maintenance Organization and
 6        the   group   or  enrollment  unit  may  agree  that  the
 7        profitable or unprofitable experience may  be  calculated
 8        taking into account the refund period and the immediately
 9        preceding 2 plan years.
10        The  Health  Maintenance  Organization  shall  include  a
11    statement in the evidence of coverage issued to each enrollee
12    describing the possibility of a refund or additional premium,
13    and  upon request of any group or enrollment unit, provide to
14    the group or enrollment unit a description of the method used
15    to  calculate  (1)  the  Health  Maintenance   Organization's
16    profitable experience with respect to the group or enrollment
17    unit and the resulting refund to the group or enrollment unit
18    or  (2)  the  Health  Maintenance Organization's unprofitable
19    experience with respect to the group or enrollment  unit  and
20    the  resulting  additional premium to be paid by the group or
21    enrollment unit.
22        In  no  event  shall  the  Illinois  Health   Maintenance
23    Organization  Guaranty  Association  be  liable  to  pay  any
24    contractual  obligation  of  an insolvent organization to pay
25    any refund authorized under this Section.
26    (Source: P.A. 88-313; 89-90, eff. 6-30-95.)
27        Section 95.  The Limited Health Service Organization  Act
28    is amended by changing Section 4003 as follows:
29        (215 ILCS 130/4003) (from Ch. 73, par. 1504-3)
30        Sec.  4003.  Illinois Insurance Code provisions.  Limited
31    health  service  organizations  shall  be  subject   to   the
32    provisions  of  Sections  133,  134,  137, 140, 141.1, 141.2,
                            -13-           LRB9000863JSgcam07
 1    141.3, 143, 143c, 147, 148, 149, 151, 152, 153,  154,  154.5,
 2    154.6,  154.7,  154.8,  155.04, 355.2, 356t, 401, 401.1, 402,
 3    403, 403A, 408, 408.2, and 412, and Articles VIII  1/2,  XII,
 4    XII  1/2,  XIII, XIII 1/2, and XXVI of the Illinois Insurance
 5    Code.  For purposes of the Illinois  Insurance  Code,  except
 6    for  Articles  XIII  and  XIII  1/2,  limited  health service
 7    organizations in the following categories are  deemed  to  be
 8    domestic companies:
 9             (1)  a corporation under the laws of this State; or
10             (2)  a  corporation  organized  under  the  laws  of
11        another  state, 30% of more of the enrollees of which are
12        residents of this State, except a corporation subject  to
13        substantially  the  same  requirements  in  its  state of
14        organization as is a domestic company under Article  VIII
15        1/2 of the Illinois Insurance Code.
16    (Source: P.A. 86-600; 87-587; 87-1090.)
17        Section  97.  The  Voluntary Health Services Plans Act is
18    amended by changing Section 10 as follows:
19        (215 ILCS 165/10) (from Ch. 32, par. 604)
20        Sec.  10.  Application  of  Insurance  Code   provisions.
21    Health  services plan corporations and all persons interested
22    therein  or  dealing  therewith  shall  be  subject  to   the
23    provisions  of  Article  XII  1/2 and Sections 3.1, 133, 140,
24    143, 143c, 149, 354, 355.2, 356r, 356t,  367.2,  401,  401.1,
25    402,  403,  403A, 408, 408.2, and 412, and paragraphs (7) and
26    (15) of Section 367 of the Illinois Insurance Code.
27    (Source: P.A. 89-514, eff. 7-17-96.)".

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