Text: H.R.493 — 110th Congress (2007-2008)All Information (Except Text)

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Public Law No: 110-233 (05/21/2008)

 
[110th Congress Public Law 233]
[From the U.S. Government Printing Office]


[DOCID: f:publ233.110]

[[Page 122 STAT. 881]]

Public Law 110-233
110th Congress

                                 An Act


 
  To prohibit discrimination on the basis of genetic information with 
     respect to health insurance and <<NOTE: May 21, 2008 -  [H.R. 
                           493]>> employment.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Genetic Information Non- 
discrimination Act of 2008. 42 USC 2000ff note.>> assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Genetic Information 
Nondiscrimination Act of 2008''.
    (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 the Internal Revenue Code of 1986.
Sec. 104. Amendments to title XVIII of the Social Security Act relating 
           to medigap.
Sec. 105. Privacy and confidentiality.
Sec. 106. Assuring coordination.

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 PROVISIONS

Sec. 301. Severability.
Sec. 302. Child labor protections.

SEC. 2. <<NOTE: 42 USC 2000ff note.>> 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

[[Page 122 STAT. 882]]

        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

[[Page 122 STAT. 883]]

        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) 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--
            (1) in paragraph (2)(A), by inserting before the semicolon 
        the following: ``except as provided in paragraph (3)''; and
            (2) by adding at the end the following:
            ``(3) No group-based discrimination on basis of genetic 
        information.--
                    ``(A) In general.--For purposes of this section, a 
                group health plan, and a health insurance issuer 
                offering group health insurance coverage in connection 
                with a group health plan, may not adjust premium or 
                contribution amounts for the group covered under such 
                plan on the basis of genetic information.
                    ``(B) Rule of construction.--Nothing in subparagraph 
                (A) or in paragraphs (1) and (2) of subsection (d) shall 
                be construed to limit the ability of a health insurance 
                issuer offering health insurance coverage in connection 
                with a group health plan to increase the premium for an 
                employer based on the manifestation of a disease or 
                disorder of an individual who is enrolled in the plan. 
                In such case, the manifestation of a disease or disorder 
                in one individual cannot also be used as genetic 
                information about other group members and to further 
                increase the premium for the employer.''.

    (b) Limitations on Genetic Testing; Prohibition on Collection of 
Genetic Information; Application to All Plans.--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, and 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.--Paragraph (1) shall not be 
        construed to limit the authority of a health care professional 
        who is providing health care services to an individual to 
        request that such individual undergo a genetic test.
            ``(3) Rule of construction regarding payment.--
                    ``(A) In general.--Nothing in paragraph (1) shall be 
                construed to preclude a group health plan, or a health 
                insurance issuer offering health insurance coverage in 
                connection with a group health plan, from obtaining and 
                using the results of a genetic test in making a 
                determination regarding payment (as such term is defined 
                for the purposes of applying the regulations promulgated 
                by the

[[Page 122 STAT. 884]]

                Secretary of Health and Human Services under part C of 
                title XI of the Social Security Act and section 264 of 
                the Health Insurance Portability and Accountability Act 
                of 1996, as may be revised from time to time) consistent 
                with subsection (a).
                    ``(B) Limitation.--For purposes of subparagraph (A), 
                a group health plan, or a health insurance issuer 
                offering health insurance coverage in connection with a 
                group health plan, may request only the minimum amount 
                of information necessary to accomplish the intended 
                purpose.
            ``(4) Research exception.--Notwithstanding paragraph (1), a 
        group health plan, or a health insurance issuer offering health 
        insurance coverage in connection with a group health plan, may 
        request, but not require, that a participant or beneficiary 
        undergo a genetic test if each of the following conditions is 
        met:
                    ``(A) The request is made, in writing, pursuant to 
                research that complies with part 46 of title 45, Code of 
                Federal Regulations, or equivalent Federal regulations, 
                and any applicable State or local law or regulations for 
                the protection of human subjects in research.
                    ``(B) The plan or issuer clearly indicates to each 
                participant or beneficiary, or in the case of a minor 
                child, to the legal guardian of such beneficiary, to 
                whom the request is made that--
                          ``(i) compliance with the request is 
                      voluntary; and
                          ``(ii) non-compliance will have no effect on 
                      enrollment status or premium or contribution 
                      amounts.
                    ``(C) No genetic information collected or acquired 
                under this paragraph shall be used for underwriting 
                purposes.
                    ``(D) <<NOTE: Notification.>> The plan or issuer 
                notifies the Secretary in writing that the plan or 
                issuer is conducting activities pursuant to the 
                exception provided for under this paragraph, including a 
                description of the activities conducted.
                    ``(E) The plan or issuer complies with such other 
                conditions as the Secretary may by regulation require 
                for activities conducted under this paragraph.

    ``(d) Prohibition on Collection of Genetic Information.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer offering health insurance coverage in 
        connection with a group health plan, shall not request, require, 
        or purchase genetic information for underwriting purposes (as 
        defined in section 733).
            ``(2) Prohibition on collection of genetic information prior 
        to enrollment.--A group health plan, and a health insurance 
        issuer offering health insurance coverage in connection with a 
        group health plan, shall not request, require, or purchase 
        genetic information with respect to any individual prior to such 
        individual's enrollment under the plan or coverage in connection 
        with such enrollment.
            ``(3) Incidental collection.--If a group health plan, or a 
        health insurance issuer offering health insurance coverage in 
        connection with a group health plan, obtains genetic information 
        incidental to the requesting, requiring, or purchasing of other 
        information concerning any individual, such request, 
        requirement, or purchase shall not be considered a violation

[[Page 122 STAT. 885]]

        of paragraph (2) if such request, requirement, or purchase is 
        not in violation of paragraph (1).

    ``(e) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), (c), and (d), and subsection (b)(1) and section 701 
with respect to genetic information, shall apply to group health plans 
and health insurance issuers without regard to section 732(a).''.
    (c) Application to Genetic Information of a Fetus or Embryo.--Such 
section is further amended by adding at the end the following:
    ``(f) Genetic Information of a Fetus or Embryo.--Any reference in 
this part to genetic information concerning an individual or family 
member of an individual shall--
            ``(1) 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; and
            ``(2) with respect to an individual or family member 
        utilizing an assisted reproductive technology, include genetic 
        information of any embryo legally held by the individual or 
        family member.''.

    (d) 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) a dependent (as such term is used for purposes 
                of section 701(f)(2)) of such individual, and
                    ``(B) any other individual who is a first-degree, 
                second-degree, third-degree, or fourth-degree relative 
                of such individual or of an individual described in 
                subparagraph (A).
            ``(6) Genetic information.--
                    ``(A) In general.--The term `genetic information' 
                means, with respect to any individual, information 
                about--
                          ``(i) such individual's genetic tests,
                          ``(ii) the genetic tests of family members of 
                      such individual, and
                          ``(iii) the manifestation of a disease or 
                      disorder in family members of such individual.
                    ``(B) Inclusion of genetic services and 
                participation in genetic research.--Such term includes, 
                with respect to any individual, any request for, or 
                receipt of, genetic services, or participation in 
                clinical research which includes genetic services, by 
                such individual or any family member of such individual.
                    ``(C) Exclusions.--The term `genetic information' 
                shall not include information about the sex or age of 
                any 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--

[[Page 122 STAT. 886]]

                          ``(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.
            ``(9) Underwriting purposes.--The term `underwriting 
        purposes' means, with respect to any group health plan, or 
        health insurance coverage offered in connection with a group 
        health plan--
                    ``(A) rules for, or determination of, eligibility 
                (including enrollment and continued eligibility) for 
                benefits under the plan or coverage;
                    ``(B) the computation of premium or contribution 
                amounts under the plan or coverage;
                    ``(C) the application of any pre-existing condition 
                exclusion under the plan or coverage; and
                    ``(D) other activities related to the creation, 
                renewal, or replacement of a contract of health 
                insurance or health benefits.''.

    (e) 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)'';
            (2) in subsection (b)(3), by striking ``The Secretary'' and 
        inserting ``Except as provided in subsections (c)(9) and (a)(6) 
        (with respect to collecting civil penalties under subsection 
        (c)(9)), the Secretary''; and
            (3) 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), (c), or (d) of section 702 
                or section 701 or 702(b)(1) with respect to genetic 
                information, 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--

[[Page 122 STAT. 887]]

                                    ``(I) beginning on the date such 
                                failure first occurs; and
                                    ``(II) ending on the date the 
                                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.

[[Page 122 STAT. 888]]

                    ``(F) Definitions.--Terms used in this paragraph 
                which are defined in section 733 shall have the meanings 
                provided such terms in such section.''.

    (f) Regulations and <<NOTE: 29 USC 1132 note.>> Effective Date.--
            (1) Regulations.--The Secretary of Labor shall issue final 
        regulations not later than 12 months 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 <<NOTE: Applicability.>> apply with respect to group 
        health plans for plan years beginning after the date that is 1 
        year after the date of enactment of this Act.
SEC. 102. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.

    (a) Amendments Relating to the Group Market.--
            (1) 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--
                    (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 group-based discrimination on basis of genetic 
        information.--
                    ``(A) In general.--For purposes of this section, a 
                group health plan, and health insurance issuer offering 
                group health insurance coverage in connection with a 
                group health plan, may not adjust premium or 
                contribution amounts for the group covered under such 
                plan on the basis of genetic information.
                    ``(B) Rule of construction.--Nothing in subparagraph 
                (A) or in paragraphs (1) and (2) of subsection (d) shall 
                be construed to limit the ability of a health insurance 
                issuer offering health insurance coverage in connection 
                with a group health plan to increase the premium for an 
                employer based on the manifestation of a disease or 
                disorder of an individual who is enrolled in the plan. 
                In such case, the manifestation of a disease or disorder 
                in one individual cannot also be used as genetic 
                information about other group members and to further 
                increase the premium for the employer.''.
            (2) Limitations on genetic testing; prohibition on 
        collection of genetic information; application to all plans.--
        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, and 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.--Paragraph (1) shall not be 
        construed to limit the authority of a health care professional 
        who is providing health care services to an individual to 
        request that such individual undergo a genetic test.
            ``(3) Rule of construction regarding payment.--

[[Page 122 STAT. 889]]

                    ``(A) In general.--Nothing in paragraph (1) shall be 
                construed to preclude a group health plan, or a health 
                insurance issuer offering health insurance coverage in 
                connection with a group health plan, from obtaining and 
                using the results of a genetic test in making a 
                determination regarding payment (as such term is defined 
                for the purposes of applying the regulations promulgated 
                by the Secretary under part C of title XI of the Social 
                Security Act and section 264 of the Health Insurance 
                Portability and Accountability Act of 1996, as may be 
                revised from time to time) consistent with subsection 
                (a).
                    ``(B) Limitation.--For purposes of subparagraph (A), 
                a group health plan, or a health insurance issuer 
                offering health insurance coverage in connection with a 
                group health plan, may request only the minimum amount 
                of information necessary to accomplish the intended 
                purpose.
            ``(4) Research exception.--Notwithstanding paragraph (1), a 
        group health plan, or a health insurance issuer offering health 
        insurance coverage in connection with a group health plan, may 
        request, but not require, that a participant or beneficiary 
        undergo a genetic test if each of the following conditions is 
        met:
                    ``(A) The request is made pursuant to research that 
                complies with part 46 of title 45, Code of Federal 
                Regulations, or equivalent Federal regulations, and any 
                applicable State or local law or regulations for the 
                protection of human subjects in research.
                    ``(B) The plan or issuer clearly indicates to each 
                participant or beneficiary, or in the case of a minor 
                child, to the legal guardian of such beneficiary, to 
                whom the request is made that--
                          ``(i) compliance with the request is 
                      voluntary; and
                          ``(ii) non-compliance will have no effect on 
                      enrollment status or premium or contribution 
                      amounts.
                    ``(C) No genetic information collected or acquired 
                under this paragraph shall be used for underwriting 
                purposes.
                    ``(D) <<NOTE: Notification.>> The plan or issuer 
                notifies the Secretary in writing that the plan or 
                issuer is conducting activities pursuant to the 
                exception provided for under this paragraph, including a 
                description of the activities conducted.
                    ``(E) The plan or issuer complies with such other 
                conditions as the Secretary may by regulation require 
                for activities conducted under this paragraph.

    ``(d) Prohibition on Collection of Genetic Information.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer offering health insurance coverage in 
        connection with a group health plan, shall not request, require, 
        or purchase genetic information for underwriting purposes (as 
        defined in section 2791).
            ``(2) Prohibition on collection of genetic information prior 
        to enrollment.--A group health plan, and a health insurance 
        issuer offering health insurance coverage in connection with a 
        group health plan, shall not request, require, or purchase 
        genetic information with respect to any individual prior to such 
        individual's enrollment under the plan or coverage in connection 
        with such enrollment.

[[Page 122 STAT. 890]]

            ``(3) Incidental collection.--If a group health plan, or a 
        health insurance issuer offering health insurance coverage in 
        connection with a group health plan, obtains genetic information 
        incidental to the requesting, requiring, or purchasing of other 
        information concerning any individual, such request, 
        requirement, or purchase shall not be considered a violation of 
        paragraph (2) if such request, requirement, or purchase is not 
        in violation of paragraph (1).

    ``(e) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), (c) , and (d) and subsection (b)(1) and section 2701 
with respect to genetic information, shall apply to group health plans 
and health insurance issuers without regard to section 2721(a).''.
            (3) Application to genetic information of a fetus or 
        embryo.--Such section is further amended by adding at the end 
        the following:

    ``(f) Genetic Information of a Fetus or Embryo.--Any reference in 
this part to genetic information concerning an individual or family 
member of an individual shall--
            ``(1) 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; and
            ``(2) with respect to an individual or family member 
        utilizing an assisted reproductive technology, include genetic 
        information of any embryo legally held by the individual or 
        family member.''.
            (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 any individual--
                    ``(A) a dependent (as such term is used for purposes 
                of section 2701(f)(2)) of such individual; and
                    ``(B) any other individual who is a first-degree, 
                second-degree, third-degree, or fourth-degree relative 
                of such individual or of an individual described in 
                subparagraph (A).
            ``(16) Genetic information.--
                    ``(A) In general.--The term `genetic information' 
                means, with respect to any individual, information 
                about--
                          ``(i) such individual's genetic tests,
                          ``(ii) the genetic tests of family members of 
                      such individual, and
                          ``(iii) the manifestation of a disease or 
                      disorder in family members of such individual.
                    ``(B) Inclusion of genetic services and 
                participation in genetic research.--Such term includes, 
                with respect to any individual, any request for, or 
                receipt of, genetic services, or participation in 
                clinical research which includes genetic services, by 
                such individual or any family member of such individual.
                    ``(C) Exclusions.--The term `genetic information' 
                shall not include information about the sex or age of 
                any individual.
            ``(17) Genetic test.--
                    ``(A) In general.--The term `genetic test' means an 
                analysis of human DNA, RNA, chromosomes, proteins, or

[[Page 122 STAT. 891]]

                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 (including obtaining, 
                interpreting, or assessing genetic information); or
                    ``(C) genetic education.
            ``(19) Underwriting purposes.--The term `underwriting 
        purposes' means, with respect to any group health plan, or 
        health insurance coverage offered in connection with a group 
        health plan--
                    ``(A) rules for, or determination of, eligibility 
                (including enrollment and continued eligibility) for 
                benefits under the plan or coverage;
                    ``(B) the computation of premium or contribution 
                amounts under the plan or coverage;
                    ``(C) the application of any pre-existing condition 
                exclusion under the plan or coverage; and
                    ``(D) other activities related to the creation, 
                renewal, or replacement of a contract of health 
                insurance or health benefits.''.
            (5) 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 succeeding subparagraphs of this 
                paragraph 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), (c), or (d) of section 
                2702 or section 2701 or 2702(b)(1) with respect to 
                genetic information in connection with the plan.
                    ``(B) Amount.--
                          ``(i) In general.--
                      The <<NOTE: Penalties.>> amount of the penalty 
                      imposed under this paragraph 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

[[Page 122 STAT. 892]]

                                    ``(II) ending on the date the 
                                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.''.

    (b) Amendment Relating to the Individual Market.--

[[Page 122 STAT. 893]]

            (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. <<NOTE: 42 USC 300gg-53.>> PROHIBITION OF HEALTH 
                          DISCRIMINATION ON THE BASIS OF GENETIC 
                          INFORMATION.

    ``(a) Prohibition on Genetic Information as a Condition of 
Eligibility.--
            ``(1) In general.--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.
            ``(2) Rule of construction.--Nothing in paragraph (1) or in 
        paragraphs (1) and (2) of subsection (e) shall be construed to 
        preclude a health insurance issuer from establishing rules for 
        eligibility for an individual to enroll in individual health 
        insurance coverage based on the manifestation of a disease or 
        disorder in that individual, or in a family member of such 
        individual where such family member is covered under the policy 
        that covers such individual.

    ``(b) Prohibition on Genetic Information in Setting Premium Rates.--
            ``(1) In general.--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.
            ``(2) Rule of construction.--Nothing in paragraph (1) or in 
        paragraphs (1) and (2) of subsection (e) shall be construed to 
        preclude a health insurance issuer from adjusting premium or 
        contribution amounts for an individual on the basis of a 
        manifestation of a disease or disorder in that individual, or in 
        a family member of such individual where such family member is 
        covered under the policy that covers such individual. In such 
        case, the manifestation of a disease or disorder in one 
        individual cannot also be used as genetic information about 
        other individuals covered under the policy issued to such 
        individual and to further increase premiums or contribution 
        amounts.

    ``(c) Prohibition on Genetic Information as Preexisting Condition.--
            ``(1) In general.--A health insurance issuer offering health 
        insurance coverage in the individual market may not, on the 
        basis of genetic information, impose any preexisting condition 
        exclusion (as defined in section 2701(b)(1)(A)) with respect to 
        such coverage.
            ``(2) Rule of construction.--Nothing in paragraph (1) or in 
        paragraphs (1) and (2) of subsection (e) shall be construed to 
        preclude a health insurance issuer from imposing any preexisting 
        condition exclusion for an individual with respect to health 
        insurance coverage on the basis of a manifestation of a disease 
        or disorder in that individual.

    ``(d) Genetic Testing.--

[[Page 122 STAT. 894]]

            ``(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.--Paragraph (1) shall not be 
        construed to limit the authority of a health care professional 
        who is providing health care services to an individual to 
        request that such individual undergo a genetic test.
            ``(3) Rule of construction regarding payment.--
                    ``(A) In general.--Nothing in paragraph (1) shall be 
                construed to preclude a health insurance issuer offering 
                health insurance coverage in the individual market from 
                obtaining and using the results of a genetic test in 
                making a determination regarding payment (as such term 
                is defined for the purposes of applying the regulations 
                promulgated by the Secretary under part C of title XI of 
                the Social Security Act and section 264 of the Health 
                Insurance Portability and Accountability Act of 1996, as 
                may be revised from time to time) consistent with 
                subsection (a) and (c).
                    ``(B) Limitation.--For purposes of subparagraph (A), 
                a health insurance issuer offering health insurance 
                coverage in the individual market may request only the 
                minimum amount of information necessary to accomplish 
                the intended purpose.
            ``(4) Research exception.--Notwithstanding paragraph (1), a 
        health insurance issuer offering health insurance coverage in 
        the individual market may request, but not require, that an 
        individual or a family member of such individual undergo a 
        genetic test if each of the following conditions is met:
                    ``(A) The request is made pursuant to research that 
                complies with part 46 of title 45, Code of Federal 
                Regulations, or equivalent Federal regulations, and any 
                applicable State or local law or regulations for the 
                protection of human subjects in research.
                    ``(B) The issuer clearly indicates to each 
                individual, or in the case of a minor child, to the 
                legal guardian of such child, to whom the request is 
                made that--
                          ``(i) compliance with the request is 
                      voluntary; and
                          ``(ii) non-compliance will have no effect on 
                      enrollment status or premium or contribution 
                      amounts.
                    ``(C) No genetic information collected or acquired 
                under this paragraph shall be used for underwriting 
                purposes.
                    ``(D) <<NOTE: Notification.>> The issuer notifies 
                the Secretary in writing that the issuer is conducting 
                activities pursuant to the exception provided for under 
                this paragraph, including a description of the 
                activities conducted.
                    ``(E) The issuer complies with such other conditions 
                as the Secretary may by regulation require for 
                activities conducted under this paragraph.

    ``(e) Prohibition on Collection of Genetic Information.--
            ``(1) In general.--A health insurance issuer offering health 
        insurance coverage in the individual market shall not request, 
        require, or purchase genetic information for underwriting 
        purposes (as defined in section 2791).
            ``(2) Prohibition on collection of genetic information prior 
        to enrollment.--A health insurance issuer offering

[[Page 122 STAT. 895]]

        health insurance coverage in the individual market shall not 
        request, require, or purchase genetic information with respect 
        to any individual prior to such individual's enrollment under 
        the plan in connection with such enrollment.
            ``(3) Incidental collection.--If a health insurance issuer 
        offering health insurance coverage in the individual market 
        obtains genetic information incidental to the requesting, 
        requiring, or purchasing of other information concerning any 
        individual, such request, requirement, or purchase shall not be 
        considered a violation of paragraph (2) if such request, 
        requirement, or purchase is not in violation of paragraph (1).

    ``(f) Genetic Information of a Fetus or Embryo.--Any reference in 
this part to genetic information concerning an individual or family 
member of an individual shall--
            ``(1) 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; and
            ``(2) with respect to an individual or family member 
        utilizing an assisted reproductive technology, include genetic 
        information of any embryo legally held by the individual or 
        family member.''.
            (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), (b)(3), (c), 
                and (d) of section 2702 and the provisions of sections 
                2701 and 2702(b) to the extent that such provisions 
                apply to genetic information.''.

    (d) Regulations and <<NOTE: 42 USC 300gg-1 note.>> Effective Date.--
            (1) Regulations.--Not later than 12 months after the date of 
        enactment of this Act, the Secretary of Health and Human 
        Services shall issue final regulations to carry out the 
        amendments made by this section.
            (2) Effective date.--The <<NOTE: Applicability.>> amendments 
        made by this section shall apply--

[[Page 122 STAT. 896]]

                    (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 1 year after the date of enactment of this Act; 
                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 1 year 
                after the date of enactment of this Act.
SEC. 103. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.

    (a) No Discrimination in Group Premiums Based on Genetic 
Information.--Subsection (b) of section 9802 of the Internal Revenue 
Code of <<NOTE: 26 USC 9802.>> 1986 is amended--
            (1) in paragraph (2)(A), by inserting before the semicolon 
        the following: ``except as provided in paragraph (3)''; and
            (2) by adding at the end the following:
            ``(3) No group-based discrimination on basis of genetic 
        information.--
                    ``(A) In general.--For purposes of this section, a 
                group health plan may not adjust premium or contribution 
                amounts for the group covered under such plan on the 
                basis of genetic information.
                    ``(B) Rule of construction.--Nothing in subparagraph 
                (A) or in paragraphs (1) and (2) of subsection (d) shall 
                be construed to limit the ability of a group health plan 
                to increase the premium for an employer based on the 
                manifestation of a disease or disorder of an individual 
                who is enrolled in the plan. In such case, the 
                manifestation of a disease or disorder in one individual 
                cannot also be used as genetic information about other 
                group members and to further increase the premium for 
                the employer.''.

    (b) Limitations on Genetic Testing; Prohibition on Collection of 
Genetic Information; Application to All Plans.--Section 9802 of such 
Code is amended by redesignating subsection (c) as subsection (f) and by 
inserting after subsection (b) the following new subsections:
    ``(c) Genetic Testing.--
            ``(1) Limitation on requesting or requiring genetic 
        testing.--A group health plan may not request or require an 
        individual or a family member of such individual to undergo a 
        genetic test.
            ``(2) Rule of construction.--Paragraph (1) shall not be 
        construed to limit the authority of a health care professional 
        who is providing health care services to an individual to 
        request that such individual undergo a genetic test.
            ``(3) Rule of construction regarding payment.--
                    ``(A) In general.--Nothing in paragraph (1) shall be 
                construed to preclude a group health plan from obtaining 
                and using the results of a genetic test in making a 
                determination regarding payment (as such term is defined 
                for the purposes of applying the regulations promulgated 
                by the Secretary of Health and Human Services under part 
                C of title XI of the Social Security Act and section 264 
                of the Health Insurance Portability and Accountability 
                Act of 1996, as may be revised from time to time) 
                consistent with subsection (a).

[[Page 122 STAT. 897]]

                    ``(B) Limitation.--For purposes of subparagraph (A), 
                a group health plan may request only the minimum amount 
                of information necessary to accomplish the intended 
                purpose.
            ``(4) Research exception.--Notwithstanding paragraph (1), a 
        group health plan may request, but not require, that a 
        participant or beneficiary undergo a genetic test if each of the 
        following conditions is met:
                    ``(A) The request is made pursuant to research that 
                complies with part 46 of title 45, Code of Federal 
                Regulations, or equivalent Federal regulations, and any 
                applicable State or local law or regulations for the 
                protection of human subjects in research.
                    ``(B) The plan clearly indicates to each participant 
                or beneficiary, or in the case of a minor child, to the 
                legal guardian of such beneficiary, to whom the request 
                is made that--
                          ``(i) compliance with the request is 
                      voluntary; and
                          ``(ii) non-compliance will have no effect on 
                      enrollment status or premium or contribution 
                      amounts.
                    ``(C) No genetic information collected or acquired 
                under this paragraph shall be used for underwriting 
                purposes.
                    ``(D) <<NOTE: Notification.>> The plan notifies the 
                Secretary in writing that the plan is conducting 
                activities pursuant to the exception provided for under 
                this paragraph, including a description of the 
                activities conducted.
                    ``(E) The plan complies with such other conditions 
                as the Secretary may by regulation require for 
                activities conducted under this paragraph.

    ``(d) Prohibition on Collection of Genetic Information.--
            ``(1) In general.--A group health plan shall not request, 
        require, or purchase genetic information for underwriting 
        purposes (as defined in section 9832).
            ``(2) Prohibition on collection of genetic information prior 
        to enrollment.--A group health plan shall not request, require, 
        or purchase genetic information with respect to any individual 
        prior to such individual's enrollment under the plan or in 
        connection with such enrollment.
            ``(3) Incidental collection.--If a group health plan obtains 
        genetic information incidental to the requesting, requiring, or 
        purchasing of other information concerning any individual, such 
        request, requirement, or purchase shall not be considered a 
        violation of paragraph (2) if such request, requirement, or 
        purchase is not in violation of paragraph (1).

    ``(e) Application to All Plans.--The provisions of subsections 
(a)(1)(F), (b)(3), (c), and (d) and subsection (b)(1) and section 9801 
with respect to genetic information, shall apply to group health plans 
without regard to section 9831(a)(2).''.
    (c) Application to Genetic Information of a Fetus or Embryo.--Such 
section is further amended by adding at the end the following:
    ``(f) Genetic Information of a Fetus or Embryo.--Any reference in 
this chapter to genetic information concerning an individual or family 
member of an individual shall--
            ``(1) with respect to such an individual or family member of 
        an individual who is a pregnant woman, include genetic

[[Page 122 STAT. 898]]

        information of any fetus carried by such pregnant woman; and
            ``(2) with respect to an individual or family member 
        utilizing an assisted reproductive technology, include genetic 
        information of any embryo legally held by the individual or 
        family member.''.

    (d) Definitions.--Subsection (d) of section 9832 <<NOTE: 26 USC 
9832.>> of such Code is amended by adding at the end the following:
            ``(6) Family member.--The term `family member' means, with 
        respect to any individual--
                    ``(A) a dependent (as such term is used for purposes 
                of section 9801(f)(2)) of such individual, and
                    ``(B) any other individual who is a first-degree, 
                second-degree, third-degree, or fourth-degree relative 
                of such individual or of an individual described in 
                subparagraph (A).
            ``(7) Genetic information.--
                    ``(A) In general.--The term `genetic information' 
                means, with respect to any individual, information 
                about--
                          ``(i) such individual's genetic tests,
                          ``(ii) the genetic tests of family members of 
                      such individual, and
                          ``(iii) the manifestation of a disease or 
                      disorder in family members of such individual.
                    ``(B) Inclusion of genetic services and 
                participation in genetic research.--Such term includes, 
                with respect to any individual, any request for, or 
                receipt of, genetic services, or participation in 
                clinical research which includes genetic services, by 
                such individual or any family member of such individual.
                    ``(C) Exclusions.--The term `genetic information' 
                shall not include information about the sex or age of 
                any individual.
            ``(8) 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.
            ``(9) 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.
            ``(10) Underwriting purposes.--The term `underwriting 
        purposes' means, with respect to any group health plan, or 
        health insurance coverage offered in connection with a group 
        health plan--

[[Page 122 STAT. 899]]

                    ``(A) rules for, or determination of, eligibility 
                (including enrollment and continued eligibility) for 
                benefits under the plan or coverage;
                    ``(B) the computation of premium or contribution 
                amounts under the plan or coverage;
                    ``(C) the application of any pre-existing condition 
                exclusion under the plan or coverage; and
                    ``(D) other activities related to the creation, 
                renewal, or replacement of a contract of health 
                insurance or health benefits.''.

    (e) Enforcement.--
            (1) In general.--Subchapter C of chapter 100 of the Internal 
        Revenue Code of 1986 (relating to general provisions) is amended 
        by adding at the end the following new section:
``SEC. 9834. ENFORCEMENT.

    ``For the imposition of tax on any failure of a group health plan to 
meet the requirements of this chapter, see section 4980D.''.
            (2) Conforming amendment.--The table of sections for 
        subchapter C of chapter 100 of such Code is amended by adding at 
        the end the following new item:

``Sec. 9834. Enforcement.''.

    (f) Regulations and <<NOTE: 26 USC 9802 note.>> Effective Date.--
            (1) Regulations.--The Secretary of the Treasury shall issue 
        final regulations or other guidance not later than 12 months 
        after the date of the enactment of this Act to carry out the 
        amendments made by this section.
            (2) Effective date.--The <<NOTE: Applicability.>> amendments 
        made by this section shall apply with respect to group health 
        plans for plan years beginning after the date that is 1 year 
        after the date of the enactment of this Act.
SEC. 104. AMENDMENTS TO TITLE XVIII OF THE SOCIAL SECURITY ACT 
                        RELATING TO MEDIGAP.

    (a) Nondiscrimination.--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) An issuer of a medicare supplemental policy 
                shall not deny or condition the issuance or 
                effectiveness of the policy (including the imposition of 
                any exclusion of benefits under the policy based on a 
                pre-existing condition) and shall not discriminate in 
                the pricing of the policy (including the adjustment of 
                premium rates) of an individual on the basis of the 
                genetic information with respect to such individual.
                    ``(F) Rule of construction.--Nothing in subparagraph 
                (E) or in subparagraphs (A) or (B) of subsection (x)(2) 
                shall be construed to limit the ability of an issuer of 
                a medicare supplemental policy from, to the extent 
                otherwise permitted under this title--
                          ``(i) denying or conditioning the issuance or 
                      effectiveness of the policy or increasing the 
                      premium for an employer based on the manifestation 
                      of a disease or disorder of an individual who is 
                      covered under the policy; or
                          ``(ii) increasing the premium for any policy 
                      issued to an individual based on the manifestation 
                      of a disease

[[Page 122 STAT. 900]]

                      or disorder of an individual who is covered under 
                      the policy (in such case, the manifestation of a 
                      disease or disorder in one individual cannot also 
                      be used as genetic information about other group 
                      members and to further increase the premium for 
                      the employer).''.

    (b) Limitations on Genetic Testing and Genetic Information.--
            (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 and Information.--
            ``(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.--Subparagraph (A) shall 
                not be construed to limit the authority of a health care 
                professional who is providing health care services to an 
                individual to request that such individual undergo a 
                genetic test.
                    ``(C) Rule of construction regarding payment.--
                          ``(i) In general.--Nothing in subparagraph (A) 
                      shall be construed to preclude an issuer of a 
                      medicare supplemental policy from obtaining and 
                      using the results of a genetic test in making a 
                      determination regarding payment (as such term is 
                      defined for the purposes of applying the 
                      regulations promulgated by the Secretary under 
                      part C of title XI and section 264 of the Health 
                      Insurance Portability and Accountability Act of 
                      1996, as may be revised from time to time) 
                      consistent with subsection (s)(2)(E).
                          ``(ii) Limitation.--For purposes of clause 
                      (i), an issuer of a medicare supplemental policy 
                      may request only the minimum amount of information 
                      necessary to accomplish the intended purpose.
                    ``(D) Research exception.--Notwithstanding 
                subparagraph (A), an issuer of a medicare supplemental 
                policy may request, but not require, that an individual 
                or a family member of such individual undergo a genetic 
                test if each of the following conditions is met:
                          ``(i) The request is made pursuant to research 
                      that complies with part 46 of title 45, Code of 
                      Federal Regulations, or equivalent Federal 
                      regulations, and any applicable State or local law 
                      or regulations for the protection of human 
                      subjects in research.
                          ``(ii) The issuer clearly indicates to each 
                      individual, or in the case of a minor child, to 
                      the legal guardian of such child, to whom the 
                      request is made that--
                                    ``(I) compliance with the request is 
                                voluntary; and
                                    ``(II) non-compliance will have no 
                                effect on enrollment status or premium 
                                or contribution amounts.

[[Page 122 STAT. 901]]

                          ``(iii) No genetic information collected or 
                      acquired under this subparagraph shall be used for 
                      underwriting, determination of eligibility to 
                      enroll or maintain enrollment status, premium 
                      rating, or the creation, renewal, or replacement 
                      of a plan, contract, or coverage for health 
                      insurance or health benefits.
                          ``(iv) The issuer notifies the Secretary in 
                      writing that the issuer is conducting activities 
                      pursuant to the exception provided for under this 
                      subparagraph, including a description of the 
                      activities conducted.
                          ``(v) The issuer complies with such other 
                      conditions as the Secretary may by regulation 
                      require for activities conducted under this 
                      subparagraph.
            ``(2) Prohibition on collection of genetic information.--
                    ``(A) In general.--An issuer of a medicare 
                supplemental policy shall not request, require, or 
                purchase genetic information for underwriting purposes 
                (as defined in paragraph (3)).
                    ``(B) Prohibition on collection of genetic 
                information prior to enrollment.--An issuer of a 
                medicare supplemental policy shall not request, require, 
                or purchase genetic information with respect to any 
                individual prior to such individual's enrollment under 
                the policy in connection with such enrollment.
                    ``(C) Incidental collection.--If an issuer of a 
                medicare supplemental policy obtains genetic information 
                incidental to the requesting, requiring, or purchasing 
                of other information concerning any individual, such 
                request, requirement, or purchase shall not be 
                considered a violation of subparagraph (B) if such 
                request, requirement, or purchase is not in violation of 
                subparagraph (A).
            ``(3) Definitions.--In this subsection:
                    ``(A) Family member.--The term `family member' means 
                with respect to an individual, any other individual who 
                is a first-degree, second-degree, third-degree, or 
                fourth-degree relative of such individual.
                    ``(B) Genetic information.--
                          ``(i) In general.--The term `genetic 
                      information' means, with respect to any 
                      individual, information about--
                                    ``(I) such individual's genetic 
                                tests,
                                    ``(II) the genetic tests of family 
                                members of such individual, and
                                    ``(III) subject to clause (iv), the 
                                manifestation of a disease or disorder 
                                in family members of such individual.
                          ``(ii) Inclusion of genetic services and 
                      participation in genetic research.--Such term 
                      includes, with respect to any individual, any 
                      request for, or receipt of, genetic services, or 
                      participation in clinical research which includes 
                      genetic services, by such individual or any family 
                      member of such individual.
                          ``(iii) Exclusions.--The term `genetic 
                      information' shall not include information about 
                      the sex or age of any individual.
                    ``(C) Genetic test.--

[[Page 122 STAT. 902]]

                          ``(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 (including 
                      obtaining, interpreting, or assessing genetic 
                      information); or
                          ``(iii) genetic education.
                    ``(E) Underwriting purposes.--The term `underwriting 
                purposes' means, with respect to a medicare supplemental 
                policy--
                          ``(i) rules for, or determination of, 
                      eligibility (including enrollment and continued 
                      eligibility) for benefits under the policy;
                          ``(ii) the computation of premium or 
                      contribution amounts under the policy;
                          ``(iii) the application of any pre-existing 
                      condition exclusion under the policy; and
                          ``(iv) other activities related to the 
                      creation, renewal, or replacement of a contract of 
                      health insurance or health benefits.
                    ``(F) 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) Application to genetic information of a fetus or 
        embryo.--Section 1882(x) of such Act, as added by paragraph (1), 
        is further amended by adding at the end the following:
            ``(4) Genetic information of a fetus or embryo.--Any 
        reference in this section to genetic information concerning an 
        individual or family member of an individual shall--
                    ``(A) 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; and
                    ``(B) with respect to an individual or family member 
                utilizing an assisted reproductive technology, include 
                genetic information of any embryo legally held by the 
                individual or family member.''.
            (3) 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).''.

[[Page 122 STAT. 903]]

    (c) Effective Date.--The <<NOTE: Applicability. 42 USC 1395ss 
note.>> amendments made by this section shall apply with respect to an 
issuer of a medicare supplemental policy for policy years beginning on 
or after the date that is 1 year after the date of enactment of this 
Act.

    (d) Transition <<NOTE: 42 USC 1395ss note.>> 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, <<NOTE: Deadline.>> not later than 
        October 31, 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 <<NOTE: Deadline.>> 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 July 1, 2009, 
        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) July 1, 2009.
                    (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 2009 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, 
                      2009. 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. 105. PRIVACY AND CONFIDENTIALITY.

    (a) In General.--Part C of title XI of the Social Security Act is 
amended by adding at the end the following new section:

[[Page 122 STAT. 904]]

        ``application of hipaa regulations to genetic information


    ``Sec. 1180. (a) In General.--The <<NOTE: 42 USC 1320d-
9.>> Secretary shall revise the HIPAA privacy regulation (as defined in 
subsection (b)) so it is consistent with the following:
            ``(1) Genetic information shall be treated as health 
        information described in section 1171(4)(B).
            ``(2) The use or disclosure by a covered entity that is a 
        group health plan, health insurance issuer that issues health 
        insurance coverage, or issuer of a medicare supplemental policy 
        of protected health information that is genetic information 
        about an individual for underwriting purposes under the group 
        health plan, health insurance coverage, or medicare supplemental 
        policy shall not be a permitted use or disclosure.

    ``(b) Definitions.--For purposes of this section:
            ``(1) Genetic information; genetic test; family member.--The 
        terms `genetic information', `genetic test', and `family member' 
        have the meanings given such terms in section 2791 of the Public 
        Health Service Act (42 U.S.C. 300gg-91), as amended by the 
        Genetic Information Nondiscrimination Act of 2007.
            ``(2) Group health plan; health insurance coverage; medicare 
        supplemental policy.--The terms `group health plan' and `health 
        insurance coverage' have the meanings given such terms under 
        section 2791 of the Public Health Service Act (42 U.S.C. 300gg-
        91), and the term `medicare supplemental policy' has the meaning 
        given such term in section 1882(g).
            ``(3) HIPAA privacy regulation.--The term `HIPAA privacy 
        regulation' means the regulations promulgated by the Secretary 
        under this part and section 264 of the Health Insurance 
        Portability and Accountability Act of 1996 (42 U.S.C. 1320d-2 
        note).
            ``(4) Underwriting purposes.--The term `underwriting 
        purposes' means, with respect to a group health plan, health 
        insurance coverage, or a medicare supplemental policy--
                    ``(A) rules for, or determination of, eligibility 
                (including enrollment and continued eligibility) for, or 
                determination of, benefits under the plan, coverage, or 
                policy;
                    ``(B) the computation of premium or contribution 
                amounts under the plan, coverage, or policy;
                    ``(C) the application of any pre-existing condition 
                exclusion under the plan, coverage, or policy; and
                    ``(D) other activities related to the creation, 
                renewal, or replacement of a contract of health 
                insurance or health benefits.

    ``(c) Procedure.--The <<NOTE: Notice. Federal 
Register, publication. Deadline. Effective date.>> revisions under 
subsection (a) shall be made by notice in the Federal Register published 
not later than 60 days after the date of the enactment of this section 
and shall be effective upon publication, without opportunity for any 
prior public comment, but may be revised, consistent with this section, 
after opportunity for public comment.

    ``(d) Enforcement.--In addition to any other sanctions or remedies 
that may be available under law, a covered entity that is a group health 
plan, health insurance issuer, or issuer of a medicare supplemental 
policy and that violates the HIPAA privacy regulation (as revised under 
subsection (a) or otherwise) with respect to the use or disclosure of 
genetic information shall be subject to the

[[Page 122 STAT. 905]]

penalties described in sections 1176 and 1177 in the same manner and to 
the same extent that such penalties apply to violations of this part.''.
    (b) Regulations; <<NOTE: 42 USC 1320d-9 note.>> Effective Date.--
            (1) Regulations.--Not <<NOTE: Deadline.>> later than 12 
        months after the date of the enactment of this Act, the 
        Secretary of Health and Human Services shall issue final 
        regulations to carry out the revision required by section 
        1180(a) of the Social Security Act, as added by subsection (a). 
        The Secretary has the sole authority to promulgate such 
        regulations, but shall promulgate such regulations in 
        consultation with the Secretaries of Labor and the Treasury.
            (2) Effective date.--The amendment made by subsection (a) 
        shall take effect on the date that is 1 year after the date of 
        the enactment of this Act.
SEC. 106. <<NOTE: Memorandum. 42 USC 300gg-1 note.>> ASSURING 
                        COORDINATION.

    Except as provided in section 105(b)(1), 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.

TITLE II--PROHIBITING EMPLOYMENT DISCRIMINATION ON THE BASIS OF GENETIC 
                               INFORMATION

SEC. 201. <<NOTE: 42 USC 2000ff.>> 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);

[[Page 122 STAT. 906]]

                          (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) a dependent (as such term is used for purposes 
                of section 701(f)(2) of the Employee Retirement Income 
                Security Act of 1974) of such individual, and
                    (B) any other individual who is a first-degree, 
                second-degree, third-degree, or fourth-degree relative 
                of such individual or of an individual described in 
                subparagraph (A).
            (4) Genetic information.--
                    (A) In general.--The term ``genetic information'' 
                means, with respect to any individual, information 
                about--
                          (i) such individual's genetic tests,
                          (ii) the genetic tests of family members of 
                      such individual, and
                          (iii) the manifestation of a disease or 
                      disorder in family members of such individual.
                    (B) Inclusion of genetic services and participation 
                in genetic research.--Such term includes, with respect 
                to any individual, any request for, or receipt of, 
                genetic services, or participation in clinical research 
                which includes genetic services, by such individual or 
                any family member of such individual.
                    (C) Exclusions.--The term ``genetic information'' 
                shall not include information about the sex or age of 
                any 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,

[[Page 122 STAT. 907]]

        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 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 an analysis of proteins or metabolites that does 
                not detect genotypes, mutations, or chromosomal changes.
SEC. 202. <<NOTE: 42 USC 2000ff-1.>> 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
            (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.

    (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 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 
                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

[[Page 122 STAT. 908]]

        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 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;
            (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; 
                or
            (6) where the employer conducts DNA analysis for law 
        enforcement purposes as a forensic laboratory or for purposes of 
        human remains identification, and requests or requires genetic 
        information of such employer's employees, but only to the extent 
        that such genetic information is used for analysis of DNA 
        identification markers for quality control to detect sample 
        contamination.

    (c) Preservation of Protections.--In the case of information to 
which any of paragraphs (1) through (6) 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. <<NOTE: 42 USC 2000ff-2.>> 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;
            (2) to limit, segregate, or classify individuals or fail or 
        refuse to refer for employment any individual in any way

[[Page 122 STAT. 909]]

        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
            (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 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 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.

[[Page 122 STAT. 910]]

                      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), (2), or (3) 
of subsection (a) or treated or disclosed in a manner that violates 
section 206.
SEC. 204. <<NOTE: 42 USC 2000ff-3.>> 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;
            (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
            (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 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 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

[[Page 122 STAT. 911]]

                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), (2), or (3) 
of subsection (a) or treated or disclosed in a manner that violates 
section 206.
SEC. 205. <<NOTE: 42 USC 2000ff-4.>> 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 in admission 
        to, or employment in, any program established to provide 
        apprenticeship or other training or retraining;

[[Page 122 STAT. 912]]

            (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
            (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 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 
                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;
            (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) <<NOTE: Notification.>> the employer, labor 
                organization, or joint labor-management committee 
                provides written notice of the genetic monitoring to the 
                individual;

[[Page 122 STAT. 913]]

                    (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; or
            (6) where the employer conducts DNA analysis for law 
        enforcement purposes as a forensic laboratory or for purposes of 
        human remains identification, and requests or requires genetic 
        information of such employer's apprentices or trainees, but only 
        to the extent that such genetic information is used for analysis 
        of DNA identification markers for quality control to detect 
        sample contamination.

    (c) Preservation of Protections.--In the case of information to 
which any of paragraphs (1) through (6) of subsection (b) applies, such 
information may not be used in violation of paragraph (1), (2), or (3) 
of subsection (a) or treated or disclosed in a manner that violates 
section 206.
SEC. 206. <<NOTE: 42 USC 2000ff-5.>> 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, 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 except--

[[Page 122 STAT. 914]]

            (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;
            (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; or
            (6) to a Federal, State, or local public health agency only 
        with regard to information that is described in section 
        201(4)(A)(iii) and that concerns a contagious disease that 
        presents an imminent hazard of death or life-threatening 
        illness, and that the employee whose family member or family 
        members is or are the subject of a disclosure under this 
        paragraph is notified of such disclosure.

    (c) Relationship to HIPAA Regulations.--With respect to 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), this title does not 
prohibit a covered entity under such regulations from any use or 
disclosure of health information that is authorized for the covered 
entity under such regulations. The previous sentence does not affect the 
authority of such Secretary to modify such regulations.
SEC. 207. <<NOTE: 42 USC 2000ff-6.>> REMEDIES AND ENFORCEMENT.

    (a) Employees Covered by Title VII of the Civil Rights Act of 
1964.--
            (1) In general.--The powers, procedures, and remedies 
        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, procedures, and remedies 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).

[[Page 122 STAT. 915]]

            (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.

[[Page 122 STAT. 916]]

            (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

[[Page 122 STAT. 917]]

        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) Prohibition Against Retaliation.--No person shall discriminate 
against any individual because such individual has opposed any act or 
practice made unlawful by this title or because such individual made a 
charge, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under this title. The remedies and 
procedures otherwise provided for under this section shall be available 
to aggrieved individuals with respect to violations of this subsection.
    (g) Definition.--In this section, the term ``Commission'' means the 
Equal Employment Opportunity Commission.
SEC. 208. <<NOTE: 42 USC 2000ff-7.>> 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 <<NOTE: Effective date. Establishment.>> 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

[[Page 122 STAT. 918]]

                    (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. <<NOTE: 42 USC 2000ff-8.>> 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

[[Page 122 STAT. 919]]

            (B) <<NOTE: Applicability.>> 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 subject to 
        enforcement for a violation under--
                    (i) the amendments made by title I of this Act;
                    (ii)(I) subsection (a) of section 701 of the 
                Employee Retirement Income Security Act of 1974 as such 
                section applies with respect to genetic information 
                pursuant to subsection (b)(1)(B) of such section;
                    (II) section 702(a)(1)(F) of such Act; or
                    (III) section 702(b)(1) of such Act as such section 
                applies with respect to genetic information as a health 
                status-related factor;
                    (iii)(I) subsection (a) of section 2701 of the 
                Public Health Service Act as such section applies with 
                respect to genetic information pursuant to subsection 
                (b)(1)(B) of such section;
                    (II) section 2702(a)(1)(F) of such Act; or
                    (III) section 2702(b)(1) of such Act as such section 
                applies with respect to genetic information as a health 
                status-related factor; or
                    (iv)(I) subsection (a) of section 9801 of the 
                Internal Revenue Code of 1986 as such section applies 
                with respect to genetic information pursuant to 
                subsection (b)(1)(B) of such section;
                    (II) section 9802(a)(1)(F) of such Act; or
                    (III) section 9802(b)(1) of such Act as such section 
                applies with respect to genetic information as a health 
                status-related factor;
            (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 or Embryo.--Any reference in this 
title to genetic information concerning an individual or family member 
of an individual shall--
            (1) 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; and

[[Page 122 STAT. 920]]

            (2) with respect to an individual or family member utilizing 
        an assisted reproductive technology, include genetic information 
        of any embryo legally held by the individual or family member.

    (c) Relation to Authorities Under Title I.--With respect to a group 
health plan, or a health insurance issuer offering group health 
insurance coverage in connection with a group health plan, this title 
does not prohibit any activity of such plan or issuer that is authorized 
for the plan or issuer under any provision of law referred to in clauses 
(i) through (iv) of subsection (a)(2)(B).
SEC. 210. <<NOTE: 42 USC 2000ff-9.>> 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. <<NOTE: Deadline. 42 USC 2000ff-10.>> 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. <<NOTE: 42 USC 2000ff-11.>> 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. <<NOTE: 42 USC 2000ff note.>> EFFECTIVE DATE.

    This title takes effect on the date that is 18 months after the date 
of enactment of this Act.

                   TITLE III--MISCELLANEOUS PROVISIONS

SEC. 301. <<NOTE: 42 USC 2000ff note.>> 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.
SEC. 302. CHILD LABOR PROTECTIONS.

    (a) In General.--Section 16(e) of the Fair Labor Standards Act of 
1938 (29 U.S.C. 216(e)) is amended to read as follows:
    ``(e)(1)(A) Any <<NOTE: Penalties.>> person who violates the 
provisions of sections 12 or 13(c), relating to child labor, or any 
regulation issued pursuant to such sections, shall be subject to a civil 
penalty not to exceed--
                          ``(i) $11,000 for each employee who was the 
                      subject of such a violation; or
                          ``(ii) $50,000 with regard to each such 
                      violation that causes the death or serious injury 
                      of any employee under the age of 18 years, which 
                      penalty may be doubled where the violation is a 
                      repeated or willful violation.

[[Page 122 STAT. 921]]

    ``(B) For purposes of subparagraph (A), the term `serious injury' 
means--
            ``(i) permanent loss or substantial impairment of one of the 
        senses (sight, hearing, taste, smell, tactile sensation);
            ``(ii) permanent loss or substantial impairment of the 
        function of a bodily member, organ, or mental faculty, including 
        the loss of all or part of an arm, leg, foot, hand or other body 
        part; or
            ``(iii) permanent paralysis or substantial impairment that 
        causes loss of movement or mobility of an arm, leg, foot, hand 
        or other body part.

    ``(2) Any person who repeatedly or willfully violates section 6 or 
7, relating to wages, shall be subject to a civil penalty not to exceed 
$1,100 for each such violation.
    ``(3) In determining the amount of any penalty under this 
subsection, the appropriateness of such penalty to the size of the 
business of the person charged and the gravity of the violation shall be 
considered. The amount of any penalty under this subsection, when 
finally determined, may be--
            ``(A) deducted from any sums owing by the United States to 
        the person charged;
            ``(B) recovered in a civil action brought by the Secretary 
        in any court of competent jurisdiction, in which litigation the 
        Secretary shall be represented by the Solicitor of Labor; or
            ``(C) ordered by the court, in an action brought for a 
        violation of section 15(a)(4) or a repeated or willful violation 
        of section 15(a)(2), to be paid to the Secretary.

    ``(4) 
Any <<NOTE: Deadline. Notification. Regulations.>> administrative 
determination by the Secretary of the amount of any penalty under this 
subsection shall be final, unless within 15 days after receipt of notice 
thereof by certified mail the person charged with the violation takes 
exception to the determination that the violations for which the penalty 
is imposed occurred, in which event final determination of the penalty 
shall be made in an administrative proceeding after opportunity for 
hearing in accordance with section 554 of title 5, United States Code, 
and regulations to be promulgated by the Secretary.

    ``(5) Except for civil penalties collected for violations of section 
12, sums collected as penalties pursuant to this section shall be 
applied toward reimbursement of the costs of determining the violations 
and assessing and collecting such penalties, in accordance with the 
provision of section 2 of the Act entitled `An Act to authorize the 
Department of Labor to make special statistical studies upon payment of 
the cost thereof and for other purposes' (29 U.S.C. 9a). Civil penalties 
collected for violations of section 12 shall be deposited in the general 
fund of the Treasury.''.

[[Page 122 STAT. 922]]

    (b) Effective Date.--The <<NOTE: 29 USC 216 note.>> amendments made 
by this section shall take effect on the date of the enactment of this 
Act.

    Approved May 21, 2008.

LEGISLATIVE HISTORY--H.R. 493 (S. 358):
---------------------------------------------------------------------------

HOUSE REPORTS: No. 110-28, Pt. 1 (Comm. on Education and Labor), Pt. 2 
(Comm. on Ways and Means), and Pts. 3 and 4 (Comm. on Energy and 
Commerce).
SENATE REPORTS: No. 110-48 accompanying S. 358 (Comm. on Health, 
Education, Labor, and Pensions).
CONGRESSIONAL RECORD:
                                                        Vol. 153 (2007):
                                    Apr. 25, considered and passed 
                                        House.
                                                        Vol. 154 (2008):
                                    Apr. 24, considered and passed 
                                        Senate, amended.
                                    May 1, House concurred in Senate 
                                        amendment.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 44 (2008):
            May 21, Presidential remarks.

                                  <all>