Current Status Bill Number:
118Type of Legislation: General Bill GBIntroducing Body: SenateIntroduced Date: 19970114Primary Sponsor: GieseAll Sponsors: GieseDrafted Document Number: council\legis\bills\gjk\23018sd .97Residing Body: SenateCurrent Committee: Banking and Insurance Committee 02 SBISubject: Genetic information, privacy of relating to health insurance; Medical
Body Date Action Description Com Leg Involved ______ ________ _______________________________________ _______ ____________ Senate 19970114 Introduced, read first time, 02 SBI referred to CommitteeView additional legislative information at the LPITS web site.
TO AMEND TITLE 38, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO INSURANCE, BY ADDING CHAPTER 91 SO AS TO PROVIDE THAT GENETIC INFORMATION PERTAINING TO ACCIDENT AND HEALTH INSURANCE SHALL BE PRIVATE UNDER SPECIFIED CONDITIONS, TO PROVIDE FOR THE MANNER IN WHICH SUCH INFORMATION MAY BE USED AND DISCLOSED, AND TO PROVIDE CERTAIN CIVIL REMEDIES FOR VIOLATIONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 38 of the 1976 Code is amended by adding:
Section 38-91-10. As used in this chapter:
(1) 'Genetic characteristic' means any scientifically or medically identifiable gene or chromosome, or alteration thereof, which is known to be a cause of disease or disorder, or determined to be associated with a statistically increased risk of development of a disease or disorder.
(2) 'Genetic information' means information about genes, gene products, or inherited characteristics that may derive from an individual or a family member.
(3) 'Genetic test' means a test for determining the presence or absence of genetic characteristics in an individual in order to diagnose a genetic characteristic.
Section 38-91-20. (A) No person when issuing, renewing, or reissuing a policy, contract, or plan of accident and health insurance providing hospital, medical and surgical, or major medical coverage on an expense incurred basis, providing a corporate health services plan, or providing a health care plan for health care services by a health maintenance organization, on the basis of any genetic information obtained concerning an individual or on the individual's request for genetic services, with respect to such policy, contract, or plan shall:
(1) terminate, restrict, limit, or otherwise apply conditions to coverage of an individual or restrict the sale to an individual;
(2) cancel or refuse to renew the coverage of an individual;
(3) exclude an individual from coverage;
(4) impose a waiting period prior to commencement of coverage of an individual;
(5) require inclusion of a rider that excludes coverage for certain benefits and services; or
(6) establish differential in premium rates for coverage.
(B) In addition, no discrimination must be made in the fees or commissions of an agent or agency for an enrollment, a subscription, or the renewal of an enrollment or subscription of a person on the basis of a person's genetic characteristics which under some circumstances may be associated with disability in that person or that person's offspring.
(C) Accident and health insurance as used in this chapter does not include disability income insurance.
Section 38-91-30. All information obtained from genetic screening or testing conducted before or after the effective date of this chapter must be confidential and must not be made public or used in any way, in whole or in part, to cancel, refuse to issue or renew, or limit benefits under any accident or health insurance policy, contract, or plan subject to the provisions of this chapter.
Section 38-91-40. No person may disclose any personal or privileged genetic information about an individual collected or received in connection with an accident or health insurance transaction unless the disclosure is:
(1) with the written authorization of the individual, provided that if the authorization is submitted by another insurer, agent, or insurance-support organization, the authorization meets the requirements of subitem (b) of item (2). If the authorization is submitted by a person other than an insurer, agent, or insurance-support organization, the authorization must be dated, signed by the individual, and obtained one year or less prior to the date a disclosure is sought pursuant to this item;
(2) to a person other than an insurer, agent, or insurance-support organization, provided the disclosure is reasonably necessary:
(a) to enable that person to perform a business, professional, or insurance function for the disclosing insurer, agent, or insurance-support organization and that person agrees not to disclose the information further without the individual's written authorization unless the further disclosure would otherwise be permitted if made by an insurer, agent, or insurance-support organization; or is reasonably necessary for that person to perform its function for the disclosing insurance institution, agent, or insurance-support organization; or
(b) to enable that person to provide information to the disclosing insurer, agent, or insurance-support organization for the purpose of determining an individual's eligibility for an insurance benefit or payment or detecting or preventing criminal activity, fraud, material misrepresentation, or material nondisclosure in connection with an accident or health insurance transaction;
(3) to an insurer, agent, insurance-support organization, or self-insurer, provided the information disclosed is limited to that which is reasonably necessary;
(a) to detect or prevent criminal activity, fraud, material misrepresentation, or material nondisclosure in connection with accident or health insurance transactions; or
(b) for either the disclosing or receiving insurance institution, agent, or insurance-support organization to perform its function in connection with an accident or health insurance transaction involving the individual;
(4) to a medical-care institution or medical professional for the purpose of verifying insurance coverage or benefits, informing an individual of a medical problem of which the individual may not be aware or conducting an operations or services audit, provided that information is disclosed as is reasonably necessary to accomplish the foregoing purposes;
(5) to an insurance regulatory authority;
(6) to a law enforcement or other government authority;
(a) to protect the interests of the insurer, agent, or insurance-support organization in preventing or prosecuting the perpetration of fraud upon it; or
(b) if the insurer, agent, or insurance-support organization reasonably believes that illegal activities have been conducted by the individual; or
(c) upon written request of any law enforcement agency, for all insured or claimant information in the possession of an insurer, agent, or insurance-support organization which relates an ongoing criminal investigation. The insurer, agent, or insurance-support organization shall release the information including, but not limited to, policy information, premium payment records, record of prior claims by the insured or by another claimant, and information collected in connection with an insurance company's investigation of an application or claim. Any information released to a law enforcement agency pursuant to the request must be treated as confidential criminal investigation and not be disclosed further except as provided by law. Notwithstanding any provision in this chapter, no insurer, agent, or insurance-support organization shall notify an insured or claimant that information has been requested or supplied pursuant to this section prior to notification from the requesting law enforcement agent that its criminal investigation is completed. Within ninety days following the completion of the criminal investigation, the law enforcement agency making the request for information shall notify an insurer, agent, or insurance-support organization from whom information was requested that the criminal investigation has been completed;
(7) otherwise permitted or required by law;
(8) in response to a facially valid administrative or judicial order, including a search warrant or subpoena;
(9) made for the purpose of conducting actuarial or research studies provided (a) no individual may be identified in any actuarial or research report, (b) materials allowing the individual to be identified are returned or destroyed as soon as they are no longer needed, and (c) the actuarial or research organization agrees not to disclose the information unless the disclosure would otherwise be permitted by this chapter if made by an insurer, agent, or insurance-support organization;
(10) to a party or a representative of a party to a proposed or consummated sale, transfer, merger, or consolidation of all or part of the business of the insurer, agent, or insurance-support organization, provided (a) before the consummation of the sale, transfer, merger, or consolidation only the information is disclosed as is reasonably necessary to enable the recipient to make business decisions about the purchase, transfer, merger, or consolidation, and (b) the recipient agrees not to disclose the information unless the disclosure would otherwise be permitted by this chapter if made by an insurer, agent, or insurance-support organization;
(11) to a person whose only use of the information shall be in connection with the marketing of a product or service, provided (a) no medical record information, privileged information, or personal information relating to an individual's character, personal habits, mode of living, or general reputation is disclosed, and no classification derived from the information is disclosed, (b) the individual has been given an opportunity to indicate that he does not want personal information disclosed for marketing purposes and has given no indication that he does not want the information disclosed, and (c) the person receiving the information agrees not to use it except in connection with the marketing of a product or service;
(12) to an affiliate whose only use of the information shall be in connection with an audit of the insurer or agent or the marketing of an accident or health insurance product or service, provided the affiliate agrees not to disclose the information for any other purpose or to unaffiliated persons;
(13) by a consumer reporting agency, provided the disclosure is to a person other than an insurer or agent;
(14) to a group policyholder for the purpose of reporting claims experience or conducting an audit of the insurer's or agent's operations or services, provided the information disclosed is reasonably necessary for the group policyholder to conduct the review or audit;
(15) to a professional peer review organization for the purpose of reviewing the service or conduct of a medical-care institution or medical professional;
(16) to a governmental authority for the purpose of determining the individual's eligibility for health benefits for which the governmental authority may be liable;
(17) to a certificate holder or policyholder for the purpose of providing information regarding the status of an accident or health insurance transaction; or
(18) to a lienholder, mortgagee, assignee, lessor, or other person shown on the records of an insurer or agent as having a legal or beneficial interest in a policy of accident or health insurance, provided that no medical record information is disclosed unless the disclosure would be permitted by this chapter. The information disclosed is limited to that which is reasonably necessary to permit the person to protect his interest in the policy.
Section 38-91-50. Agents and insurance support organizations are subject to the provisions of this chapter to the extent of their participation in the issue, reissue, or renewal of a policy, contract, or plan of accident and health insurance.
Section 38-91-60. (A) Any violation of this chapter is an unfair trade practice as defined in Section 39-5-20 and is subject to the provisions of Sections 39-5-110 to 39-5-160.
(B) Any individual who is injured by a person's violation of this chapter may recover in a court of competent jurisdiction the following remedies:
(1) equitable relief, which may include a retroactive order, directing the person to provide health insurance appropriate to the injured individual under the same terms and conditions as would have applied had the violation not occurred; and
(2) an amount equal to any actual damages suffered by the individual as a result of the violation.
(C) The prevailing party in an action under this section may recover costs and reasonable attorneys' fees."
SECTION 2. This act takes effect upon approval by the Governor.