Docstoc

This Version

Document Sample
This Version Powered By Docstoc
					 1   Indicates Matter Stricken
 2   Indicates New Matter
 3
 4   COMMITTEE REPORT
 5   March 16, 2010
 6
 7                                                          S. 1224
 8
 9                     Introduced by Senator Thomas
10
11   S. Printed 3/16/10--S.
12   Read the first time February 25, 2010.
13
14
15      THE COMMITTEE ON BANKING AND INSURANCE
16     To whom was referred a Bill (S. 1224) to amend the Code of
17   Laws of South Carolina, 1976, so as to enact Michelle‟s Law by
18   adding Sections 38-71-355 and 38-71-785 so, etc., respectfully
19                             REPORT:
20     That they have duly and carefully considered the same and
21   recommend that the same do pass with amendment:
22
23      Amend the bill, as and if amended, page 17, beginning on line
24   30, by striking Section 38-93-50 as contained in SECTION 14 and
25   inserting:
26      / Section 38-93-50. It is unlawful to perform a genetic test on
27   an individual without first obtaining specific informed consent to
28   the test from the individual, or a person legally authorized to
29   consent on behalf of the individual, unless the test is performed:
30      (1) by or for a law enforcement agency in a criminal
31   investigation or for the State DNA Database as provided in
32   Sections 23-3-620 through 23-3-640;
33      (2) for purposes of identifying a person or a dead body;
34      (3) to establish paternity as provided by Section 63-17-30;
35      (4) pursuant to a statute or court order specifically requiring
36   that the test be performed; or
37      (5) for diagnosis or treatment of the individual if performed by
38   a clinical laboratory that has received a specimen referral from the
39   individual‟s treating physician or another clinical laboratory.
40   Nothing in this item may be construed so as to waive the
41   requirement that the treating physician obtain specific informed
42   consent in accordance with the provisions of this section. /

     [1224-1]
 1     Renumber sections to conform.
 2     Amend title to conform.
 3
 4   DAVID L. THOMAS for Committee.
 5
 6
 7         STATEMENT OF ESTIMATED FISCAL IMPACT
 8        ESTIMATED FISCAL IMPACT ON GENERAL FUND
 9                            EXPENDITURES:
10    Minimal (Some additional costs anticipated, but can be absorbed)
11       ESTIMATED FISCAL IMPACT ON FEDERAL & OTHER
12                        FUND EXPENDITURES:
13         $0 (No additional expenditures or savings are expected)
14   EXPLANATION OF IMPACT:
15   Administrative Law Court
16      Court indicates that this bill will have a minimal impact on the
17   agency, which can be absorbed by the agency at their current level
18   of funding.
19   Department of Insurance
20      This bill would have a minimal impact on expenditures resulting
21   from additional filings of health insurance policy forms or
22   amendments to existing policy forms and staff training in the
23   Market, Actuarial and Alternative Risk Transfer Services areas.
24   These minimal costs could be absorbed within existing resources.
25   Department of Health and Human Services and Budget and
26   Control Board
27      The department and the board indicate enactment of this bill
28   would have no impact on the General Fund of the State or federal
29   and/or other funds. This bill will have no fiscal impact for the
30   State Health Plan
31   Department of Social Services
32      The agency is in the process of reviewing the bill for its
33   potential impact on its programs and expenditures. This impact
34   statement will be revised to include this information once the
35   review and analysis is completed.
36
37                                     Approved By:
38                                     Harry Bell
39                                     Office of State Budget
40




     [1224-2]
 1
 2
 3
 4
 5
 6
 7
 8
 9                       A BILL
10
11   TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
12   1976, SO AS TO ENACT MICHELLE‟S LAW BY ADDING
13   SECTIONS 38-71-355 AND 38-71-785 SO AS TO REQUIRE
14   HEALTH INSURANCE ISSUERS TO PERMIT A DEPENDENT
15   CHILD ON A MEDICALLY NECESSARY LEAVE OF
16   ABSENCE FROM A POSTSECONDARY EDUCATIONAL
17   INSTITUTION TO CONTINUE DEPENDENT COVERAGE
18   AND TO PROVIDE FOR THE REQUIREMENTS RELATED
19   TO THAT COVERAGE; TO AMEND SECTION 38-71-850,
20   RELATING TO THE DEFINITION OF “CREDITABLE
21   COVERAGE”      FOR GROUP HEALTH         INSURANCE
22   COVERAGE AND SPECIAL ENROLLMENT IN GROUP
23   HEALTH INSURANCE COVERAGE, BOTH UNDER THE
24   HEALTH        INSURANCE       PORTABILITY     AND
25   ACCOUNTABILITY ACT OF 1996, SO AS TO ADD
26   COVERAGE OF AN INDIVIDUAL UNDER THE STATE
27   CHILDREN‟S HEALTH INSURANCE PROGRAM AND TO
28   ENACT FEDERAL REQUIREMENTS SET FORTH IN THE
29   CHILDREN‟S      HEALTH     INSURANCE      PROGRAM
30   REAUTHORIZATION ACT OF 2009 TO PROVIDE FOR
31   SPECIAL ENROLLMENT OF AN EMPLOYEE OR AN
32   EMPLOYEE‟S      DEPENDENT     IN   THE   CASE  OF
33   TERMINATION OF MEDICAID COVERAGE OR COVERAGE
34   UNDER A STATE CHILDREN‟S HEALTH INSURANCE
35   PROGRAM OR THE INDIVIDUAL BECOMING ELIGIBLE
36   FOR      ASSISTANCE   IN    THE     PURCHASE   OF
37   EMPLOYMENT-BASED COVERAGE; TO AMEND SECTION
38   38-74-10, AS AMENDED, RELATING TO THE DEFINITION
39   OF “CREDITABLE COVERAGE” FOR THE SOUTH
40   CAROLINA HEALTH INSURANCE POOL, SO AS TO ADD
41   COVERAGE OF AN INDIVIDUAL UNDER THE STATE
42   CHILDREN‟S HEALTH INSURANCE PROGRAM; TO

     [1224]                  1
 1   AMEND SECTIONS 38-90-40, AS AMENDED, 38-90-45, AND
 2   38-90-50, AS AMENDED, RELATING TO CAPITALIZATION
 3   REQUIREMENTS FOR CAPTIVE INSURANCE COMPANIES,
 4   SO AS TO PROVIDE THAT THE DIRECTOR OF INSURANCE
 5   MAY CONSIDER THE NET AMOUNT OF RISK RETAINED
 6   FOR AN INDIVIDUAL RISK WHEN ARRIVING AT A
 7   FINDING RELATING TO ADDITIONAL CAPITAL OR NET
 8   ASSETS REQUIREMENTS; TO AMEND SECTION 38-90-70,
 9   AS AMENDED, RELATING TO REPORTS REQUIRED TO BE
10   SUBMITTED BY A CAPTIVE INSURANCE COMPANY TO
11   THE DIRECTOR, SO AS TO REQUIRE AN ASSOCIATION
12   CAPTIVE INSURANCE COMPANY AND INDUSTRIAL
13   INSURED GROUP TO SUBMIT ITS REPORT IN THE
14   MANNER REQUIRED BY SECTION 38-13-80; TO AMEND
15   SECTION 38-90-80, AS AMENDED, RELATING TO
16   INSPECTIONS AND EXAMINATIONS OF A CAPTIVE
17   INSURANCE COMPANY, SO AS TO PERMIT THE
18   DIRECTOR TO GRANT ACCESS TO, USE, AND MAKE
19   PUBLIC CERTAIN INFORMATION DISCOVERED OR
20   DEVELOPED      DURING    THE   COURSE    OF     AN
21   EXAMINATION; TO AMEND SECTION 38-90-160, AS
22   AMENDED, RELATING TO THE APPLICATION OF THE
23   PROVISIONS OF TITLE 38 TO CAPTIVE INSURANCE
24   COMPANIES, SO AS TO SPECIFY THAT REGULATIONS
25   PROMULGATED PURSUANT TO APPLICABLE STATUTES
26   ALSO APPLY TO CAPTIVE INSURANCE COMPANIES AND
27   TO PROVIDE A LISTING OF THOSE PROVISIONS OF TITLE
28   38 THAT APPLY TO CERTAIN CAPTIVE INSURANCE
29   COMPANIES; TO AMEND SECTION 38-90-430, AS
30   AMENDED, RELATING TO THE APPLICATION OF THE
31   PROVISIONS OF TITLE 38 TO SPECIAL PURPOSE
32   FINANCIAL CAPTIVES, SO AS TO SPECIFY THAT
33   REGULATIONS      PROMULGATED      PURSUANT      TO
34   APPLICABLE STATUTES ALSO APPLY TO SPECIAL
35   PURPOSE FINANCIAL CAPTIVES; AND TO AMEND
36   CHAPTER 93, TITLE 38, RELATING TO THE PRIVACY OF
37   GENETIC INFORMATION, SO AS TO ENACT FEDERAL
38   REQUIREMENTS SET FORTH IN THE GENETIC
39   INFORMATION NONDISCRIMINATION ACT OF 2008 TO
40   PROHIBIT DISCRIMINATION ON THE BASIS OF GENETIC
41   INFORMATION, PROVIDE FOR THE REQUIREMENTS
42   RELATING TO THE COLLECTION OF GENETIC


     [1224]                  2
 1   INFORMATION, AND TO PROVIDE FOR THE SCOPE OF
 2   THE CHAPTER.
 3
 4   Be it enacted by the General Assembly of the State of South
 5   Carolina:
 6
 7   SECTION 1. Sections 2 and 3 of this act may be cited as
 8   “Michelle‟s Law”.
 9
10   SECTION 2. Subarticle 1, Article 3, Chapter 71, Title 38 of the
11   1976 Code is amended by adding:
12
13      “Section 38-71-355. (A) As used in this section:
14         (1) „Dependent child‟ means a covered person under a
15   policy who:
16            (a) is a dependent child, under the terms of the coverage,
17   of an individual under the coverage; and
18            (b) was enrolled in the coverage, on the basis of being a
19   student at a postsecondary educational institution immediately
20   before the first date of the medically necessary leave of absence
21   involved.
22         (2) „Health insurance coverage‟ means as defined in Section
23   38-71-670(6).
24         (3) „Health insurance issuer‟ or „issuer‟ means an entity that
25   provides health insurance coverage in this State as defined in
26   Section 38-71-670(7).
27         (4) „Medically necessary leave of absence‟ means a leave of
28   absence of a dependent child from a postsecondary educational
29   institution, including an institution of higher education as defined
30   in Section 102 of the Higher Education Act of 1965, or any other
31   change in enrollment of the child at such an institution, that:
32            (a) commences while the child is suffering from a serious
33   illness or injury;
34            (b) is medically necessary; and
35            (c) causes the child to lose student status for purposes of
36   coverage under the terms of the policy.
37      (B) This section applies to health insurance coverage offered by
38   a health insurance issuer, that is delivered, issued for delivery, or
39   renewed in this State and which provides health insurance
40   coverage in the individual market.
41      (C)(1) In the case of a dependent child, a health insurance issuer
42   may not terminate health insurance coverage of the child due to a


     [1224]                            3
 1   medically necessary leave of absence before the date that is the
 2   earlier of:
 3           (a) one year after the first day of the medically necessary
 4   leave of absence; or
 5           (b) the date on which the coverage would otherwise
 6   terminate under the terms of the policy.
 7        (2) The provisions of this subsection apply to health
 8   insurance coverage offered by a health insurance issuer only if the
 9   issuer has received written certification by a treating physician of
10   the dependent child that states the child is suffering from a serious
11   illness or injury and that the leave of absence or other change of
12   enrollment is medically necessary.
13      (D) Each health insurance issuer shall include with a notice
14   regarding a requirement for certification of student status for
15   coverage under the policy or coverage a plain-language description
16   of the terms of this section for continued coverage during
17   medically necessary leaves of absence.
18      (E) A dependent child whose benefits are continued under this
19   section is entitled to the same benefits during the medically
20   necessary leave of absence as if the child continued to be a covered
21   student at the institution of higher education and was not on a
22   medically necessary leave of absence.
23      (F) Coverage of the dependent child shall continue for the
24   remainder of the period of the medically necessary leave of
25   absence under the changed coverage in the same manner as it
26   would have under the previous coverage in the case where:
27           (1) a dependent child is in a period of health insurance
28   coverage pursuant to a medically necessary leave of absence;
29           (2) the manner in which the insured or dependent child is
30   covered under the policy changes, whether through a change in
31   health insurance coverage or health insurance issuer, or otherwise;
32   and
33           (3) the coverage as changed continues to provide coverage
34   of dependent children.”
35
36   SECTION 3. Subarticle 1, Article 5, Chapter 71, Title 38 of the
37   1976 Code is amended by adding:
38
39      “Section 38-71-785.      (A) As used in this section:
40         (1) „Dependent child‟ means a beneficiary under a policy or
41   certificate of coverage who:
42           (a) is a dependent child, under the terms of the coverage,
43   of a participant or beneficiary under the coverage; and

     [1224]                            4
 1            (b) was enrolled in the coverage, on the basis of being a
 2   student at a postsecondary educational institution immediately
 3   before the first date of the medically necessary leave of absence
 4   involved.
 5         (2) „Health insurance coverage‟ means as defined in Section
 6   38-71-840(14).
 7         (3) „Health insurance issuer‟ or „issuer‟ means an entity that
 8   provides health insurance coverage in this State as defined in
 9   Section 38-71-840(16).
10         (4) „Medically necessary leave of absence‟ means a leave of
11   absence of a dependent child from a postsecondary educational
12   institution, including an institution of higher education as defined
13   in Section 102 of the Higher Education Act of 1965, or any other
14   change in enrollment of the child at such an institution, that:
15            (a) commences while the child is suffering from a serious
16   illness or injury;
17            (b) is medically necessary; and
18            (c) causes the child to lose student status for purposes of
19   coverage under the terms of the policy or certificate of coverage.
20         (5) „State health plan‟ means the employee and retiree
21   insurance program provided for in Article 5, Chapter 11, Title 1.
22      (B) This section applies to health insurance coverage offered by
23   a health insurance issuer, including the state health plan, that is
24   delivered, issued for delivery, or renewed in this State and which
25   provides health insurance coverage in the group market.
26      (C)(1) In the case of a dependent child, a health insurance issuer
27   may not terminate health insurance coverage of the child due to a
28   medically necessary leave of absence before the date that is the
29   earlier of:
30            (a) one year after the first day of the medically necessary
31   leave of absence; or
32            (b) the date on which the coverage would otherwise
33   terminate under the terms of the policy or certificate of coverage.
34         (2) The provisions of this subsection apply to health
35   insurance coverage offered by a health insurance issuer only if the
36   issuer has received written certification by a treating physician of
37   the dependent child that states the child is suffering from a serious
38   illness or injury and that the leave of absence or other change of
39   enrollment is medically necessary.
40      (D) Each health insurance issuer shall include with a notice
41   regarding a requirement for certification of student status for
42   coverage under the policy or coverage a plain-language description


     [1224]                            5
 1   of the terms of this section for continued coverage during
 2   medically necessary leaves of absence.
 3      (E) A dependent child whose benefits are continued under this
 4   section is entitled to the same benefits during the medically
 5   necessary leave of absence as if the child continued to be a covered
 6   student at the institution of higher education and was not on a
 7   medically necessary leave of absence.
 8      (F) Coverage of the dependent child shall continue for the
 9   remainder of the period of the medically necessary leave of
10   absence under the changed coverage in the same manner as it
11   would have under the previous coverage in the case where:
12        (1) a dependent child is in a period of health insurance
13   coverage pursuant to a medically necessary leave of absence;
14        (2) the manner in which the participant or beneficiary is
15   covered under the policy or certificate of coverage changes,
16   whether through a change in health insurance coverage or health
17   insurance issuer, a change from self-insured coverage to health
18   insurance coverage, or otherwise; and
19        (3) the coverage as changed continues to provide coverage
20   of dependent children.”
21
22   SECTION 4. Section 38-71-850(B)(1) of the 1976 Code is
23   amended to read:
24
25      “(1) For purposes of this subarticle, „creditable coverage‟
26   means, with respect to an individual, coverage of the individual
27   under any of the following:
28         (a) a group health plan;
29         (b) health insurance coverage;
30         (c) Part A or Part B, Title XVIII of the Social Security Act;
31         (d) Title XIX of the Social Security Act, other than coverage
32   consisting solely of benefits under Section 1928;
33         (e) Chapter 55, Title 10 of the United States Code;
34         (f) a medical care program of the Indian Health Service or
35   of a tribal organization;
36         (g) a state health benefits risk pool, including the South
37   Carolina Health Insurance Pool;
38         (h) a health plan offered under Chapter 89 of Title 5, United
39   States Code;
40         (i) a public health plan as defined in regulations;
41         (j) a health benefit plan under Section 5(e) of the Peace
42   Corps Act (22 U.S.C. 2504(e)); or


     [1224]                           6
 1        (k) Title XXI of the Social Security Act (State Children‟s
 2   Health Insurance Program).
 3     The term does not include coverage consisting solely only of
 4   those benefits excepted from the definition of health insurance
 5   coverage.”
 6
 7   SECTION 5. Section 38-71-850(E) of the 1976 Code is amended
 8   by adding a new item to read:
 9
10      “(4) A health insurance issuer offering group health insurance
11   coverage in connection with a group health plan shall permit an
12   employee who is eligible, but not enrolled for coverage, or a
13   dependent of the employee if the dependent is eligible, but not
14   enrolled for coverage, to enroll for coverage under the terms of the
15   plan if one of the following conditions is met:
16        (a) the employee or dependent was covered under a
17   Medicaid plan pursuant to Title XIX of the Social Security Act or
18   under a State Children‟s Health Insurance Program pursuant to
19   Title XXI of the Social Security Act and coverage of the employee
20   or dependent under the plan or program is terminated as a result of
21   loss of eligibility for the coverage and the employee requests
22   enrollment not later than sixty days after the date of termination of
23   the coverage; or
24        (b) the employee or dependent becomes eligible for
25   assistance with respect to coverage under the group health plan
26   under a Medicaid plan or State Children‟s Health Insurance
27   Program, including under any waiver or demonstration project
28   conducted under or in relation to the plan or program, if the
29   employee requests enrollment not later than sixty days after the
30   date the employee or dependent is determined to be eligible for
31   assistance.
32      An individual who requests enrollment as specified in this item
33   must be enrolled, even if there is otherwise no open enrollment
34   period, without any penalties for late enrollment.”
35
36   SECTION 6. Section 38-74-10(20) of the 1976 Code is amended
37   to read:
38
39     “(20) „Creditable coverage‟ means, with respect to an
40   individual, coverage of the individual under any of the following:
41        (a) a group health plan;
42        (b) health insurance;
43        (c) Part A or B of Title XVIII of the Social Security Act;

     [1224]                            7
 1         (d) Title XIX of the Social Security Act, other than coverage
 2   consisting solely of benefits under Section 1928;
 3         (e) Chapter 55, Title 10 of the United States Code;
 4         (f) a medical care program of the Indian Health Service or
 5   of a tribal organization;
 6         (g) a state health benefits risk pool, including the South
 7   Carolina Health Insurance Pool;
 8         (h) a health plan offered under Chapter 89, Title 5 of the
 9   United States Code;
10         (i) a public health plan, as defined in regulations;
11         (j) a health benefit plan under Section 5(e) of the Peace
12   Corps Act (22 U. S.C. 2504(e)); or
13         (k) Title XXI of the Social Security Act (State Children‟s
14   Health Insurance Program).
15      The term does not include coverage consisting solely only of
16   those benefits excepted from the definition of health insurance.
17      A period of creditable coverage shall is not be counted if, after
18   such period and before the enrollment date, there was a sixty-three
19   day period during all of which the individual was not covered
20   under any creditable coverage. However, in determining whether
21   there has been continuous coverage, no period shall must be taken
22   into account during which the individual is in a waiting period for
23   any coverage under a group health plan or for group health
24   insurance coverage or is in an affiliation period.
25      Periods of creditable coverage with respect to an individual shall
26   must be established through presentation of certifications as
27   described in Section 38-71-850(D) or in a manner specified in
28   regulations.”
29
30   SECTION 7. Section 38-90-40(D) of the 1976 Code, as last
31   amended by Act 332 of 2006, is further amended to read:
32
33      “(D) The director may prescribe additional capital or net assets
34   based upon the type, volume, and nature of insurance business
35   transacted including, but not limited to, the net amount of risk
36   retained for an individual risk. Contributions in connection with
37   these prescribed additional net assets or capital must be in the form
38   of:
39        (1) cash;
40        (2) cash equivalent;
41        (3) an irrevocable letter of credit issued by a bank chartered
42   by this State or a member bank of the Federal Reserve System with
43   a branch office in this State or as approved by the director; or

     [1224]                            8
 1        (4) securities invested as provided in Section 38-90-100.”
 2
 3   SECTION 8. Section 38-90-45(B) of the 1976 Code, as added by
 4   Act 58 of 2001, is amended to read:
 5
 6      “(B) The director may prescribe additional capital or surplus
 7   based upon the type, volume, and nature of the insurance business
 8   transacted including, but not limited to, the net amount of risk
 9   retained for an individual risk.”
10
11   SECTION 9. Section 38-90-50(D) of the 1976 Code, as last
12   amended by Act 332 of 2006, is further amended to read:
13
14     “(D) The director may prescribe additional surplus based upon
15   the type, volume, and nature of insurance business transacted
16   including, but not limited to, the net amount of risk retained for an
17   individual risk. This additional surplus must be in the form of:
18        (1) cash;
19        (2) cash equivalent;
20        (3) an irrevocable letter of credit issued by a bank chartered
21   by this State, or a member bank of the Federal Reserve System
22   with a branch in this State or as approved by the director; or
23        (4) securities invested as provided in Section 38-90-100.”
24
25   SECTION 10. Section 38-90-70(B) of the 1976 Code, as last
26   amended by Act 291 of 2004, is further amended to read:
27
28      “(B) Before March first of each year, a captive insurance
29   company or a captive reinsurance company shall submit to the
30   director a report of its financial condition, verified by oath of two
31   of its executive officers. Except as provided in Sections 38-90-40
32   and 38-90-50, a captive insurance company or a captive
33   reinsurance company shall report using generally accepted
34   accounting principles, unless the director approves the use of
35   statutory accounting principles, with useful or necessary
36   modifications or adaptations required or approved or accepted by
37   the director for the type of insurance and kinds of insurers to be
38   reported upon, and as supplemented by additional information
39   required by the director. Except as otherwise provided, an
40   association captive insurance company and an industrial insured
41   group shall file its report in the form and manner required by
42   Section 38-13-80, and each industrial insured group shall comply
43   with the requirements set forth provided for in Section 38-13-85.

     [1224]                            9
 1   The director by regulation shall prescribe the forms in which pure
 2   captive insurance companies and industrial insured captive
 3   insurance companies shall report. Information submitted pursuant
 4   to this section is confidential as provided in Section 38-90-35,
 5   except for reports submitted by a captive insurance company
 6   formed as a Risk Retention Group under the Product Liability Risk
 7   Retention Act of 1986, 15 U.S.C. Section 3901, et seq., as
 8   amended.”
 9
10   SECTION 11. Section 38-90-80(B)(2) and (3) of the 1976 Code,
11   as last amended by Act 291 of 2004, is further amended to read:
12
13      “(2) The director may grant access to this information to public
14   officers having jurisdiction over the regulation of insurance in any
15   other state or country, or to law enforcement officers of this State
16   or any other state or country or agency of the federal government
17   at any time, so long as the officers receiving the information agree
18   in writing to hold it in a manner consistent with this section.
19      (3) The confidentiality provisions of this subsection do not
20   extend to final reports produced by the director in inspecting or
21   examining a captive insurance company formed as a Risk
22   Retention Group under the Product Liability Risk Retention Act of
23   1986, 15 U.S.C. Section 3901, et seq., as amended. In addition,
24   nothing contained in this subsection limits the authority of the
25   director or his designee to use and, if appropriate, make public a
26   preliminary examination report, examiner or insurer work papers
27   or other documents, or other information discovered or developed
28   during the course of an examination in the furtherance of a legal or
29   regulatory action which the director or his designee, in his sole
30   discretion, considers appropriate.”
31
32   SECTION 12. Section 38-90-160 of the 1976 Code, as last
33   amended by Act 188 of 2002, is further amended to read:
34
35      “Section 38-90-160.     (A) No provisions of this title, other
36   than those contained in this chapter or contained in specific
37   references contained in this chapter and regulations applicable to
38   them, apply to captive insurance companies.
39      (B) The director may exempt, by rule, regulation, or order,
40   exempt special purpose captive insurance companies, on a case by
41   case basis, from provisions of this chapter that he determines to be
42   inappropriate given the nature of the risks to be insured.


     [1224]                           10
 1      (C) The provisions of Sections 38-5-120(A)(3), 38-5-120(C),
 2   38-5-120(D), 38-9-225, 38-9-230, 38-9-320, 38-21-10, 38-21-30,
 3   38-21-60, 38-21-70, 38-21-90, 38-21-95, 38-21-120, 38-21-130,
 4   38-21-140, 38-21-150, 38-21-160, 38-21-170, 38-21-250,
 5   38-21-270, 38-21-280, 38-21-310, 38-21-320, 38-21-330,
 6   38-21-360, 38-55-75 and Chapters 44 and 46, Title 38 apply in full
 7   to a risk retention group licensed as an industrial insured captive
 8   insurance company and, if a conflict occurs between those code
 9   sections and chapters referenced in this subsection and this chapter
10   (Chapter 90, Title 38), then the code sections and chapters
11   referenced in this subsection control.
12      (D) Except as provided elsewhere in this chapter, the provisions
13   of Chapter 87, Title 38 apply to a risk retention group licensed as
14   an industrial insured captive insurance company.”
15
16   SECTION 13. Section 38-90-430(A) of the 1976 Code, as added
17   by Act 291 of 2004, is amended to read:
18
19      “(A) No provisions of Title 38, other than those specifically
20   referenced in this article and regulations applicable to them, apply
21   to a SPFC, and those provisions apply only as modified by this
22   article. If a conflict occurs between a provision of Title 38 and a
23   provision of this article, the latter controls.”
24
25   SECTION 14. Chapter 93, Title 38 of the 1976 Code is amended
26   to read:
27
28                             “CHAPTER 93
29
30                     Privacy of Genetic Information
31
32      Section 38-93-10. As used in this chapter:
33      (1) „Genetic characteristic‟ means any scientifically or
34   medically identifiable gene or chromosome, or alteration thereof,
35   which is known to be a cause of disease or disorder, or determined
36   to be associated with a statistically increased risk of development
37   of a disease or disorder and which is asymptomatic of any disease
38   or disorder.
39      (2) „Genetic information‟ means information about genes, gene
40   products, or genetic characteristics derived from an individual or a
41   family member of the individual. „Gene product‟ is a scientific
42   term that means messenger RNA and translated protein. For
43   purposes of this chapter, genetic information shall not include

     [1224]                           11
 1   routine physical measurements; chemical, blood, and urine
 2   analysis, unless conducted purposely to diagnose a genetic
 3   characteristic; tests for abuse of drugs; and tests for the presence
 4   of the human immunodeficiency virus.
 5      (3) „Genetic test‟ means a laboratory test or other scientifically
 6   or medically accepted procedure for determining the presence or
 7   absence of genetic characteristics in an individual.
 8
 9      Section 38-93-20.      (A) No person when issuing, renewing,
10   or reissuing a policy, contract, or plan of accident and health
11   insurance providing hospital, medical and surgical, or major
12   medical coverage on an expense incurred basis, providing a
13   corporate health services plan, or providing a health care plan for
14   health care services by a health maintenance organization, on the
15   basis of any genetic information obtained concerning an individual
16   or on the individual‟s request for genetic services, with respect to
17   such policy, contract, or plan shall:
18        (1) terminate, restrict, limit, or otherwise apply conditions to
19   coverage of an individual or restrict the sale to an individual;
20        (2) cancel or refuse to renew the coverage of an individual;
21        (3) exclude an individual from coverage;
22        (4) impose a waiting period prior to commencement of
23   coverage of an individual;
24        (5) require inclusion of a rider that excludes coverage for
25   certain benefits and services; or
26        (6) establish differential in premium rates for coverage.
27      (B) In addition, no discrimination must be made in the fees or
28   commissions of an agent or agency for an enrollment, a
29   subscription, or the renewal of an enrollment or subscription of a
30   person on the basis of a person‟s genetic characteristics which
31   under some circumstances may be associated with disability in that
32   person or that person‟s offspring.
33      (C) Accident and health insurance as used in this chapter does
34   not include accident-only, blanket accident and sickness, specified
35   disease, credit, dental, vision, Medicare supplement, long-term
36   care, or disability-income insurance; coverage issued as a
37   supplement to liability or other insurance; coverage designed
38   solely to provide payments on a per diem, fixed indemnity or
39   nonexpense incurred basis, coverage for Medicare or Medicaid
40   services pursuant to a contract with state or federal government,
41   workers‟ compensation or similar insurance; or automobile
42   medical payment insurance.
43

     [1224]                           12
 1      Section 38-93-30. All genetic information obtained before or
 2   after the effective date of this chapter must be confidential and
 3   must not be disclosed to a third party in a manner that allows
 4   identification of the individual tested without first obtaining the
 5   written informed consent of that individual or a person legally
 6   authorized to consent on behalf of the individual, except that
 7   genetic information may be disclosed without consent:
 8        (1) as necessary for the purpose of a criminal or death
 9   investigation, a criminal or judicial proceeding, an inquest, or a
10   child fatality review, or for purposes of the State DNA Database
11   established by Section 23-3-610;
12        (2) to determine the paternity of a person pursuant to Section
13   63-17-30;
14        (3) pursuant to an order of a court of competent jurisdiction
15   specifically ordering disclosure of the genetic information;
16        (4) where genetic information concerning a deceased
17   individual will assist in medical diagnosis of blood relatives of the
18   decedent;
19        (5) to a law enforcement or other authorized agency for the
20   purpose of identifying a person or a dead body; or
21        (6) as specifically authorized or required by a state or federal
22   statute.
23      A provider of accident and health insurance may not require a
24   person to consent to the disclosure of genetic information to the
25   insurer as a condition for obtaining accident and health insurance.
26
27      Section 38-93-40.      It is unlawful to perform a genetic test on
28   tissue, blood, urine, or other biological sample taken from an
29   individual without first obtaining specific informed consent to the
30   test from the individual, or a person legally authorized to consent
31   on behalf of the individual, unless the test is performed:
32         (1) by or for a law enforcement agency in a criminal
33   investigation or for the State DNA Database as provided in
34   Sections 23-3-620 through 23-3-640;
35         (2) for purposes of identifying a person or a dead body;
36         (3) to establish paternity as provided by Section 63-17-30;
37         (4) for use in a study in which the identities of the persons
38   from whom the genetic information is obtained are not disclosed to
39   the person conducting the study; or
40         (5) pursuant to a statute or court order specifically requiring
41   that the test be performed.
42


     [1224]                           13
 1      Section 38-93-50. Agents and insurance support organizations
 2   are subject to the provisions of this chapter to the extent of their
 3   participation in the issue, reissue, or renewal of a policy, contract,
 4   or plan of accident and health insurance.
 5
 6      Section 38-93-60. (A) Any violation of this chapter is an
 7   unfair trade practice as defined in Section 39-5-20 and is subject to
 8   the provisions of Sections 39-5-110 to 39-5-160.
 9      (B) Any individual who is injured by a person‟s violation of
10   this chapter may recover in a court of competent jurisdiction the
11   following remedies:
12         (1) equitable relief, which may include a retroactive order,
13   directing the person to provide health insurance appropriate to the
14   injured individual under the same terms and conditions as would
15   have applied had the violation not occurred; and
16         (2) an amount equal to any actual damages suffered by the
17   individual as a result of the violation.
18      (C) The prevailing party in an action under this section may
19   recover costs and reasonable attorney‟s fees.
20      Section 38-93-10. As used in this chapter:
21      (1) „Family member‟ means, with respect to an individual:
22         (a) a dependent of the individual; and
23         (b) any other individual who is a first-degree, second-degree,
24   third-degree, or fourth-degree relative of the individual or his
25   dependent.
26      (2)(a) „Genetic information‟ means, with respect to an
27   individual, the:
28              (i) individual‟s genetic tests;
29             (ii) genetic tests of the individual‟s family members; and
30            (iii) manifestation of a disease or disorder in family
31   members of the individual.
32         (b) The term includes, with respect to an individual, a
33   request for, or receipt of, genetic services or participation in
34   clinical research which includes genetic services by the individual
35   or a family member of the individual.
36         (c) A reference to genetic information concerning an
37   individual or family member of an individual includes:
38              (i) with respect to an individual or family member of an
39   individual who is a pregnant woman, genetic information on any
40   fetus carried by the pregnant woman; or
41             (ii) with respect to an individual or family member of an
42   individual utilizing an assisted reproductive technology, genetic


     [1224]                            14
 1   information of an embryo legally held by the individual or family
 2   member.
 3        (d) The term does not include information about the sex or
 4   age of an individual.
 5      (3) „Genetic services‟ means:
 6        (a) a genetic test;
 7        (b) genetic counseling, including obtaining, interpreting, or
 8   assessing genetic information; or
 9        (c) genetic education.
10      (4)(a) „Genetic test‟ means an analysis of human DNA, RNA,
11   chromosomes, proteins, or metabolites that detects genotypes,
12   mutations or chromosomal changes.
13        (b) The term does not include:
14             (i) an analysis of proteins or metabolites that does not
15   detect genotypes, mutations, or chromosomal changes; or
16            (ii) an analysis of proteins or metabolites that is directly
17   related to a manifested disease, disorder, or pathological condition
18   that reasonably could be detected by a health care professional
19   with appropriate training and expertise in the field of medicine
20   involved.
21      (5) „Health insurance coverage‟ or „coverage‟ means as defined
22   in Sections 38-71-670(6) and 38-71-840(14).
23      (6) „Health insurance issuer‟ or „issuer‟ means an entity that
24   provides health insurance coverage in this State as defined in
25   Sections 38-71-670(7) and 38-71-840(16).
26      (7) „Individual‟ means an insured, individual enrollee, covered
27   dependent, participant, covered person, beneficiary, eligible
28   employee, dependent of an eligible employee, or applicant for
29   coverage.
30      (8) „Secretary‟ means the Secretary of the United States
31   Department of Health and Human Services.
32      (9) „Underwriting purposes‟ means:
33        (a) rules for, or determination of, eligibility including
34   enrollment and continued eligibility for benefits under the policy
35   or coverage;
36        (b) the computation of premium or contribution amounts
37   under the policy or coverage;
38        (c) the application of any pre-existing condition exclusion
39   under the policy or coverage; and
40        (d) other activities related to the creation, renewal, or
41   replacement of a policy or contract of health insurance coverage.
42


     [1224]                           15
 1      Section 38-93-20. This chapter applies to health insurance
 2   coverage offered in connection with an individual health plan, a
 3   group health plan, or a health benefit plan that is delivered, issued
 4   for delivery, or renewed in this State. Producers, agencies, and
 5   insurance support organizations are subject to the provisions of this
 6   chapter to the extent of their participation in the issue, reissue, or
 7   renewal of a policy or contract of health insurance coverage.
 8
 9      Section 38-93-30.      (A) A health insurance issuer when
10   issuing, renewing, or reissuing a policy or contract of health
11   insurance coverage, on the basis of any genetic information
12   obtained concerning an individual or a family member of the
13   individual or on the individual‟s request for genetic services, with
14   respect to the policy or contract, may not:
15         (1) terminate, restrict, limit, or otherwise apply conditions to
16   coverage of an individual or restrict the sale to an individual;
17         (2) cancel or refuse to renew the coverage of an individual;
18         (3) exclude an individual from coverage or establish rules
19   for eligibility, including continued eligibility, of an individual to
20   enroll for coverage;
21         (4) impose a waiting period before commencement of
22   coverage of an individual;
23         (5) impose a pre-existing condition exclusion;
24         (6) require inclusion of a rider that excludes coverage for
25   certain benefits or services; or
26         (7) adjust premium or contribution amounts or establish a
27   differential in premium rates for coverage.
28      (B)(1) In the case of group health insurance coverage, a health
29   insurance issuer is prohibited from adjusting premium or
30   contribution amounts for the group covered under a policy or
31   contract of group health insurance coverage on the basis of genetic
32   information.
33         (2) Nothing in item (1) may be construed to limit the ability
34   of an issuer offering group health insurance coverage to increase
35   the premium for an employer based on the manifestation of a
36   disease or disorder in an individual who is enrolled in the policy or
37   contract of coverage. In this case, the manifestation of a disease or
38   disorder in one individual may not be used as genetic information
39   about other group members and to further increase the premium
40   for the employer.
41      (C) In addition, discrimination must not be made in the fees or
42   commissions of a producer or agency for an enrollment,


     [1224]                            16
 1   application, or the renewal of coverage of an individual or group
 2   on the basis of an individual‟s genetic information.
 3
 4      Section 38-93-40. (A) All genetic information obtained before
 5   or after the effective date of this chapter must be confidential and
 6   must not be disclosed to a third party in a manner that allows
 7   identification of the individual tested without first obtaining the
 8   written informed consent of that individual or a person legally
 9   authorized to consent on behalf of the individual, except that
10   genetic information may be disclosed without consent:
11        (1) as necessary for the purpose of a criminal or death
12   investigation, a criminal or judicial proceeding, an inquest, or a
13   child fatality review, or for purposes of the State DNA Database
14   established by Section 23-3-610;
15        (2) to determine the paternity of a person pursuant to Section
16   63-17-30;
17        (3) pursuant to an order of a court of competent jurisdiction
18   specifically ordering disclosure of the genetic information;
19        (4) where genetic information concerning a deceased
20   individual will assist in medical diagnosis of blood relatives of the
21   decedent;
22        (5) to a law enforcement or other authorized agency for the
23   purpose of identifying a person or a dead body; or
24        (6) as specifically authorized or required by a state or federal
25   statute.
26      (B) A health insurance issuer may not require an individual to
27   consent to the disclosure of genetic information to the issuer as a
28   condition for obtaining health insurance coverage.
29
30     Section 38-93-50.      It is unlawful to perform a genetic test on
31   an individual without first obtaining specific informed consent to
32   the test from the individual, or a person legally authorized to
33   consent on behalf of the individual, unless the test is performed:
34     (1) by or for a law enforcement agency in a criminal
35   investigation or for the State DNA Database as provided in
36   Sections 23-3-620 through 23-3-640;
37     (2) for purposes of identifying a person or a dead body;
38     (3) to establish paternity as provided by Section 63-17-30;
39     (4) pursuant to a statute or court order specifically requiring
40   that the test be performed.
41
42     Section 38-93-60.   (A) A health insurance issuer may not
43   request or require an individual or a family member of an

     [1224]                           17
 1   individual to undergo a genetic test. However, nothing in this
 2   subsection may be construed so as to limit the authority of a health
 3   care professional who is providing health care services to an
 4   individual to request that the individual undergo a genetic test.
 5      (B) Notwithstanding subsection (A), a health insurance issuer
 6   may request, but not require, that an individual or a family member
 7   of the individual undergo a genetic test if each of the following
 8   conditions is met:
 9        (1) the request is made pursuant to research that complies
10   with Part 46 of Title 45, Code of Federal Regulations, or
11   equivalent federal regulations and any applicable state law or
12   regulations for the protection of human subjects in research;
13        (2) the issuer clearly indicates to each individual, or a person
14   legally authorized to consent on behalf of the individual, to whom
15   the request is made that:
16            (i) compliance with the request is voluntary; and
17            (ii) noncompliance will have no effect on enrollment or
18   coverage status or premium or contribution amounts;
19        (3) no genetic information collected or acquired under this
20   chapter may be used for underwriting purposes;
21        (4) the issuer notifies the Secretary in writing that the issuer
22   is conducting activities pursuant to the exception provided in this
23   subsection, including a description of the activities conducted; and
24        (5) the issuer complies with other conditions as the Secretary
25   may require by regulation for activities conducted under this
26   subsection.
27
28      Section 38-93-70.     (A)(1) A health insurance issuer may not
29   request, require, or purchase genetic information for underwriting
30   purposes.
31        (2) An issuer may not request, require, or purchase genetic
32   information with respect to an individual before the individual‟s
33   enrollment under the policy or contract of health insurance
34   coverage.
35      (B) If an issuer obtains genetic information incidental to the
36   requesting, requiring, or purchasing of other information
37   concerning an individual, the request, requirement, or purchase
38   may not be considered a violation of item (2) of subsection (A) if
39   the request, requirement, or purchase is not a violation of item (1)
40   of subsection (A).
41
42     Section 38-93-80.      Nothing in this chapter may be construed
43   so as to preclude a health insurance issuer from:

     [1224]                           18
 1        (1) establishing rules for eligibility for an individual to
 2   purchase or enroll for individual coverage based on the
 3   manifestation of a disease or disorder in that individual or in a
 4   family member of the individual where the family member is
 5   covered under the policy or contract of individual health insurance
 6   coverage that covers the individual;
 7        (2) adjusting premium or contribution amounts for an
 8   individual on the basis of a manifestation of a disease or disorder
 9   in that individual or in a family member of the individual where
10   the family member is covered under the policy or contract of
11   health insurance coverage that covers the individual. In this case,
12   the manifestation of a disease or disorder in one individual must
13   not be used as genetic information about other individuals covered
14   under the policy or contract of health insurance coverage issued to
15   the individual and to further increase premiums or contribution
16   amounts;
17        (3) imposing a pre-existing condition exclusion as otherwise
18   permitted by law for an individual with respect to coverage under
19   the policy or contract of health insurance coverage on the basis of
20   a manifestation of a disease or disorder in that individual; or
21        (4) obtaining and using the results of a genetic test in
22   making a determination regarding payment (as that term is defined
23   for purposes of applying the regulations promulgated by the
24   Secretary under Part C of Title XI of the Social Security Act and
25   Section 264 of HIPAA, as may be revised) consistent with the
26   provisions of this chapter. However, the issuer may request only
27   the minimum amount of information necessary to make a
28   determination.
29
30      Section 38-93-90.      (A) A violation of this chapter, including
31   a single instance of a prohibited practice, is an unfair trade practice
32   pursuant to Chapter 57, Title 38 and is subject to the penalties as
33   provided for in Chapter 57 and in Section 38-2-10. The director or
34   his designee at any time may examine an issuer, producer, agency,
35   or insurance support organization to enforce this chapter. The
36   expense of examination must be paid by the issuer, producer,
37   agency, or insurance support organization. If an issuer, producer,
38   agency, or insurance support organization determines that the fees
39   assessed are unreasonable in relation to the examination
40   performed, the issuer, producer, agency, or insurance support
41   organization may appeal the assessments to the Administrative
42   Law Court. Examination fees must be retained by the department
43   and are considered „other‟ funds.

     [1224]                            19
 1      (B) In addition, a violation of this chapter is an unfair trade
 2   practice as defined in Section 39-5-20 and is subject to the
 3   provisions of Sections 39-5-110 to 39-5-160.
 4      (C) The penalties and enforcement provisions of subsections
 5   (A) and (B) are in addition to penalties and enforcement provisions
 6   of federal law, including those set forth in the Genetic Information
 7   Nondiscrimination Act of 2008, Public Law 110-233.
 8      (D) An individual who is injured by a person‟s violation of this
 9   chapter may recover in a court of competent jurisdiction the
10   following remedies:
11        (1) equitable relief, which may include a retroactive order,
12   directing the person to provide health insurance appropriate to the
13   injured individual under the same terms and conditions as would
14   have applied had the violation not occurred; and
15        (2) an amount equal to any actual damages suffered by the
16   individual as a result of the violation.
17      (E) The prevailing party in an action under this section may
18   recover costs and reasonable attorney‟s fees.”
19
20   SECTION 15. The Department of Insurance may promulgate
21   regulations necessary for implementation of this act.
22
23   SECTION 16. If          any     section,    subsection,    paragraph,
24   subparagraph, sentence, clause, phrase, or word of this act is for
25   any reason held to be unconstitutional or invalid, such holding
26   shall not affect the constitutionality or validity of the remaining
27   portions of this act, the General Assembly hereby declaring that it
28   would have passed this act, and each and every section, subsection,
29   paragraph, subparagraph, sentence, clause, phrase, and word
30   thereof, irrespective of the fact that any one or more other sections,
31   subsections, paragraphs, subparagraphs, sentences, clauses,
32   phrases, or words hereof may be declared to be unconstitutional,
33   invalid, or otherwise ineffective.
34
35   SECTION 17. This act takes effect upon approval by the
36   Governor.
37                         ----XX----
38




     [1224]                            20

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:16
posted:11/16/2011
language:English
pages:22