2861 AAS 3/1/00

2861 AAS 3/1/00

HB 2861 - S COMM AMD (S4976.2 amd by S5041.1)

By Committee on Human Services & Corrections

ADOPTED AS AMENDED 3/1/00

Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 70.02.010 and 1993 c 448 s 1 are each amended to read as follows:

((~~As used in this chapter, unless the context otherwise requires:~~)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Audit" means an assessment, evaluation, determination, or investigation of a health care provider by a person not employed by or affiliated with the provider to determine compliance with:

(a) Statutory, regulatory, fiscal, medical, or scientific standards;

(b) A private or public program of payments to a health care provider; or

(2) "Directory information" means information disclosing the presence, and for the purpose of identification, the name, residence, sex, and the general health condition of a particular patient who is a patient in a health care facility or who is currently receiving emergency health care in a health care facility.

(3) "General health condition" means the patient's health status described in terms of "critical," "poor," "fair," "good," "excellent," or terms denoting similar conditions.

(4) "Health care" means any care, service, or procedure provided by a health care provider:

(a) To diagnose, treat, or maintain a patient's physical or mental condition; or

(b) That affects the structure or any function of the human body.

(5) "Health care facility" means a hospital, clinic, nursing home, laboratory, office, or similar place where a health care provider provides health care to patients.

(6) "Health care information" means any information, whether oral or recorded in any form or medium, that identifies or can readily be associated with the identity of a patient and directly relates to the patient's health care. The term includes any record of disclosures of health care information. The term includes genetic test information in a person's DNA and a person's DNA.

(7) "Health care provider" means a person who is licensed, certified, registered, or otherwise authorized by the law of this state to provide health care in the ordinary course of business or practice of a profession.

(8) "Institutional review board" means any board, committee, or other group formally designated by an institution, or authorized under federal or state law, to review, approve the initiation of, or conduct periodic review of research programs to assure the protection of the rights and welfare of human research subjects.

(9) "Maintain," as related to health care information, means to hold, possess, preserve, retain, store, or control that information.

(10) "Patient" means an individual who receives or has received health care. The term includes a deceased individual who has received health care.

(11) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.

(12) "Reasonable fee" means the charges for duplicating or searching the record, but shall not exceed sixty-five cents per page for the first thirty pages and fifty cents per page for all other pages. In addition, a clerical fee for searching and handling may be charged not to exceed fifteen dollars. These amounts shall be adjusted biennially in accordance with changes in the consumer price index, all consumers, for Seattle-Tacoma metropolitan statistical area as determined by the secretary of health. However, where editing of records by a health care provider is required by statute and is done by the provider personally, the fee may be the usual and customary charge for a basic office visit.

(13) "Third-party payor" means an insurer regulated under Title 48 RCW authorized to transact business in this state or other jurisdiction, including a health care service contractor, and health maintenance organization; or an employee welfare benefit plan; or a state or federal health benefit program.

NEW SECTION. Sec. 2. A new section is added to chapter 70.02 RCW to read as follows:

Genetic information in the form of deoxyribonucleic acid is health care information subject to the following provisions:

(1) Any entity, including any person, isolating a person's deoxyribonucleic acid in a form that identifies an individual person for purposes of genetic testing must have the person's informed consent.

(2) Informed consent requires:

(a) An explanation of the purpose for which the deoxyribonucleic acid is being obtained, and whether it will be converted into a computerized individual sequence of chemical base pairs or other form for interpretation;

(b) Identification of the entity obtaining the deoxyribonucleic acid and individual sequence;

(c) Disclosure of any entity with whom the deoxyribonucleic acid and individual sequence may be shared, including disclosure that the deoxyribonucleic acid or individual sequence may be shared in the future with an unknown entity;

(d) A statement of the expected duration that the deoxyribonucleic acid and individual sequence may be kept;

(e) A description of reasonably foreseeable risks or harm associated with providing the deoxyribonucleic acid and individual sequence;

(f) An explanation of how the deoxyribonucleic acid will be maintained, whether the physical sample will be destroyed or stored, including how and where it will be stored, and how the individual sequence information will be destroyed or stored, including how and where it will be stored;

(g) A statement describing any reasonably expected benefits or advantages associated with providing the deoxyribonucleic acid and individual sequence;

(h) A statement describing any confidentiality or privacy protections for the deoxyribonucleic acid and individual sequence;

(i) Identification of an individual contact and contact information from whom further information may be obtained or reported relative to the deoxyribonucleic acid and individual sequence;

(j) Provisions explaining whether the deoxyribonucleic acid and the individual sequence can be expunged or removed from the entity that obtained it and the method to do it;

(k) The exclusion of any exculpatory provisions from liability against the entity obtaining the deoxyribonucleic acid and individual sequence;

(l) A disclosure that providing deoxyribonucleic acid and an individual sequence is voluntary; and

(m) Compliance with the federal informed consent requirements, when applicable, which are more protective of individual privacy.

(3) A person's informed consent is not required:

(a) In criminal matters if the deoxyribonucleic acid is obtained or used during a criminal investigation, trial, appeal, or pursuant to specific common law or statutory authority, or a lawfully issued court order. Once a criminal conviction is final, a report that was not admitted into evidence, identifying a specific person by analysis of DNA obtained in the course of an investigation, shall be destroyed if the person is found to be uninvolved in the commission of the criminal act or acts;

(b) In situations where the person requires emergency medical care as long as the person, or his or her representative in death cases, is informed in a timely manner after the emergency that the deoxyribonucleic acid was obtained;

(c) In situations where a person's bodily fluids are obtained without consent pursuant to specific statutory requirement mandating testing;

(d) In situations where the individual is deceased and the entity requesting the deoxyribonucleic acid establishes in a court of law that obtaining individually identifiable deoxyribonucleic acid for genetic testing purposes benefits public health, safety, and welfare, and outweighs the harm to individual privacy interests, or the person requesting the deoxyribonucleic acid is a next of kin requesting the deoxyribonucleic acid for purposes of health care or other purpose that outweighs the harm to the individual's privacy interests, or the entity requesting the deoxyribonucleic acid has been authorized by an institutional review board to use the deoxyribonucleic acid pursuant to an approved protocol;

(e) Pursuant to the provisions of this section, if the entity or person is a health care provider or facility under chapter 70.02 RCW who is acting according to the provisions of that chapter, and who is subject to the provisions of chapter 7.70 RCW;

(f) Pursuant to provisions of this section, if the entity or person obtains an individual's deoxyribonucleic acid, or computerized information that provides the sequence of that individual's deoxyribonucleic acid, in a form that does not identify that individual;

(g) Pursuant to provisions of this section, if the entity or person who obtains deoxyribonucleic acid, or computerized information that provides the sequence of that deoxyribonucleic acid, is acting according to the provisions of an institutional review board established under federal law; and

(h) In death investigations for purposes of identifying the decedent.

NEW SECTION. Sec. 3. A new section is added to chapter 48.01 RCW to read as follows:

A person's individual health care information in the form of deoxyribonucleic acid shall not be screened in any insurance transaction. For purposes of this section, "screened" means obtaining a person's deoxyribonucleic acid and identifying the sequence of chemical base pairs. This section must not be interpreted to deny payment of claims.

Sec. 4. RCW 49.60.030 and 1997 c 271 s 2 are each amended to read as follows:

(1) The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination, including the right to prohibit an employer from screening a person's individual health care information in the form of deoxyribonucleic acid. For purposes of this subsection, "screening" means obtaining a person's deoxyribonucleic acid and identifying a sequence of chemical base pairs;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(e) The right to engage in insurance transactions or transactions with health maintenance organizations without discrimination: PROVIDED, That a practice which is not unlawful under RCW 48.30.300, 48.44.220, or 48.46.370 does not constitute an unfair practice for the purposes of this subparagraph; and

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists. Discriminatory boycotts or blacklists for purposes of this section shall be defined as the formation or execution of any express or implied agreement, understanding, policy or contractual arrangement for economic benefit between any persons which is not specifically authorized by the laws of the United States and which is required or imposed, either directly or indirectly, overtly or covertly, by a foreign government or foreign person in order to restrict, condition, prohibit, or interfere with or in order to exclude any person or persons from any business relationship on the basis of race, color, creed, religion, sex, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a disabled person, or national origin or lawful business relationship: PROVIDED HOWEVER, That nothing herein contained shall prohibit the use of boycotts as authorized by law pertaining to labor disputes and unfair labor practices.

(2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).

(3) Except for any unfair practice committed by an employer against an employee or a prospective employee, or any unfair practice in a real estate transaction which is the basis for relief specified in the amendments to RCW 49.60.225 contained in chapter 69, Laws of 1993, any unfair practice prohibited by this chapter which is committed in the course of trade or commerce as defined in the Consumer Protection Act, chapter 19.86 RCW, is, for the purpose of applying that chapter, a matter affecting the public interest, is not reasonable in relation to the development and preservation of business, and is an unfair or deceptive act in trade or commerce.

Sec. 5. RCW 70.83.050 and 1967 c 82 s 5 are each amended to read as follows:

The state board of health shall adopt rules and regulations necessary to carry out the intent of this chapter. Rules adopted by the state board of health must protect an individual's confidentiality of his or her genetic health care information obtained under this chapter.

NEW SECTION. Sec. 6. The legislature finds that:

(1) Deoxyribonucleic acid (DNA) is a unique form of health care information;

(2) The technology of DNA identification is of great potential benefit to the citizens of this state in many fields, including human services and health care, scientific research, criminal justice, and corrections;

(3) Technology is changing and improving at an ever-increasing rate;

(4) DNA technology is particularly important in assisting law enforcement in identifying and apprehending repeat criminal offenders as well as exonerating those people convicted and incarcerated for a crime they did not commit;

(5) There are legitimate concerns for privacy rights in the creation, collection, maintenance, disclosure, identification, and use of DNA;

(6) Protections of citizens' civil rights and individual privileges necessitate policy development of protections preventing the unauthorized use of DNA and the use of DNA for discriminatory purposes; and

(7) There is a need to address the potential future uses of DNA that may benefit citizens of this state, for purposes of the health, safety, and welfare of its citizens.

NEW SECTION. Sec. 7. A DNA commission is established to consist of twenty-four members selected as follows:

(1)(a) Two members of the senate, appointed by the president of the senate, one from each of the two largest caucuses; and

(b) Two members of the house of representatives, appointed by the co-speakers of the house of representatives, one from each of the two largest caucuses;

(2) The following members shall be appointed by the governor:

(a) Two members representing local public health;

(b) One member representing genetic counselors;

(d) One member representing epidemiological research;

(e) One member representing the Human Genome project;

(f) One member representing genetic ethics;

(g) One member representing institutional review boards;

(h) Two members representing geneticists, one clinical and one research;

(i) One member representing research institutions;

(j) One member representing civil rights advocates;

(k) Two members representing criminal justice and corrections;

(l) Two members representing privacy advocates;

(m) One member representing citizens who have undergone genetic testing;

(n) One member representing hospitals;

(o) One member representing pathologists or laboratory medicine; and

(p) One member representing biotechnologists.

The commission shall be appointed within forty-five days from the effective date of this act. Staffing shall be provided by the legislature. Members shall serve without remuneration, except costs may be provided according to the provisions of RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 8. The DNA commission shall:

(1) Develop a state-wide strategy for evaluating and recommending public policies relating to the use of DNA;

(2) Conduct a survey and produce a resource guide for citizens relating to the use of DNA;

(3) Evaluate methods for protecting an individual's privacy interests in his or her DNA;

(4) Analyze the incidence of discriminatory actions state-wide based upon genetic information;

(5) Develop recommendations relative to civil rights' protections as they relate to genetic information;

(6) Analyze available remedies to compensate individuals for the inappropriate use of their genetic information;

(7) Identify appropriate disincentives to improper use of DNA;

(8) Identify incentives for further research and development in the area of DNA that promotes public health, safety, and welfare; and

(9) An initial report of its findings and recommendations shall be provided to the appropriate committees of the legislature by July 1, 2001.

NEW SECTION. Sec. 9. A new section is added to chapter 43.131 RCW to read as follows:

The DNA commission and its powers and duties shall be terminated on June 30, 2005, as provided in section 10 of this act.

NEW SECTION. Sec. 10. A new section is added to chapter 43.131 RCW to read as follows:

The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective June 30, 2006.

(1) Section 6 of this act;

(2) Section 7 of this act; and

(3) Section 8 of this act.

Sec. 11. RCW 70.24.084 and 1999 c 391 s 4 are each amended to read as follows:

(1) Any person aggrieved by a violation of this chapter shall have a right of action in superior court and may recover for each violation:

(a) Against any person who negligently violates a provision of this chapter, one thousand dollars, or actual damages, whichever is greater, for each violation.

(b) Against any person who intentionally or recklessly violates a provision of this chapter, ten thousand dollars, or actual damages, whichever is greater, for each violation.

(d) Such other relief, including an injunction, as the court may deem appropriate.

(2) Any action under this chapter is barred unless the action is commenced within three years after the cause of action accrues.

(3) Nothing in this chapter limits the rights of the subject of a test for a sexually transmitted disease to recover damages or other relief under any other applicable law.

(4) Nothing in this chapter may be construed to impose civil liability or criminal sanction for disclosure of a test result for a sexually transmitted disease in accordance with any reporting requirement for a diagnosed case of sexually transmitted disease by the department or the centers for disease control of the United States public health service.

(5) It is a negligent violation of this chapter to cause an unauthorized communication of confidential sexually transmitted disease information by facsimile transmission or otherwise communicating the information to an unauthorized recipient when the sender knew or had reason to know the facsimile transmission telephone number or other transmittal information was incorrect or outdated.

Sec. 12. RCW 70.02.150 and 1991 c 335 s 701 are each amended to read as follows:

A health care provider shall effect reasonable safeguards for the security of all health care information it maintains.

Reasonable safeguards shall include affirmative action to delete outdated and incorrect facsimile transmission or other telephone transmittal numbers from computer, facsimile, or other data bases."

HB 2861 - S COMM AMD (S4976.2 AMD BY S5041.1)

By Committee on Human Services & Corrections

ADOPTED AS AMENDED

On page 1, line 1 of the title, after "information;" strike the remainder of the title and insert "amending RCW 70.02.010, 49.60.030, 70.83.050, 70.24.084, and 70.02.150; adding a new section to chapter 70.02 RCW; adding a new section to chapter 48.01 RCW; adding new sections to chapter 43.131 RCW; and creating new sections."