Chapter 588 Oregon Laws 2001

AN ACT

SB 114

Relating to genetic privacy; creating new provisions; amending ORS 659.036, 659.121, 659.700, 659.705, 659.710, 659.715, 659.720 and 746.135; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2 to 4 and 6 to 8 of this 2001 Act are added to and made a part of ORS 659.700 to 659.720.

SECTION 2. (1) An individual or an individual’s blood relative, representative or estate may bring a civil action against any person who violates ORS 659.710, 659.715 or 659.720 or section 6 of this 2001 Act.

(2) For a violation of ORS 659.715 or section 6 of this 2001 Act, the court shall award the greater of actual damages or:

(a) $100, for an inadvertent violation that does not arise out of the negligence of the defendant;

(b) $500, for a negligent violation;

(c) $10,000, for a knowing or reckless violation;

(d) $15,000, for a knowing violation based on a fraudulent misrepresentation; or

(e) $25,000, for a knowing violation committed with intent to sell, transfer or use for commercial advantage, personal gain or malicious harm.

(3) For a violation of ORS 659.710 or 659.720, the court shall award the greater of actual damages or:

(a) $1,000, for an inadvertent violation that does not arise out of the negligence of the defendant;

(b) $5,000, for a negligent violation;

(c) $100,000, for a knowing or reckless violation;

(d) $150,000, for a knowing violation based on a fraudulent misrepresentation; or

(e) $250,000, for a knowing violation committed with intent to sell, transfer or use for commercial advantage, personal gain or malicious harm.

(4) It is an affirmative defense to an action described in subsection (2)(a) or (b) or (3)(a) or (b) of this section that the defendant corrected the violation through destruction of illegally retained or obtained samples or information, or took other action to correct the violation, if the correction was completed within 120 days after the defendant knew or should have known that the violation occurred.

(5) The court may provide such equitable relief as it deems necessary or proper.

(6)(a) The court may award attorney fees to a defendant only if the court finds that the plaintiff had no objectively reasonable basis for asserting a claim or for appealing an adverse decision of the trial court.

(b) The court shall award attorney fees to a plaintiff if the court finds that the defendant committed a violation described in subsection (2)(c), (d) or (e) or (3)(c), (d) or (e) of this section.

(7) An action authorized by subsection (1) of this section must be commenced within three years after the date the plaintiff knew or should have known of the violation, but in no instance more than 10 years after the date of the violation.

(8) A plaintiff may recover damages provided by subsections (2) and (3) of this section for each violation by a defendant.

(9) ORS 18.535, 18.537, 18.540 and 18.550 do not apply to amounts awarded in actions under this section.

SECTION 3. (1) A person commits the crime of unlawfully obtaining, retaining or disclosing genetic information if the person knowingly, recklessly or with criminal negligence, as those terms are defined in ORS 161.085, obtains, retains or discloses genetic information in violation of ORS 659.700 to 659.720.

(2) Unlawfully obtaining, retaining or disclosing genetic information is a Class A misdemeanor.

SECTION 4. (1) The Attorney General or a district attorney may bring an action against a person who violates ORS 659.710, 659.715 or 659.720 or section 6 of this 2001 Act. In addition to remedies otherwise provided in section 2 of this 2001 Act, the court shall award to the Attorney General or district attorney the costs of the investigation.

(2) The Attorney General may intervene in a civil action brought under section 2 of this 2001 Act if the Attorney General certifies that, in the opinion of the Attorney General, the action is of general public importance. In the action, the Attorney General shall be entitled to the same relief as if the Attorney General instituted the action under this section.

SECTION 5. Sections 2 and 4 of this 2001 Act apply only to causes of action that arise on or after the effective date of this 2001 Act.

SECTION 6. (1)(a) The Health Division shall adopt rules for conducting research using DNA samples, genetic testing and genetic information. Rules establishing minimum research standards shall conform to the Federal Policy for the Protection of Human Subjects, 45 C.F.R. 46, that is current at the time the rules are adopted. The rules may be changed from time to time as may be necessary.

(b) The rules adopted by the Health Division shall address the operation and appointment of institutional review boards. The rules shall conform to the compositional and operational standards for such boards contained in the Federal Policy for the Protection of Human Subjects that is current at the time the rules are adopted. The rules must require that research conducted under paragraph (a) of this subsection be conducted with the approval of the institutional review board.

(c) Persons proposing to conduct anonymous research or genetic research that is otherwise thought to be exempt from review must obtain from an institutional review board prior to conducting such research a determination that the proposed research is exempt from review.

(2) A person proposing to conduct research under subsection (1) of this section, including anonymous research, must disclose to the institutional review board the proposed use of DNA samples, genetic testing or genetic information.

(3) The Health Division shall adopt rules requiring that all institutional review boards operating under subsection (1)(b) of this section register with the division.

(4) The Health Division shall consult with the Advisory Committee on Genetic Privacy and Research before adopting the rules required under subsections (1) and (3) of this section, including rules identifying those parts of the Federal Policy for the Protection of Human Subjects that are applicable to this section.

(5) In consultation with the Advisory Committee on Genetic Privacy and Research, the Health Division shall promulgate guidelines for genetic research in which the identity of the individual providing a DNA sample is protected by an encryption or coding system. The division shall base the guidelines on recommendations of credible national and state organizations.

(6) Research conducted in accordance with this section is rebuttably presumed to comply with ORS 659.710 and 659.720.

(7) In cases in which informed consent is required by either ORS 659.710 or the Federal Policy for the Protection of Human Subjects, samples collected before the effective date of this 2001 Act with blanket informed consent for research may be used for genetic research without specific informed consent, but samples obtained after the effective date of this 2001 Act must have specific informed consent from the individual for genetic research.

(8) Except as otherwise allowed by rule of the Health Division, if DNA samples or genetic information obtained for either clinical or research purposes is used in research, a person may not recontact the individual or the individual’s physician by using research information with personal identifiers. The Health Division shall adopt by rule criteria for recontacting an individual or an individual’s physician. In adopting the criteria, the division shall consider the recommendations of national organizations such as those created by executive order by the President of the United States and the recommendations of the Advisory Committee on Genetic Privacy and Research.

SECTION 7. (1) The Advisory Committee on Genetic Privacy and Research is established consisting of 14 members. The President of the Senate and the Speaker of the House of Representatives shall each appoint one member and one alternate. The Assistant Director for Health shall appoint one representative and one alternate from each of the following categories:

(a) Academic institutions involved in genetic research;

(b) Physicians licensed under ORS chapter 677;

(c) Voluntary organizations involved in the development of public policy on issues related to genetic privacy;

(d) Hospitals;

(e) The Health Division;

(f) The Department of Consumer and Business Services;

(g) Health care service contractors involved in genetic and health services research;

(h) The biosciences industry;

(i) The pharmaceutical industry;

(j) Health care consumers;

(k) Organizations advocating for privacy of medical information; and

(L) Public members of institutional review boards.

(2) Organizations and individuals representing the categories listed in subsection (1) of this section may recommend nominees for membership on the advisory committee to the President, the Speaker and the assistant director.

(3) Members and alternate members of the advisory committee serve two-year terms and may be reappointed.

(4) Members and alternate members of the advisory committee serve at the pleasure of the appointing entity.

(5) The Health Division shall provide staff for the advisory committee.

(6) The advisory committee shall report biennially to the Legislative Assembly in the manner provided by ORS 192.245. The report shall include the activities and the results of any studies conducted by the advisory committee. The advisory committee may make any recommendations for legislative changes deemed necessary by the advisory committee.

(7) The advisory committee shall study the use and disclosure of genetic information and shall develop and refine a legal framework that defines the rights of individuals whose DNA samples and genetic information are collected, stored, analyzed and disclosed.

(8) The advisory committee shall create opportunities for public education on the scientific, legal and ethical development within the fields of genetic privacy and research. The advisory committee shall also elicit public input on these matters. The advisory committee shall make reasonable efforts to obtain public input that is representative of the diversity of opinion on this subject. The advisory committee’s recommendations to the Legislative Assembly shall take into consideration public concerns and values related to these matters.

SECTION 8. (1) The Advisory Committee on Genetic Privacy and Research shall report to the Seventy-second Legislative Assembly. The report shall include recommendations relating to:

(a) Patenting of human genes;

(b) Standards for recontacting patients who have provided samples for genetic research;

(c) Privacy of information about genetic conditions obtained other than through a genetic test;

(d) Privacy of persons who seek genetic counseling or genetic testing;

(e) Whether to modify or expand current statutory provisions requiring informed consent for genetic research; and

(f) Whether to modify the notification requirement of ORS 659.715 (2) for anonymous research.

(2) The advisory committee shall report and make recommendations to the Seventy-third Legislative Assembly on genetic testing and use of genetic information by insurers.

SECTION 9. ORS 659.036 is amended to read:

659.036. (1) It shall be an unlawful employment practice for an employer to seek to obtain, to obtain[,] or to use genetic information[, as defined in ORS 659.700,] of an employee or a prospective employee, or of a blood relative of the employee or prospective employee, to distinguish between or discriminate against or restrict any right or benefit otherwise due or available to an employee or a prospective employee. [This subsection does not prohibit an employer from seeking, obtaining or using genetic information with specific authorization of the employee or prospective employee solely to determine a bona fide occupational qualification, as may be defined by rules adopted by the Commissioner of the Bureau of Labor and Industries.]

(2) If an employee or a prospective employee files a complaint with the Bureau of Labor and Industries alleging violation of subsection (1) of this section, the bureau shall cause any necessary investigation to be made and shall enforce subsection (1) of this section in the manner provided in ORS 659.010 to 659.110 [and 659.121].

(3) An employee or prospective employee may bring an action under ORS 659.121 for violation of this section.

(4) For purposes of this section, “blood relative,” “genetic information” and “obtain genetic information” have the meanings given those terms in ORS 659.700.

SECTION 10. ORS 659.121 is amended to read:

659.121. (1) Any person claiming to be aggrieved by an unlawful employment practice prohibited by ORS 25.424, 399.235, 659.030, 659.035, 659.227, 659.270, 659.295, 659.330, 659.340 or 659.400 to 659.494 may file a civil suit in circuit court for injunctive relief and the court may order such other equitable relief as may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay. Back pay liability shall not accrue from a date more than two years prior to the filing of a complaint with the Commissioner of the Bureau of Labor and Industries, pursuant to ORS 659.040, or if no such complaint has first been filed, then, more than two years prior to the filing of the civil suit provided for in ORS 659.040, 659.045, 659.095 and this section. In any suit brought under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal.

(2) Any person claiming to be aggrieved by alleged violations of ORS 659.033 (1) or (3), 659.036, 659.295, 659.400 to 659.449 or 659.550 may file a civil action in circuit court to recover compensatory damages or $200, whichever is greater, and punitive damages. In addition, the court may award relief authorized under subsection (1) of this section and such equitable relief as it considers appropriate. At the request of any party, the trial of such case shall be by jury. In any action brought under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal. Any attorney fee agreement shall be subject to approval by the court.

(3) Where no complaint has been filed pursuant to ORS 659.040 (1) or 659.045 (1) and except as otherwise provided herein, the civil suit or action shall be commenced within one year of the occurrence of the alleged unlawful employment practice. Where a complaint has been filed pursuant to ORS 659.040 (1) or 659.045 (1) the civil suit or action provided for herein shall be commenced only in accordance with the time limitations provided for in ORS 659.095. The filing of a complaint with the commissioner under ORS 659.040 (1) or 659.045 (1) shall not be a condition precedent to the filing of civil suit or action under this section.

(4) This section shall not be construed to limit or alter in any way the authority or power of the commissioner or to limit or alter in any way any of the rights of an individual complainant until and unless the complainant commences civil suit or action. Except as provided in subsection (5) of this section, the filing of a civil suit or action in either circuit court pursuant to subsection (1) of this section or federal district court under applicable federal law shall constitute both an election of remedies as to the rights of that individual with respect to those matters alleged in the complaint filed with the commissioner, and a waiver with respect to the right to file a complaint with the commissioner pursuant to ORS 659.040 (1) or 659.045 (1).

(5)(a) Where a person claiming to be aggrieved by alleged violations of ORS 659.033 or 659.430 or applicable federal law files a civil suit or action in circuit court or in federal district court, that filing does not constitute an election of remedies until such time as the trial commences.

(b) An aggrieved person may not commence a civil action under this subsection with respect to an alleged discriminatory housing practice which forms the basis of specific charges issued by the commissioner if a hearings referee has commenced a hearing on the record under this chapter with respect to such charge.

(6) Notwithstanding any other provision of ORS 659.010 to 659.121 and 659.470 to 659.545, a civil complaint alleging violations of ORS 659.033 or 659.430 may be filed not later than two years after the occurrence or the termination of an alleged discriminatory housing practice, or the breach of a conciliation agreement entered into under ORS 659.010 to 659.121 and 659.470 to 659.545, whichever occurs last. The two-year period shall not include any time during which an administrative proceeding was pending with respect to the housing practice or breach.

SECTION 11. ORS 659.700 is amended to read:

659.700. As used in ORS 659.700 to 659.720:

(1) “Anonymous research” means[:]

[(a)] scientific or medical research conducted in such a manner that the identity of an individual who has provided a sample, or the identity of an individual from whom genetic information has been obtained or the identity of the individual’s blood relatives, cannot be determined.[; or]

[(b) Scientific or medical research conducted in accordance with the Federal Policy for the Protection of Human Subjects with the approval of an institutional review board established in accordance with that policy.]

(2) “Blanket informed consent” means that the individual has consented to the use of the individual’s DNA sample or health information for any future research, but has not been provided with a description of or consented to the use of the sample in genetic research or any specific genetic research project.

(3) “Blood relative” means a person who is:

(a) Related by blood to an individual; and

(b) A parent, sibling, son, daughter, grandparent, grandchild, aunt, uncle, first cousin, niece or nephew of the individual.

(4) “Clinical” means relating to or obtained through the actual observation, diagnosis or treatment of patients and not through research.

(5) “Disclose” means to release, publish or otherwise make known to a third party a DNA sample or genetic information.

[(2)] (6) “DNA” means deoxyribonucleic acid.

[(3)] (7) “DNA sample” means any human biological specimen [from which DNA was extracted, or any human biological specimen] that is obtained or retained for the purpose of extracting and analyzing DNA to [determine a genetic characteristic] perform a genetic test. “DNA sample” includes DNA extracted from the specimen.

[(4)] (8) [“Genetic characteristic” means any gene or chromosome, or alteration thereof, that is scientifically or medically believed to cause a disease, disorder or syndrome, or to be associated with statistically increased risk of development of a disease, disorder or syndrome] “Genetic characteristic” includes a gene, chromosome or alteration thereof that may be tested to determine the existence or risk of a disease, disorder, trait, propensity or syndrome or to identify an individual or a blood relative. “Genetic characteristic” does not include family history or a genetically transmitted characteristic whose existence or identity is determined other than through a genetic test.

[(5)] (9) “Genetic information” [is the] means information about an individual or [family] the individual’s blood relatives obtained from[:]

[(a)] a genetic test.[; or]

[(b) An individual’s DNA sample.]

(10) “Genetic research” means research using DNA samples, genetic testing or genetic information.

[(6)] (11) “Genetic test” means a test for determining the presence or absence of genetic characteristics in an individual or the individual’s blood relatives, including tests of nucleic acids such as DNA, RNA and mitochondrial DNA, chromosomes or proteins in order to diagnose or determine a genetic characteristic.

[(7) “Insurance provider” means an insurance company, health care service contractor, fraternal benefit organization, insurance agent, third party administrator, insurance support organization or other person subject to regulation by the Insurance Code.]

(12) “Obtain genetic information” means performing or getting the results of a genetic test.

[(8)] (13) “Person” has the meaning given in ORS 433.045.

(14) “Research” means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalized knowledge.

(15) “Retain a DNA sample” means the act of storing the DNA sample.

(16) “Retain genetic information” means making a record of the genetic information.

SECTION 12. ORS 659.700, as amended by section 2, chapter 921, Oregon Laws 1999, is amended to read:

659.700. As used in ORS 659.700 to 659.720:

(1) “Anonymous research” means scientific or medical research conducted in such a manner that the identity of [a person] an individual who has provided a sample, or the identity of [a person] an individual from whom genetic information has been obtained or the identity of the individual’s blood relatives, cannot be determined.

(3) “Blood relative” means a person who is:

(a) Related by blood to an individual; and

(b) A parent, sibling, son, daughter, grandparent, grandchild, aunt, uncle, first cousin, niece or nephew of the individual.

(4) “Clinical” means relating to or obtained through the actual observation, diagnosis or treatment of patients and not through research.

(5) “Disclose” means to release, publish or otherwise make known to a third party a DNA sample or genetic information.

[(2)] (6) “DNA” means deoxyribonucleic acid.

[(4)] (8) [“Genetic characteristic” means any gene or chromosome, or alteration thereof, that is scientifically or medically believed to cause a disease, disorder or syndrome, or to be associated with statistically increased risk of development of a disease, disorder or syndrome] “Genetic characteristic” includes a gene, chromosome or alteration thereof that may be tested to determine the existence or risk of a disease, disorder, trait, propensity or syndrome, or to identify an individual or a blood relative. “Genetic characteristic” does not include family history or a genetically transmitted characteristic whose existence or identity is determined other than through a genetic test.

[(5)] (9) “Genetic information” [is the] means information about an individual or [family] the individual’s blood relatives obtained from[:]

[(a)] a genetic test.[; or]

[(b) An individual’s DNA sample.]

(10) “Genetic research” means research using DNA samples, genetic testing or genetic information.

[(6)] (11) “Genetic test” means a test for determining the presence or absence of genetic characteristics in an individual or the individual’s blood relatives, including tests of nucleic acids such as DNA, RNA and mitochondrial DNA, chromosomes or proteins in order to diagnose or determine a genetic characteristic.

(12) “Obtain genetic information” means performing or getting the results of a genetic test.

[(8)] (13) “Person” has the meaning given in ORS 433.045.

(14) “Research” means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalized knowledge.

(15) “Retain a DNA sample” means the act of storing the DNA sample.

(16) “Retain genetic information” means making a record of the genetic information.

SECTION 13. ORS 659.705 is amended to read:

659.705. (1) The Legislative Assembly finds that:

(a) The DNA molecule contains information about [an individual’s] the probable medical future of an individual and the individual’s blood relatives. This information is written in a code that is rapidly being broken.

(b) Genetic information is uniquely private and personal information that generally should not be collected, retained or disclosed without the individual’s authorization.

(c) The improper collection, retention or disclosure of genetic information can lead to significant harm to [the] an individual and the individual’s blood relatives, including stigmatization and discrimination in areas such as employment, education, health care and insurance.

(d) An analysis of an individual’s DNA provides information not only about [an] the individual, but also about blood relatives of the individual, with the potential for impacting family privacy, including reproductive decisions.

(e) Current legal protections for medical information, tissue samples and DNA samples are inadequate to protect genetic privacy.

(f) Laws for the collection, storage and use of identifiable DNA samples and private genetic information obtained from those samples are needed both to protect individual and family privacy and to permit and encourage legitimate scientific and medical research.

(2) The purposes of ORS 659.700 to 659.720 and 746.135 and the provisions of ORS 659.036, 659.227 and 746.015 relating to genetic characteristics, information and testing are as follows:

(a) To define the rights of individuals whose genetic information is collected, retained or disclosed and the rights of the individuals’ blood relatives.

(b) To define the circumstances under which an individual may be subjected to genetic testing.

(d) To protect against discrimination by an insurer or employer based upon an individual’s genetic characteristics.

(e) To define the circumstances under which a DNA sample or genetic information may be used for research.

SECTION 14. ORS 659.710 is amended to read:

659.710. (1) [No] A person [shall] may not obtain genetic information from an individual, or from an individual’s DNA sample, without first obtaining informed consent of the individual or the individual’s representative, except:

(a) As authorized by ORS 181.085 or comparable provisions of federal criminal law relating to the identification of persons, or for the purpose of establishing the identity of a person in the course of an investigation conducted by a law enforcement agency, a district attorney, a medical examiner or the Criminal Justice Division of the Department of Justice;

(b) For anonymous research [where the identity of the subject will not be revealed] conducted after notification pursuant to ORS 659.715 (2);

(d) As permitted by rules of the Health Division for newborn screening procedures; [or]

(e) As authorized by statute for the purpose of establishing paternity[.]; or

(f) For the purpose of furnishing genetic information relating to a decedent for medical diagnosis of blood relatives of the decedent.

(2) Except as provided in subsection (3) of this section, a physician licensed under ORS chapter 677 shall seek the informed consent of the individual or the individual’s representative for the purposes of subsection (1) of this section in the manner provided by ORS 677.097. Except as provided in subsection (3) of this section, any other licensed health care provider or facility must seek the informed consent of the individual or the individual’s representative for the purposes of subsection (1) of this section in a manner substantially similar to that provided by ORS 677.097 for physicians.

(3) A person conducting research shall seek the informed consent of the individual or the individual’s representative for the purposes of subsection (1) of this section in the manner provided by section 6 of this 2001 Act.

[(3)] (4) [An insurance provider shall seek the informed consent of the individual or the individual’s representative for the purposes of subsection (1) of this section in the manner provided by rules adopted by the Department of Consumer and Business Services.] Except as provided in ORS 746.135 (1), any [other] person not described in subsection (2) or (3) of this section must seek the informed consent of the individual or the individual’s representative for the purposes of subsection (1) of this section in the manner provided by rules adopted by the Health Division.

[(4)] (5) The Health Division may not adopt rules under subsection (1)(d) of this section that would require the providing of a DNA sample for the purpose of obtaining complete genetic information used to screen all newborns.

SECTION 15. ORS 659.715 is amended to read:

659.715. (1) Subject to the provisions of ORS 659.036, 659.700 to 659.720 and 746.135, an individual’s genetic information and DNA sample are [the property of the individual except when the information or sample is used in anonymous research] private and must be protected, and an individual has a right to the protection of that privacy. Any person authorized by law or by an individual or an individual’s representative to obtain, retain or use an individual’s genetic information or any DNA sample must maintain the confidentiality of the information or sample and protect the information or sample from unauthorized disclosure or misuse.

(2)(a) [A person does not interfere with, infringe upon, misappropriate or otherwise damage an individual’s property by obtaining, testing, retaining, disclosing or providing an individual’s genetic information or DNA sample solely for anonymous research.] A person may use an individual’s DNA sample or genetic information for anonymous research only if the individual was notified the sample or genetic information may be used for anonymous research and the individual did not, at the time of notification, request that the sample not be used for anonymous research.

(b) The Health Division shall adopt rules to implement paragraph (a) of this subsection after considering similar federal regulations.

(3) A person may not retain another individual’s genetic information or DNA sample without first obtaining authorization from the individual or the individual’s representative, unless:

(a) Retention is authorized by ORS 181.085 or comparable provisions of federal criminal law relating to identification of persons, or is necessary for the purpose of a criminal or death investigation, a criminal or juvenile proceeding, an inquest or a child fatality review by a multidisciplinary child abuse team;

(b) Retention is authorized by specific court order pursuant to rules adopted by the Chief Justice of the Supreme Court for civil actions;

(c) Retention is permitted by rules of the Health Division for identification of, or testing to benefit blood relatives of, deceased individuals;

(d) Retention is permitted by rules of the Health Division for newborn screening procedures; or

(e) Retention is for anonymous research conducted after notification pursuant to subsection (2) of this section.

(4) The DNA sample of an individual from which genetic information has been obtained shall be destroyed promptly upon the specific request of that individual or the individual’s representative, unless:

(b) Retention is authorized by specific court order pursuant to rules adopted by the Chief Justice of the Supreme Court for civil actions; or

(5) A DNA sample from an individual that is the subject of a research project, other than an anonymous research project, shall be destroyed promptly upon completion of the project or withdrawal of the individual from the project, whichever occurs first, unless the individual or the individual’s representative directs otherwise by informed consent.

(6) A DNA sample from an individual for insurance or employment purposes shall be destroyed promptly after the purpose for which the sample was obtained has been accomplished unless retention is authorized by specific court order pursuant to rules adopted by the Chief Justice of the Supreme Court for civil, criminal and juvenile proceedings.

(7) An individual or an individual’s representative, promptly upon request, may inspect, request correction of and obtain genetic information from the records of the individual, unless the genetic information has been made anonymous by destruction of all information that could allow disclosure of the identity of the individual who provided the sample or the identity of the individual’s blood relatives.

(8) Subject to the provisions of ORS 659.700 to 659.720, and to policies adopted by the person in possession of a DNA sample, an individual or the individual’s representative may request that the individual’s DNA sample be made available for additional genetic testing for medical diagnostic purposes. If the individual is deceased and has not designated a representative to act on behalf of the individual after death, a request under this subsection may be made by the closest surviving blood relative of the decedent or, if there is more than one surviving blood relative of the same degree of relationship to the decedent, by the majority of the surviving closest blood relatives of the decedent.

[(8)] (9) The Health Division shall coordinate the implementation of this section.

[(9)] (10) This section applies only to genetic information that can be identified as belonging to an individual or [family] the individual’s blood relative. This section does not apply to any law, contract or other arrangement that determines a person’s rights to compensation relating to substances or information derived from an individual’s DNA sample.

SECTION 16. ORS 659.720 is amended to read:

659.720. (1) Regardless of the manner of receipt or the source of genetic information, including information received from an individual or a blood relative of the individual, a person may not disclose or be compelled, by subpoena or any other means, to disclose the identity of an individual upon whom a genetic test has been performed or the identity of a blood relative of the individual, or to disclose genetic information about the individual or a blood relative of the individual in a manner that permits identification of the individual, unless:

(a) Disclosure is authorized by ORS 181.085 or comparable provisions of federal criminal law relating to identification of persons, or is necessary for the purpose of a criminal or death investigation, a criminal or juvenile proceeding, an inquest, or a child fatality review by a multidisciplinary child abuse team;

(b) Disclosure is required by specific court order entered pursuant to rules adopted by the Chief Justice of the Supreme Court for civil actions;

(d) Disclosure is specifically authorized by the tested individual or the tested individual’s representative by signing a consent form prescribed by rules of the Health Division;

(e) Disclosure is for the purpose of furnishing genetic information relating to a decedent for medical diagnosis of blood relatives of the decedent; or

(f) Disclosure is for the purpose of identifying bodies.

(2) The prohibitions of this section apply to any redisclosure by any person after another person has disclosed genetic information or the identity of an individual upon whom a genetic test has been performed, or has disclosed genetic information or the identity of a blood relative of the individual.

(3) A release or publication is not a disclosure if:

(a) It involves a good faith belief by the person who caused the release or publication that the person was not in violation of this section;

(b) It is not due to willful neglect;

(c) It is corrected in the manner described in section 2 (4) of this 2001 Act;

(d) The correction with respect to genetic information is completed before the information is read or heard by a third party; and

(e) The correction with respect to DNA samples is completed before the sample is retained or genetically tested by a third party.

SECTION 17. ORS 746.135 is amended to read:

746.135. (1) If [an insurance provider] a person asks an applicant for insurance to take a genetic test in connection with an application for insurance, the use of the test shall be revealed to the applicant and the [provider] person shall obtain the specific authorization of the applicant using a form [prescribed by rules of the Health Division] adopted by the Director of the Department of Consumer and Business Services by rule.

(2) [An insurance provider] A person may not use [a favorable genetic test as an inducement to purchase insurance] favorable genetic information to induce the purchase of insurance.

(3) [An insurance provider] A person may not use genetic information to reject, deny, limit, cancel, refuse to renew, increase the rates of, affect the terms and conditions of or otherwise affect any policy for hospital or medical expenses.

(4) A person may not use genetic information about a blood relative to reject, deny, limit, cancel, refuse to renew, increase the rates of, affect the terms and conditions of or otherwise affect any policy of insurance.

[(4)] (5) For purposes of this section, “blood relative,” “genetic information[,]” and “genetic test” [and “insurance provider”] have [those] the meanings given those terms in ORS 659.700.

SECTION 18. The notification requirement of ORS 659.715 (2), as amended by section 15 of this 2001 Act, applies to DNA samples or genetic information obtained on or after January 1, 2002.

SECTION 19. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor June 25, 2001

Filed in the office of Secretary of State June 25, 2001

Effective date June 25, 2001

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