71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
HA to HB 2267
 
LC 1091/HB 2267-11
 
                       HOUSE AMENDMENTS TO
                         HOUSE BILL 2267
 
           By COMMITTEE ON HEALTH AND PUBLIC ADVOCACY
 
                             June 1
 
  On page 1 of the printed bill, line 2, after 'policy ' insert
'; creating new provisions; and amending ORS 433.019, 659.700 and
659.710'.
  In line 9, after 'of' insert 'public'.
  In line 24, after 'quality' insert 'public' and delete ' , both
public and private,'.
  In line 30, after 'includes' delete the rest of the line.
  In line 31, delete 'to,'.
  On page 2, line 3, delete ', but is'.
  In line 4, delete 'not limited to,'.
  In line 5, delete 'personal' and delete 'ensuring' and insert
'facilitating'.
  In line 6, delete 'and personal'.
  In line 7, delete 'personal and'.
  After line 8, insert:
  '  { +  SECTION 2. + }  { + Nothing in the framework for the
delivery of public health services set forth in section 1 of this
2001 Act requires an individual or an agency to provide specific
health services, to mandate that state or local agencies
implement unfunded programs or to preempt the responsibilities
and authority of health professional regulatory boards. + }
  '  { +  SECTION 3. + } ORS 433.019 is amended to read:
  ' 433.019. (1) As used in this section, 'subject of the
petition' means the person or the property upon which the public
health measure is sought to be imposed.
  ' (2) Except as provided in ORS 433.022, proceedings for
imposing a public health measure shall be initiated by filing a
petition in the circuit court for the county in which the subject
of the petition is located. If the property which is the subject
of the petition is in more than one county, then the petition may
be filed in the circuit court for any one of those counties. The
petition shall name as the respondent, the person who is the
subject of the petition or the person who possesses the property
which is the subject of the petition. The petition shall be
accompanied by an affidavit or affidavits based upon the
investigation of the assistant director or the local public
health administrator supporting the allegations in the petition.
The petition shall describe the public health measure requested
and shall allege:
  ' (a)(A) The subject of the petition has, or contains persons
or property having, an infectious agent of a communicable disease
designated a reportable disease by the Health Division; or
  ' (B) The subject of the petition is contaminated with or
contains property contaminated with a toxic substance;
  ' (b) The subject of the petition poses a substantial threat to
public health;
  ' (c) The respondent is unable or unwilling to behave or to
control the subject of the petition so as not to expose other
persons to danger of infection or contamination; and
 
  ' (d) The public health measure requested is necessary and the
least restrictive alternative measure under the circumstances to
protect or preserve the public health.
  ' (3) { + (a) + } If the court, upon the basis of the
affidavits, concludes that there is probable cause for the
allegations in the petition, it shall issue a citation as
provided in subsection (11) of this section. The court shall also
issue a warrant of detention to the sheriff of the county or
counties, directing the sheriff or the sheriff's designee to
place the subject of the petition under custody.
  '  { +  (b) In lieu of a warrant of detention, the court may
issue an interim order directing the respondent to:
  ' (A) Report to a physician designated by the local public
health administrator who shall provide therapeutic measures that
the physician considers appropriate for treatment of the
reportable disease; and
  ' (B) Cooperate with other specific actions identified by the
local public health administrator as necessary to protect the
public from danger of infection.
  ' (c) An interim order issued under this section shall remain
in effect until the imposition of a public health measure or
dismissal of the interim order. A treating physician shall report
any care or treatment to the court as required by subsection (9)
of this section. + }
  ' (4) At the time the subject of the petition is placed under
custody, the respondent shall be served certified copies of the
warrant of detention, the citation and petition. The sheriff or
designee shall also read the citation to the respondent and
inform the respondent that a request for hearing may be made
within 14 days by signing and filing with the petitioner a simple
request form to be given to the respondent with the citation:
  ' (a) If the respondent does not file a signed request for a
hearing within 14 days of service of the citation, the petitioner
shall so notify the court and the court shall have the respondent
brought before it or communicate with the respondent by
telephone.  If the court then determines that the respondent does
not request a hearing, it may, without hearing, order imposition
of the requested public health measure effective for a period of
time not to exceed 60 days or, if substantial medical evidence
indicates that the condition is spread by the airborne route and
either that it cannot be rendered noninfectious within 60 days or
that it may recur after the public health measure is
discontinued, for a period not to exceed 180 days. However, if at
the time of inquiry by the court it determines that the
respondent does request a hearing, one shall be conducted at a
time and place the court may direct consistent with subsection
(6) of this section.
  ' (b) If the respondent files a signed request for a hearing
within 14 days of service of the citation, the petitioner shall
immediately notify the court and the court shall have the
respondent brought before it or communicate with the respondent,
or if represented the respondent's counsel, by telephone. If the
request for hearing is confirmed, one shall be conducted at a
time and place the court may direct consistent with subsection
(6) of this section. If at the time of inquiry by the court it is
determined that the respondent does not request a hearing, it may
without hearing, order imposition of the requested public health
measure effective for a period of time not to exceed 60 days or,
if substantial medical evidence indicates that the condition is
spread by the airborne route and either that it cannot be
rendered noninfectious within 60 days or that it may recur after
the public health measure is discontinued, for a period not to
exceed 180 days.
  ' (5) A person placed under custody under subsection (4) of
this section may as appropriate and as directed by the court be
held in a residence or in a health care or other facility
consistent with the requirements of subsection (19) of this
section and receive the care, custody and treatment required for
mental and physical health and safety. The treating physician
shall report any care, custody and treatment to the court as
required in subsection (9) of this section. All methods of
treatment, including the prescription and administration of
drugs, shall be the sole responsibility of the treating
physician.  Property placed under custody shall be detained as
described by the court either under the possession of the
respondent or under the possession of the sheriff, or the
sheriff's designee. Property detained under the possession of the
sheriff will be provided care and treatment which is reasonable
under the circumstances.
  ' (6) The hearing may be held in the place where the subject of
the petition is being held in custody or in some other place
convenient to the court and the respondent. The hearing shall be
held within three judicial days of the respondent's initial
appearance before the court requesting a hearing. The court may
for good cause, allow the person or property to be detained up to
an additional 72 hours if additional time is requested by the
respondent or the legal counsel of the respondent. The court may
make any orders for the care and custody of the subject of the
petition as it deems necessary.
  ' (7) The petitioner shall prepare or cause to be prepared an
investigative report setting forth the evidence on which the
petition is based. A copy of the investigative report shall be
provided upon request to the respondent and to the respondent's
counsel. Copies shall likewise be provided to counsel assisting
the court, to the examiners and to the court for the use in
questioning witnesses in a hearing under this section.
  ' (8) The provisions of ORS 40.230 to 40.240 shall not apply in
a hearing under this section insofar as the information is
relevant to the proceeding. Such evidence shall be disclosed only
to the court, the examiners, the parties and their attorneys or
persons authorized by the court and shall not be disclosed to the
public.
  ' (9) In a hearing under this section, the court shall be fully
advised by the treating physician of all drugs and other
treatment known to have been administered to the subject of the
petition, which may be pertinent to the subject's infectious or
contaminated state. The medical record of treatment shall be made
available in order that the examiners may review the medical
record of treatment and have an opportunity to inquire of the
medical personnel concerning the treatment of the respondent
during the detention period prior to the hearing. Such record
shall be made available to counsel for said respondent at least
24 hours prior to the hearing.
  ' (10) The person serving a warrant of detention, citation and
petition provided for by subsection (4) of this section shall,
immediately after service thereof, make a return showing the
time, place and manner of such service and file it with the clerk
of the court. In executing the warrant of detention, the person
has all the powers provided by ORS 133.235 and 161.235 to 161.245
and may require the assistance of any peace officer or other
person.
  ' (11) The citation issued to the respondent shall state the
nature of the proceedings and the public health measure requested
in the petition. The citation shall further contain a notice that
the respondent may file a request with the petitioner for a court
hearing on the petition within 14 days and, if the respondent
does not do so, the court will order imposition of the public
health measure requested in the petition. The citation shall also
notify of the right to legal counsel, the right to have legal
counsel appointed if the respondent is unable to afford legal
counsel, and, if requested, to have legal counsel immediately
appointed, the right to subpoena witnesses in behalf of the
respondent to the hearing and other information as the court may
direct. The respondent shall have an opportunity to consult with
legal counsel when requested.
  ' (12) In a hearing under this section, the respondent shall
have the right to cross-examine all witnesses, the person
conducting the investigation, the examining physicians or other
qualified persons who have examined the subject of the petition.
  ' (13) At the time the respondent appears before the court, the
court shall advise the respondent of the nature of the
proceedings and the possible results of the proceedings. The
court shall also advise respondent of the right to subpoena
witnesses and to obtain suitable legal counsel possessing skills
and experience commensurate with the nature of the allegations
and complexity of the case during the proceedings, and if the
respondent is an individual in custody under subsection (4) of
this section and does not have funds with which to retain legal
counsel, the court shall appoint legal counsel to represent the
respondent without cost. If the respondent is an individual in
custody under subsection (4) of this section and does not request
legal counsel, the legal guardian, relative or friend may request
the assistance of suitable legal counsel on behalf of the
respondent.
  ' (a) If no request for legal counsel is made by an individual
in custody, the court shall appoint suitable legal counsel
therefor unless counsel is expressly, knowingly and intelligently
refused by the respondent.
  ' (b) If the respondent is an individual in custody and is
unable to afford legal counsel, the court shall determine and
allow, as provided in ORS 135.055, the reasonable expenses of the
person and compensation for legal counsel. The expenses and
compensation so allowed shall be paid by the   { - county if the
petition was filed by the local public health administrator and
by the state if the petition was filed by the assistant
director - }  { + State Court Administrator + }. In such cases
suitable legal counsel shall be present at the hearing and
examination and may examine all witnesses offering testimony, and
otherwise represent the respondent and may be present in other
cases.
  ' (c) The governing body of the county shall designate either
the district attorney or counsel appointed pursuant to ORS
203.145 to assist the court in the conduct of the hearing if the
court requests assistance. If the person so designated has a
conflict of interest in a particular case, the court may appoint
private counsel to render such assistance.
  ' (d) If the respondent, the legal counsel or guardian, or
examiners request, the court may, for good cause, postpone the
hearing for not more than 72 hours in order to allow preparation
for the hearing. The court may make orders for the care and
custody of the subject of the petition during a postponement as
it deems necessary.
  ' (14)(a) In the case where it is alleged that the subject of
the petition has or contains an infectious agent of a
communicable disease, when a hearing is requested the court shall
appoint at least one competent physician, licensed by the Board
of Medical Examiners for the State of Oregon and expert in the
field of infectious diseases or public health to examine the
respondent as to the matters alleged in the petition. The person
appointed may be the county health officer or other person
recommended by the local public health administrator.
  ' (b) In the case where it is alleged that the subject of the
petition is contaminated with a toxic substance, when a hearing
is requested the court shall appoint an expert on the particular
subject, who may be the county health officer or other person
recommended by the local public health administrator, to examine
the subject of the petition as to the matters alleged in the
petition.
  ' (c) If the respondent requests in writing that one additional
examining physician or qualified person be appointed, or, in the
absence of such request by the respondent, if such request is
made by the legal guardian, relative or friend of the respondent,
the court shall appoint an additional physician or other
qualified person.
  ' (15) The persons appointed to conduct the examination shall
make their separate report in writing, under oath, to the court.
The reports shall be filed immediately with the clerk of the
court. If the examining persons find, and show by their reports,
that the allegations described in subsection (2)(a) to (c) of
this section are true, the reports shall include a recommendation
as to whether the allegations described under subsection (2)(d)
of this section are true or as to alternative measures that would
satisfy subsection (2)(d) of this section.
  ' (16) After hearing all of the evidence and reviewing the
findings of the examining persons, the court shall determine the
truth of the allegations contained in the petition and the need
for the requested public health measure. If, based upon clear and
convincing evidence, it is the opinion of the court that the
allegations are true, the court shall order the requested order
or such other measure the court deems appropriate to satisfy
subsection (2)(d) of this section.
  ' (17) The order shall be effective for a period of time not to
exceed 60 days or, if substantial medical evidence indicates that
the condition is spread by the airborne route and either that it
cannot be rendered noninfectious within 60 days or that it may
recur after the public health measure is discontinued, for a
period not to exceed 180 days.
  ' (18) If a respondent who is an individual in custody under
subsection (4) of this section appeals the determination or
disposition based thereon, and is unable to afford suitable legal
counsel possessing skills and experience commensurate with the
nature and complexity of the case to represent the respondent on
appeal, the court, upon request of the respondent in custody or
upon its own motion, shall appoint suitable legal counsel to
represent the respondent. The compensation for legal counsel and
costs and expenses necessary to the appeal shall be determined
and allowed by the appellate court as provided in ORS 138.500 and
the compensation, costs and expenses so allowed shall be paid as
provided in ORS 138.500.
  ' (19)(a) Any person who is not incarcerated upon a criminal
charge and is the subject of a petition under this section, shall
not be confined in any prison, jail or other enclosure where
those charged with a crime or a violation of a municipal
ordinance are incarcerated, unless the person represents an
immediate and serious danger to staff or physical facilities of a
hospital or other facility to which committed, or unless the
person has been found in contempt of court because of failure to
obey a court order or other public health measure.
  ' (b) Any respondent who is the subject of a petition and has
been taken into custody shall not be confined, either before or
after the hearing, without an attendant in direct charge of the
person. If the respondent is not confined in a health care
facility, the sheriff having the person in custody shall select
some suitable person to act as attendant in quarters suitable for
the comfortable, safe and humane confinement of the person and
approved by the assistant administrator or local public health
administrator.
  ' (20)(a) Upon receipt of the order of the court, the sheriff
or the sheriff's designee shall take the subject of the petition
into custody or continue custody, and insure the safekeeping and
proper care of the subject until delivery is made to an assigned
facility or other location. During custody of the subject, the
sheriff or sheriff's designee or the representative of the
facility has all the powers provided by ORS 133.225 and 161.255
and may require the assistance of any peace officer or other
person.
  ' (b) The court may authorize the guardian, custodian, friend
or relative to transport the subject of the petition to the
designated facility or location when the court determines that
the means of transportation would not be detrimental to the
welfare of the subject or to the public.
  ' (21) The judge shall cause to be recorded and filed in the
court records a full account of proceedings had at all hearings
and examinations conducted pursuant to this section together with
the judgments and orders of the court and a copy of the orders
issued. If the respondent is the subject of the petition, the
court clerk shall seal the record and it shall not be disclosed
to any person except:
  ' (a) The assistant administrator or local public health
administrator;
  ' (b) As provided in subsection (22) of this section;
  ' (c) Upon request of the respondent, the legal representatives
or the attorney of the person; or
  ' (d) Pursuant to court order.
  ' (22) If the subject of the petition is ordered committed to a
facility, a copy of the judgment and orders of the court, medical
records and such other information as the court deems necessary,
certified by the court clerk shall be given to the sheriff, for
delivery to the director of the facility to which such person is
committed.
  ' (23) The petitioner shall, by filing a written certificate
with the ordering court, discharge the subject of the petition
except when the subject is being held, upon an order of a court
or judge having criminal jurisdiction, in an action or proceeding
arising out of a criminal offense, when in the petitioner's
opinion the matters alleged in the petition are no longer true.
  ' (24)(a) At the end of the 60-day or 180-day period, the
subject of the petition shall be released from an order imposing
a public health measure under this section unless the petitioner
certifies to the ordering court that the order should be
continued. If the certification is made, the subject shall not be
released from the order but the petitioner shall immediately
issue a copy of the certification to the respondent.
  ' (b) The certification shall be served upon the respondent by
the sheriff or the sheriff's designee. The sheriff shall inform
the court in writing that service has been made and the date
thereof.
  ' (c) The certification shall advise the respondent:
  ' (A) That the petitioner has requested that the order be
continued for an additional period of time;
  ' (B) That the respondent may consult with legal counsel and
that legal counsel shall be provided for the respondent who is an
individual in custody without cost if the respondent is unable to
afford legal counsel;
  ' (C) That the respondent may protest this further extension of
the order within 14 days and, if the respondent does not, it
shall be continued for an indefinite period of time up to 60
days;
  ' (D) That, if the respondent does protest a further extension
of the order, the respondent is entitled to a hearing before the
court on whether the order should be continued;
  ' (E) That the respondent may protest in writing by signing a
simple protest form accompanying the certification by filing it
with the petitioner within 14 days;
  ' (F) That the respondent is entitled to have a physician or
other qualified person examine the subject of the petition and
report to the court the results of the examination;
  ' (G) That the respondent may subpoena witnesses and offer
evidence on behalf of the respondent at the hearing; and
 
  ' (H) That, if the respondent is an individual in custody and
is without funds to retain legal counsel or an examining
physician or qualified person, the court shall appoint legal
counsel, a physician or other qualified person at no cost to the
respondent.
  ' (25) The person serving the certification shall read and
deliver the certification to the respondent. If the respondent
does not file a protest of the extension of order within 14 days,
the procedures in subsection (4)(a) of this section shall be
followed before ordering an extension of the order. If the
respondent files a protest of the extension of order, the
procedures in subsection (4)(b) of this section shall be followed
before setting a hearing on the extension of the order.
  ' (26) If, at the time of inquiry by the court, it is
determined that no hearing is requested by the respondent the
court, without hearing, may order an extension of the order
effective for a period of time not to exceed 60 days.
  ' (27) If at the time of inquiry the respondent requests a
hearing, the hearing shall be conducted as promptly as possible
and at a time and place the court may direct. If the respondent
requests a continuance in order to prepare for the hearing or to
obtain legal counsel to represent the respondent, the court may
grant a continuance for up to 72 hours for this purpose. In the
event the respondent is an individual in custody and requests the
appointment of legal counsel and is without funds to retain legal
counsel, the court shall appoint legal counsel to represent
respondent at no cost to the respondent. If no request for legal
counsel is made, the court shall appoint legal counsel to
represent a respondent who is an individual in custody unless
legal counsel is expressly, knowingly and intelligently refused
by the respondent. If such respondent requests an examination by
a physician or other qualified person and is without funds to
retain a physician or other qualified person for purposes of the
examination, the court shall appoint a physician or other
qualified person, other than a member of the staff from the
facility where the respondent may be confined, to examine the
respondent at no expense to the respondent and to report to the
court the results of the examination. The court shall then
conduct a hearing and after hearing the evidence and reviewing
the recommendations of the treating and examining physician or
other qualified person, the court shall determine whether the
order should be continued. If in the opinion of the court the
allegations of the original petition are still applicable to the
subject of the petition by clear and convincing evidence the
court may continue the order for an additional indefinite period
of time up to 60 days or may order such other measure to satisfy
subsection (2)(d) of this section. At the end of the 60-day
period, the subject of the petition shall be released unless the
assistant director or local public health administrator again
certifies to the committing court that the order should be
extended in which event the procedures set forth in subsections
(24) to (27) of this section shall be followed.
  ' (28) Neither the assistant director or any local public
health administrator, sheriff, peace officer, physician,
attorney, judge or other person or entity shall in any way be
held criminally or civilly liable for actions pursuant to this
section and ORS 433.022 provided the actions are taken in good
faith, without malice and based on reasonable belief.
  ' (29) Failure to obey a court order or other public health
measure issued under this section shall subject the individual in
violation of the order or measure to contempt proceedings.
  '  { +  SECTION 4. + } 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, 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) 'Blood relative' means an individual who is:
  ' (a) Related by blood to another individual; and
  ' (b) A parent, sibling, son, daughter, grandparent,
grandchild, aunt, uncle, first cousin, niece or nephew of the
other individual. + }
  '  { - (2) - }   { + (3) + } 'DNA' means deoxyribonucleic acid.
  '  { - (3) - }   { + (4) + } '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. 'DNA sample ' includes DNA extracted from the
specimen.
  '  { - (4) - }   { + (5) + } '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.
  '  { - (5) - }   { + (6) + } 'Genetic information' is the
information about an individual or family obtained from:
  ' (a) A genetic test; or
  ' (b) An individual's DNA sample.
  '  { - (6) - }   { + (7) + } 'Genetic test' means a test for
determining the presence or absence of genetic characteristics in
an individual, including tests of nucleic acids such as DNA, RNA
and mitochondrial DNA, chromosomes or proteins in order to
diagnose a genetic characteristic.
  '  { - (7) - }   { + (8) + } '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.
  '  { - (8) - }   { + (9) + } 'Person' has the meaning given in
ORS 433.045.
  '  { +  SECTION 5. + } 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 who has
provided a sample, or the identity of a person from whom genetic
information has been obtained, cannot be determined.
  '  { +  (2) 'Blood relative' means an individual who is:
  ' (a) Related by blood to another individual; and
  ' (b) A parent, sibling, son, daughter, grandparent,
grandchild, aunt, uncle, first cousin, niece or nephew of the
other individual. + }
  '  { - (2) - }   { + (3) + } 'DNA' means deoxyribonucleic acid.
  '  { - (3) - }   { + (4) + } '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. 'DNA sample ' includes DNA extracted from the
specimen.
  '  { - (4) - }   { + (5) + } '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.
  '  { - (5) - }   { + (6) + } 'Genetic information' is the
information about an individual or family obtained from:
  ' (a) A genetic test; or
  ' (b) An individual's DNA sample.
  '  { - (6) - }   { + (7) + } 'Genetic test' means a test for
determining the presence or absence of genetic characteristics in
an individual, including tests of nucleic acids such as DNA, RNA
and mitochondrial DNA, chromosomes or proteins in order to
diagnose a genetic characteristic.
  '  { - (7) - }   { + (8) + } '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.
  '  { - (8) - }   { + (9) + } 'Person' has the meaning given in
ORS 433.045.
  '  { +  SECTION 6. + } ORS 659.710 is amended to read:
  ' 659.710. (1) No person shall 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;
  ' (c) As permitted by rules of the Health Division for
identification of deceased individuals;
  ' (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.
  ' (2) 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. 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)   { - 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. Any other - }   { + A + } person 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) 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 7. + }  { + Sections 8 to 12 of this 2001 Act
are added to and made a part of the Insurance Code. + }
  '  { +  SECTION 8. + }  { + (1) Notwithstanding ORS 746.135,
except as provided in sections 9 and 10 of this 2001 Act, a
person may not request, obtain or use a genetic test on or
genetic information about an applicant or a blood relative of an
applicant in connection with an application for insurance. For
the purpose of this subsection, a person who inadvertently
acquires genetic information through a health file or other means
is not considered to have requested or obtained genetic
information if the person destroys or disposes of that
information upon discovering it in the person's possession.
  ' (2) A person may not request, obtain or use a genetic test on
or genetic information about an insured party or a blood relative
of an insured party to limit, cancel, refuse to renew, increase
the rates of, affect the terms and conditions of or otherwise
affect any insurance policy.
  ' (3) A person may not use information about a person or
individual who has requested or had a genetic test or about the
outcome of the test to identify potential customers or to induce
the purchase of insurance.
  ' (4) For the purposes of this section, 'blood relative, ' '
genetic information' and 'genetic test' have the meaning given
those terms in ORS 659.700. + }
  '  { +  SECTION 9. + }  { + (1) If an applicant for life
insurance applies for life insurance in an amount greater than
$100,000, a person may:
  ' (a) Ask the applicant if the applicant has had a genetic test
for one of the genes related to a disease contained on the list
of catastrophic diseases and related genes described in section
11 (1) of this 2001 Act for the purposes of life insurance;
  ' (b) Ask for the results of that genetic test; and
  ' (c) Use the genetic information from that genetic test in
determining the proposed terms of an insurance policy in
accordance with standard insurance practices and principles.
  ' (2) An applicant for life insurance may refuse to answer the
questions a person may ask under subsection (1) of this section.
  ' (3) If an applicant for life insurance has a history of a
disease related to a gene contained on the list of catastrophic
diseases and related genes for the purposes of life insurance and
the application requires disclosure of family history regarding
that disease, the applicant may present the results of a test of
that gene as presumptive evidence that the applicant is not
predisposed to the disease.
  ' (4) For the purposes of this section, 'genetic information '
and 'genetic test' have the meaning given those terms in ORS
659.700. + }
  '  { +  SECTION 10. + }  { + (1) If an applicant for disability
insurance applies for a disability policy that provides for an
annual replacement income for full disability of greater than
$60,000, a person may:
  ' (a) Ask the applicant if the applicant has had a genetic test
for one of the genes related to a disease contained on the list
of catastrophic diseases and related genes for the purposes of
disability insurance described in section 11 (1) of this 2001
Act;
  ' (b) Ask for the results of that genetic test; and
  ' (c) Use the genetic information from that genetic test in
determining the proposed terms of an insurance policy in
accordance with standard insurance practices and principles.
  ' (2) An applicant for disability insurance may refuse to
answer the questions a person may ask under subsection (1) of
this section.
  ' (3) If an applicant for disability insurance has a history of
a disease related to a gene contained on the list of catastrophic
diseases and related genes for the purposes of disability
insurance and the application requires disclosure of family
history regarding that disease, the applicant may present the
results of a test for that gene as presumptive evidence that the
applicant is not predisposed to the disease.
  ' (4) For the purposes of this section, 'genetic information '
and 'genetic test' have the meaning given those terms in ORS
659.700. + }
  '  { +  SECTION 11. + }  { + (1) The Director of the Department
of Consumer and Business Services shall create and maintain two
lists relating to catastrophic diseases and related genes as
follows:
  ' (a) A list of catastrophic diseases and related genes for the
purposes of life insurance.
 
  ' (b) A list of catastrophic diseases and related genes for the
purposes of disability insurance.
  ' (2) An insurer may submit an application for listing a
particular gene to the director. The application shall include
arguments and evidence that the insurer believes support a
listing.
  ' (3) The director shall submit the application to the Health
Resources Commission. The commission shall recommend to the
director whether the director list a catastrophic disease and
related gene under subsection (1) of this section. The commission
shall make a recommendation in favor of listing the disease and
related gene, after consulting with genetic, medical and
insurance experts, if the commission determines that:
  ' (a) For the purposes of life insurance:
  ' (A) The gene has a correlation with the eventual development
of a specific disease exceeding 80 percent; and
  ' (B) The disease resulting from the gene, given current
medical therapy and technology, poses a probability of death from
the disease exceeding 50 percent.
  ' (b) For the purposes of disability insurance:
  ' (A) The gene has a correlation with the eventual development
of a specific disease exceeding 80 percent; and
  ' (B) The disease resulting from the gene, given current
medical therapy and technology, poses a probability of disability
from the disease exceeding 50 percent.
  ' (4) The director may add a catastrophic disease and related
gene to a list described in subsection (1) of this section only
upon the recommendation of the commission. + }
  '  { +  SECTION 12. + }  { + The Director of the Department of
Consumer and Business Services shall adopt rules necessary to
implement and administer sections 8 to 11 of this 2001 Act. + }
  '  { +  SECTION 13. + } ORS 659.700, as amended by section 2,
chapter 921, Oregon Laws 1999, and section 5 of this 2001 Act, 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 who has
provided a sample, or the identity of a person from whom genetic
information has been obtained, cannot be determined.
  '  { - (2) 'Blood relative' means an individual who is: - }
  '  { - (a) Related by blood to another individual; and - }
  '  { - (b) A parent, sibling, son, daughter, grandparent,
grandchild, aunt, uncle, first cousin, niece or nephew of the
other individual. - }
  '  { - (3) - }   { + (2) + } 'DNA' means deoxyribonucleic acid.
  '  { - (4) - }   { + (3) + } '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. 'DNA sample ' includes DNA extracted from the
specimen.
  '  { - (5) - }   { + (4) + } '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.
  '  { - (6) - }   { + (5) + } 'Genetic information' is the
information about an individual or family obtained from:
  ' (a) A genetic test; or
  ' (b) An individual's DNA sample.
  '  { - (7) - }   { + (6) + } 'Genetic test' means a test for
determining the presence or absence of genetic characteristics in
an individual, including tests of nucleic acids such as DNA, RNA
and mitochondrial DNA, chromosomes or proteins in order to
diagnose a genetic characteristic.
 
  '  { - (8) - }   { + (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.
  '  { - (9) - }   { + (8) + } 'Person' has the meaning given in
ORS 433.045.
  '  { +  SECTION 14. + } ORS 659.710, as amended by section 6 of
this 2001 Act, is amended to read:
  ' 659.710. (1) No person shall 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;
  ' (c) As permitted by rules of the Health Division for
identification of deceased individuals;
  ' (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.
  ' (2) 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. 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 - }   { + 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. Any other + } person 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) 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. + }  { + Sections 8 to 12 of this 2001 Act
are repealed on January 2, 2006. + }
  '  { +  SECTION 16. + }  { + The amendments to ORS 659.700 and
659.710 by sections 13 and 14 of this 2001 Act become operative
on January 2, 2006. + } ' .
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