§ 108I — Disability or long term care insurance policies; genetic tests; discrimination based on genetic information

Section 108I. (a) For the purposes of this section the following words shall have the following meanings:''Genetic information'', a written recorded individually identifiable result of a genetic test as defined by this section or explanation of such a result. For the purpose of this section, the term genetic information shall not include information pertaining to the abuse of drugs or alcohol which is derived from tests given for the exclusive purpose of determining the abuse of drugs or alcohol.''Genetic test'', a test of human DNA, RNA, mitochondrial DNA, chromosomes or proteins for the purpose of identifying genes, inherited or acquired genetic abnormalities, or the presence or absence of inherited or acquired characteristics in genetic material, which are associated with a predisposition to disease, illness, impairment or other disease processes. For the purpose of this section, the term genetic test shall not include tests given for drugs, alcohol, cholesterol, or HIV; any test for the purpose of diagnosing or detecting an existing disease process; any test performed due to the presence of symptoms, signs or other manifestations of a disease, illness, impairment; or other disease process or any test that is taken as a biopsy, autopsy, or clinical specimen solely for the purpose of conducting an immediate clinical or diagnostic test that is not a test of DNA, RNA, mitochondrial DNA, chromosomes or proteins.(b) No insurer, agent or broker authorized to issue policies against disability from injury or disease or policies providing for long term care in the commonwealth shall practice unfair discrimination against persons because of the results of a genetic test or the provisions of genetic information, as defined in this section. For purposes of this section, unfair discrimination means cancellation, refusing to issue or renew, charging any increased rate, restricting any length of coverage or in any way practicing discrimination against persons unless such action is taken pursuant to reliable information relating to the insured's mortality or morbidity, based on sound actuarial principles or actual or reasonably anticipated claim experience.No insurer, agent or broker authorized to issue policies against disability from injury or disease or policies providing for long term care in the commonwealth shall require an applicant to undergo a genetic test as a condition of the issuance or renewal of a policy against disability from injury or disease or policies providing for long term care in the commonwealth. Any violation of this section shall constitute an unfair method of competition or unfair or deceptive act or practice in violation of chapters 93A and 176D.(c) In the provision of insurance against disability from injury or disease or policies providing for long term care in the commonwealth, a company, or officer or agent thereof, or an insurance broker may ask on an application for such coverage whether or not the applicant has taken a genetic as defined in this section. The applicant is not required to answer any questions concerning genetic testing. Any application requesting this information must contain or be accompanied by language informing the applicant that the applicant is not required to answer any questions in connection with genetic testing as defined in this section and language informing the applicant that the failure to do so may result in an increased rate or denial of coverage. If the applicant chooses to submit genetic information then the insurer is authorized to use that information to set the terms of a policy provided that such information is reliable information relating to the insured's mortality or morbidity, based on sound actuarial principles, or actual or reasonably anticipated experience. If the commissioner of insurance has reason to believe that unfair discrimination as defined in this section has occurred, and that a proceeding by the commissioner would be in the interest of the public, the commissioner shall, in accordance with chapter 176D, issue and serve upon the insurer a statement of the charges and a notice of hearing thereon. Upon a determination that the practice or act of the insurer is in conflict with the provisions of this section, the commissioner shall issue an order requiring the insurer to cease and desist from engaging in the practice or act and may order payment of a penalty pursuant to the provisions of chapter 176D.Upon such determination, the commissioner, in consultation with the department of public health, shall hold a public hearing under chapter 30A and may, by order, determine, based on sound actuarial principles or actual or reasonably anticipated claim experience, that the genetic test which is the subject of the cease and desist order provides no reliable information relating to the insured's mortality or morbidity and that its use would constitute unfair discrimination. At least annually, the commissioner shall review any such order to assure that any such determination remains current and shall amend or rescind the order to reflect any change in the determination. The commissioner, in consultation with the department of public health after a public hearing under chapter 30A, may issue an advisory opinion on whether a genetic test provides no reliable information relating to the insured's mortality or morbidity, based on sound actuarial principles or actual or reasonably anticipated claim experience. The commissioner may promulgate rules and regulations pursuant to this section.