§ 2615 — Genetic testing written informed consent

§ 2615. Genetic testing written informed consent. (a) No authorized\ninsurer or person acting on behalf of an authorized insurer shall\nrequest or require an individual proposed for insurance coverage to be\nthe subject of a genetic test without receiving the written informed\nconsent of such individual prior to such testing, in advance of the\ntest.\n (b) Written informed consent to a genetic test shall consist of\nwritten authorization that is dated and signed and includes at least the\nfollowing:\n (1) a general description of the test;\n (2) a statement of the purpose of the test;\n (3) a statement that a positive test result is an indication that the\nindividual may be predisposed to or have the specific disease or\ncondition tested for and may wish to consider further independent\ntesting, consult their physician or pursue genetic counseling;\n (4) a general description of each specific disease or condition tested\nfor;\n (5) the level of certainty that a positive test result for that\ndisease or condition serves as a predictor of such disease. If no level\nof certainty has been established, this subparagraph may be disregarded;\n (6) the name of the person or categories of persons or organizations\nto whom the test results may be disclosed;\n (7) a statement that no tests other than those authorized shall be\nperformed on the biological sample and that the sample shall be\ndestroyed at the end of the testing process or not more than sixty days\nafter the sample was taken; and\n (8) the signature of the individual subject of the test or, if that\nindividual lacks the capacity to consent, the signature of the person\nauthorized to consent for such individual.\n (c) A general waiver, wherein consent is secured for genetic testing\nwithout compliance with subsection (b) of this section, shall not\nconstitute informed consent.\n (d) Any further disclosure of genetic test results to persons or\norganizations not named on the informed consent requires the further\ninformed consent of the subject of the test.\n (e) In the event that an insurer's adverse underwriting decision is\nbased in whole or in part on the results of a genetic test, the\nauthorized insurer shall notify the individual of the adverse\nunderwriting decision and ask the individual to elect in writing, unless\nthe individual has already done so, whether to have the specific test\nresults disclosed directly to the individual or to the individual's\nphysician, at the discretion of the individual.\n (f) All records, findings and results of any genetic test performed on\nany person shall be deemed confidential and may not be disclosed without\nthe written authorization as described in subsection (g) of this section\nof the person to whom such genetic test relates. This information may\nnot be released to any person or organization not specifically\nauthorized by the individual subject of the test. Unauthorized\nsolicitation or possession of such information shall be unlawful, except\nfor the unintentional possession of such information as part of a health\nrecord created prior to the date on which this section shall have become\na law and provided no action adverse to the interests of the subject are\ntaken as a result of such possession.\n (g) Written authorization to records, findings and/or results of\ngenetic tests that have been performed prior to the effective date of\nthis section, or which was done after the individual had given written\ninformed consent pursuant to this section shall consist of a statement\nwhich specifically requests genetic test records, findings and/or\nresults, the person or organizations to whom the records, findings\nand/or results shall be disclosed, the signature of the individual\nsubject of the records, findings and/or results of the test or, if that\nperson lacks the capacity to consent, the signature of the person\nauthorized to consent for the subject.\n (h) No authorized insurer who lawfully possesses information derived\nfrom a genetic test on a biological sample from an individual shall\nincorporate such information into the records of a non-consenting\nindividual who may be genetically related to the tested individual; nor\nshall any inferences be drawn, used, or communicated regarding the\npossible genetic status of the non-consenting individual.\n (i) For the purposes of this section, the term "adverse underwriting\ndecision" shall have the same meaning as defined in section twenty-six\nhundred eleven of this article and the term "genetic test" shall have\nthe same meaning as defined in section seventy-nine-l of the civil\nrights law.\n (j) If the superintendent determines after notice and a hearing that\nan authorized insurer or a person acting on behalf of an authorized\ninsurer has violated this section, then the superintendent shall levy a\nfine up to five thousand dollars. Also, any authorized insurer or person\nacting on behalf of an authorized insurer who violates the provisions of\nthis section shall be subject to the provisions of article twenty-four\nof this chapter. Violations of this section shall also be subject to the\nprovisions of section one hundred nine of this chapter, except paragraph\none of subsection (c) of such section.\n