108th CONGRESS
1st Session
S. 16
To protect the civil rights of all Americans, and for other purposes.
IN THE SENATE OF THE UNITED STATES
January 7, 2003
Mr. DASCHLE (for himself, Mr. Leahy, Mr. Kennedy, Mr. Biden, Mr. Schumer,
Mr. Durbin, Mr. Edwards, Mr. Akaka, Mrs. Clinton, Mr. Corzine, Mr. Dayton,
Mr. Harkin, Ms. Landrieu, Mr. Levin, Mr. Lieberman, Ms. Mikulski, Mrs. Murray,
Mr. Rockefeller, Mr. Sarbanes, Ms. Stabenow, Mr. Lautenberg, and Mr. Reid)
introduced the following bill; which was read twice and referred to the Committee
on Finance
A BILL
To protect the civil rights of all Americans, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the `Equal Rights and Equal Dignity
for Americans Act of 2003'.
(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--LOCAL LAW ENFORCEMENT ENHANCEMENT ACT
Sec. 103. Definition of hate crime.
Sec. 104. Support for criminal investigations and prosecutions by State
and local law enforcement officials.
Sec. 106. Authorization for additional personnel to assist State and local
law enforcement.
Sec. 107. Prohibition of certain hate crime acts.
Sec. 108. Duties of Federal Sentencing Commission.
TITLE II--INCREASE IN FUNDING FOR ENFORCING CIVIL RIGHTS LAWS
Sec. 201. Increase in funding.
TITLE III--SUPPORTING INDIGENT DEFENSE
Sec. 302. Authorization of appropriations.
TITLE IV--INDIAN TRUST ASSET AND TRUST FUND MANAGEMENT AND REFORM
Sec. 404. Responsibilities of Secretary.
Sec. 405. Indian participation in trust fund activities.
Sec. 406. Deputy Secretary for Trust Management and Reform.
Sec. 407. Advisory board and Tribal Task Force.
Sec. 409. No effect on certain judicial decision.
TITLE V--RACIAL PROFILING
Sec. 501. Sense of the Senate on racial profiling.
TITLE VI--PAYCHECK FAIRNESS
Sec. 603. Enhanced enforcement of equal pay requirements.
Sec. 605. Research, education, and outreach.
Sec. 606. Technical assistance and employer recognition program.
Sec. 607. Establishment of the National Award for Pay Equity in the Workplace.
Sec. 608. Collection of pay information by the Equal Employment Opportunity
Commission.
Sec. 609. Authorization of appropriations.
TITLE VII--EMPLOYMENT NON-DISCRIMINATION
Sec. 704. Discrimination prohibited.
Sec. 705. Retaliation prohibited.
Sec. 707. Collection of statistics prohibited.
Sec. 708. Quotas and preferential treatment prohibited.
Sec. 709. Religious exemption.
Sec. 710. Nonapplication to members of the Armed Forces; veterans' preferences.
Sec. 713. State and Federal immunity.
Sec. 714. Attorneys' fees.
Sec. 715. Posting notices.
Sec. 717. Relationship to other laws.
Sec. 719. Effective date.
TITLE VIII--GENETIC NONDISCRIMINATION
Subtitle A--Prohibition of Health Insurance Discrimination on the Basis
of Protected Genetic Information
Sec. 811. Amendments to Employee Retirement Income Security Act of 1974.
Sec. 812. Amendments to the Public Health Service Act.
Sec. 813. Amendments to Internal Revenue Code of 1986.
Sec. 814. Amendments to title XVIII of the Social Security Act relating
to MEDIGAP.
Subtitle B--Prohibition of Employment Discrimination on the Basis of Protected
Genetic Information
Sec. 822. Limitations with respect to definition.
Sec. 823. Employer practices.
Sec. 824. Employment agency practices.
Sec. 825. Labor organization practices.
Sec. 826. Training programs.
Sec. 827. Maintenance and disclosure of protected genetic information.
Sec. 830. Authorization of appropriations.
Sec. 831. Effective date.
Subtitle C--Miscellaneous Provisions
TITLE IX--MEDICAL PRIVACY
Sec. 903. Restoration of privacy protections.
Sec. 904. Definitions; effective date.
TITLE X--PROTECTING AMERICANS' PRIVACY
Sec. 1001. Use of Department of Defense personnel or funds to collect intelligence
or law enforcement information on United States citizens inside the United
States.
TITLE XI--ELECTION REFORM
TITLE I--LOCAL LAW ENFORCEMENT ENHANCEMENT ACT
SEC. 101. SHORT TITLE.
This title may be cited as the `Local Law Enforcement Enhancement Act of 2003'.
SEC. 102. FINDINGS.
Congress makes the following findings:
(1) The incidence of violence motivated by the actual or perceived race,
color, religion, national origin, gender, sexual orientation, or disability
of the victim poses a serious national problem.
(2) Such violence disrupts the tranquility and safety of communities and
is deeply divisive.
(3) State and local authorities are now and will continue to be responsible
for prosecuting the overwhelming majority of violent crimes in the United
States, including violent crimes motivated by bias. These authorities can
carry out their responsibilities more effectively with greater Federal assistance.
(4) Existing Federal law is inadequate to address this problem.
(5) The prominent characteristic of a violent crime motivated by bias is
that it devastates not just the actual victim and the family and friends
of the victim, but frequently savages the community sharing the traits that
caused the victim to be selected.
(6) Such violence substantially affects interstate commerce in many ways,
including--
(A) by impeding the movement of members of targeted groups and forcing
such members to move across State lines to escape the incidence or risk
of such violence; and
(B) by preventing members of targeted groups from purchasing goods and
services, obtaining or sustaining employment, or participating in other
commercial activity.
(7) Perpetrators cross State lines to commit such violence.
(8) Channels, facilities, and instrumentalities of interstate commerce are
used to facilitate the commission of such violence.
(9) Such violence is committed using articles that have traveled in interstate
commerce.
(10) For generations, the institutions of slavery
and involuntary servitude were defined by the race, color, and ancestry of
those held in bondage. Slavery and involuntary servitude were enforced, both
prior to and after the adoption of the 13th amendment to the Constitution
of the United States, through widespread public and private violence directed
at persons because of their race, color, or ancestry, or perceived race, color,
or ancestry. Accordingly, eliminating racially motivated violence is an important
means of eliminating, to the extent possible, the badges, incidents, and relics
of slavery and involuntary servitude.
(11) Both at the time when the 13th, 14th, and 15th amendments to the Constitution
of the United States were adopted, and continuing to date, members of certain
religious and national origin groups were and are perceived to be distinct
`races'. Thus, in order to eliminate, to the extent possible, the badges,
incidents, and relics of slavery, it is necessary to prohibit assaults on
the basis of real or perceived religions or national origins, at least to
the extent such religions or national origins were regarded as races at
the time of the adoption of the 13th, 14th, and 15th amendments to the Constitution
of the United States.
(12) Federal jurisdiction over certain violent crimes motivated by bias
enables Federal, State, and local authorities to work together as partners
in the investigation and prosecution of such crimes.
(13) The problem of crimes motivated by bias is sufficiently serious, widespread,
and interstate in nature as to warrant Federal assistance to States and
local jurisdictions.
SEC. 103. DEFINITION OF HATE CRIME.
In this title, the term `hate crime' has the same meaning as in section 280003(a)
of the Violent Crime Control and Law Enforcement Act of 1994 (28 U.S.C. 994
note).
SEC. 104. SUPPORT FOR CRIMINAL INVESTIGATIONS AND PROSECUTIONS BY STATE
AND LOCAL LAW ENFORCEMENT OFFICIALS.
(a) ASSISTANCE OTHER THAN FINANCIAL ASSISTANCE-
(1) IN GENERAL- At the request of a law enforcement official of a State
or Indian tribe, the Attorney General may provide technical, forensic, prosecutorial,
or any other form of assistance in the criminal investigation or prosecution
of any crime that--
(A) constitutes a crime of violence (as defined in section 16 of title
18, United States Code);
(B) constitutes a felony under the laws of the State or Indian tribe;
and
(C) is motivated by prejudice based on the race, color, religion, national
origin, gender, sexual orientation, or disability of the victim, or is
a violation of the hate crime laws of the State or Indian tribe.
(2) PRIORITY- In providing assistance under paragraph (1), the Attorney
General shall give priority to crimes committed by offenders who have committed
crimes in more than 1 State and to rural jurisdictions that have difficulty
covering the extraordinary expenses relating to the investigation or prosecution
of the crime.
(1) IN GENERAL- The Attorney General may award grants to assist State, local,
and Indian law enforcement officials with the extraordinary expenses associated
with the investigation and prosecution of hate crimes.
(2) OFFICE OF JUSTICE PROGRAMS- In implementing the grant program, the Office
of Justice Programs shall work closely with the funded jurisdictions to
ensure that the concerns and needs of all affected parties, including community
groups and schools, colleges, and universities, are addressed through the
local infrastructure developed under the grants.
(A) IN GENERAL- Each State that desires a grant under this subsection
shall submit an application to the Attorney General at such time, in such
manner, and accompanied by or containing such information as the Attorney
General shall reasonably require.
(B) DATE FOR SUBMISSION- Applications submitted pursuant to subparagraph
(A) shall be submitted during the 60-day period beginning on a date that
the Attorney General shall prescribe.
(C) REQUIREMENTS- A State or political subdivision of a State or tribal
official applying for assistance under this subsection shall--
(i) describe the extraordinary purposes for which the grant is needed;
(ii) certify that the State, political subdivision, or Indian tribe
lacks the resources necessary to investigate or prosecute the hate crime;
(iii) demonstrate that, in developing a plan to implement the grant,
the State, political subdivision, or tribal official has consulted and
coordinated with nonprofit, nongovernmental victim services programs
that have experience in providing services to victims of hate crimes;
and
(iv) certify that any Federal funds received under this subsection will
be used to supplement, not supplant, non-Federal funds that would otherwise
be available for activities funded under this subsection.
(4) DEADLINE- An application for a grant under this subsection shall be
approved or disapproved by the Attorney General not later than 30 business
days after the date on which the Attorney General receives the application.
(5) GRANT AMOUNT- A grant under this subsection shall not exceed $100,000
for any single jurisdiction within a 1-year period.
(6) REPORT- Not later than December 31, 2004, the Attorney General shall
submit to Congress a report describing the applications submitted for grants
under this subsection, the award of such
grants, and the purposes for which the grant amounts were expended.
(7) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated
$5,000,000 to carry out this subsection for each of fiscal years 2004 and
2005.
SEC. 105. GRANT PROGRAM.
(a) AUTHORITY TO MAKE GRANTS- The Office of Justice Programs of the Department
of Justice shall award grants, in accordance with such regulations as the
Attorney General may prescribe, to State and local programs designed to combat
hate crimes committed by juveniles, including programs to train local law
enforcement officers in identifying, investigating, prosecuting, and preventing
hate crimes.
(b) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 106. AUTHORIZATION FOR ADDITIONAL PERSONNEL TO ASSIST STATE AND LOCAL
LAW ENFORCEMENT.
There are authorized to be appropriated to the Department of the Treasury
and the Department of Justice, including the Community Relations Service,
for fiscal years 2004, 2005, and 2006 such sums as are necessary to increase
the number of personnel to prevent and respond to alleged violations of section
249 of title 18, United States Code, as added by section 107.
SEC. 107. PROHIBITION OF CERTAIN HATE CRIME ACTS.
(a) IN GENERAL- Chapter 13 of title 18, United States Code, is amended by
adding at the end the following:
`Sec. 249. Hate crime acts
`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL
ORIGIN- Whoever, whether or not acting under color of law, willfully causes
bodily injury to any person or,
through the use of fire, a firearm, or an explosive or incendiary device,
attempts to cause bodily injury to any person, because of the actual or perceived
race, color, religion, or national origin of any person--
`(A) shall be imprisoned not more than 10 years, fined in accordance with
this title, or both; and
`(B) shall be imprisoned for any term of years or for life, fined in accordance
with this title, or both, if--
`(i) death results from the offense; or
`(ii) the offense includes kidnaping or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit aggravated sexual abuse, or an
attempt to kill.
`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER,
SEXUAL ORIENTATION, OR DISABILITY-
`(A) IN GENERAL- Whoever, whether or not acting under color of law, in
any circumstance described in subparagraph (B), willfully causes bodily
injury to any person or, through the use of fire, a firearm, or an explosive
or incendiary device, attempts to cause bodily injury to any person, because
of the actual or perceived religion, national origin, gender, sexual orientation,
or disability of any person--
`(i) shall be imprisoned not more than 10 years, fined in accordance
with this title, or both; and
`(ii) shall be imprisoned for any term of years or for life, fined in
accordance with this title, or both, if--
`(I) death results from the offense; or
`(II) the offense includes kidnaping or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit aggravated sexual abuse, or an
attempt to kill.
`(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances
described in this subparagraph are that--
`(i) the conduct described in subparagraph (A) occurs during the course
of, or as the result of, the travel of the defendant or the victim--
`(I) across a State line or national border; or
`(II) using a channel, facility, or instrumentality of interstate
or foreign commerce;
`(ii) the defendant uses a channel, facility, or instrumentality of
interstate or foreign commerce in connection with the conduct described
in subparagraph (A);
`(iii) in connection with the conduct described in subparagraph (A),
the defendant employs a firearm, explosive or incendiary device, or
other weapon that has traveled in interstate or foreign commerce; or
`(iv) the conduct described in subparagraph (A)--
`(I) interferes with commercial or other economic activity in which
the victim is engaged at the time of the conduct; or
`(II) otherwise affects interstate or foreign commerce.
`(b) CERTIFICATION REQUIREMENT- No prosecution of any offense described in
this subsection may be
undertaken by the United States, except under the certification in writing
of the Attorney General, the Deputy Attorney General, the Associate Attorney
General, or any Assistant Attorney General specially designated by the Attorney
General that--
`(1) he or she has reasonable cause to believe that the actual or perceived
race, color, religion, national origin, gender, sexual orientation, or disability
of any person was a motivating factor underlying the alleged conduct of
the defendant; and
`(2) he or his designee or she or her designee has consulted with State
or local law enforcement officials regarding the prosecution and determined
that--
`(A) the State does not have jurisdiction or does not intend to exercise
jurisdiction;
`(B) the State has requested that the Federal Government assume jurisdiction;
`(C) the State does not object to the Federal Government assuming jurisdiction;
or
`(D) the verdict or sentence obtained pursuant to State charges left demonstratively
unvindicated the Federal interest in eradicating bias-motivated violence.
`(c) DEFINITIONS- In this section--
`(1) the term `explosive or incendiary device' has the meaning given the
term in section 232 of this title; and
`(2) the term `firearm' has the meaning given the term in section 921(a)
of this title.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The analysis for chapter 13 of title
18, United States Code, is amended by adding at the end the following:
SEC. 108. DUTIES OF FEDERAL SENTENCING COMMISSION.
(a) AMENDMENT OF FEDERAL SENTENCING GUIDELINES- Pursuant to the authority
provided under section 994 of title 28, United States Code, the United States
Sentencing Commission shall study the issue of adult recruitment of juveniles
to commit hate crimes and shall, if appropriate, amend the Federal sentencing
guidelines to provide sentencing enhancements (in addition to the sentencing
enhancement provided for the use of a minor during the commission of an offense)
for adult defendants who recruit juveniles to assist in the commission of
hate crimes.
(b) CONSISTENCY WITH OTHER GUIDELINES- In carrying out this section, the United
States Sentencing Commission shall--
(1) ensure that there is reasonable consistency with other Federal sentencing
guidelines; and
(2) avoid duplicative punishments for substantially the same offense.
SEC. 109. STATISTICS.
Subsection (b)(1) of the first section of the Hate Crimes Statistics Act (28
U.S.C. 534 note) is amended by inserting `gender,' after `race,'.
SEC. 110. SEVERABILITY.
If any provision of this title, an amendment made by this title, or the application
of such provision or amendment to any person or circumstance is held to be
unconstitutional, the remainder of this title, the amendments made by this
title, and the application of the provisions of such to any person or circumstance
shall not be affected thereby.
TITLE II--INCREASE IN FUNDING FOR ENFORCING CIVIL RIGHTS LAWS
SEC. 201. INCREASE IN FUNDING.
Notwithstanding any other provision of law, there are authorized to be appropriated
for fiscal year 2004--
(1) to the Equal Employment Opportunity Commission, to carry out the activities
of the Commission, $339,691,800;
(2) to the Civil Rights Division of the Department of Justice, to carry
out the activities of the Division, $110,360,000;
(3) to the Office of Civil Rights of the Department of Education, to carry
out the activities of the Office, $97,760,000; and
(4) to the Office of Federal Contract Compliance Programs of the Department
of Labor, to carry out the activities of the Office, $81,421,200.
TITLE III--SUPPORTING INDIGENT DEFENSE
SEC. 301. FINDINGS.
Congress finds the following:
(1) It is important to provide equal access to the system of justice in
the United States for all individuals, regardless of economic stature.
(2) The Legal Services Corporation provides high quality legal assistance
for persons who would otherwise be unable to afford legal counsel.
(3) The programs of the Legal Services Corporation serve clients with cases
concerning housing, family law, income maintenance, consumer issues, and
employment.
(4) For just under a decade the Federal resources available to the Legal
Services Corporation have been inadequate. Nearly half of all people who
applied for assistance from local Legal Services Corporation programs have
been turned away in recent years.
(5) Congress must adequately fund Legal Services Corporation programs to
preserve the strength of the programs.
SEC. 302. AUTHORIZATION OF APPROPRIATIONS.
Section 1010(a) of the Legal Services Corporation Act (42 U.S.C. 2996i(a))
is amended to read as follows:
`(a) There is authorized to be appropriated for the purpose of carrying out
the activities of the Corporation, $400,000,000 for fiscal year 2004.'.
TITLE IV--INDIAN TRUST ASSET AND TRUST FUND MANAGEMENT AND REFORM
SEC. 401. SHORT TITLE.
This title may be cited as the `Indian Trust Asset and Trust Fund Management
and Reform Act of 2003'.
SEC. 402. FINDINGS.
Congress finds and affirms that the proper discharge of trust responsibility
of the United States requires, without limitation, that the trustee, using
a high degree of care, skill, and loyalty--
(1) protect and preserve Indian trust assets from loss, damage, unlawful
alienation, waste, and depletion;
(2) ensure that any management of Indian trust assets required to be carried
out by the Secretary--
(A) promotes the interest of the beneficial owner; and
(B) supports, to the maximum extent practicable in accordance with the
trust responsibility of the Secretary, the beneficial owner's intended
use of the assets;
(3)(A) enforce the terms of all leases or other agreements that provide
for the use of trust assets; and
(B) take appropriate steps to remedy trespass on trust or restricted land;
(4) promote tribal control and self-determination over tribal trust land
and resources;
(5) select and oversee persons that manage Indian trust assets;
(6) confirm that Indian tribes that manage Indian trust assets pursuant
to contracts and compacts authorized by the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.) protect and prudently manage
those Indian trust assets;
(7) provide oversight and review of the performance of the trust responsibility
of the Secretary, including Indian trust asset and investment management
programs, operational systems, and information systems;
(8) account for and identify, collect, deposit, invest, and distribute,
in a timely manner, income due or held on behalf of tribal and individual
Indian account holders;
(9) maintain a verifiable system of records that, at a minimum, is capable
of identifying, with respect to a trust asset--
(A) the location of the trust asset;
(B) the beneficial owners of the trust asset;
(C) any legal encumbrances (such as leases or permits) applicable to the
trust asset;
(D) the user of the trust asset;
(E) any rent or other payments made;
(F) the value of trust or restricted land and resources associated with
the trust asset;
(v) imposition of third-party obligations (such as court-ordered child
support or judgments);
(vi) statements of earnings;
(vii) investment instruments; and
(viii) closure of all trust fund accounts relating to the trust fund
asset;
(H) documents pertaining to actions taken to prevent or compensate for
any diminishment of the Indian trust asset; and
(I) documents that evidence the actions of the Secretary regarding the
management and disposition of the Indian trust asset;
(10) establish and maintain a system of records that--
(A) permits beneficial owners to obtain information regarding Indian trust
assets in a timely manner; and
(B) protects the privacy of that information;
(11) invest tribal and individual Indian trust funds to ensure that the
trust account remains reasonably productive for the beneficial owner consistent
with market conditions existing at the time at which investment is made;
(12) communicate with beneficial owners regarding the management and administration
of Indian trust assets; and
(13) protect treaty-based fishing, hunting, gathering, and similar rights-of-access
and resource use on traditional tribal land.
SEC. 403. DEFINITIONS.
Section 2 of the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4001) is amended--
(1) by striking paragraph (1);
(2) in paragraph (2), by striking `(2) The term' and inserting the following:
`(5) INDIAN TRIBE- The term';
(3) in paragraph (3), by striking `(3) The term' and inserting the following:
`(8) SECRETARY- The term';
(4) in paragraph (4), by striking `(4) The term' and inserting the following:
(5) in paragraph (5), by striking `(5) The term' and inserting the following:
(6) in paragraph (6), by striking `(6) The term' and inserting the following:
`(3) DEPARTMENT- The term';
(7) by moving paragraphs (2), (3), (5), (6), and (8) (as redesignated by
this subsection) so as to appear in numerical order;
(8) by inserting before paragraph (2) (as redesignated by paragraph (5))
the following:
`(1) BENEFICIAL OWNER- The term `beneficial owner' means an Indian tribe
or member of an Indian tribe that is the beneficial owner of Indian trust
assets.';
(9) by inserting after paragraph (3) (as redesignated by paragraph (6))
the following:
`(4) DEPUTY SECRETARY- The term `Deputy Secretary' means the Deputy Secretary
for Trust Management and Reform appointed under section 307(a)(2).';
(10) by inserting after paragraph (6) (as redesignated by paragraph (4))
the following:
`(7) REFORM OFFICE- The term `Reform Office' means the Office of Trust Reform
Implementation and Oversight established by section 307(e).'; and
(11) by adding at the end the following:
`(9) TASK FORCE- The term `Task Force' means the Tribal Task Force for Trust
Reform established under section 307(a).
`(10) TRUST ASSETS- The term `trust assets' means all tangible property
including land, minerals, coal, oil and gas, forest resources, agricultural
resources, water and water sources, and fish and wildlife held by the Secretary
for the benefit of an Indian tribe or an individual member of an Indian
tribe pursuant to Federal law.
`(11) TRUST FUNDS- The term `trust funds' means all funds held by the Secretary
for the benefit of an Indian tribe or and individual member of an Indian
tribe pursuant to Federal law.
`(12) TRUSTEE- The term `trustee' means the Secretary or any other person
that is authorized to act as a trustee for Indian trust assets and trust
funds.'.
SEC. 404. RESPONSIBILITIES OF SECRETARY.
Section 102 of the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4011) is amended to read as follows:
`SEC. 4011. RESPONSIBILITIES OF SECRETARY.
`(a) ACCOUNTING FOR DAILY AND ANNUAL BALANCES OF INDIAN TRUST FUNDS-
`(1) IN GENERAL- The Secretary shall account for the daily and annual balances
of all trust funds that are deposited or invested pursuant to the Act of
June 24, 1938 (25 U.S.C. 162a).
`(2) PERIODIC STATEMENT OF PERFORMANCE-
`(A) IN GENERAL- Not later than 20 business days after the close of a
calendar quarter, the Secretary shall provide a statement of performance
to each Indian tribe and member of Indian tribe with respect to which
funds are deposited or invested pursuant to the Act of June 24, 1938 (25
U.S.C. 162a).
`(B) REQUIREMENTS- Each statement under subparagraph (A) shall identify,
with respect to the period covered by the statement--
`(i) the source, type, and status of the funds;
`(ii) the beginning balance of the funds;
`(iii) the gains and losses of the funds;
`(iv) receipts and disbursements of the funds; and
`(v) the ending balance of the funds.
`(3) ANNUAL AUDIT- With respect to each account containing trust funds in
an amount in excess of $1,000, the Secretary shall--
`(A) conduct, for each fiscal year, an audit of all trust funds described
in paragraph (1); and
`(B) include, in the first statement of performance completed under paragraph
(2) after completion of the audit, a letter describing the results of
the audit.
`(b) ADDITIONAL RESPONSIBILITIES- In addition to the responsibilities described
in subsection (a), subject to the availability of appropriations, the Secretary,
in carrying out the trust responsibility of the United States, shall, at a
minimum--
`(1) provide for adequate systems for accounting for and reporting trust
fund balances;
`(2) provide for adequate controls over receipts and disbursements;
`(3) provide for periodic, timely reconciliations of financial records to
ensure the accuracy of account information;
`(4) determine accurate cash balances;
`(5) prepare and supply to account holders periodic account statements;
`(6) establish and publish in the Federal Register consistent policies and
procedures for trust fund management and accounting;
`(7) provide adequate staffing, supervision, and training for trust fund
management and accounting; and
`(8) manage natural resources located within the boundaries of Indian reservations
and trust land.'.
SEC. 405. INDIAN PARTICIPATION IN TRUST FUND ACTIVITIES.
Title II of the American Indian Trust Fund Management Reform Act of 1994 (25
U.S.C. 4021 et seq.) is amended--
(1) by striking sections 202 and 203; and
(2) by inserting after section 201 the following:
`SEC. 202. PARTICIPATION IN TRUST FUND AND TRUST ASSET MANAGEMENT ACTIVITIES
BY INDIAN TRIBES.
`(a) PLANNING PROGRAM- To meet the purposes of this title, an Indian Trust
Fund and Trust Asset Management and Monitoring Plan (in this section referred
to as the `Plan') shall be developed and implemented as follows:
`(1) Pursuant to a self-determination contract or compact under section
102 of the Indian Self-Determination Act (25 U.S.C. 450f) or section 403
of the Indian Self Determination and Education Assistance Act (25 U.S.C.
458cc), an Indian tribe may develop or implement a Plan to provide for management
of the trust funds and assets (or portions of trust funds or assets) of
which the Indian tribe is the beneficial owner. Subject to the provisions
of paragraphs (3) and (4), the tribe shall have broad discretion in designing
and carrying out the planning process.
`(2) To include in a Plan particular trust funds or assets held by multiple
individuals, an Indian tribe shall obtain the approval of a majority of
the individuals who hold an interest in any such trust funds or assets.
`(3) The Plan shall be submitted to the Secretary for approval pursuant
to the Indian Self-Determination Act (25 U.S.C. 450f et seq.).
`(4) If an Indian tribe chooses not to develop or implement a Plan, the
Secretary shall, at the request of the Indian tribe, develop or implement,
as appropriate, a Plan in close consultation with the affected Indian tribe.
`(5) Whether developed directly by the Indian tribe or by the Secretary,
the Plan shall--
`(A) determine the amount and source of funds held in trust;
`(B) identify and include an inventory of trust assets based on the information
available to the Indian tribe and the Secretary;
`(C) identify specific tribal goals and objectives;
`(D) establish management objectives for the funds and assets held in
trust;
`(E) define critical values of the Indian tribe and its members and provide
identified management objectives;
`(F) identify actions to be taken to reach established objectives;
`(G) use existing survey documents, reports and other research from Federal
agencies, tribal community colleges, and land grant universities; and
`(H)(i) be completed not later than 3 years after the date of initiation
of activity to establish the Plan; and
`(ii) be revised periodically thereafter as necessary to accomplish the
purposes of this Act.
`(b) MANAGEMENT AND ADMINISTRATION- Plans developed and approved under subsection
(a) shall govern the management and administration of funds and assets (or
portions of funds and assets) held in trust by the Bureau and the Indian tribal
government.
`(c) PLAN DOES NOT TERMINATE TRUST- Developing or implementing a Plan shall
not be construed or deemed to constitute a termination of the trust status
of the assets or funds that are included in, or subject to, the Plan.
`(d) LIABILITY- An Indian tribe managing and administering trust funds and
trust assets in a manner that is consistent with an approved Plan shall not
be liable for waste or loss of an asset or funds that are included in such
Plan.
`(e) INDIAN PARTICIPATION IN MANAGEMENT ACTIVITIES-
`(1) TRIBAL RECOGNITION- The Secretary shall conduct all management activities
of funds and assets held in trust in accordance with goals and objectives
set forth in a Plan approved pursuant to and in accordance with all tribal
laws and ordinances, except in specific instances where such compliance
would be contrary to the
trust responsibility of the United States.
`(A) IN GENERAL- Unless otherwise prohibited by Federal law, the Secretary
shall comply with tribal law pertaining to the management of funds and
assets held in trust.
`(B) DUTIES- The Secretary shall--
`(i) provide assistance in the enforcement of tribal laws described
in subparagraph (A);
`(ii) provide notice of such tribal laws to persons or entities dealing
with tribal funds and assets held in trust; and
`(iii) upon the request of an Indian tribe, require appropriate Federal
officials to appear in tribal forums.
`(3) WAIVER OF REGULATIONS- In any case in which a regulation or administrative
policy of the Department of the Interior conflicts with the objectives of
the Plan, or with a tribal law, the Secretary shall waive the application
of such regulation or administrative policy unless such waiver would constitute
a violation of a Federal statute or judicial decision or would conflict
with the Secretary's trust responsibility under Federal law.
`(4) SOVEREIGN IMMUNITY- This section does not constitute a waiver of the
sovereign immunity of the United States, nor does it authorize tribal justice
systems to review actions of the Secretary.
`(5) TRUST RESPONSIBILITY- Nothing in this section shall be construed to
diminish or expand the trust responsibility of the United States toward
Indian funds and assets held in trust, or any legal obligation or remedy
resulting from such funds and assets.
`(1) IN GENERAL- Not later than 180 days after the enactment of this section,
and annually thereafter, the Secretary shall submit a report to the Committee
on Indian Affairs of the Senate and the Committee on Resources of the House
of Representatives.
`(2) CONTENTS- The report required under paragraph (1) shall detail the
following:
`(A) The efforts of the Department to implement this section.
`(B) The nature and extent of consultation between the Department, Tribes,
and individual Indians with respect to implementation of this section.
`(C) Any recommendations of the Department for further changes to this
Act, accompanied by a record of consultation with Tribes and individual
Indians regarding such recommendations.'.
SEC. 406. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.
(a) IN GENERAL- Section 302 of the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4042) is amended to read as follows:
`SEC. 302. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.
`(1) IN GENERAL- There is established within the Department the position
of Deputy Secretary for Trust Management and Reform.
`(2) APPOINTMENT AND REMOVAL-
`(A) APPOINTMENT- The Deputy Secretary shall be appointed by the President,
by and with the advice and consent of the Senate.
`(B) TERM- The Deputy Secretary shall be appointed for a term of 6 years.
`(C) REMOVAL- The Deputy Secretary may be removed only for good cause.
`(3) ADMINISTRATIVE AUTHORITY- The Deputy Secretary shall report directly
to the Secretary.
`(4) COMPENSATION- The Deputy Secretary shall be paid at a rate determined
by the Secretary to be appropriate for the position, but not less than the
rate of basic pay prescribed for Level II of the Executive Schedule under
section 5313 of title 5, United States Code.
`(b) DUTIES- The Deputy Secretary shall--
`(1) oversee all trust fund and trust asset matters of the Department, including--
`(A) administration and management of the Reform Office;
`(B) financial and human resource matters of the Reform Office; and
`(C) all duties relating to trust fund and trust asset matters; and
`(2) engage in appropriate government-to-government relations and consultations
with Indian tribes and individual trust asset and trust fund account holders
on matters involving trust asset and trust fund management and reform within
the Department.
`(c) STAFF- In carrying out this section, the Deputy Secretary may hire such
staff having expertise in trust asset and trust fund management, financial
organization and management, and tribal policy as the Deputy Secretary determines
is necessary to carry out this title.
`(d) EFFECT ON DUTIES OF OTHER OFFICIALS-
`(1) IN GENERAL- Except as provided in paragraph (2), nothing in this section
shall be construed to diminish any responsibility or duty of the Assistant
Secretary of the Interior for Indian Affairs, or any other Federal official,
relating to any duty of the Assistant Secretary or official established
under this Act or any other provision of law.
`(2) TRUST ASSET AND TRUST FUND MANAGEMENT AND REFORM- Notwithstanding any
other provision of law, the Deputy Secretary shall have overall management
and oversight authority on matters of the Department relating to trust asset
and trust fund management and reform (including matters that, as of the
day before the date of enactment of the Indian Trust Asset and Trust Fund
Management and Reform Act of 2003, were carried out by the Commissioner
of Indian Affairs).
`(e) OFFICE OF TRUST REFORM IMPLEMENTATION AND OVERSIGHT-
`(1) ESTABLISHMENT- There is established within the Office of the Secretary
the Office of Trust Reform Implementation and Oversight.
`(2) REFORM OFFICE HEAD- The Reform Office shall be headed by the Deputy
Secretary.
`(3) DUTIES- The Reform Office shall--
`(A) supervise and direct the day-to-day activities of the Assistant Secretary
of the Interior for Indian Affairs, the Commissioner of Reclamation, the
Director
of the Bureau of Land Management, and the Director of the Minerals Management
Service, to the extent they administer or manage any Indian trust assets or
funds;
`(B) administer, in accordance with title II, all trust properties, funds,
and other assets held by the United States for the benefit of Indian tribes
and individual members of Indian tribes;
`(C) require the development and maintenance of an accurate inventory
of all trust funds and trust assets;
`(D) ensure the prompt posting of revenue derived from a trust fund or
trust asset for the benefit of each Indian tribe (or individual member
of each Indian tribe) that owns a beneficial interest in the trust fund
or trust asset;
`(E) ensure that all trust fund accounts are audited at least annually,
and more frequently as determined to be necessary by the Deputy Secretary;
`(F) ensure that the Assistant Secretary of the Interior for Indian Affairs,
the Director of the Bureau of Land Management, the Commissioner of Reclamation,
and the Director of the Minerals Management Service provide to the Secretary
current and accurate information relating to the administration and management
of trust funds and trust assets;
`(G) provide for regular consultation with trust fund account holders
on the administration of trust funds and trust assets to ensure, to the
maximum extent practicable in accordance with applicable law and a Plan
approved under section 202, the greatest return on those funds and assets
for the trust fund account holders; and
`(H) enter into contracts and compacts under section 102 of the Indian
Self-Determination Act (25 U.S.C. 450f) or section 403 of the Indian Self
Determination and Education Assistance Act (25 U.S.C. 458cc) to provide
for the management of trust assets and trust funds by Indian tribes pursuant
to a Trust Fund and Trust Asset Management and Monitoring Plan developed
under section 202 of this Act.
`(f) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
such sums as are necessary to carry out this section.'.
(b) CONFORMING AMENDMENTS-
(1) Title III of the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4041 et seq.) is amended by striking the title heading and
inserting the following:
`TITLE III--REFORMS RELATING TO TRUST RESPONSIBILITY'.
(2) Section 301(1) of the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4041(1)) is amended by striking `by establishing in the
Department of this Interior an Office of Special Trustee for American Indians'
and inserting `by directing the Deputy Secretary'.
(3) Section 303 of the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4043) is amended--
(A) by striking the section heading and inserting the following:
`SEC. 303. ADDITIONAL AUTHORITIES AND FUNCTIONS OF THE DEPUTY SECRETARY.';
(B) in subsection (a)(1), by striking `section 302(b) of this title' and
inserting `section 302(a)(2)';
(i) by striking the subsection heading and inserting the following:
`(e) ACCESS OF DEPUTY SECRETARY- '; and
(ii) by striking `and his staff' and inserting `and staff of the Deputy
Secretary'; and
(D) by striking `Special Trustee' each place it appears and inserting
`Deputy Secretary'.
(4) Sections 304 and 305 of the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4044, 4045) are amended by striking `Special Trustee'
each place it appears and inserting `Deputy Secretary'.
SEC. 407. ADVISORY BOARD AND TRIBAL TASK FORCE.
The American Indian Trust Fund Management Reform Act of 1994 is amended by
striking section 306 (25 U.S.C. 4046) and inserting the following:
`SEC. 306. TRIBAL TASK FORCE ON TRUST REFORM.
`(a) ESTABLISHMENT- As soon as practicable after the date of enactment of
this section, the Deputy Secretary shall establish a Tribal Task Force on
Trust Reform.
`(1) IN GENERAL- The Task Force shall be composed of 18 members and 12 alternates,
of which--
`(i) serve as primary members; and
`(ii) be selected by the Deputy Secretary;
`(i) serve as primary members; and
`(ii) be selected by members of federally-recognized Indian tribes located
within the regions of the Bureau represented by the members; and
`(C) the 12 alternates shall--
`(i) serve as alternate members for the members described in subparagraph
(B); and
`(ii) be selected by members of federally-recognized Indian tribes located
within the regions of the Bureau represented by the members.
`(2) REGIONAL REPRESENTATION- Each region of the Bureau shall be represented
by a primary member and alternate member on the Task Force.
`(3) TERM- A member of the Task Force shall serve for a term of 2 years.
`(c) DUTIES- The Task Force, in cooperation with the Deputy Secretary, shall--
`(1) not later than 1 year after the date of enactment of this section,
conduct and submit to Congress a report on a study of appropriate standards
and procedures for inventorying and management of trust assets; and
`(2) not later than 2 years after the date of enactment of this section,
identify, and submit to Congress a report that includes recommendations
relating to, modifications to existing law relating to trust reform, including
recommendations on matters such as--
`(A) the need for an independent commission to oversee the administration
of trust funds and assets; and
`(B) the most beneficial administrative structure and procedures.
`(d) FACA- The Task Force shall not be subject to the Federal Advisory Committee
Act (5 U.S.C. App.).
`(e) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
such sums as are necessary to carry out this section.
`(f) TERMINATION OF AUTHORITY- The Task Force and authority of the Task Force
under this section terminate on the date that is 3 years after the date of
enactment of the Indian Trust Asset and Trust Fund Management and Reform Act
of 2003.'.
SEC. 408. REGULATIONS.
(a) IN GENERAL- Not later than 1 year after the date of enactment of this
Act, the Secretary of the Interior shall promulgate regulations to carry out
the amendments made by this title.
(b) ACTIVE PARTICIPATION-
(1) IN GENERAL- All regulations promulgated under subsection (a) shall be
developed through a negotiated rulemaking in accordance with subchapter
II of chapter 5, and chapter 7, of title 5, United States Code (commonly
known as the `Administrative Procedure Act').
(2) PARTICIPANTS- With the exception of the Secretary of the Interior, each
participant in the negotiated rulemaking under paragraph (1) shall be a
federally-recognized Indian tribe.
SEC. 409. NO EFFECT ON CERTAIN JUDICIAL DECISION.
Nothing in this title or any amendment made by this title limits or otherwise
affects any finding, remedy, jurisdiction, authority, or discretion of any
court with respect to Cobell v. Norton, Civ. No. 96-1285 (RCL).
TITLE V--RACIAL PROFILING
SEC. 501. SENSE OF THE SENATE ON RACIAL PROFILING.
(a) FINDINGS- The Senate finds the following:
(1) The vast majority of police officers and other law enforcement agents
nationwide discharge their duties and protect their communities in a professional
manner, without bias.
(2) The use by some law enforcement agents of race, ethnicity, or national
origin in deciding which persons should be subject to traffic stops and
other discretionary law enforcement interventions (referred to in this section
as `racial profiling') is wrong. Statistical evidence from throughout the
United States demonstrates that such racial profiling is a real and measurable
phenomenon.
(3) The vast majority of individuals subjected to such stops and interventions
based on race, ethnicity, or national origin are found to be law-abiding.
Therefore, racial profiling is not an effective means to uncover criminal
activity.
(4) Racial profiling harms individuals subjected to it because the individuals
experience fear, anxiety, humiliation, anger, resentment, and cynicism when
unjustifiably treated as criminal suspects.
(5) Racial profiling damages the criminal justice system as a whole by undermining
public confidence and trust in the police, the courts, and criminal law.
(6) President Bush, in his first address to a joint session of Congress
on February 27, 2001, said that the practice of racial profiling is wrong
and pledged to end the practice.
(7) Attorney General John Ashcroft, as recently as July 25, 2002, made a
commitment to work with Congress, to get a bill to the President's desk
that will make clear that racial profiling is wrong and should be banned
in the United States.
(b) SENSE OF THE SENATE- It is the sense of the Senate that Congress should
enact legislation--
(1) to ban the practice of racial profiling; and
(2) to require Federal, State, and local law enforcement to take steps to
prevent the practice.
TITLE VI--PAYCHECK FAIRNESS
SEC. 601. SHORT TITLE.
This title may be cited as the `Paycheck Fairness Act'.
SEC. 602. FINDINGS.
Congress makes the following findings:
(1) Women have entered the workforce in record numbers.
(2) Even today, women earn significantly lower pay than men for work on
jobs that require equal skill, effort, and responsibility and that are performed
under similar working conditions. These pay disparities exist in both the
private and governmental sectors. In many instances, the pay disparities
can only be due to continued intentional discrimination or the lingering
effects of past discrimination.
(3) The existence of such pay disparities--
(A) depresses the wages of working families who rely on the wages of all
members of the family to make ends meet;
(B) prevents the optimum utilization of available labor resources;
(C) has been spread and perpetuated, through commerce and the channels
and instrumentalities of commerce, among the workers of the several States;
(D) burdens commerce and the free flow of goods in commerce;
(E) constitutes an unfair method of competition in commerce;
(F) leads to labor disputes burdening and obstructing commerce and the
free flow of goods in commerce;
(G) interferes with the orderly and fair marketing of goods in commerce;
and
(H) in many instances, may deprive workers of equal protection on the
basis of sex in violation of the 5th and 14th amendments.
(4)(A) Artificial barriers to the elimination of discrimination in the payment
of wages on the basis of sex continue to exist decades after the enactment
of the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) and the
Civil Rights Act of 1964 (42 U.S.C. 2000a et seq.).
(B) Elimination of such barriers would have positive effects, including--
(i) providing a solution to problems in the economy created by unfair
pay disparities;
(ii) substantially reducing the number of working women earning unfairly
low wages, thereby reducing the dependence on public assistance;
(iii) promoting stable families by enabling all family members to earn
a fair rate of pay;
(iv) remedying the effects of past discrimination on the basis of sex
and ensuring that in the future workers are afforded equal protection
on the basis of sex; and
(v) ensuring equal protection pursuant to Congress' power to enforce the
5th and 14th amendments.
(5) With increased information about the provisions added by the Equal Pay
Act of 1963 and wage data, along with more effective remedies, women will
be better able to recognize and enforce their rights to equal pay for work
on jobs that require equal skill, effort, and responsibility and that are
performed under similar working conditions.
(6) Certain employers have already made great strides in eradicating unfair
pay disparities in the workplace and their achievements should be recognized.
SEC. 603. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.
(a) REQUIRED DEMONSTRATION FOR AFFIRMATIVE DEFENSE- Section 6(d)(1) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended by striking
`(iv) a differential' and all that follows through the period and inserting
the following: `(iv) a differential based on a bona fide factor other than
sex, such as education, training or experience, except that this clause shall
apply only if--
`(I) the employer demonstrates that--
`(AA) is job-related with respect to the position in question; or
`(BB) furthers a legitimate business purpose, except that this item
shall not apply where the employee demonstrates that an alternative employment
practice exists that would serve the same business purpose without producing
such differential and that the employer has refused to adopt such alternative
practice; and
`(bb) such factor was actually applied and used reasonably in light
of the asserted justification; and
`(II) upon the employer succeeding under subclause (I), the employee
fails to
demonstrate that the differential produced by the reliance of the employer
on such factor is itself the result of discrimination on the basis of sex
by the employer.
`An employer that is not otherwise in compliance with this paragraph may
not reduce the wages of any employee in order to achieve such compliance.'.
(b) APPLICATION OF PROVISIONS- Section 6(d)(1) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(d)(1)) is amended by adding at the end the following:
`The provisions of this subsection shall apply to applicants for employment
if such applicants, upon employment by the employer, would be subject to any
provisions of this section.'.
(c) ELIMINATION OF ESTABLISHMENT REQUIREMENT- Section 6(d) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206(d)) is amended--
(1) by striking `, within any establishment in which such employees are
employed,'; and
(2) by striking `in such establishment' each place it appears.
(d) NONRETALIATION PROVISION- Section 15(a)(3) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
(1) by striking `or has' each place it appears and inserting `has'; and
(2) by inserting before the semicolon the following: `, or has inquired
about, discussed, or otherwise disclosed the wages of the employee or another
employee, or because the employee (or applicant) has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding,
hearing, or action under section 6(d)'.
(e) ENHANCED PENALTIES- Section 16(b) of the Fair Labor Standards Act of 1938
(29 U.S.C. 216(b)) is amended--
(1) by inserting after the first sentence the following: `Any employer who
violates section 6(d) shall additionally be liable for such compensatory
or punitive damages as may be appropriate, except that the United States
shall not be liable for punitive damages.';
(2) in the sentence beginning `An action to', by striking `either of the
preceding sentences' and inserting `any of the preceding sentences of this
subsection';
(3) in the sentence beginning `No employees shall', by striking `No employees'
and inserting `Except with respect to class actions brought to enforce section
6(d), no employee';
(4) by inserting after the sentence referred to in paragraph (3), the following:
`Notwithstanding any other provision of Federal law, any action brought
to enforce section 6(d) may be maintained as a class action as provided
by the Federal Rules of Civil Procedure.'; and
(5) in the sentence beginning `The court in'--
(A) by striking `in such action' and inserting `in any action brought
to recover the liability prescribed in any of the preceding sentences
of this subsection'; and
(B) by inserting before the period the following: `, including expert
fees'.
(f) ACTION BY SECRETARY- Section 16(c) of the Fair Labor Standards Act of
1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting `or, in the case of a violation of section 6(d), additional
compensatory or punitive damages,' before `and the agreement'; and
(B) by inserting before the period the following: `, or such compensatory
or punitive damages, as appropriate';
(2) in the second sentence, by inserting before the period the following:
`and, in the case of a violation of section 6(d), additional compensatory
or punitive damages';
(3) in the third sentence, by striking `the first sentence' and inserting
`the first or second sentence'; and
(4) in the last sentence--
(A) by striking `commenced in the case' and inserting `commenced--
(B) by striking the period and inserting `; or'; and
(C) by adding at the end the following:
`(2) in the case of a class action brought to enforce section 6(d), on the
date on which the individual becomes a party plaintiff to the class action'.
SEC. 604. TRAINING.
The Equal Employment Opportunity Commission and the Office of Federal Contract
Compliance Programs, subject to the availability of funds appropriated under
section 609, shall provide training to Commission employees and affected individuals
and entities on matters involving discrimination in the payment of wages.
SEC. 605. RESEARCH, EDUCATION, AND OUTREACH.
The Secretary of Labor shall conduct studies and provide information to employers,
labor organizations, and the general public concerning the means available
to eliminate pay disparities between men and women, including--
(1) conducting and promoting research to develop the means to correct expeditiously
the conditions leading to the pay disparities;
(2) publishing and otherwise making available to employers, labor organizations,
professional associations, educational institutions, the media, and the
general public the findings resulting from studies and other materials, relating
to eliminating the pay disparities;
(3) sponsoring and assisting State and community informational and educational
programs;
(4) providing information to employers, labor organizations, professional
associations, and other interested persons on the means of eliminating the
pay disparities;
(5) recognizing and promoting the achievements of employers, labor organizations,
and professional
associations that have worked to eliminate the pay disparities; and
(6) convening a national summit to discuss, and consider approaches for
rectifying, the pay disparities.
SEC. 606. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNITION PROGRAM.
(1) IN GENERAL- The Secretary of Labor shall develop guidelines to enable
employers to evaluate job categories based on objective criteria such as
educational requirements, skill requirements, independence, working conditions,
and responsibility, including decisionmaking responsibility and de facto supervisory
responsibility.
(2) USE- The guidelines developed under paragraph (1) shall be designed
to enable employers voluntarily to compare wages paid for different jobs
to determine if the pay scales involved adequately and fairly reflect the
educational requirements, skill requirements, independence, working conditions,
and responsibility for each such job with the goal of eliminating unfair
pay disparities between occupations traditionally dominated by men or women.
(3) PUBLICATION- The guidelines shall be developed under paragraph (1) and
published in the Federal Register not later than 180 days after the date
of enactment of this Act.
(b) EMPLOYER RECOGNITION-
(1) PURPOSE- It is the purpose of this subsection to emphasize the importance
of, encourage the improvement of, and recognize the excellence of employer
efforts to pay wages to women that reflect the real value of the contributions
of such women to the workplace.
(2) IN GENERAL- To carry out the purpose of this subsection, the Secretary
of Labor shall establish a program under which the Secretary shall provide
for the recognition of employers who, pursuant to a voluntary job evaluation
conducted by the employer, adjust their wage scales (such adjustments shall
not include the lowering of wages paid to men) using the guidelines developed
under subsection (a) to ensure that women are paid fairly in comparison
to men.
(3) TECHNICAL ASSISTANCE- The Secretary of Labor may provide technical assistance
to assist an employer in carrying out an evaluation under paragraph (2).
(c) REGULATIONS- The Secretary of Labor shall promulgate such rules and regulations
as may be necessary to carry out this section.
SEC. 607. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE WORKPLACE.
(a) IN GENERAL- There is established the Secretary of Labor's National Award
for Pay Equity in the Workplace, which shall be evidenced by a medal bearing
the inscription `Secretary of Labor's National Award for Pay Equity in the
Workplace'. The medal shall be of such design and materials, and bear such
additional inscriptions, as the Secretary of Labor may prescribe.
(b) CRITERIA FOR QUALIFICATION- To qualify to receive an award under this
section a business shall--
(1) submit a written application to the Secretary of Labor, at such time,
in such manner, and containing such information as the Secretary may require,
including at a minimum information that
demonstrates that the business has made substantial effort to eliminate pay
disparities between men and women, and deserves special recognition as a consequence;
and
(2) meet such additional requirements and specifications as the Secretary
of Labor determines to be appropriate.
(c) MAKING AND PRESENTATION OF AWARD-
(1) AWARD- After receiving recommendations from the Secretary of Labor,
the President or the designated representative of the President shall annually
present the award described in subsection (a) to businesses that meet the
qualifications described in subsection (b).
(2) PRESENTATION- The President or the designated representative of the
President shall present the award under this section with such ceremonies
as the President or the designated representative of the President may determine
to be appropriate.
(d) BUSINESS- In this section, the term `business' includes--
(1)(A) a corporation, including a nonprofit corporation;
(C) a professional association;
(D) a labor organization; and
(E) a business entity similar to an entity described in any of subparagraphs
(A) through (D);
(2) an entity carrying out an education referral program, a training program,
such as an apprenticeship or management training program, or a similar program;
and
(3) an entity carrying out a joint program, formed by a combination of any
entities described in paragraph (1) or (2).
SEC. 608. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION.
Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-8) is amended
by adding at the end the following:
`(f)(1) Not later than 18 months after the date of enactment of this subsection,
the Commission shall--
`(A) complete a survey of the data that is currently available to the Federal
Government relating to employee pay information for use in the enforcement
of Federal laws prohibiting pay discrimination and, in consultation with
other relevant Federal agencies, identify additional data collections that
will enhance the enforcement of such laws; and
`(B) based on the results of the survey and consultations under subparagraph
(A), issue regulations to provide for the collection of pay information
data from employers as described by the sex, race, and national origin of
employees.
`(2) In implementing paragraph (1), the Commission shall have as its primary
consideration the most effective and efficient means for enhancing the enforcement
of Federal laws prohibiting pay discrimination. For this purpose, the Commission
shall consider factors including the imposition of burdens on employers, the
frequency of required reports (including which employers should be required
to prepare reports), appropriate protections for maintaining data confidentiality,
and the most effective format for the data collection reports.'.
SEC. 609. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary to carry
out this title.
TITLE VII--EMPLOYMENT NON-DISCRIMINATION
SEC. 701. SHORT TITLE.
This title may be cited as the `Employment Non-Discrimination Act of 2003'.
SEC. 702. PURPOSES.
The purposes of this title are--
(1) to provide a comprehensive Federal prohibition of employment discrimination
on the basis of sexual orientation;
(2) to provide meaningful and effective remedies for employment discrimination
on the basis of sexual orientation; and
(3) to invoke congressional powers, including the powers to enforce the
14th amendment to the Constitution, and to regulate interstate commerce
and provide for the general welfare pursuant to section 8 of article I of
the Constitution, in order to prohibit employment discrimination on the
basis of sexual orientation.
SEC. 703. DEFINITIONS.
(a) IN GENERAL- In this title:
(1) COMMISSION- The term `Commission' means the Equal Employment Opportunity
Commission.
(2) COVERED ENTITY- The term `covered entity' means an employer, employment
agency, labor organization, or joint labor-management committee.
(A) IN GENERAL- The term `employee' means--
(i) an employee (as defined in section 701(f) of the Civil Rights Act
of 1964 (42 U.S.C. 2000e(f));
(ii) a Presidential appointee or State employee to which section 302(a)(1)
of the Government Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1))
applies;
(iii) a covered employee, as defined in section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301) or section 411(c) of title
3, United States Code; or
(iv) an employee or applicant to which section 717(a) of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-16(a)) applies.
(B) EXCEPTION- The provisions of this title that apply to an employee
or individual shall not apply to a volunteer who receives no compensation.
(4) EMPLOYER- The term `employer' means--
(A) a person engaged in an industry affecting commerce (as defined in
section 701(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) who
has 15 or more employees (as
defined in subparagraphs (A)(i) and (B) of paragraph (3)) for each working
day in each of 20 or more calendar weeks in the current or preceding calendar
year, and any agent of such a person, but does not include a bona fide private
membership club (other than a labor organization) that is exempt from taxation
under section 501(c) of the Internal Revenue Code of 1986;
(B) an employing authority to which section 302(a)(1) of the Government
Employee Rights Act of 1991 applies;
(C) an employing office, as defined in section 101 of the Congressional
Accountability Act of 1995 or section 411(c) of title 3, United States
Code; or
(D) an entity to which section 717(a) of the Civil Rights Act of 1964
applies.
(5) EMPLOYMENT AGENCY- The term `employment agency' has the meaning given
the term in section 701(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(c)).
(6) LABOR ORGANIZATION- The term `labor organization' has the meaning given
the term in section 701(d) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(d)).
(7) PERSON- The term `person' has the meaning given the term in section
701(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(a)).
(8) RELIGIOUS ORGANIZATION- The term `religious organization' means--
(A) a religious corporation, association, or society; or
(B) a school, college, university, or other educational institution or
institution of learning, if--
(i) the institution is in whole or substantial part controlled, managed,
owned, or supported by a religion, religious corporation, association,
or society; or
(ii) the curriculum of the institution is directed toward the propagation
of a religion.
(9) SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality,
bisexuality, or heterosexuality, whether the orientation is real or perceived.
(10) STATE- The term `State' has the meaning given the term in section 701(i)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e(i)).
(b) APPLICATION OF DEFINITIONS- For purposes of this section, a reference
in section 701 of the Civil Rights Act of 1964--
(1) to an employee or an employer shall be considered to refer to an employee
(as defined in paragraph (3)) or an employer (as defined in paragraph (4)),
respectively, except as provided in paragraph (2); and
(2) to an employer in subsection (f) of that section shall be considered
to refer to an employer (as defined in paragraph (4)(A)).
SEC. 704. DISCRIMINATION PROHIBITED.
(a) EMPLOYER PRACTICES- It shall be an unlawful employment practice for an
employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to the compensation,
terms, conditions, or privileges of employment of the individual, because
of such individual's sexual orientation; or
(2) to limit, segregate, or classify the employees or applicants for employment
of the employer in any way that would deprive or tend to deprive any individual
of employment or otherwise adversely affect the status of the individual
as an employee, because of such individual's sexual orientation.
(b) EMPLOYMENT AGENCY PRACTICES- It shall be an unlawful employment practice
for an employment agency to fail or refuse to refer for employment, or otherwise
to discriminate against, any individual because of the sexual orientation
of the individual or to classify or refer for employment any individual on
the basis of the sexual orientation of the individual.
(c) LABOR ORGANIZATION PRACTICES- It shall be an unlawful employment practice
for a labor organization--
(1) to exclude or to expel from its membership, or otherwise to discriminate
against, any individual because of the sexual orientation of the individual;
(2) to limit, segregate, or classify its membership or applicants for membership,
or to classify or fail or refuse to refer for employment any individual,
in any way that would deprive or tend to deprive any individual of employment,
or would limit such employment or otherwise adversely affect the status
of the individual as an employee or as an applicant for employment, because
of such individual's sexual orientation; or
(3) to cause or attempt to cause an employer to discriminate against an
individual in violation of this section.
(d) TRAINING PROGRAMS- It shall be an unlawful employment practice for any
employer, labor organization, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-the-job training
programs, to discriminate against any individual because of the sexual orientation
of the individual in admission to, or employment in, any program established
to provide apprenticeship or other training.
(e) ASSOCIATION- An unlawful employment practice described in any of subsections
(a) through (d) shall be considered to include an action described in that
subsection, taken against an individual based on the sexual orientation of
a person with whom the individual associates or has associated.
(f) DISPARATE IMPACT- Only disparate treatment claims may be brought under
this title.
SEC. 705. RETALIATION PROHIBITED.
It shall be an unlawful employment practice for a covered entity to discriminate
against an individual because such individual opposed any practice made an
unlawful
employment practice by this title, or because such individual made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under this title.
SEC. 706. BENEFITS.
This title does not apply to the provision of employee benefits to an individual
for the benefit of the domestic partner of such individual.
SEC. 707. COLLECTION OF STATISTICS PROHIBITED.
The Commission shall not collect statistics on sexual orientation from covered
entities, or compel the collection of such statistics by covered entities.
SEC. 708. QUOTAS AND PREFERENTIAL TREATMENT PROHIBITED.
(a) QUOTAS- A covered entity shall not adopt or implement a quota on the basis
of sexual orientation.
(b) PREFERENTIAL TREATMENT- A covered entity shall not give preferential treatment
to an individual on the basis of sexual orientation.
(c) ORDERS AND CONSENT DECREES- Notwithstanding any other provision of this
title, an order or consent decree entered for a violation of this title may
not include a quota, or preferential treatment to an individual, based on
sexual orientation.
SEC. 709. RELIGIOUS EXEMPTION.
This title shall not apply to a religious organization.
SEC. 710. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS' PREFERENCES.
(1) EMPLOYMENT- In this title, the term `employment' does not apply to the
relationship between the United States and members of the Armed Forces.
(2) ARMED FORCES- In paragraph (1), the term `Armed Forces' means the Army,
Navy, Air Force, Marine Corps, and Coast Guard.
(b) VETERANS' PREFERENCES- This title does not repeal or modify any Federal,
State, territorial, or local law creating a special right or preference concerning
employment for a veteran.
SEC. 711. CONSTRUCTION.
(a) EMPLOYER RULES AND POLICIES- Nothing in this title shall be construed
to prohibit a covered entity from enforcing rules and policies, if the rules
or policies are designed for, and uniformly applied to, all individuals regardless
of sexual orientation.
(b) ASSOCIATION- Nothing in this title shall be construed to prohibit any
association, or infringe upon any right of association, guaranteed by the
first amendment to the Constitution, of any nonprofit, voluntary membership
organization.
SEC. 712. ENFORCEMENT.
(a) ENFORCEMENT POWERS- With respect to the administration and enforcement
of this title in the case of a claim alleged by an individual for a violation
of this title--
(1) the Commission shall have the same powers as the Commission has to administer
and enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
or
(B) sections 302 and 304 of the Government Employee Rights Act of 1991
(2 U.S.C. 1202 and 1220);
in the case of a claim alleged by such individual for a violation of such
title, or of section 302(a)(1) of the Government Employee Rights Act of
1991 (2 U.S.C. 1202(a)(1)), respectively;
(2) the Librarian of Congress shall have the same powers as the Librarian
of Congress has to administer and enforce title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.) in the case of a claim alleged by
such individual for a violation of such title;
(3) the Board (as defined in section 101 of the Congressional Accountability
Act of 1995 (2 U.S.C. 1301)) shall have the same powers as the Board has
to administer and enforce the Congressional Accountability Act of 1995 (2
U.S.C. 1301 et seq.) in the case of a claim alleged by such individual for
a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1));
(4) the Attorney General shall have the same powers as the Attorney General
has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
or
(B) sections 302 and 304 of the Government Employee Rights Act of 1991
(2 U.S.C. 1202 and 1220);
in the case of a claim alleged by such individual for a violation of such
title, or of section 302(a)(1) of the Government Employee Rights Act of
1991 (2 U.S.C. 1202(a)(1)), respectively;
(5) the President, the Commission, and the Merit Systems Protection Board
shall have the same powers as the President, the Commission, and the Board,
respectively, have to administer and enforce chapter 5 of title 3, United
States Code, in the case of a claim alleged by such individual for a violation
of section 411 of such title;
(6) a court of the United States shall have the same jurisdiction and powers
as the court has to enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)
in the case of a claim alleged by such individual for a violation of such
title;
(B) sections 302 and 304 of the Government Employee Rights Act of 1991
(2 U.S.C. 1202 and 1220) in the case of a claim alleged by such individual
for a violation of section 302(a)(1) of such Act (2 U.S.C. 1202(a)(1));
(C) the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.)
in the case of a claim alleged by such individual for a violation of section
201(a)(1) of such Act (2 U.S.C. 1311(a)(1)); and
(D) chapter 5 of title 3, United States Code, in the case of a claim alleged
by such individual for a violation of section 411 of such title.
(b) PROCEDURES AND REMEDIES- The procedures and remedies applicable to a claim
alleged by an individual for a violation of this title are--
(1) the procedures and remedies applicable for a violation of title VII
of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) in the case of
a claim alleged by such individual for a violation of such title;
(2) the procedures and remedies applicable for a violation of section 302(a)(1)
of the Government Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)) in the
case of a claim alleged by such individual for a violation of such section;
(3) the procedures and remedies applicable for a violation of section 201(a)(1)
of the Congressional Accountability Act of 1995 (2 U.S.C. 1311(a)(1)) in
the case of a claim alleged by such individual for a violation of such section;
and
(4) the procedures and remedies applicable for a violation of section 411
of title 3, United States Code, in the case of a claim alleged by such individual
for a violation of such section.
(c) OTHER APPLICABLE PROVISIONS- With respect to a claim alleged by a covered
employee (as defined in section 101 of the Congressional Accountability Act
of 1995 (2 U.S.C. 1301)) for a violation of this title, title III of the Congressional
Accountability Act of 1995 (2 U.S.C. 1381 et seq.) shall apply in the same
manner as such title applies with respect to a claim alleged by such a covered
employee for a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).
(d) PROHIBITION OF AFFIRMATIVE ACTION- Notwithstanding any other provision
of this section, affirmative action for a violation of this title may not
be imposed. Nothing in this section shall prevent the granting of relief to
any individual who suffers a violation of such individual's rights provided
in this title.
SEC. 713. STATE AND FEDERAL IMMUNITY.
(a) STATE IMMUNITY- A State shall not be immune under the 11th amendment to
the Constitution from a suit described in subsection (b) and brought in a
Federal court of competent jurisdiction for a violation of this title.
(b) REMEDIES FOR STATE EMPLOYEES-
(A) WAIVER- A State's receipt or use of Federal financial assistance for
any program or activity of a State shall constitute a waiver of sovereign
immunity, under the 11th amendment to the Constitution or otherwise, to
a suit brought by an employee or applicant for employment of that program
or activity under this title for a remedy authorized under subsection
(c).
(B) DEFINITION- In this paragraph, the term `program or activity' has
the meaning given the term in section 606 of the Civil Rights Act of 1964
(42 U.S.C. 2000d-4a).
(2) OFFICIALS- An official of a State may be sued in the official capacity
of the official by any employee or applicant for employment who has complied
with the applicable procedures of section 712, for equitable relief that
is authorized under this title. In such a suit the court may award to the
prevailing party those costs authorized by section 722 of the Revised Statutes
(42 U.S.C. 1988).
(3) EFFECTIVE DATE- With respect to a particular program or activity, paragraphs
(1) and (2) apply to conduct occurring on or after the day, after the date
of enactment of this Act, on which a State first receives or uses Federal
financial assistance for that program or activity.
(c) REMEDIES AGAINST THE UNITED STATES AND THE STATES- Notwithstanding any
other provision of this
Act, in an action or administrative proceeding against the United States
or a State for a violation of this title, remedies (including remedies at
law and in equity, and interest) are available for the violation to the same
extent as the remedies are available for a violation of title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private entity, except that--
(1) punitive damages are not available; and
(2) compensatory damages are available to the extent specified in section
1977A(b) of the Revised Statutes (42 U.S.C. 1981a(b)).
SEC. 714. ATTORNEYS' FEES.
Notwithstanding any other provision of this title, in an action or administrative
proceeding for a violation of this title, an entity described in section 712(a)
(other than paragraph (4) of such section), in the discretion of the entity,
may allow the prevailing party, other than the Commission or the United States,
a reasonable attorney's fee (including expert fees) as part of the costs.
The Commission and the United States shall be liable for the costs to the
same extent as a private person.
SEC. 715. POSTING NOTICES.
A covered entity who is required to post notices described in section 711
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) shall post notices for
employees, applicants for employment, and members, to whom the provisions
specified in section 712(b) of this Act apply, that describe the applicable
provisions of this title in the manner prescribed by, and subject to the penalty
provided under, section 711 of the Civil Rights Act of 1964.
SEC. 716. REGULATIONS.
(a) IN GENERAL- Except as provided in subsections (b), (c), and (d), the Commission
shall have authority to issue regulations to carry out this title.
(b) LIBRARIAN OF CONGRESS- The Librarian of Congress shall have authority
to issue regulations to carry out this title with respect to employees and
applicants for employment of the Library of Congress.
(c) BOARD- The Board referred to in section 712(a)(3) shall have authority
to issue regulations to carry out this title, in accordance with section 304
of the Congressional Accountability Act of 1995 (2 U.S.C. 1384), with respect
to covered employees, as defined in section 101 of such Act (2 U.S.C. 1301).
(d) PRESIDENT- The President shall have authority to issue regulations to
carry out this title with respect to covered employees, as defined in section
411(c) of title 3, United States Code.
SEC. 717. RELATIONSHIP TO OTHER LAWS.
This title shall not invalidate or limit the rights, remedies, or procedures
available to an individual claiming discrimination prohibited under any other
Federal law or any law of a State or political subdivision of a State.
SEC. 718. SEVERABILITY.
If any provision of this title, or the application of the provision to any
person or circumstance, is held to be invalid, the remainder of this title
and the application of the provision to any other person or circumstance shall
not be affected by the invalidity.
SEC. 719. EFFECTIVE DATE.
This title shall take effect 60 days after the date of enactment of this Act
and shall not apply to conduct occurring before the effective date.
TITLE VIII--GENETIC NONDISCRIMINATION
SEC. 801. SHORT TITLE.
This title may be cited as the `Genetic Nondiscrimination in Health Insurance
and Employment Act'.
Subtitle A--Prohibition of Health Insurance Discrimination on the Basis
of Protected Genetic Information
SEC. 811. AMENDMENTS TO EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974.
(a) PROHIBITION OF HEALTH INSURANCE DISCRIMINATION ON THE BASIS OF GENETIC
SERVICES OR PROTECTED GENETIC INFORMATION-
(1) NO ENROLLMENT RESTRICTION FOR GENETIC SERVICES- Section 702(a)(1)(F)
of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1182(a)(1)(F))
is amended by inserting before the period `(or information about a request
for or the receipt of genetic services by such individual or family member
of such individual)'.
(2) NO DISCRIMINATION IN GROUP RATE BASED ON PROTECTED GENETIC INFORMATION-
(A) IN GENERAL- Subpart B of part 7 of subtitle B of title I of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1185 et seq.) is amended
by adding at the end the following:
`SEC. 714. PROHIBITING DISCRIMINATION AGAINST GROUPS ON THE BASIS OF PROTECTED
GENETIC INFORMATION.
`A group health plan, and a health insurance issuer offering group health
insurance coverage in connection with a group health plan, shall not deny
eligibility to a group or adjust premium or contribution rates for a group
on the basis of protected genetic information concerning an individual in
the group (or information about a request for or the receipt of genetic services
by such individual or family member of such individual).'.
(B) CONFORMING AMENDMENTS-
(i) Section 702(b)(2)(A) of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1182(b)) is amended to read as follows:
`(A) to restrict the amount that an employer may be charged for coverage
under a group health plan, except as provided in section 714; or'.
(ii) Section 732(a) of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1191a(a)) is amended by striking `section 711' and inserting
`subsections (a)(1)(F), (b) (with respect to cases relating to genetic
information or information about a request or receipt of genetic services
by an individual or family member of such individual), (c), (d), (e),
(f), or (g) of section 702, section 711 and section 714'.
(b) LIMITATIONS ON GENETIC TESTING AND ON COLLECTION AND DISCLOSURE OF PROTECTED
GENETIC INFORMATION- Section 702 of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1182) is amended by adding at the end the following:
`(1) LIMITATION ON REQUESTING OR REQUIRING GENETIC TESTING- A group health
plan, or a health insurance issuer offering health insurance coverage in
connection with a group health plan, shall not request or require an individual
or a family member of such individual to undergo a genetic test.
`(2) RULE OF CONSTRUCTION- Nothing in this part shall be construed to limit
the authority of a health care professional, who is providing treatment
with respect to an individual and who is employed by a group health plan
or a health insurance issuer, to request that such individual or family
member of such individual undergo a genetic test. Such a health care professional
shall not require that such individual or family member undergo a genetic
test.
`(d) COLLECTION OF PROTECTED GENETIC INFORMATION- Except as provided in subsections
(f) and (g), a group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, shall not request,
require, collect, or purchase protected genetic information concerning an
individual (or information about a request for or the receipt of genetic services
by such individual or family member of such individual).
`(e) DISCLOSURE OF PROTECTED GENETIC INFORMATION- A group health plan, or
a health insurance issuer offering health insurance coverage in connection
with a group health plan, shall not disclose protected genetic information
about an individual (or information about a request for or the receipt of
genetic services by such individual or family member of such individual) to--
`(1) any entity that is a member of the same controlled group as such issuer
or plan sponsor of such group health plan;
`(2) any other group health plan or health insurance issuer or any insurance
agent, third party administrator, or other person subject to regulation
under State insurance laws;
`(3) the Medical Information Bureau or any other person that collects, compiles,
publishes, or otherwise disseminates insurance information;
`(4) the individual's employer or any plan sponsor; or
`(5) any other person the Secretary may specify in regulations.
`(f) INFORMATION FOR PAYMENT FOR GENETIC SERVICES-
`(1) IN GENERAL- With respect to payment for genetic services conducted
concerning an individual or the coordination of benefits, a group health
plan, or a health insurance issuer offering group health insurance coverage
in connection with a group health plan, may request that the individual
provide the plan or issuer with evidence that such services were performed.
`(2) RULE OF CONSTRUCTION- Nothing in paragraph (1) shall be construed to--
`(A) permit a group health plan or health insurance issuer to request
(or require) the results of the services referred to in such paragraph;
or
`(B) require that a group health plan or health insurance issuer make
payment for services described in such paragraph where the individual
involved has refused to provide evidence of the performance of such services
pursuant to a request by the plan or issuer in accordance with such paragraph.
`(g) INFORMATION FOR PAYMENT OF OTHER CLAIMS- With respect to the payment
of claims for benefits other than genetic services, a group health plan, or
a health insurance issuer offering group health insurance coverage in connection
with a group health plan, may request that an individual provide protected
genetic information so long as such information--
`(1) is used solely for the payment of a claim;
`(2) is limited to information that is directly related to and necessary
for the payment of such claim and the claim would otherwise be denied but
for the protected genetic information; and
`(3) is used only by an individual (or individuals) within such plan or
issuer who needs access to such information for purposes of payment of a
claim.
`(h) RULES OF CONSTRUCTION-
`(1) COLLECTION OR DISCLOSURE AUTHORIZED BY INDIVIDUAL- The provisions of
subsections (d) (regarding collection) and (e) shall not apply to an individual
if the individual (or legal representative of the individual) provides prior,
knowing, voluntary, and written authorization for the collection or disclosure
of protected genetic information.
`(2) DISCLOSURE FOR HEALTH CARE TREATMENT- Nothing in this section shall
be construed to limit or restrict the disclosure of protected genetic information
from a health care provider to another health care provider for the purpose
of providing health care treatment to the individual involved.
`(i) DEFINITIONS- In this section:
`(1) CONTROLLED GROUP- The term `controlled group' means any group treated
as a single employer under subsection (b), (c), (m), or (o) of section 414
of the Internal Revenue Code of 1986.
`(2) GROUP HEALTH PLAN, HEALTH INSURANCE ISSUER- The terms `group health
plan' and
`health insurance issuer' include a third party administrator or other person
acting for or on behalf of such plan or issuer.'.
(c) ENFORCEMENT- Section 502 (29 U.S.C. 1132) is amended by adding at the
end the following:
`(n) VIOLATION OF GENETIC DISCRIMINATION OR GENETIC DISCLOSURE PROVISIONS-
In any action under this section against any administrator of a group health
plan, or health insurance issuer offering group health insurance coverage
in connection with a group health plan (including any third party administrator
or other person acting for or on behalf of such plan or issuer) alleging a
violation of subsection (a)(1)(F), (b) (with respect to cases relating to
genetic information or information about a request or receipt of genetic services
by an individual or family member of such individual), (c), (d), (e), (f),
or (g) of section 702, or section 714, the court may award any appropriate
legal or equitable relief. Such relief may include a requirement for the payment
of attorney's fees and costs, including the costs of expert witnesses.
`(o) CIVIL PENALTY- The monetary provisions of section 308(b)(2)(C) of Public
Law 101-336 (42 U.S.C. 12188(b)(2)(C)) shall apply for purposes of the Secretary
enforcing the provisions referred to in subsection (n), except that any such
relief awarded shall be paid only into the general fund of the Treasury.'.
(d) PREEMPTION- Section 731 of the Employee Retirement Income Security Act
of 1974 (29 U.S.C. 1191) is amended--
(1) in subsection (a)(1), by inserting `or (e)' after `subsection (b)';
and
(2) by adding at the end the following:
`(e) SPECIAL RULE IN CASE OF GENETIC INFORMATION- With respect to group health
insurance coverage offered by a health insurance issuer, the provisions of
this part relating to genetic information (including information about a request
for or the receipt of genetic services by an individual or a family member
of such individual) shall not be construed to supersede any provision of State
law which establishes, implements, or continues in effect a standard, requirement,
or remedy that more completely--
`(1) protects the confidentiality of genetic information (including information
about a request for or the receipt of genetic services by an individual
or a family member of such individual) or the privacy of an individual or
a family member of the individual with respect to genetic information (including
information about a request for or the receipt of genetic services by an
individual or a family member of such individual) than does this part; or
`(2) prohibits discrimination on the basis of genetic information than does
this part.'.
(e) DEFINITIONS- Section 733(d) of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1191b(d)) is amended by adding at the end the following:
`(5) FAMILY MEMBER- The term `family member' means with respect to an individual--
`(A) the spouse of the individual;
`(B) a dependent child of the individual, including a child who is born
to or placed for adoption with the individual; or
`(C) any other individuals related by blood to the individual or to the
spouse or child described in subparagraph (A) or (B).
`(6) GENETIC INFORMATION- The term `genetic information' means information
about genes, gene products, or inherited characteristics that may derive
from an individual or a family member of such individual (including information
about a request for or the receipt of genetic services by such individual
or family member of such individual).
`(7) GENETIC SERVICES- The term `genetic services' means health services,
including genetic tests, provided to obtain, assess, or interpret genetic
information for diagnostic and therapeutic purposes, and for genetic education
and counseling.
`(A) IN GENERAL- The term `genetic test' means the analysis of human DNA,
RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations,
or chromosomal changes.
`(B) CERTAIN TESTS- Notwithstanding subparagraph (A), the conducting of
metabolic tests that are not intended to reveal protected genetic information
shall not be considered a violation of section 702(c) for purposes of
such subparagraph regardless of the results of the tests. Test results
that are protected genetic information shall be subject to the applicable
provisions of this part.
`(9) PROTECTED GENETIC INFORMATION- The term `protected genetic information'
means--
`(A) information about an individual's genetic tests;
`(B) information about genetic tests of family members of the individual;
or
`(C) information about the occurrence of a disease or disorder in family
members.'.
(f) LIMITATIONS WITH RESPECT TO DEFINITION- Section 702 of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1182), as amended by subsection (b),
is further amended by adding at the end the following:
`(j) LIMITATIONS- As defined in section 933(d)(9), the term protected genetic
information shall not include--
`(1) information about the sex or age of the individual;
`(2) information about chemical, blood, or urine analyses of the individual,
unless these analyses are genetic tests; or
`(3) information about physical exams of the individual, and other information
that indicates the current health status of the individual.'.
(g) AMENDMENT CONCERNING SUPPLEMENTAL EXCEPTED BENEFITS- Section 732(c)(3)
of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191a(c)(3))
is amended by inserting `, other than the requirements of subsections (a)(1)(F),
(b) (in cases relating to genetic information or information about a request
for or the receipt of genetic services by an individual or a family member
of such individual), (c), (d), (e), (f) and (g) of section 702 and section
714,' after `The requirements of this part'.
(1) IN GENERAL- Except as provided in this section, this section and the
amendments made by this section shall apply with respect to group health
plans for plan years beginning after October 1, 2003.
(2) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS- In the case of a
group health plan maintained pursuant to one or more collective bargaining
agreements between employee representatives and one or more employers ratified
before the date of the enactment of this Act, this section and the amendments
made by this section shall not apply to plan years beginning before the
later of--
(A) the date on which the last of the collective bargaining agreements
relating to the plan terminates (determined without regard to any extension
thereof agreed to after the date of the enactment of this Act), or
For purposes of subparagraph (A), any plan amendment made pursuant to a
collective bargaining agreement relating to the plan which amends the plan
solely to conform to any requirement of the amendments made by this section
shall not be treated as a termination of such collective bargaining agreement.
SEC. 812. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.
(a) AMENDMENTS RELATING TO THE GROUP MARKET-
(1) PROHIBITION OF HEALTH INSURANCE DISCRIMINATION ON THE BASIS OF PROTECTED
GENETIC INFORMATION OR GENETIC SERVICES-
(A) NO ENROLLMENT RESTRICTION FOR GENETIC SERVICES- Section 2702(a)(1)(F)
of the Public Health Service Act (42 U.S.C. 300gg-1(a)(1)(F)) is amended
by inserting before the period the following: `(or information about a
request for or the receipt of genetic services by an individual or a family
member of such individual)'.
(B) NO DISCRIMINATION IN GROUP RATE BASED ON PROTECTED GENETIC INFORMATION-
(i) IN GENERAL- Subpart 2 of part A of title XXVII of the Public Health
Service (42 U.S.C. 300gg-4 et seq.) is amended by adding at the end
the following:
`SEC. 2707. PROHIBITING DISCRIMINATION AGAINST GROUPS ON THE BASIS OF PROTECTED
GENETIC INFORMATION.
`A group health plan, and a health insurance issuer offering group health
insurance coverage in connection with a group health plan, shall not deny
eligibility to a
group or adjust premium or contribution rates for a group on the basis of
protected genetic information concerning an individual in the group (or information
about a request for or the receipt of genetic services by such individual
or family member of such individual).'.
(ii) CONFORMING AMENDMENTS-
(I) Section 2702(b)(2)(A) of the Public Health Service Act (42 U.S.C.
300gg-1(b)(2)(A)) is amended to read as follows:
`(A) to restrict the amount that an employer may be charged for coverage
under a group health plan, except as provided in section 2707; or'.
(II) Section 2721(a) of the Public Health Service Act (42 U.S.C. 300gg-21(a))
is amended by inserting `(other than subsections (a)(1)(F), (b) (with
respect to cases relating to genetic information or information about
a request or receipt of genetic services by an individual or family
member of such individual), (c), (d), (e), (f), or (g) of section
2702 and section 2707)' after `subparts 1 and 3'.
(2) LIMITATIONS ON GENETIC TESTING AND ON COLLECTION AND DISCLOSURE OF PROTECTED
GENETIC INFORMATION- Section 2702 of the Public Health Service Act (42 U.S.C.
300gg-1) is amended by adding at the end the following:
`(1) LIMITATION ON REQUESTING OR REQUIRING GENETIC TESTING- A group health
plan, or a health insurance issuer offering health insurance coverage in
connection with a group health plan, shall not request or require an individual
or a family member of such individual to undergo a genetic test.
`(2) RULE OF CONSTRUCTION- Nothing in this title shall be construed to limit
the authority of a health care professional, who is providing treatment
with respect to an individual and who is employed by a group health plan
or a health insurance issuer, to request that such individual or family
member of such individual undergo a genetic test. Such a health care professional
shall not require that such individual or family member undergo a genetic
test.
`(d) COLLECTION OF PROTECTED GENETIC INFORMATION- Except as provided in subsections
(f) and (g), a group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, shall not request,
require, collect, or purchase
protected genetic information concerning an individual (or information about
a request for or the receipt of genetic services by such individual or family
member of such individual).
`(e) DISCLOSURE OF PROTECTED GENETIC INFORMATION- A group health plan, or
a health insurance issuer offering health insurance coverage in connection
with a group health plan, shall not disclose protected genetic information
about an individual (or information about a request for or the receipt of
genetic services by such individual or family member of such individual) to--
`(1) any entity that is a member of the same controlled group as such issuer
or plan sponsor of such group health plan;
`(2) any other group health plan or health insurance issuer or any insurance
agent, third party administrator, or other person subject to regulation
under State insurance laws;
`(3) the Medical Information Bureau or any other person that collects, compiles,
publishes, or otherwise disseminates insurance information;
`(4) the individual's employer or any plan sponsor; or
`(5) any other person the Secretary may specify in regulations.
`(f) INFORMATION FOR PAYMENT FOR GENETIC SERVICES-
`(1) IN GENERAL- With respect to payment for genetic services conducted
concerning an individual or the coordination of benefits, a group health
plan, or a health insurance issuer offering group health insurance coverage
in connection with a group health plan, may request that the individual
provide the plan or issuer with evidence that such services were performed.
`(2) RULE OF CONSTRUCTION- Nothing in paragraph (1) shall be construed to--
`(A) permit a group health plan or health insurance issuer to request
(or require) the results of the services referred to in such paragraph;
or
`(B) require that a group health plan or health insurance issuer make
payment for services described in such paragraph where the individual
involved has refused to provide evidence of the performance of such services
pursuant to a request by the plan or issuer in accordance with such paragraph.
`(g) INFORMATION FOR PAYMENT OF OTHER CLAIMS- With respect to the payment
of claims for benefits other than genetic services, a group health plan, or
a health insurance issuer offering group health insurance coverage in connection
with a group health plan, may request that an individual provide protected
genetic information so long as such information--
`(1) is used solely for the payment of a claim;
`(2) is limited to information that is directly related to and necessary
for the payment of such claim and the claim would otherwise be denied but
for the protected genetic information; and
`(3) is used only by an individual (or individuals) within such plan or
issuer who needs access to such information for purposes of payment of a
claim.
`(h) RULES OF CONSTRUCTION-
`(1) COLLECTION OR DISCLOSURE AUTHORIZED BY INDIVIDUAL- The provisions of
subsections (d) (regarding collection) and (e) shall not apply to an
individual if the individual (or legal representative of the individual)
provides prior, knowing, voluntary, and written authorization for the collection
or disclosure of protected genetic information.
`(2) DISCLOSURE FOR HEALTH CARE TREATMENT- Nothing in this section shall
be construed to limit or restrict the disclosure of protected genetic information
from a health care provider to another health care provider for the purpose
of providing health care treatment to the individual involved.
`(i) DEFINITIONS- In this section:
`(1) CONTROLLED GROUP- The term `controlled group' means any group treated
as a single
employer under subsection (b), (c), (m), or (o) of section 414 of the Internal
Revenue Code of 1986.
`(2) GROUP HEALTH PLAN, HEALTH INSURANCE ISSUER- The terms `group health
plan' and `health insurance issuer' include a third party administrator
or other person acting for or on behalf of such plan or issuer.'.
(3) DEFINITIONS- Section 2791(d) of the Public Health Service Act (42 U.S.C.
300gg-91(d)) is amended by adding at the end the following new paragraphs:
`(15) FAMILY MEMBER- The term `family member' means with respect to an individual--
`(A) the spouse of the individual;
`(B) a dependent child of the individual, including a child who is born
to or placed for adoption with the individual; and
`(C) all other individuals related by blood to the individual or the spouse
or child described in subparagraph (A) or (B).
`(16) GENETIC INFORMATION- The term `genetic information' means information
about genes, gene products, or inherited characteristics that may derive
from an individual or a family member of such individual (including information
about a request for or the receipt of genetic services by such individual
or family member of such individual).
`(17) GENETIC SERVICES- The term `genetic services' means health services,
including genetic tests, provided to obtain, assess, or interpret genetic
information for diagnostic and therapeutic purposes, and for genetic education
and counselling.
`(A) IN GENERAL- The term `genetic test' means the analysis of human DNA,
RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations,
or chromosomal changes.
`(B) CERTAIN TESTS- Notwithstanding subparagraph (A), the conducting of
metabolic tests that are not intended to reveal protected genetic information
shall not be considered a violation of section 2702(c) or 2754(a) for
purposes of such subparagraph regardless of the results of the tests.
Test results that are protected genetic information shall be subject to
the applicable provisions of this title.
`(19) PROTECTED GENETIC INFORMATION- The term `protected genetic information'
means--
`(A) information about an individual's genetic tests;
`(B) information about genetic tests of family members of the individual;
or
`(C) information about the occurrence of a disease or disorder in family
members.'.
(4) LIMITATIONS WITH RESPECT TO DEFINITION- Section 2702 of the Public Health
Service Act (42 U.S.C. 300gg-1), as amended by paragraph (2), is further
amended by adding at the end the following:
`(j) LIMITATIONS- As defined in section 2791(d)(19), the term protected genetic
information shall not include--
`(1) information about the sex or age of the individual;
`(2) information about chemical, blood, or urine analyses of the individual,
unless these analyses are genetic tests; or
`(3) information about physical exams of the individual, and other information
that indicates the current health status of the individual.'.
(b) AMENDMENT RELATING TO THE INDIVIDUAL MARKET- The first subpart 3 of part
B of title XXVII of the Public Health Service Act (42 U.S.C. 300gg-51 et seq.)
is amended--
(1) by redesignating such subpart as subpart 2; and
(2) by adding at the end the following:
`SEC. 2753. PROHIBITION OF HEALTH INSURANCE DISCRIMINATION AGAINST INDIVIDUALS
ON THE BASIS OF PROTECTED GENETIC INFORMATION.
`(a) INELIGIBILITY TO ENROLL- A health insurance issuer offering health insurance
coverage in the individual market shall not establish rules for eligibility
to enroll in individual health insurance coverage that are based on protected
genetic information concerning the individual (or information about a request
for or the receipt of genetic services by such individual or family member
of such individual).
`(b) IN PREMIUM RATES- A health insurance issuer offering health insurance
coverage in the individual market shall not adjust premium rates on the basis
of protected genetic information concerning an individual (or information
about a request for or the receipt of genetic services by such individual
or family member of such individual).
`SEC. 2754. LIMITATIONS ON GENETIC TESTING AND ON COLLECTION AND DISCLOSURE
OF PROTECTED GENETIC INFORMATION.
`(1) LIMITATION ON REQUESTING OR REQUIRING GENETIC TESTING- A health insurance
issuer offering health insurance coverage in the individual market shall
not request or require an individual or a family member of such individual
to undergo a genetic test.
`(2) RULE OF CONSTRUCTION- Nothing in this title shall be construed to limit
the authority of a health care professional, who is providing treatment
with respect to an individual and who is employed by a group health plan
or a health insurance issuer, to request that such individual or family
member of such individual undergo a genetic test. Such a health care professional
shall not require that such individual or family member undergo a genetic
test.
`(b) COLLECTION OF PROTECTED GENETIC INFORMATION- Except as provided in subsections
(d) and (e), a health insurance issuer offering health insurance coverage
in the individual market shall not request, require, collect, or purchase
protected genetic information concerning an individual (or information about
a request for or the receipt of genetic services by such individual or family
member of such individual).
`(c) DISCLOSURE OF PROTECTED GENETIC INFORMATION- A health insurance issuer
offering health insurance coverage in the individual market shall not disclose
protected genetic information about an individual (or information about a
request for or the receipt of genetic services by such individual or family
member of such individual) to--
`(1) any entity that is a member of the same controlled group as such issuer
or plan sponsor of such group health plan;
`(2) any other group health plan or health insurance issuer or any insurance
agent, third party
administrator, or other person subject to regulation under State insurance
laws;
`(3) the Medical Information Bureau or any other person that collects, compiles,
publishes, or otherwise disseminates insurance information;
`(4) the individual's employer or any plan sponsor; or
`(5) any other person the Secretary may specify in regulations.
`(d) INFORMATION FOR PAYMENT FOR GENETIC SERVICES-
`(1) IN GENERAL- With respect to payment for genetic services conducted
concerning an individual or the coordination of benefits, a health insurance
issuer offering health insurance coverage in the individual market may request
that the individual provide the plan or issuer with evidence that such services
were performed.
`(2) RULE OF CONSTRUCTION- Nothing in paragraph (1) shall be construed to--
`(A) permit a health insurance issuer to request (or require) the results
of the services referred to in such paragraph; or
`(B) require that a health insurance issuer make payment for services
described in such paragraph where the individual involved has refused
to provide evidence of the performance of such services pursuant to a
request by the plan or issuer in accordance with such paragraph.
`(e) INFORMATION FOR PAYMENT OF OTHER CLAIMS- With respect to the payment
of claims for benefits other than genetic services, a health insurance issuer
offering health insurance coverage in the individual market may request that
an individual provide protected genetic information so long as such information--
`(1) is used solely for the payment of a claim;
`(2) is limited to information that is directly related to and necessary
for the payment of such claim and the claim would otherwise be denied but
for the protected genetic information; and
`(3) is used only by an individual (or individuals) within such plan or
issuer who needs access to such information for purposes of payment of a
claim.
`(f) RULES OF CONSTRUCTION-
`(1) COLLECTION OR DISCLOSURE AUTHORIZED BY INDIVIDUAL- The provisions of
subsections (c) (regarding collection) and (d) shall not apply to an individual
if the individual (or legal representative of the individual) provides prior,
knowing, voluntary, and written authorization for the collection or disclosure
of protected genetic information.
`(2) DISCLOSURE FOR HEALTH CARE TREATMENT- Nothing in this section shall
be construed to limit or restrict the disclosure of protected genetic information
from a health care provider to another health care provider for the purpose
of providing health care treatment to the individual involved.
`(g) DEFINITIONS- In this section:
`(1) CONTROLLED GROUP- The term `controlled group' means any group treated
as a single employer under subsection (b), (c), (m), or (o) of section 414
of the Internal Revenue Code of 1986.
`(2) GROUP HEALTH PLAN, HEALTH INSURANCE ISSUER- The terms `group health
plan' and `health insurance issuer' include a third party administrator
or other person acting for or on behalf of such plan or issuer.'.
(1) GROUP PLANS- Section 2722 of the Public Health Service Act (42 U.S.C.
300gg-22) is amended by adding at the end the following:
`(c) VIOLATION OF GENETIC DISCRIMINATION OR GENETIC DISCLOSURE PROVISIONS-
In any action under this section against any administrator of a group health
plan, or health insurance issuer offering group health insurance coverage
in connection with a group health plan (including any third party administrator
or other person acting for or on behalf of such plan or issuer) alleging a
violation of subsections (a)(1)(F), (b) (with respect to cases relating to
genetic information or information about a request or receipt of genetic services
by an individual or family member of such individual), (c), (d), (e), (f),
or (g) of section 2702 and section 2707 the court may award any appropriate
legal or equitable relief. Such relief may include a requirement for the payment
of attorney's fees and costs, including the costs of expert witnesses.
`(d) CIVIL PENALTY- The monetary provisions of section 308(b)(2)(C) of Public
Law 101-336 (42 U.S.C. 12188(b)(2)(C)) shall apply for purposes of the Secretary
enforcing the provisions referred to in subsection (c), except that any such
relief awarded shall be paid only into the general fund of the Treasury.'.
(2) INDIVIDUAL PLANS- Section 2761 of the Public Health Service Act (42
U.S.C. 300gg-45) is amended by adding at the end the following:
`(c) VIOLATION OF GENETIC DISCRIMINATION OR GENETIC DISCLOSURE PROVISIONS-
In any action under this section against any health insurance issuer offering
health insurance coverage in the individual market (including any other person
acting for or on behalf of such issuer) alleging a violation of sections 2753
and 2754 the court in which the action is commenced may award any appropriate
legal or equitable relief. Such relief may include a requirement for the payment
of attorney's fees and costs, including the costs of expert witnesses.
`(d) CIVIL PENALTY- The monetary provisions of section 308(b)(2)(C) of Public
Law 101-336 (42 U.S.C. 12188(b)(2)(C)) shall apply for purposes of the Secretary
enforcing the provisions referred to in subsection (c), except that any such
relief awarded shall be paid only into the general fund of the Treasury.'.
(1) GROUP MARKET- Section 2723 of the Public Health Service Act (42 U.S.C.
300gg-23) is amended--
(A) in subsection (a)(1), by inserting `or (e)' after `subsection (b)';
and
(B) by adding at the end the following:
`(e) SPECIAL RULE IN CASE OF GENETIC INFORMATION- With respect to group health
insurance coverage
offered by a health insurance issuer, the provisions of this part relating
to genetic information (including information about a request for or the receipt
of genetic services by an individual or a family member of such individual)
shall
not be construed to supersede any provision of State law which establishes,
implements, or continues in effect a standard, requirement, or remedy that
more completely--
`(1) protects the confidentiality of genetic information (including information
about a request for or the receipt of genetic services by an individual
or a family member of such individual) or the privacy of an individual or
a family member of the individual with respect to genetic information (including
information about a request for or the receipt of genetic services by an
individual or a family member of such individual) than does this part; or
`(2) prohibits discrimination on the basis of genetic information than does
this part.'.
(2) INDIVIDUAL MARKET- Section 2762 of the Public Health Service Act (42
U.S.C. 300gg-46) is amended--
(A) in subsection (a), by inserting `and except as provided in subsection
(c),' after `Subject to subsection (b),'; and
(B) by adding at the end the following:
`(c) SPECIAL RULE IN CASE OF GENETIC INFORMATION- With respect to individual
health insurance coverage offered by a health insurance issuer, the provisions
of this part (or part C insofar as it applies to this part) relating to genetic
information (including information about a request for or the receipt of genetic
services by an individual or a family member of such individual) shall not
be construed to supersede any provision of State law (as defined in section
2723(d)) which establishes, implements, or continues in effect a standard,
requirement, or remedy that more completely--
`(1) protects the confidentiality of genetic information (including information
about a request for or the receipt of genetic services of an individual
or a family member of such individual) or the privacy of an individual or
a family member of the individual with respect to genetic information (including
information about a request for or the receipt of genetic services by an
individual or a family member of such individual) than does this part (or
part C insofar as it applies to this part); or
`(2) prohibits discrimination on the basis of genetic information than does
this part (or part C insofar as it applies to this part).'.
(e) ELIMINATION OF OPTION OF NON-FEDERAL GOVERNMENTAL PLANS TO BE EXCEPTED
FROM REQUIREMENTS CONCERNING GENETIC INFORMATION- Section 2721(b)(2) of the
Public Health Service Act (42 U.S. C. 300gg-21(b)(2)) is amended--
(1) in subparagraph (A), by striking `If the plan sponsor' and inserting
`Except as provided in subparagraph (D), if the plan sponsor'; and
(2) by adding at the end the following:
`(D) ELECTION NOT APPLICABLE TO REQUIREMENTS CONCERNING GENETIC INFORMATION-
The election described in subparagraph (A) shall not be available with
respect to the provisions of subsections (a)(1)(F), (c), (d), (e), (f),
and (g) of section 2702 and section 2707, and the provisions of section
2702(b) to the extent that they apply to genetic information (or information
about a request for or the receipt of genetic services by an individual
or a family member of such individual).'.
(f) AMENDMENT CONCERNING SUPPLEMENTAL EXCEPTED BENEFITS-
(1) GROUP MARKET- Section 2721(d)(3) of the Public Health Service Act (42
U.S.C. 300gg-23(d)(3)) is amended by inserting `, other than the requirements
of subsections (a)(1)(F), (b) (in cases relating to genetic information
or information about a request for or the receipt of genetic services by
an individual or a family member of such individual)), (c), (d), (e), (f)
and (g) of section 2702 and section 2707,' after `The requirements of this
part'.
(2) INDIVIDUAL MARKET- Section 2763(b) of the Public Health Service Act
(42 U.S.C. 300gg-47(b)) is amended--
(A) by striking `The requirements of this part' and inserting the following:
`(1) IN GENERAL- Except as provided in paragraph (2), the requirements of
this part'; and
(B) by adding at the end the following:
`(2) LIMITATION- The requirements of sections 2753 and 2754 shall apply
to excepted benefits described in section 2791(c)(4).'.
(1) IN GENERAL- The amendments made by this section shall apply with respect
to--
(A) group health plans, and health insurance coverage offered in connection
with group health plans, for plan years beginning; and
(B) health insurance coverage offered, sold, issued, renewed, in effect,
or operated in the individual market, after;
(2) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS- In the case of a
group health plan maintained pursuant to one or more collective bargaining
agreements between employee representatives and one or more employers ratified
before the date of the enactment of this Act, the amendments made by this
section shall not apply to plan years beginning before the later of--
(A) the date on which the last of the collective bargaining agreements
relating to the plan terminates (determined without regard to any extension
thereof agreed to after the date of the enactment of this Act); or
For purposes of subparagraph (A), any plan amendment made pursuant to a
collective bargaining agreement relating to the plan which amends the plan
solely to conform to any requirement of the amendments made by this section
shall not be treated as a termination of such collective bargaining agreement.
SEC. 813. AMENDMENTS TO INTERNAL REVENUE CODE OF 1986.
(a) PROHIBITION OF HEALTH INSURANCE DISCRIMINATION ON THE BASIS OF GENETIC
SERVICES OR PROTECTED GENETIC INFORMATION-
(1) NO ENROLLMENT RESTRICTION FOR GENETIC SERVICES- Section 9802(a)(1)(F)
of the Internal Revenue Code of 1986 is amended by inserting before the
period `(or information about a request for or the receipt of genetic services
by such individual or family member of such individual)'.
(2) NO DISCRIMINATION IN GROUP RATE BASED ON PROTECTED GENETIC INFORMATION-
(A) IN GENERAL- Subchapter B of chapter 100 of the Internal Revenue Code
of 1986 is amended by adding at the end the following:
`SEC. 9813. PROHIBITING DISCRIMINATION AGAINST GROUPS ON THE BASIS OF PROTECTED
GENETIC INFORMATION.
`A group health plan shall not deny eligibility to a group or adjust premium
or contribution rates for a group on the basis of protected genetic information
concerning an individual in the group (or information about a request for
or the receipt of genetic services by such individual or family member of
such individual).'.
(B) CONFORMING AMENDMENTS-
(i) Section 9802(b)(2)(A) of the Internal Revenue Code of 1986 is amended
to read as follows:
`(A) to restrict the amount that an employer may be charged for coverage
under a group health plan, except as provided in section 9813; or'.
(ii) Section 9831(a) of the Internal Revenue Code of 1986 is amended
by inserting `(other than subsections (a)(1)(F), (b) (with respect to
cases relating to genetic information or information about a request
or receipt of genetic services by an individual or family member of
such individual), (d), (e), (f), (g), or (h) of section 9802 or section
9813) after `chapter'.
(b) LIMITATIONS ON GENETIC TESTING AND ON COLLECTION AND DISCLOSURE OF PROTECTED
GENETIC INFORMATION- Section 9802 of the Internal Revenue Code of 1986 is
amended by adding at the end the following:
`(1) LIMITATION ON REQUESTING OR REQUIRING GENETIC TESTING- A group health
plan may not request or require an individual or a family member of such
individual to undergo a genetic test.
`(2) RULE OF CONSTRUCTION- Nothing in this chapter shall be construed to
limit the authority of a health care professional, who is providing treatment
with respect to an individual and who is employed by a group health plan,
to request that such individual or family member of such individual undergo
a genetic test. Such a health care professional shall not require that such
individual or family member undergo a genetic test.
`(e) COLLECTION OF PROTECTED GENETIC INFORMATION- Except as provided in subsections
(g) and (h), a group health plan shall not request, require, collect, or purchase
protected genetic information concerning an individual (or information about
a request for or the receipt of genetic services by such individual or family
member of such individual).
`(f) DISCLOSURE OF PROTECTED GENETIC INFORMATION- A group health plan shall
not disclose protected genetic information about an individual (or information
about a request for or the receipt of genetic services by such individual
or family member of such individual) to--
`(1) any entity that is a member of the same controlled group as such issuer
or plan sponsor of such group health plan;
`(2) any other group health plan or health insurance issuer or any insurance
agent, third party administrator, or other person subject to regulation
under State insurance laws;
`(3) the Medical Information Bureau or any other person that collects, compiles,
publishes, or otherwise disseminates insurance information;
`(4) the individual's employer or any plan sponsor; or
`(5) any other person the Secretary may specify in regulations.
`(g) INFORMATION FOR PAYMENT FOR GENETIC SERVICES-
`(1) IN GENERAL- With respect to payment for genetic services conducted
concerning an individual or the coordination of benefits, a group health
plan may request that the individual provide the plan with evidence that
such services were performed.
`(2) RULE OF CONSTRUCTION- Nothing in paragraph (1) shall be construed to--
`(A) permit a group health plan to request (or require) the results of
the services referred to in such paragraph; or
`(B) require that a group health plan make payment for services described
in such paragraph where the individual involved has refused to provide
evidence of the performance of such services pursuant to a request by
the plan in accordance with such paragraph.
`(h) INFORMATION FOR PAYMENT OF OTHER CLAIMS- With respect to the payment
of claims for benefits other than genetic services, a group health plan may
request that an individual provide protected genetic information so long as
such information--
`(1) is used solely for the payment of a claim;
`(2) is limited to information that is directly related to and necessary
for the payment of such claim and the claim would otherwise be denied but
for the protected genetic information; and
`(3) is used only by an individual (or individuals) within such plan or
issuer who needs access to such information for purposes of payment of a
claim.
`(i) RULES OF CONSTRUCTION-
`(1) COLLECTION OR DISCLOSURE AUTHORIZED BY INDIVIDUAL- The provisions of
subsections (e) (regarding collection) and (f) shall not apply to an individual
if the individual (or legal representative of, the individual) provides
prior, knowing, voluntary, and written authorization for the collection
or disclosure of protected genetic information.
`(2) DISCLOSURE FOR HEALTH CARE TREATMENT- Nothing in this section shall
be construed to limit or restrict the disclosure of protected genetic information
from a health care provider to another health care provider for the purpose
of providing health care treatment to the individual involved.
`(j) DEFINITIONS- In this section:
`(1) CONTROLLED GROUP- The term `controlled group' means any group treated
as a single employer under subsections (b), (c), (m), or (o) of section
414.
`(2) GROUP HEALTH PLAN, HEALTH INSURANCE ISSUER- The terms `group health
plan' and `health insurance issuer' include a third party administrator
or other person acting for or on behalf of such plan or issuer.'.
(c) DEFINITIONS- Section 9832(d) of the Internal Revenue Code of 1986 is amended
by adding at the end the following:
`(6) FAMILY MEMBER- The term `family member' means with respect to an individual--
`(A) the spouse of the individual;
`(B) a dependent child of the individual, including a child who is born
to or placed for adoption with the individual; and
`(C) all other individuals related by blood to the individual or the spouse
or child described in subparagraph (A) or (B).
`(7) GENETIC INFORMATION- The term `genetic information' means information
about genes, gene products, or inherited characteristics that may derive
from an individual or a family member of such individual (including information
about a request for or the receipt of genetic services by such individual
or family member of such individual).
`(8) GENETIC SERVICES- The term `genetic services' means health services,
including genetic tests, provided to obtain, assess, or interpret genetic
information for diagnostic and therapeutic purposes, and for genetic education
and counseling.
`(A) IN GENERAL- The term `genetic test' means the analysis of human DNA,
RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations,
or chromosomal changes.
`(B) CERTAIN TESTS- Notwithstanding subparagraph (A), the conducting of
metabolic tests that are not intended to reveal protected genetic information
shall not be considered a violation of section 9802(d) for purposes of
such subparagraph regardless of the results of the tests. Test results
that are protected genetic information shall be subject to the applicable
provisions of this chapter.
`(10) PROTECTED GENETIC INFORMATION- The term `protected genetic information'
means--
`(A) information about an individual's genetic tests;
`(B) information about genetic tests of family members of the individual;
or
`(C) information about the occurrence of a disease or disorder in family
members.
(d) LIMITATIONS WITH RESPECT TO DEFINITION- Section 9802 of the Internal Revenue
Code of 1986, as amended by subsection (b), is further amended by adding at
the end the following:
`(k) LIMITATIONS- As defined in section 9832(d)(10), the term protected genetic
information shall not include--
`(1) information about the sex or age of the individual;
`(2) information about chemical, blood, or urine analyses of the individual,
unless these analyses are genetic tests; or
`(3) information about physical exams of the individual, and other information
that indicates the current health status of the individual.'.
(1) IN GENERAL- Except as provided in this section, this section and the
amendments made by this section shall apply with respect to group health
plans for plan years beginning after October 1, 2003.
(2) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS- In the case of a
group health plan maintained pursuant to one or more collective bargaining
agreements between employee representatives and one or more employers ratified
before the date of the enactment of this Act, this section and the amendments
made by this section shall not apply to plan years beginning before the
later of--
(A) the date on which the last of the collective bargaining agreements
relating to the plan terminates (determined without regard to any extension
thereof agreed to after the date of the enactment of this Act), or
For purposes of subparagraph (A), any plan amendment made pursuant to a
collective bargaining agreement relating to the plan which amends the plan
solely to conform to any requirement of the amendments made by this section
shall not be treated as a termination of such collective bargaining agreement.
SEC. 814. AMENDMENTS TO TITLE XVIII OF THE SOCIAL SECURITY ACT RELATING
TO MEDIGAP.
(1) IN GENERAL- Section 1882(s)(2) of the Social Security Act (42 U.S.C.
1395ss(s)(2)) is amended by adding at the end the following:
`(E)(i) An issuer of a medicare supplemental policy shall not deny or
condition the issuance or effectiveness of the policy, and shall
not discriminate in the pricing of the policy (including the adjustment of
premium rates) of an eligible individual on the basis of protected genetic
information concerning the individual (or information about a request for,
or the receipt of, genetic services by such individual or family member of
such individual).
`(ii) For purposes of clause (i), the terms `family member', `genetic
services', and `protected genetic information' shall have the meanings
given such terms in subsection (v).'.
(2) EFFECTIVE DATE- The amendment made by paragraph (1) shall apply with
respect to a policy for policy years beginning after October 1, 2003.
(b) LIMITATIONS ON GENETIC TESTING AND ON COLLECTION AND DISCLOSURE OF PROTECTED
GENETIC INFORMATION-
(1) IN GENERAL- Section 1882 of the Social Security Act (42 U.S.C. 1395ss)
is amended by adding at the end the following:
`(v) LIMITATIONS ON GENETIC TESTING AND ON COLLECTION AND DISCLOSURE OF PROTECTED
GENETIC INFORMATION-
`(A) LIMITATION ON REQUESTING OR REQUIRING GENETIC TESTING- An issuer
of a medicare supplemental policy shall not request or require an individual
or a family member of such individual to undergo a genetic test.
`(B) RULE OF CONSTRUCTION- Nothing in this title shall be construed to
limit the authority of a health care professional, who is providing treatment
with respect to an individual and who is employed by an issuer of a medicare
supplemental policy, to request that such individual or family member
of such individual undergo a genetic test. Such a health care professional
shall not require that such individual or family member undergo a genetic
test.
`(2) COLLECTION OF PROTECTED GENETIC INFORMATION- Except as provided in
paragraphs (4) and (5), an issuer of a medicare supplemental policy shall
not request, require, collect, or purchase protected genetic information
concerning an individual (or information about a request for or the receipt
of genetic services by such individual or family member of such individual).
`(3) DISCLOSURE OF PROTECTED GENETIC INFORMATION- An issuer of a medicare
supplemental policy shall not disclose protected genetic information about
an individual (or information about a request for or the receipt of genetic
services by such individual or family member of such individual) to--
`(A) any entity that is a member of the same controlled group as such
issuer;
`(B) any issuer of a medicare supplemental policy, group health plan or
health insurance issuer, or any insurance agent, third party administrator,
or other person subject to regulation under State insurance laws;
`(C) the Medical Information Bureau or any other person that collects,
compiles, publishes, or otherwise disseminates insurance information;
`(D) the individual's employer or any plan sponsor; or
`(E) any other person the Secretary may specify in regulations.
`(4) INFORMATION FOR PAYMENT FOR GENETIC SERVICES-
`(A) IN GENERAL- With respect to payment for genetic services conducted
concerning an individual or the coordination of benefits, an issuer of
a medicare supplemental policy may request that the individual provide
the issuer with evidence that such services were performed.
`(B) RULE OF CONSTRUCTION- Nothing in subparagraph (A) shall be construed
to--
`(i) permit an issuer to request (or require) the results of the services
referred to in such subparagraph; or
`(ii) require that an issuer make payment for services described in
such subparagraph where the individual involved has refused to provide
evidence of the performance of such services pursuant to a request by
the issuer in accordance with such subparagraph.
`(5) INFORMATION FOR PAYMENT OF OTHER CLAIMS- With respect to the payment
of claims for benefits other than genetic services, an issuer of a medicare
supplemental policy may request that an individual provide protected genetic
information so long as such information--
`(A) is used solely for the payment of a claim;
`(B) is limited to information that is directly related to and necessary
for the payment
of such claim and the claim would otherwise be denied but for the protected
genetic information; and
`(C) is used only by an individual (or individuals) within such issuer
who needs access to such information for purposes of payment of a claim.
`(6) RULES OF CONSTRUCTION-
`(A) COLLECTION OR DISCLOSURE AUTHORIZED BY INDIVIDUAL- The provisions
of paragraphs (2) (regarding collection) and (3) shall not apply to an
individual if the individual (or legal representative of the individual)
provides prior, knowing, voluntary, and written authorization for the
collection or disclosure of protected genetic information.
`(B) DISCLOSURE FOR HEALTH CARE TREATMENT- Nothing in this section shall
be construed to limit or restrict the disclosure of protected genetic
information from a health care provider to another health care provider
for the purpose of providing health care treatment to the individual involved.
`(7) VIOLATION OF GENETIC DISCRIMINATION OR GENETIC DISCLOSURE PROVISIONS-
In any action under this subsection against any administrator of a medicare
supplemental policy (including any third party administrator or other person
acting for
or on behalf of such policy) alleging a violation of this subsection, the
court may award any appropriate legal or equitable relief. Such relief may
include a requirement for the payment of attorney's fees and costs, including
the costs of expert witnesses.
`(8) CIVIL PENALTY- The monetary provisions of section 308(b)(2)(C) of Public
Law 101-336 (42 U.S.C. 12188(b)(2)(C)) shall apply for purposes of the Secretary
enforcing the provisions of this subsection, except that any such relief
awarded shall be paid only into the general fund of the Treasury.
`(9) SPECIAL RULE IN CASE OF GENETIC INFORMATION- This subsection (relating
to genetic information or information about a request for, or the receipt
of, genetic services by an individual or a family member of such individual)
shall not be construed to supersede any provision of State law which
establishes, implements, or continues in effect a standard, requirement,
or remedy that more completely--
`(A) protects the confidentiality of genetic information (including information
about a request for, or the receipt of, genetic services by an individual
or a family member of such individual) or the privacy of an individual
or a family member of the individual with respect to genetic information
(including information about a request for, or the receipt of, genetic
services by an individual or a family member of such individual) than
does this subsection; or
`(B) prohibits discrimination on the basis of genetic information than
does this subsection.
`(10) DEFINITIONS- In this subsection:
`(A) CONTROLLED GROUP- The term `controlled group' means any group treated
as a single employer under subsection (b), (c), (m), or (o) of section
414 of the Internal Revenue Code of 1986.
`(B) FAMILY MEMBER- The term `family member' means with respect to an
individual--
`(i) the spouse of the individual;
`(ii) a dependent child of the individual, including a child who is
born to or placed for adoption with the individual; or
`(iii) any other individuals related by blood to the individual or to
the spouse or child described in clause (i) or (ii).
`(C) GENETIC INFORMATION- The term `genetic information' means information
about genes, gene products, or inherited characteristics that may derive
from an individual or a family member of such individual (including information
about a request for, or the receipt of, genetic services by such individual
or family member of such individual).
`(D) GENETIC SERVICES- The term `genetic services' means health services,
including genetic tests, provided to obtain, assess, or interpret genetic
information for diagnostic and therapeutic purposes, and for genetic education
and counseling.
`(i) IN GENERAL- The term `genetic test' means the analysis of human
DNA, RNA, chromosomes, proteins, or metabolites that detect genotypes,
mutations, or chromosomal changes.
`(ii) CERTAIN TESTS- Notwithstanding subparagraph (A), the conducting
of metabolic tests that are not intended to reveal protected genetic
information shall not be considered a violation of paragraph (1) regardless
of the results of the tests. Test results that are protected genetic
information shall be subject to the applicable provisions of this subsection.
`(F) ISSUER OF A MEDICARE SUPPLEMENTAL POLICY- The term `issuer of a medicare
supplemental policy' includes a third-party administrator or other person
acting for or on behalf of such issuer.
`(G) PROTECTED GENETIC INFORMATION- The term `protected genetic information'
means--
`(i) information about an individual's genetic tests;
`(ii) information about genetic tests of family members of the individual;
or
`(iii) information about the occurrence of a disease or disorder in
family members.
(2) LIMITATIONS WITH RESPECT TO DEFINITION- Section 1882(v) of the Social
Security Act
(42 U.S.C. 1395ss), as added by paragraph (1), is amended by adding at the
end the following:
`(11) LIMITATIONS- As defined in paragraph (10)(G), the term protected genetic
information shall not include--
`(A) information about the sex or age of the individual;
`(B) information about chemical, blood, or urine analyses of the individual,
unless these analyses are genetic tests; or
`(C) information about physical exams of the individual, and other information
that indicates the current health status of the individual.'.
(3) CONFORMING AMENDMENT- Section 1882(o) of the Social Security Act (42
U.S.C. 1395ss(o)) is amended by adding at the end the following:
`(4) The issuer of the medicare supplemental policy complies with subsection
(s)(2)(E) and subsection (v).'.
(4) EFFECTIVE DATE- The amendments made by this subsection shall apply with
respect to an issuer of a medicare supplemental policy for policy years
beginning after October 1, 2003.
(c) TRANSITION PROVISIONS-
(1) IN GENERAL- If the Secretary of Health and Human Services identifies
a State as requiring a change to its statutes or regulations to conform
its regulatory program to the changes made by this section, the State regulatory
program shall not be considered to be out of compliance with the requirements
of section 1882 of the Social Security Act due solely to failure to make
such change until the date specified in paragraph (4).
(2) NAIC STANDARDS- If, not later than June 30, 2003, the National Association
of Insurance
Commissioners (in this subsection referred to as the `NAIC') modifies its
NAIC Model Regulation relating to section 1882 of the Social Security Act
(referred to in such section as the 1991 NAIC Model Regulation, as subsequently
modified) to conform to the amendments made by this section, such revised
regulation incorporating the modifications shall be considered to be the applicable
NAIC model regulation (including the revised NAIC model regulation and the
1991 NAIC Model Regulation) for the purposes of such section.
(3) SECRETARY STANDARDS- If the NAIC does not make the modifications described
in paragraph (2) within the period specified in such paragraph, the Secretary
of Health and Human Services shall, not later than October 1, 2003, make
the modifications described in such paragraph and such revised regulation
incorporating the modifications shall be considered to be the appropriate
regulation for the purposes of such section.
(A) IN GENERAL- Subject to subparagraph (B), the date specified in this
paragraph for a State is the earlier of--
(i) the date the State changes its statutes or regulations to conform
its regulatory program to the changes made by this section, or
(B) ADDITIONAL LEGISLATIVE ACTION REQUIRED- In the case of a State which
the Secretary identifies as--
(i) requiring State legislation (other than legislation appropriating
funds) to conform its regulatory program to the changes made in this
section, but
(ii) having a legislature which is not scheduled to meet in 2003 in
a legislative session in which such legislation may be considered,
the date specified in this paragraph is the first day of the first calendar
quarter beginning after the close of the first legislative session of
the State legislature that begins on or after July 1, 2003. For purposes
of the previous sentence, in the case of a State that has a 2-year legislative
session, each year of such session shall be deemed to be a separate regular
session of the State legislature.
Subtitle B--Prohibition of Employment Discrimination on the Basis of Protected
Genetic Information
SEC. 821. DEFINITIONS.
(1) EMPLOYEE; EMPLOYER; EMPLOYMENT AGENCY; LABOR ORGANIZATION; MEMBER- The
terms `employee', `employer', `employment agency', and `labor organization'
have the meanings given such terms in section 701 of the Civil Rights Act
of 1964 (42 U.S.C. 2000e), except that the terms `employee' and `employer'
shall also include the meanings given such terms in section 717 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-16). The terms `employee' and `member'
include an applicant for employment and an applicant for membership in a
labor organization, respectively.
(2) FAMILY MEMBER- The term `family member' means with respect to an individual--
(A) the spouse of the individual;
(B) a dependent child of the individual, including a child who is born
to or placed for adoption with the individual; or
(C) any other individuals related by blood to the individual or to the
spouse or child described in subparagraph (A) or (B).
(3) GENETIC MONITORING- The term `genetic monitoring' means the periodic
examination of employees to evaluate acquired modifications to their genetic
material, such as chromosomal damage or evidence of increased occurrence
of mutations, that may have developed in the course of employment due to
exposure to toxic substances in the workplace, in order to identify, evaluate,
and respond to the effects of or control adverse environmental exposures
in the workplace.
(4) GENETIC SERVICES- The term `genetic services' means health services,
including genetic
tests, provided to obtain, assess, or interpret genetic information for diagnostic
and therapeutic purposes, and for genetic education and counseling.
(A) IN GENERAL- The term `genetic test' means the analysis of human DNA,
RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations,
or chromosomal changes.
(B) CERTAIN TESTS- Notwithstanding subparagraph (A), the conducting of
metabolic tests that are not intended to reveal protected genetic information
shall not be considered a violation of 203(a)(3), 204(3), 205(3), or 206(3)
regardless of the results of the tests. Test results that are protected
genetic information shall be subject to the applicable provisions of this
subtitle.
(6) PROTECTED GENETIC INFORMATION- The term `protected genetic information'
means--
(A) information about an individual's genetic tests;
(B) information about genetic tests of family members of the individual;
or
(C) information about the occurrence of a disease or disorder in family
members.
SEC. 822. LIMITATIONS WITH RESPECT TO DEFINITION.
As defined in section 821(6), the term protected genetic information shall
not include--
(1) information about the sex or age of the individual; or
(2) information about chemical, blood, or urine analyses of the individual,
unless these analyses are genetic tests.
SEC. 823. EMPLOYER PRACTICES.
(a) IN GENERAL- It shall be an unlawful employment practice for an employer
(or a worker's compensation insurance issuer acting on the employer's behalf)--
(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to the compensation,
terms,
conditions, or privileges of employment of the individual, because of protected
genetic information with respect to the individual or information about a
request for or the receipt of genetic services by such individual or family
member of such individual;
(2) to limit, segregate, or classify the employees of the employer in any
way that would deprive or tend to deprive any individual of employment opportunities
or otherwise adversely affect the status of the individual as an employee,
because of protected genetic information with respect to the individual,
or information about a request for or the receipt of genetic services by
such individual or family member of such individual; or
(3) to request, require, collect or purchase protected genetic information
with respect to an individual or a family member of the individual except--
(A) where used for genetic monitoring of biological effects of toxic substances
in the workplace, but only if--
(i) the employee has provided prior, knowing, voluntary, and written
authorization;
(ii) the employee is informed of individual monitoring results;
(iii) the monitoring conforms to any genetic monitoring regulations
that may be promulgated by the Secretary of Labor pursuant to the Occupational
Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) or the Federal
Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.); and
(iv) the employer, excluding any licensed health care professional that
is involved in the genetic monitoring program, receives the results
of the monitoring only in aggregate terms that do not disclose the identity
of specific employees; or
(B) where health or genetic services are offered by the employer and the
employee provides prior, knowing, voluntary, and written authorization,
and only the employee or family member of such employee receives the results
of such services; or
(C) with respect to an applicant who has been given a conditional offer
of employment or to an employee, an employer may request, require, collect
or purchase the information described in section 821(6)(C) if--
(i) the request or requirement is consistent with the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) or the Rehabilitation
Act of 1973 (29 U.S.C. 701 et seq.);
(ii)(I) the information obtained is to be used exclusively to assess
whether further medical evaluation is needed to diagnose a current disease,
or medical condition or disorder; and
(II) such current disease, or medical condition or disorder could prevent
the applicant or employee from performing the essential functions of
the position desired or held; and
(III) the information described in such section will not be disclosed
to persons other than medical personnel involved in or responsible for
assessing whether further medical evaluation is needed to diagnose a
current disease, or medical condition or disorder, except as otherwise
permitted by this subtitle.
(b) LIMITATION- In the case of protected genetic information to which subparagraph
(A), (B), or (C) of subsection (a)(3) applies, such information may not be
used in violation of paragraph (1) or (2) of subsection (a).
SEC. 824. EMPLOYMENT AGENCY PRACTICES.
It shall be an unlawful employment practice for an employment agency--
(1) to fail or refuse to refer for employment, or otherwise to discriminate
against, any individual because of protected genetic information with respect
to the individual (or information about a request for or the receipt of genetic
services by such individual or family member of such individual);
(2) to limit, segregate, or classify individuals or fail or refuse to refer
for employment any individual in any way that would deprive or tend to deprive
any individual of employment opportunities or would limit the employment
opportunities or otherwise adversely affect the status of the individual
as an employee, because of protected genetic information with respect to
the individual (or information about a request for or the receipt of genetic
services by such individual or family member of such individual);
(3) to request, require, collect or purchase protected genetic information
with respect to an individual (or information about a request for or the
receipt of genetic services by such individual or family member of such
individual); or
(4) to cause or attempt to cause an employer to discriminate against an
individual in violation of this subtitle.
SEC. 825. LABOR ORGANIZATION PRACTICES.
It shall be an unlawful employment practice for a labor organization--
(1) to exclude or to expel from the membership of the organization, or otherwise
to discriminate against, any individual because of protected genetic information
with respect to the individual (or information about a request for or the
receipt of genetic services by such individual or family member of such
individual);
(2) to limit, segregate, or classify the members of the organization, or
fail or refuse to refer for employment any individual, in any way that would
deprive or tend to deprive any individual of employment opportunities, or
would limit the employment opportunities or otherwise adversely affect the
status of the individual as an employee, because of protected genetic information
with respect to the individual (or information about a request for or the
receipt of genetic services by such individual or family member of such
individual);
(3) to request, require, collect or purchase protected genetic information
with respect to an individual (or information about a request for or the
receipt of genetic services by such individual or family member of such
individual); or
(4) to cause or attempt to cause an employer to discriminate against an
individual in violation of this subtitle.
SEC. 826. TRAINING PROGRAMS.
It shall be an unlawful employment practice for any employer, labor organization,
or joint labor-management committee controlling apprenticeship or other training
or retraining, including on-the-job training programs--
(1) to discriminate against any individual because of protected genetic
information with respect to the individual (or information about a request
for or the receipt of genetic services by such individual), in admission
to, or employment in, any program established to provide apprenticeship
or other training or retraining;
(2) to limit, segregate, or classify the members of the organization, or
fail or refuse to refer for employment any individual, in any way that would
deprive or tend to deprive any individual of employment opportunities, or
would limit the employment
opportunities or otherwise adversely affect the status of the individual
as an employee, because of protected genetic information with respect to the
individual (or information about a request for or receipt of genetic services
by such individual or family member of such individual);
(3) to request, require, collect or purchase protected genetic information
with respect to an individual (or information about a request for or receipt
of genetic services by such individual or family member of such individual);
or
(4) to cause or attempt to cause an employer to discriminate against an
individual in violation of this subtitle.
SEC. 827. MAINTENANCE AND DISCLOSURE OF PROTECTED GENETIC INFORMATION.
(a) MAINTENANCE OF PROTECTED GENETIC INFORMATION- If
an employer (or a worker's compensation insurance issuer acting on the employer's
behalf) possesses protected genetic information about an employee (or information
about a request for or receipt of genetic services by such employee or family
member of such employee), such information shall be treated and maintained
as part of the employee's confidential medical records.
(b) DISCLOSURE OF PROTECTED GENETIC INFORMATION- An employer (or a worker's
compensation insurance issuer acting on the employer's behalf) shall not disclose
protected genetic information (or information about a request for or receipt
of genetic services by such employee or family member of such employee) except--
(1) to the employee who is the subject of the information at the request
of the employee;
(2) to an occupational or other health researcher if the research is conducted
in compliance with the regulations and protections provided for under part
46 of title 45, Code of Federal Regulations;
(3) under legal compulsion of a Federal court order, except that if the
court order was secured without the knowledge of the individual to whom
the information refers, the employer (or a worker's compensation insurance
issuer acting on the employer's behalf) shall provide the individual with
adequate notice to challenge the court order unless the court order also
imposes confidentiality requirements; and
(4) to government officials who are investigating compliance with this subtitle
if the information is relevant to the investigation.
SEC. 828. CIVIL ACTION.
(a) IN GENERAL- One or more employees, members of a labor organization, or
participants in training programs or a labor organization may bring an action
in a Federal or State court of competent jurisdiction against an employer
(or a worker's compensation insurance issuer acting on the employer's behalf),
employment agency, labor organization, or joint labor-management committee
or training program who commits a violation of this subtitle.
(b) ENFORCEMENT BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION-
(1) IN GENERAL- The powers, remedies, and procedures set forth in sections
705, 706, 707, 709, 710, and 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9, and 2000e-16) shall be the
powers, remedies, and procedures provided to the Equal Employment Opportunity
Commission to enforce this subtitle. The Commission may promulgate regulations
to implement these powers, remedies, and procedures.
(2) EXHAUSTION OF REMEDIES- Nothing in this subsection shall be construed
to require that an individual exhaust the administrative remedies available
through the Equal Employment Opportunity Commission prior to commencing
a civil action under this section, except that if an individual files a
charge of discrimination with the Commission that alleges a violation of
this subtitle, the individual shall exhaust the administrative remedies
available through the Commission prior to commencing a civil action under
this section.
(c) REMEDY- A Federal or State court may award any appropriate legal or equitable
relief under this section. Such relief may include a requirement for the payment
of attorney's fees and costs, including the cost of experts.
SEC. 829. CONSTRUCTION.
Nothing in this subtitle shall be construed to--
(1) limit the rights or protections of an individual under the Americans
with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), including coverage
afforded to individuals under section 102 of such Act;
(2) limit the rights or protections of an individual under the Rehabilitation
Act of 1973 (29 U.S.C. 701 et seq.);
(3) limit the rights or protections of an individual under any other Federal
or State statute that provides equal or greater protection to an individual
than the rights accorded under this subtitle;
(4) apply to the Armed Forces Repository of Specimen Samples for the Identification
of Remains; or
(5) limit the statutory or regulatory authority of the Occupational Safety
and Health Administration or the Mine Safety and Health Administration to
promulgate or enforce workplace safety and health laws and regulations.
SEC. 830. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary to carry
out this subtitle.
SEC. 831. EFFECTIVE DATE.
This subtitle shall become effective on October 1, 2003.
Subtitle C--Miscellaneous Provisions
SEC. 841. SEVERABILITY.
If any provision of this subtitle, an amendment made by this subtitle, or
the application of such provision or amendment to any person or circumstance
is held to be unconstitutional, the remainder of this subtitle, the amendments
made by this subtitle, and the application of the provisions of such to any
person or circumstance shall not be affected thereby.
TITLE IX--MEDICAL PRIVACY
SEC. 901. SHORT TITLE.
This title may be cited as the `Protecting Americans' Medical Privacy Act'.
SEC. 902. PURPOSE.
The purpose of this title is to restore patient privacy protections essential
for high-quality health care that were undermined by the Bush Administration's
August 2002 modifications of the December 2000 medical privacy rule.
SEC. 903. RESTORATION OF PRIVACY PROTECTIONS.
(a) CONSENT FOR USES OR DISCLOSURES TO CARRY OUT TREATMENT, PAYMENT, OR HEALTH
CARE OPERATIONS-
(1) IN GENERAL- The modifications made to sections 164.502, 164.506, and
164.532 of title 45, Code of Federal Regulations, by the August 2002 medical
privacy rule shall have no force or effect.
(2) CLARIFICATION REGARDING INSTANCES WHEN CONSENT IS NOT REQUIRED- In addition
to the circumstances described in the December 2000 medical privacy rule,
and notwithstanding any provision to the contrary, such sections 164.502,
164.506, and 164.532 shall be construed and applied so as to permit a health
care provider to use or disclose an individual's protected health information
without obtaining the prior consent of the individual in the following circumstances:
(A) A health care provider may use or disclose an individual's protected
health information to fill or dispense a prescription, search for drug
interactions related to that prescription, and determine eligibility and
obtain authorization for payment regarding that prescription, if the health
care provider obtains written consent from the individual as soon as practicable.
(B) A health care provider may use or disclose an individual's protected
health information to carry out treatment of that individual if--
(i) the individual and the health care provider have not had in-person
communication regarding such treatment;
(ii) obtaining consent would be impracticable;
(iii) the health care provider determines, in the exercise of professional
judgment, that the individual's consent is clearly inferred from the
circumstances, such as an order or referral from another health care
provider; and
(iv) the health care provider obtains written consent from the individual
as soon as practicable.
(1) IN GENERAL- The modifications made by the August 2002 medical privacy
rule to the definition of the term `marketing' in section 164.501 of title
45, Code of Federal Regulations, shall have no force or effect.
(2) TREATMENT OF CERTAIN COMMUNICATIONS- The exception for oral communications
in paragraph (2)(i) of the definition of the term `marketing' in section
164.501 of title 45, Code of Federal Regulations, as contained in the December
2000 medical privacy rule, shall have no force or effect.
(3) AUTHORIZATIONS FOR MARKETING- Section 164.508 of title 45, Code of Federal
Regulations, shall be construed and applied so as to require that, if an
authorization is required for a use or disclosure for marketing, the authorization
shall be considered invalid unless it--
(A) uses the term `marketing';
(B) states that the purpose of the use or disclosure involved is marketing;
(C) describes the specific marketing uses and disclosures authorized,
including whether the protected health information involved--
(i) may be used for purposes internal to the covered entity;
(ii) may be disclosed to, and used by, a business associate of the covered
entity; and
(iii) may be disclosed to, and used by, any person or entity other than
a business associate of the covered entity; and
(D) states that the use or disclosure of protected health information
for marketing will directly result in remuneration to the covered entity
from a third party, in any case in which a covered entity expects, or
reasonably should expect, that such remuneration will occur.
(c) PUBLIC HEALTH- The modifications made to section 164.512(b)(1)(iii) of
title 45, Code of Federal Regulations, by the August 2002 medical privacy
rule shall have no force or effect.
SEC. 904. DEFINITIONS; EFFECTIVE DATE.
(a) IN GENERAL- For purposes of this title:
(1) DECEMBER 2000 MEDICAL PRIVACY RULE- The term `December 2000 medical
privacy rule' means the final rule on standards for privacy of individually
identifiable health information published on December 28, 2000, in the Federal
Register (65 Fed. Reg. 82462), including the provisions of title 45, Code
of Federal Regulations, revised or added by such rule.
(2) AUGUST 2002 MEDICAL PRIVACY RULE- The term `August 2002 medical privacy
rule' means the final rule, published on August 14, 2002, in the Federal
Register (67 Fed. Reg. 53182), that modified the December 2000 medical privacy
rule.
(b) OTHER TERMS DEFINED- For purposes of this title:
(1) BUSINESS ASSOCIATE; COVERED ENTITY; HEALTH CARE PROVIDER- The terms
`business associate', `covered entity', and `health care provider' shall
have the meanings given such terms in section 160.103 of title 45, Code
of Federal Regulations, as contained in the December 2000 medical privacy
rule.
(2) DISCLOSURE; INDIVIDUAL, PROTECTED HEALTH INFORMATION; TREATMENT; USE-
The terms `disclosure', `individual', `protected health information', `treatment',
and `use' shall have the meanings given such terms in section 164.501 of
title 45, Code of Federal Regulations, as contained in the December 2000
medical privacy rule.
(c) EFFECTIVE DATE; NO REGULATIONS REQUIRED- This title shall take effect
on the date of the enactment of this Act and does not require the issuance
of regulations.
TITLE X--PROTECTING AMERICANS' PRIVACY
SEC. 1001. USE OF DEPARTMENT OF DEFENSE PERSONNEL OR FUNDS TO COLLECT INTELLIGENCE
OR LAW ENFORCEMENT INFORMATION ON UNITED STATES CITIZENS INSIDE THE UNITED
STATES.
(a) PROHIBITION ON USE- Except as specifically authorized by law, no member
of the Armed Forces or civilian employee of the Department of Defense may
participate in the collection of information on United States citizens inside
the United States for intelligence or law enforcement purposes.
(b) PROHIBITION ON DEVELOPMENT OF TECHNOLOGIES- The Department of Defense
may not carry out research, development, test, or evaluation on any technology
whose primary purpose is the collection of information on United States citizens
inside the United States for intelligence or law enforcement purposes.
(c) PROHIBITION ON USE OF FUNDS- No funds appropriated or otherwise made available
to the Department of Defense may be obligated or expended for an activity
prohibited by subsection (a) or (b).
TITLE XI--ELECTION REFORM
SEC. 1101. REFORM.
(a) HELP AMERICA VOTE ACT OF 2002- To carry out the Help America Vote Act
of 2002 (Public Law 107-252)--
(1) there is authorized to be appropriated and there is appropriated, $3,860,200,000,
in the amounts authorized under, and for the fiscal years specified in,
that Act (except for the provisions and years specified in paragraph (2));
and
(2) there are authorized to be appropriated such sums as may be necessary
to carry out sections 104(e), 292(a) (for fiscal year 2007 and each subsequent
fiscal year), 296 (for fiscal years 2004 through 2009), and 503(2) (for
fiscal year 2004 and each succeeding fiscal year) of that Act.
(b) HELP AMERICA VOTE FOUNDATION- To carry out chapter 1526 of part B of subtitle
II of title 36, United States Code (as added by the Help America Vote Act
of 2002)--
(1) there is authorized to be appropriated and there is appropriated $5,000,000
for fiscal year 2003; and
(2) there are authorized to be appropriated such sums as may be necessary
for each succeeding fiscal year.
END
