II 

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Equal Rights and Equal Dignity for Americans Act of 

6 2003’’. 

7 (b) TABLE OF CONTENTS.—The table of contents of 

8 this Act is as follows:
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Sec. 1. Short title; table of contents. 

TITLE I—LOCAL LAW ENFORCEMENT ENHANCEMENT ACT 

Sec. 101. Short title. 

Sec. 102. Findings. 

Sec. 103. Definition of hate crime. 

Sec. 104. Support for criminal investigations and prosecutions by State and 

local law enforcement officials. 

Sec. 105. Grant program. 

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. 

Sec. 109. Statistics. 

Sec. 110. Severability. 

TITLE II—INCREASE IN FUNDING FOR ENFORCING CIVIL RIGHTS 

LAWS 

Sec. 201. Increase in funding. 

TITLE III—SUPPORTING INDIGENT DEFENSE 

Sec. 301. Findings. 

Sec. 302. Authorization of appropriations. 

TITLE IV—INDIAN TRUST ASSET AND TRUST FUND 

MANAGEMENT AND REFORM 

Sec. 401. Short title. 

Sec. 402. Findings. 

Sec. 403. Definitions. 

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. 408. Regulations. 

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. 601. Short title. 

Sec. 602. Findings. 

Sec. 603. Enhanced enforcement of equal pay requirements. 

Sec. 604. Training. 

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. 
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TITLE VII—EMPLOYMENT NON-DISCRIMINATION 

Sec. 701. Short title. 

Sec. 702. Purposes. 

Sec. 703. Definitions. 

Sec. 704. Discrimination prohibited. 

Sec. 705. Retaliation prohibited. 

Sec. 706. Benefits. 

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. 711. Construction. 

Sec. 712. Enforcement. 

Sec. 713. State and Federal immunity. 

Sec. 714. Attorneys’ fees. 

Sec. 715. Posting notices. 

Sec. 716. Regulations. 

Sec. 717. Relationship to other laws. 

Sec. 718. Severability. 

Sec. 719. Effective date. 

TITLE VIII—GENETIC NONDISCRIMINATION 

Sec. 801. Short title. 

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. 821. Definitions. 

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. 828. Civil action. 

Sec. 829. Construction. 

Sec. 830. Authorization of appropriations. 

Sec. 831. Effective date. 

Subtitle C—Miscellaneous Provisions 

Sec. 841. Severability. 

TITLE IX—MEDICAL PRIVACY 

Sec. 901. Short title. 
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Sec. 902. Purpose. 

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 

Sec. 1101. Reform.

1 TITLE I—LOCAL LAW ENFORCE2 MENT ENHANCEMENT ACT 

3 SEC. 101. SHORT TITLE. 

4 This title may be cited as the ‘‘Local Law Enforce5 ment Enhancement Act of 2003’’. 

6 SEC. 102. FINDINGS. 

7 Congress makes the following findings: 

8 (1) The incidence of violence motivated by the 

9 actual or perceived race, color, religion, national ori10 gin, gender, sexual orientation, or disability of the 

11 victim poses a serious national problem. 

12 (2) Such violence disrupts the tranquility and 

13 safety of communities and is deeply divisive. 

14 (3) State and local authorities are now and will 

15 continue to be responsible for prosecuting the over16 whelming majority of violent crimes in the United 

17 States, including violent crimes motivated by bias. 

18 These authorities can carry out their responsibilities 

19 more effectively with greater Federal assistance. 
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1 (4) Existing Federal law is inadequate to ad2 dress this problem. 

3 (5) The prominent characteristic of a violent 

4 crime motivated by bias is that it devastates not just 

5 the actual victim and the family and friends of the 

6 victim, but frequently savages the community shar7 ing the traits that caused the victim to be selected. 

8 (6) Such violence substantially affects interstate 

9 commerce in many ways, including—

10 (A) by impeding the movement of members 

11 of targeted groups and forcing such members to 

12 move across State lines to escape the incidence 

13 or risk of such violence; and 

14 (B) by preventing members of targeted 

15 groups from purchasing goods and services, ob16 taining or sustaining employment, or partici17 pating in other commercial activity. 

18 (7) Perpetrators cross State lines to commit 

19 such violence.

20 (8) Channels, facilities, and instrumentalities of 

21 interstate commerce are used to facilitate the com22 mission of such violence. 

23 (9) Such violence is committed using articles 

24 that have traveled in interstate commerce. 
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1 (10) For generations, the institutions of slavery

2 and involuntary servitude were defined by the race, 

3 color, and ancestry of those held in bondage. Slavery 

4 and involuntary servitude were enforced, both prior 

5 to and after the adoption of the 13th amendment 

6 to the Constitution of the United States, through 

7 widespread public and private violence directed at 

8 persons because of their race, color, or ancestry, or 

9 perceived race, color, or ancestry. Accordingly, elimi10 nating racially motivated violence is an important 

11 means of eliminating, to the extent possible, the 

12 badges, incidents, and relics of slavery and involun13 tary servitude. 

14 (11) Both at the time when the 13th, 14th, and 

15 15th amendments to the Constitution of the United 

16 States were adopted, and continuing to date, mem17 bers of certain religious and national origin groups 

18 were and are perceived to be distinct ‘‘races’’. Thus, 

19 in order to eliminate, to the extent possible, the 

20 badges, incidents, and relics of slavery, it is nec21 essary to prohibit assaults on the basis of real or 

22 perceived religions or national origins, at least to the 

23 extent such religions or national origins were re24 garded as races at the time of the adoption of the 
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1 13th, 14th, and 15th amendments to the Constitu2 tion of the United States. 

3 (12) Federal jurisdiction over certain violent 

4 crimes motivated by bias enables Federal, State, and 

5 local authorities to work together as partners in the 

6 investigation and prosecution of such crimes. 

7 (13) The problem of crimes motivated by bias 

8 is sufficiently serious, widespread, and interstate in 

9 nature as to warrant Federal assistance to States 

10 and local jurisdictions. 

11 SEC. 103. DEFINITION OF HATE CRIME. 

12 In this title, the term ‘‘hate crime’’ has the same 

13 meaning as in section 280003(a) of the Violent Crime 

14 Control and Law Enforcement Act of 1994 (28 U.S.C. 

15 994 note). 

16 SEC. 104. SUPPORT FOR CRIMINAL INVESTIGATIONS AND 

17 PROSECUTIONS BY STATE AND LOCAL LAW 

18 ENFORCEMENT OFFICIALS. 

19 (a) ASSISTANCE OTHER THAN FINANCIAL ASSIST20 ANCE.—

21 (1) IN GENERAL.—At the request of a law en22 forcement official of a State or Indian tribe, the At23 torney General may provide technical, forensic, pros24 ecutorial, or any other form of assistance in the 
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1 criminal investigation or prosecution of any crime 

2 that—

3 (A) constitutes a crime of violence (as de4 fined in section 16 of title 18, United States 

5 Code); 

6 (B) constitutes a felony under the laws of 

7 the State or Indian tribe; and 

8 (C) is motivated by prejudice based on the 

9 race, color, religion, national origin, gender, 

10 sexual orientation, or disability of the victim, or 

11 is a violation of the hate crime laws of the State 

12 or Indian tribe. 

13 (2) PRIORITY.—In providing assistance under 

14 paragraph (1), the Attorney General shall give pri15 ority to crimes committed by offenders who have 

16 committed crimes in more than 1 State and to rural 

17 jurisdictions that have difficulty covering the ex18 traordinary expenses relating to the investigation or 

19 prosecution of the crime. 

20 (b) GRANTS.—

21 (1) IN GENERAL.—The Attorney General may 

22 award grants to assist State, local, and Indian law 

23 enforcement officials with the extraordinary expenses 

24 associated with the investigation and prosecution of 

25 hate crimes. 
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1 (2) OFFICE OF JUSTICE PROGRAMS.—In imple2 menting the grant program, the Office of Justice 

3 Programs shall work closely with the funded juris4 dictions to ensure that the concerns and needs of all 

5 affected parties, including community groups and 

6 schools, colleges, and universities, are addressed 

7 through the local infrastructure developed under the 

8 grants. 

9 (3) APPLICATION.—

10 (A) IN GENERAL.—Each State that desires 

11 a grant under this subsection shall submit an 

12 application to the Attorney General at such 

13 time, in such manner, and accompanied by or 

14 containing such information as the Attorney 

15 General shall reasonably require. 

16 (B) DATE FOR SUBMISSION.—Applications 

17 submitted pursuant to subparagraph (A) shall 

18 be submitted during the 60-day period begin19 ning on a date that the Attorney General shall 

20 prescribe. 

21 (C) REQUIREMENTS.—A State or political 

22 subdivision of a State or tribal official applying 

23 for assistance under this subsection shall—

24 (i) describe the extraordinary pur25 poses for which the grant is needed; 
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1 (ii) certify that the State, political 

2 subdivision, or Indian tribe lacks the re3 sources necessary to investigate or pros4 ecute the hate crime; 

5 (iii) demonstrate that, in developing a 

6 plan to implement the grant, the State, po7 litical subdivision, or tribal official has con8 sulted and coordinated with nonprofit, non9 governmental victim services programs 

10 that have experience in providing services 

11 to victims of hate crimes; and 

12 (iv) certify that any Federal funds re13 ceived under this subsection will be used to 

14 supplement, not supplant, non-Federal 

15 funds that would otherwise be available for 

16 activities funded under this subsection. 

17 (4) DEADLINE.—An application for a grant 

18 under this subsection shall be approved or dis19 approved by the Attorney General not later than 30 

20 business days after the date on which the Attorney 

21 General receives the application. 

22 (5) GRANT AMOUNT.—A grant under this sub23 section shall not exceed $100,000 for any single ju24 risdiction within a 1-year period. 
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1 (6) REPORT.—Not later than December 31, 

2 2004, the Attorney General shall submit to Congress 

3 a report describing the applications submitted for 

4 grants under this subsection, the award of such

5 grants, and the purposes for which the grant 

6 amounts were expended. 

7 (7) AUTHORIZATION OF APPROPRIATIONS.—

8 There is authorized to be appropriated $5,000,000 

9 to carry out this subsection for each of fiscal years 

10 2004 and 2005. 

11 SEC. 105. GRANT PROGRAM. 

12 (a) AUTHORITY TO MAKE GRANTS.—The Office of 

13 Justice Programs of the Department of Justice shall 

14 award grants, in accordance with such regulations as the 

15 Attorney General may prescribe, to State and local pro16 grams designed to combat hate crimes committed by juve17 niles, including programs to train local law enforcement 

18 officers in identifying, investigating, prosecuting, and pre19 venting hate crimes. 

20 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

21 are authorized to be appropriated such sums as may be 

22 necessary to carry out this section. 
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1 SEC. 106. AUTHORIZATION FOR ADDITIONAL PERSONNEL 

2 TO ASSIST STATE AND LOCAL LAW ENFORCE3 MENT. 

4 There are authorized to be appropriated to the De5 partment of the Treasury and the Department of Justice, 

6 including the Community Relations Service, for fiscal 

7 years 2004, 2005, and 2006 such sums as are necessary 

8 to increase the number of personnel to prevent and re9 spond to alleged violations of section 249 of title 18, 

10 United States Code, as added by section 107. 

11 SEC. 107. PROHIBITION OF CERTAIN HATE CRIME ACTS. 

12 (a) IN GENERAL.—Chapter 13 of title 18, United 

13 States Code, is amended by adding at the end the fol14 lowing: 

15 ‘‘§ 249. Hate crime acts 

16 ‘‘(a) IN GENERAL.—

17 ‘‘(1) OFFENSES INVOLVING ACTUAL OR PER18 CEIVED RACE, COLOR, RELIGION, OR NATIONAL ORI19 GIN.—Whoever, whether or not acting under color of 

20 law, willfully causes bodily injury to any person or,

21 through the use of fire, a firearm, or an explosive 

22 or incendiary device, attempts to cause bodily injury 

23 to any person, because of the actual or perceived 

24 race, color, religion, or national origin of any per25 son—
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1 ‘‘(A) shall be imprisoned not more than 10 

2 years, fined in accordance with this title, or 

3 both; and 

4 ‘‘(B) shall be imprisoned for any term of 

5 years or for life, fined in accordance with this 

6 title, or both, if—

7 ‘‘(i) death results from the offense; or 

8 ‘‘(ii) the offense includes kidnaping or 

9 an attempt to kidnap, aggravated sexual 

10 abuse or an attempt to commit aggravated 

11 sexual abuse, or an attempt to kill. 

12 ‘‘(2) OFFENSES INVOLVING ACTUAL OR PER13 CEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEX14 UAL ORIENTATION, OR DISABILITY.—

15 ‘‘(A) IN GENERAL.—Whoever, whether or 

16 not acting under color of law, in any cir17 cumstance described in subparagraph (B), will18 fully causes bodily injury to any person or, 

19 through the use of fire, a firearm, or an explo20 sive or incendiary device, attempts to cause 

21 bodily injury to any person, because of the ac22 tual or perceived religion, national origin, gen23 der, sexual orientation, or disability of any per24 son—
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1 ‘‘(i) shall be imprisoned not more 

2 than 10 years, fined in accordance with 

3 this title, or both; and 

4 ‘‘(ii) shall be imprisoned for any term 

5 of years or for life, fined in accordance 

6 with this title, or both, if—

7 ‘‘(I) death results from the of8 fense; or

9 ‘‘(II) the offense includes kid10 naping or an attempt to kidnap, ag11 gravated sexual abuse or an attempt 

12 to commit aggravated sexual abuse, or 

13 an attempt to kill. 

14 ‘‘(B) CIRCUMSTANCES DESCRIBED.—For 

15 purposes of subparagraph (A), the cir16 cumstances described in this subparagraph are 

17 that— 

18 ‘‘(i) the conduct described in subpara19 graph (A) occurs during the course of, or 

20 as the result of, the travel of the defendant 

21 or the victim—

22 ‘‘(I) across a State line or na23 tional border; or
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1 ‘‘(II) using a channel, facility, or 

2 instrumentality of interstate or for3 eign commerce; 

4 ‘‘(ii) the defendant uses a channel, fa5 cility, or instrumentality of interstate or 

6 foreign commerce in connection with the 

7 conduct described in subparagraph (A); 

8 ‘‘(iii) in connection with the conduct 

9 described in subparagraph (A), the defend10 ant employs a firearm, explosive or incen11 diary device, or other weapon that has 

12 traveled in interstate or foreign commerce; 

13 or 

14 ‘‘(iv) the conduct described in sub15 paragraph (A)—

16 ‘‘(I) interferes with commercial 

17 or other economic activity in which 

18 the victim is engaged at the time of 

19 the conduct; or 

20 ‘‘(II) otherwise affects interstate 

21 or foreign commerce. 

22 ‘‘(b) CERTIFICATION REQUIREMENT.—No prosecu23 tion of any offense described in this subsection may be

24 undertaken by the United States, except under the certifi25 cation in writing of the Attorney General, the Deputy At-
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1 torney General, the Associate Attorney General, or any 

2 Assistant Attorney General specially designated by the At3 torney General that—

4 ‘‘(1) he or she has reasonable cause to believe 

5 that the actual or perceived race, color, religion, na6 tional origin, gender, sexual orientation, or disability 

7 of any person was a motivating factor underlying the 

8 alleged conduct of the defendant; and 

9 ‘‘(2) he or his designee or she or her designee 

10 has consulted with State or local law enforcement of11 ficials regarding the prosecution and determined 

12 that—

13 ‘‘(A) the State does not have jurisdiction 

14 or does not intend to exercise jurisdiction; 

15 ‘‘(B) the State has requested that the Fed16 eral Government assume jurisdiction; 

17 ‘‘(C) the State does not object to the Fed18 eral Government assuming jurisdiction; or 

19 ‘‘(D) the verdict or sentence obtained pur20 suant to State charges left demonstratively 

21 unvindicated the Federal interest in eradicating 

22 bias-motivated violence. 

23 ‘‘(c) DEFINITIONS.—In this section—
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1 ‘‘(1) the term ‘explosive or incendiary device’ 

2 has the meaning given the term in section 232 of 

3 this title; and 

4 ‘‘(2) the term ‘firearm’ has the meaning given 

5 the term in section 921(a) of this title.’’. 

6 (b) TECHNICAL AND CONFORMING AMENDMENT.—

7 The analysis for chapter 13 of title 18, United States 

8 Code, is amended by adding at the end the following:

‘‘249. Hate crime acts.’’.

9 SEC. 108. DUTIES OF FEDERAL SENTENCING COMMISSION. 

10 (a) AMENDMENT OF FEDERAL SENTENCING GUIDE11 LINES.—Pursuant to the authority provided under section 

12 994 of title 28, United States Code, the United States 

13 Sentencing Commission shall study the issue of adult re14 cruitment of juveniles to commit hate crimes and shall, 

15 if appropriate, amend the Federal sentencing guidelines 

16 to provide sentencing enhancements (in addition to the 

17 sentencing enhancement provided for the use of a minor 

18 during the commission of an offense) for adult defendants 

19 who recruit juveniles to assist in the commission of hate 

20 crimes. 

21 (b) CONSISTENCY WITH OTHER GUIDELINES.—In 

22 carrying out this section, the United States Sentencing 

23 Commission shall—

24 (1) ensure that there is reasonable consistency 

25 with other Federal sentencing guidelines; and 
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1 (2) avoid duplicative punishments for substan2 tially the same offense. 

3 SEC. 109. STATISTICS. 

4 Subsection (b)(1) of the first section of the Hate 

5 Crimes Statistics Act (28 U.S.C. 534 note) is amended 

6 by inserting ‘‘gender,’’ after ‘‘race,’’. 

7 SEC. 110. SEVERABILITY. 

8 If any provision of this title, an amendment made by 

9 this title, or the application of such provision or amend10 ment to any person or circumstance is held to be unconsti11 tutional, the remainder of this title, the amendments made 

12 by this title, and the application of the provisions of such 

13 to any person or circumstance shall not be affected there14 by.

15 TITLE II—INCREASE IN FUNDING 

16 FOR ENFORCING CIVIL 

17 RIGHTS LAWS 

18 SEC. 201. INCREASE IN FUNDING. 

19 Notwithstanding any other provision of law, there are 

20 authorized to be appropriated for fiscal year 2004—

21 (1) to the Equal Employment Opportunity 

22 Commission, to carry out the activities of the Com23 mission, $339,691,800; 
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1 (2) to the Civil Rights Division of the Depart2 ment of Justice, to carry out the activities of the Di3 vision, $110,360,000; 

4 (3) to the Office of Civil Rights of the Depart5 ment of Education, to carry out the activities of the 

6 Office, $97,760,000; and 

7 (4) to the Office of Federal Contract Compli8 ance Programs of the Department of Labor, to carry 

9 out the activities of the Office, $81,421,200.

10 TITLE III—SUPPORTING 

11 INDIGENT DEFENSE 

12 SEC. 301. FINDINGS. 

13 Congress finds the following:

14 (1) It is important to provide equal access to 

15 the system of justice in the United States for all in16 dividuals, regardless of economic stature. 

17 (2) The Legal Services Corporation provides 

18 high quality legal assistance for persons who would 

19 otherwise be unable to afford legal counsel. 

20 (3) The programs of the Legal Services Cor21 poration serve clients with cases concerning housing, 

22 family law, income maintenance, consumer issues, 

23 and employment. 

24 (4) For just under a decade the Federal re25 sources available to the Legal Services Corporation 
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1 have been inadequate. Nearly half of all people who 

2 applied for assistance from local Legal Services Cor3 poration programs have been turned away in recent 

4 years. 

5 (5) Congress must adequately fund Legal Serv6 ices Corporation programs to preserve the strength 

7 of the programs. 

8 SEC. 302. AUTHORIZATION OF APPROPRIATIONS. 

9 Section 1010(a) of the Legal Services Corporation 

10 Act (42 U.S.C. 2996i(a)) is amended to read as follows: 

11 ‘‘(a) There is authorized to be appropriated for the 

12 purpose of carrying out the activities of the Corporation, 

13 $400,000,000 for fiscal year 2004.’’.

14 TITLE IV—INDIAN TRUST ASSET 

15 AND TRUST FUND MANAGE16 MENT AND REFORM

17 SEC. 401. SHORT TITLE. 

18 This title may be cited as the ‘‘Indian Trust Asset 

19 and Trust Fund Management and Reform Act of 2003’’. 

20 SEC. 402. FINDINGS. 

21 Congress finds and affirms that the proper discharge 

22 of trust responsibility of the United States requires, with23 out limitation, that the trustee, using a high degree of 

24 care, skill, and loyalty—
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1 (1) protect and preserve Indian trust assets 

2 from loss, damage, unlawful alienation, waste, and 

3 depletion; 

4 (2) ensure that any management of Indian 

5 trust assets required to be carried out by the Sec6 retary—

7 (A) promotes the interest of the beneficial 

8 owner; and 

9 (B) supports, to the maximum extent prac10 ticable in accordance with the trust responsi11 bility of the Secretary, the beneficial owner’s in12 tended use of the assets; 

13 (3)(A) enforce the terms of all leases or other 

14 agreements that provide for the use of trust assets; 

15 and 

16 (B) take appropriate steps to remedy trespass 

17 on trust or restricted land; 

18 (4) promote tribal control and self-determina19 tion over tribal trust land and resources; 

20 (5) select and oversee persons that manage In21 dian trust assets; 

22 (6) confirm that Indian tribes that manage In23 dian trust assets pursuant to contracts and com24 pacts authorized by the Indian Self-Determination 

25 and Education Assistance Act (25 U.S.C. 450 et 
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1 seq.) protect and prudently manage those Indian 

2 trust assets; 

3 (7) provide oversight and review of the perform4 ance of the trust responsibility of the Secretary, in5 cluding Indian trust asset and investment manage6 ment programs, operational systems, and informa7 tion systems; 

8 (8) account for and identify, collect, deposit, in9 vest, and distribute, in a timely manner, income due 

10 or held on behalf of tribal and individual Indian ac11 count holders; 

12 (9) maintain a verifiable system of records that, 

13 at a minimum, is capable of identifying, with respect 

14 to a trust asset—

15 (A) the location of the trust asset; 

16 (B) the beneficial owners of the trust 

17 asset; 

18 (C) any legal encumbrances (such as leases 

19 or permits) applicable to the trust asset; 

20 (D) the user of the trust asset; 

21 (E) any rent or other payments made; 

22 (F) the value of trust or restricted land 

23 and resources associated with the trust asset; 

24 (G) dates of—

25 (i) collections; 
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1 (ii) deposits; 

2 (iii) transfers; 

3 (iv) disbursements; 

4 (v) imposition of third-party obliga5 tions (such as court-ordered child support 

6 or judgments); 

7 (vi) statements of earnings; 

8 (vii) investment instruments; and 

9 (viii) closure of all trust fund accounts 

10 relating to the trust fund asset; 

11 (H) documents pertaining to actions taken 

12 to prevent or compensate for any diminishment 

13 of the Indian trust asset; and 

14 (I) documents that evidence the actions of 

15 the Secretary regarding the management and 

16 disposition of the Indian trust asset; 

17 (10) establish and maintain a system of records 

18 that—

19 (A) permits beneficial owners to obtain in20 formation regarding Indian trust assets in a 

21 timely manner; and 

22 (B) protects the privacy of that informa23 tion; 

24 (11) invest tribal and individual Indian trust 

25 funds to ensure that the trust account remains rea-
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1 sonably productive for the beneficial owner con2 sistent with market conditions existing at the time 

3 at which investment is made; 

4 (12) communicate with beneficial owners re5 garding the management and administration of In6 dian trust assets; and 

7 (13) protect treaty-based fishing, hunting, gath8 ering, and similar rights-of-access and resource use 

9 on traditional tribal land.

10 SEC. 403. DEFINITIONS. 

11 Section 2 of the American Indian Trust Fund Man12 agement Reform Act of 1994 (25 U.S.C. 4001) is amend13 ed—

14 (1) by striking paragraph (1); 

15 (2) in paragraph (2), by striking ‘‘(2) The 

16 term’’ and inserting the following: 

17 ‘‘(5) INDIAN TRIBE.—The term’’; 

18 (3) in paragraph (3), by striking ‘‘(3) The 

19 term’’ and inserting the following: 

20 ‘‘(8) SECRETARY.—The term’’; 

21 (4) in paragraph (4), by striking ‘‘(4) The 

22 term’’ and inserting the following: 

23 ‘‘(6) OFFICE.—The term’’; 

24 (5) in paragraph (5), by striking ‘‘(5) The 

25 term’’ and inserting the following: 
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1 ‘‘(2) BUREAU.—The term’’; 

2 (6) in paragraph (6), by striking ‘‘(6) The 

3 term’’ and inserting the following: 

4 ‘‘(3) DEPARTMENT.—The term’’; 

5 (7) by moving paragraphs (2), (3), (5), (6), and 

6 (8) (as redesignated by this subsection) so as to ap7 pear in numerical order; 

8 (8) by inserting before paragraph (2) (as redes9 ignated by paragraph (5)) the following: 

10 ‘‘(1) BENEFICIAL OWNER.—The term ‘bene11 ficial owner’ means an Indian tribe or member of an 

12 Indian tribe that is the beneficial owner of Indian 

13 trust assets.’’; 

14 (9) by inserting after paragraph (3) (as redesig15 nated by paragraph (6)) the following: 

16 ‘‘(4) DEPUTY SECRETARY.—The term ‘Deputy 

17 Secretary’ means the Deputy Secretary for Trust 

18 Management and Reform appointed under section 

19 307(a)(2).’’; 

20 (10) by inserting after paragraph (6) (as redes21 ignated by paragraph (4)) the following: 

22 ‘‘(7) REFORM OFFICE.—The term ‘Reform Of23 fice’ means the Office of Trust Reform Implementa24 tion and Oversight established by section 307(e).’’; 

25 and 
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1 (11) by adding at the end the following: 

2 ‘‘(9) TASK FORCE.—The term ‘Task Force’ 

3 means the Tribal Task Force for Trust Reform es4 tablished under section 307(a). 

5 ‘‘(10) TRUST ASSETS.—The term ‘trust assets’ 

6 means all tangible property including land, minerals, 

7 coal, oil and gas, forest resources, agricultural re8 sources, water and water sources, and fish and wild9 life held by the Secretary for the benefit of an In10 dian tribe or an individual member of an Indian 

11 tribe pursuant to Federal law. 

12 ‘‘(11) TRUST FUNDS.—The term ‘trust funds’ 

13 means all funds held by the Secretary for the benefit 

14 of an Indian tribe or and individual member of an 

15 Indian tribe pursuant to Federal law. 

16 ‘‘(12) TRUSTEE.—The term ‘trustee’ means the 

17 Secretary or any other person that is authorized to 

18 act as a trustee for Indian trust assets and trust 

19 funds.’’. 

20 SEC. 404. RESPONSIBILITIES OF SECRETARY. 

21 Section 102 of the American Indian Trust Fund 

22 Management Reform Act of 1994 (25 U.S.C. 4011) is 

23 amended to read as follows: 
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1 ‘‘SEC. 4011. RESPONSIBILITIES OF SECRETARY. 

2 ‘‘(a) ACCOUNTING FOR DAILY AND ANNUAL BAL3 ANCES OF INDIAN TRUST FUNDS.—

4 ‘‘(1) IN GENERAL.—The Secretary shall ac5 count for the daily and annual balances of all trust 

6 funds that are deposited or invested pursuant to the 

7 Act of June 24, 1938 (25 U.S.C. 162a). 

8 ‘‘(2) PERIODIC STATEMENT OF PERFORM9 ANCE.—

10 ‘‘(A) IN GENERAL.—Not later than 20 

11 business days after the close of a calendar quar12 ter, the Secretary shall provide a statement of 

13 performance to each Indian tribe and member 

14 of Indian tribe with respect to which funds are 

15 deposited or invested pursuant to the Act of 

16 June 24, 1938 (25 U.S.C. 162a). 

17 ‘‘(B) REQUIREMENTS.—Each statement 

18 under subparagraph (A) shall identify, with re19 spect to the period covered by the statement—

20 ‘‘(i) the source, type, and status of the 

21 funds; 

22 ‘‘(ii) the beginning balance of the 

23 funds; 

24 ‘‘(iii) the gains and losses of the 

25 funds; 
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1 ‘‘(iv) receipts and disbursements of 

2 the funds; and 

3 ‘‘(v) the ending balance of the funds. 

4 ‘‘(3) ANNUAL AUDIT.—With respect to each ac5 count containing trust funds in an amount in excess 

6 of $1,000, the Secretary shall—

7 ‘‘(A) conduct, for each fiscal year, an audit 

8 of all trust funds described in paragraph (1); 

9 and 

10 ‘‘(B) include, in the first statement of per11 formance completed under paragraph (2) after 

12 completion of the audit, a letter describing the 

13 results of the audit. 

14 ‘‘(b) ADDITIONAL RESPONSIBILITIES.—In addition 

15 to the responsibilities described in subsection (a), subject 

16 to the availability of appropriations, the Secretary, in car17 rying out the trust responsibility of the United States, 

18 shall, at a minimum—

19 ‘‘(1) provide for adequate systems for account20 ing for and reporting trust fund balances; 

21 ‘‘(2) provide for adequate controls over receipts 

22 and disbursements; 

23 ‘‘(3) provide for periodic, timely reconciliations 

24 of financial records to ensure the accuracy of ac25 count information; 
29

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1 ‘‘(4) determine accurate cash balances; 

2 ‘‘(5) prepare and supply to account holders 

3 periodic account statements; 

4 ‘‘(6) establish and publish in the Federal Reg5 ister consistent policies and procedures for trust 

6 fund management and accounting; 

7 ‘‘(7) provide adequate staffing, supervision, and 

8 training for trust fund management and accounting; 

9 and

10 ‘‘(8) manage natural resources located within 

11 the boundaries of Indian reservations and trust 

12 land.’’. 

13 SEC. 405. INDIAN PARTICIPATION IN TRUST FUND ACTIVI14 TIES. 

15 Title II of the American Indian Trust Fund Manage16 ment Reform Act of 1994 (25 U.S.C. 4021 et seq.) is 

17 amended—

18 (1) by striking sections 202 and 203; and 

19 (2) by inserting after section 201 the following: 

20 ‘‘SEC. 202. PARTICIPATION IN TRUST FUND AND TRUST 

21 ASSET MANAGEMENT ACTIVITIES BY INDIAN 

22 TRIBES. 

23 ‘‘(a) PLANNING PROGRAM.—To meet the purposes of 

24 this title, an Indian Trust Fund and Trust Asset Manage-
30

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1 ment and Monitoring Plan (in this section referred to as 

2 the ‘Plan’) shall be developed and implemented as follows: 

3 ‘‘(1) Pursuant to a self-determination contract 

4 or compact under section 102 of the Indian Self-De5 termination Act (25 U.S.C. 450f) or section 403 of 

6 the Indian Self Determination and Education Assist7 ance Act (25 U.S.C. 458cc), an Indian tribe may de8 velop or implement a Plan to provide for manage9 ment of the trust funds and assets (or portions of 

10 trust funds or assets) of which the Indian tribe is 

11 the beneficial owner. Subject to the provisions of 

12 paragraphs (3) and (4), the tribe shall have broad 

13 discretion in designing and carrying out the plan14 ning process. 

15 ‘‘(2) To include in a Plan particular trust funds 

16 or assets held by multiple individuals, an Indian 

17 tribe shall obtain the approval of a majority of the 

18 individuals who hold an interest in any such trust 

19 funds or assets. 

20 ‘‘(3) The Plan shall be submitted to the Sec21 retary for approval pursuant to the Indian Self-De22 termination Act (25 U.S.C. 450f et seq.). 

23 ‘‘(4) If an Indian tribe chooses not to develop 

24 or implement a Plan, the Secretary shall, at the re25 quest of the Indian tribe, develop or implement, as 
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1 appropriate, a Plan in close consultation with the af2 fected Indian tribe. 

3 ‘‘(5) Whether developed directly by the Indian 

4 tribe or by the Secretary, the Plan shall—

5 ‘‘(A) determine the amount and source of 

6 funds held in trust; 

7 ‘‘(B) identify and include an inventory of 

8 trust assets based on the information available 

9 to the Indian tribe and the Secretary; 

10 ‘‘(C) identify specific tribal goals and ob11 jectives; 

12 ‘‘(D) establish management objectives for 

13 the funds and assets held in trust; 

14 ‘‘(E) define critical values of the Indian 

15 tribe and its members and provide identified 

16 management objectives; 

17 ‘‘(F) identify actions to be taken to reach 

18 established objectives; 

19 ‘‘(G) use existing survey documents, re20 ports and other research from Federal agencies, 

21 tribal community colleges, and land grant uni22 versities; and 

23 ‘‘(H)(i) be completed not later than 3 

24 years after the date of initiation of activity to 

25 establish the Plan; and 
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1 ‘‘(ii) be revised periodically thereafter as 

2 necessary to accomplish the purposes of this 

3 Act. 

4 ‘‘(b) MANAGEMENT AND ADMINISTRATION.—Plans 

5 developed and approved under subsection (a) shall govern 

6 the management and administration of funds and assets 

7 (or portions of funds and assets) held in trust by the Bu8 reau and the Indian tribal government. 

9 ‘‘(c) PLAN DOES NOT TERMINATE TRUST.—Devel10 oping or implementing a Plan shall not be construed or 

11 deemed to constitute a termination of the trust status of 

12 the assets or funds that are included in, or subject to, the 

13 Plan. 

14 ‘‘(d) LIABILITY.—An Indian tribe managing and ad15 ministering trust funds and trust assets in a manner that 

16 is consistent with an approved Plan shall not be liable for 

17 waste or loss of an asset or funds that are included in 

18 such Plan. 

19 ‘‘(e) INDIAN PARTICIPATION IN MANAGEMENT AC20 TIVITIES.—

21 ‘‘(1) TRIBAL RECOGNITION.—The Secretary 

22 shall conduct all management activities of funds and 

23 assets held in trust in accordance with goals and ob24 jectives set forth in a Plan approved pursuant to 

25 and in accordance with all tribal laws and ordi-
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1 nances, except in specific instances where such com2 pliance would be contrary to the trust responsibility 

3 of the United States. 

4 ‘‘(2) TRIBAL LAWS.—

5 ‘‘(A) IN GENERAL.—Unless otherwise pro6 hibited by Federal law, the Secretary shall com7 ply with tribal law pertaining to the manage8 ment of funds and assets held in trust. 

9 ‘‘(B) DUTIES.—The Secretary shall—

10 ‘‘(i) provide assistance in the enforce11 ment of tribal laws described in subpara12 graph (A); 

13 ‘‘(ii) provide notice of such tribal laws 

14 to persons or entities dealing with tribal 

15 funds and assets held in trust; and 

16 ‘‘(iii) upon the request of an Indian 

17 tribe, require appropriate Federal officials 

18 to appear in tribal forums. 

19 ‘‘(3) WAIVER OF REGULATIONS.—In any case 

20 in which a regulation or administrative policy of the 

21 Department of the Interior conflicts with the objec22 tives of the Plan, or with a tribal law, the Secretary 

23 shall waive the application of such regulation or ad24 ministrative policy unless such waiver would con25 stitute a violation of a Federal statute or judicial de-
34

•S 16 IS 

1 cision or would conflict with the Secretary’s trust re2 sponsibility under Federal law. 

3 ‘‘(4) SOVEREIGN IMMUNITY.—This section does 

4 not constitute a waiver of the sovereign immunity of 

5 the United States, nor does it authorize tribal justice 

6 systems to review actions of the Secretary. 

7 ‘‘(5) TRUST RESPONSIBILITY.—Nothing in this 

8 section shall be construed to diminish or expand the 

9 trust responsibility of the United States toward In10 dian funds and assets held in trust, or any legal ob11 ligation or remedy resulting from such funds and as12 sets. 

13 ‘‘(f) REPORT.—

14 ‘‘(1) IN GENERAL.—Not later than 180 days 

15 after the enactment of this section, and annually 

16 thereafter, the Secretary shall submit a report to the 

17 Committee on Indian Affairs of the Senate and the 

18 Committee on Resources of the House of Represent19 atives. 

20 ‘‘(2) CONTENTS.—The report required under 

21 paragraph (1) shall detail the following: 

22 ‘‘(A) The efforts of the Department to im23 plement this section. 

24 ‘‘(B) The nature and extent of consultation 

25 between the Department, Tribes, and individual 
35

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1 Indians with respect to implementation of this 

2 section. 

3 ‘‘(C) Any recommendations of the Depart4 ment for further changes to this Act, accom5 panied by a record of consultation with Tribes 

6 and individual Indians regarding such rec7 ommendations.’’. 

8 SEC. 406. DEPUTY SECRETARY FOR TRUST MANAGEMENT 

9 AND REFORM. 

10 (a) IN GENERAL.—Section 302 of the American In11 dian Trust Fund Management Reform Act of 1994 (25 

12 U.S.C. 4042) is amended to read as follows: 

13 ‘‘SEC. 302. DEPUTY SECRETARY FOR TRUST MANAGEMENT 

14 AND REFORM. 

15 ‘‘(a) ESTABLISHMENT.—

16 ‘‘(1) IN GENERAL.—There is established within 

17 the Department the position of Deputy Secretary for 

18 Trust Management and Reform. 

19 ‘‘(2) APPOINTMENT AND REMOVAL.—

20 ‘‘(A) APPOINTMENT.—The Deputy Sec21 retary shall be appointed by the President, by 

22 and with the advice and consent of the Senate. 

23 ‘‘(B) TERM.—The Deputy Secretary shall 

24 be appointed for a term of 6 years. 
36

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1 ‘‘(C) REMOVAL.—The Deputy Secretary 

2 may be removed only for good cause. 

3 ‘‘(3) ADMINISTRATIVE AUTHORITY.—The Dep4 uty Secretary shall report directly to the Secretary. 

5 ‘‘(4) COMPENSATION.—The Deputy Secretary 

6 shall be paid at a rate determined by the Secretary 

7 to be appropriate for the position, but not less than 

8 the rate of basic pay prescribed for Level II of the 

9 Executive Schedule under section 5313 of title 5, 

10 United States Code. 

11 ‘‘(b) DUTIES.—The Deputy Secretary shall—

12 ‘‘(1) oversee all trust fund and trust asset mat13 ters of the Department, including—

14 ‘‘(A) administration and management of 

15 the Reform Office; 

16 ‘‘(B) financial and human resource matters 

17 of the Reform Office; and 

18 ‘‘(C) all duties relating to trust fund and 

19 trust asset matters; and 

20 ‘‘(2) engage in appropriate government-to-gov21 ernment relations and consultations with Indian 

22 tribes and individual trust asset and trust fund ac23 count holders on matters involving trust asset and 

24 trust fund management and reform within the De25 partment. 
37

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1 ‘‘(c) STAFF.—In carrying out this section, the Dep2 uty Secretary may hire such staff having expertise in trust 

3 asset and trust fund management, financial organization 

4 and management, and tribal policy as the Deputy Sec5 retary determines is necessary to carry out this title. 

6 ‘‘(d) EFFECT ON DUTIES OF OTHER OFFICIALS.—

7 ‘‘(1) IN GENERAL.—Except as provided in para8 graph (2), nothing in this section shall be construed 

9 to diminish any responsibility or duty of the Assist10 ant Secretary of the Interior for Indian Affairs, or 

11 any other Federal official, relating to any duty of 

12 the Assistant Secretary or official established under 

13 this Act or any other provision of law. 

14 ‘‘(2) TRUST ASSET AND TRUST FUND MANAGE15 MENT AND REFORM.—Notwithstanding any other 

16 provision of law, the Deputy Secretary shall have 

17 overall management and oversight authority on mat18 ters of the Department relating to trust asset and 

19 trust fund management and reform (including mat20 ters that, as of the day before the date of enactment 

21 of the Indian Trust Asset and Trust Fund Manage22 ment and Reform Act of 2003, were carried out by 

23 the Commissioner of Indian Affairs). 

24 ‘‘(e) OFFICE OF TRUST REFORM IMPLEMENTATION

25 AND OVERSIGHT.—
38

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1 ‘‘(1) ESTABLISHMENT.—There is established 

2 within the Office of the Secretary the Office of 

3 Trust Reform Implementation and Oversight. 

4 ‘‘(2) REFORM OFFICE HEAD.—The Reform Of5 fice shall be headed by the Deputy Secretary. 

6 ‘‘(3) DUTIES.—The Reform Office shall—

7 ‘‘(A) supervise and direct the day-to-day 

8 activities of the Assistant Secretary of the Inte9 rior for Indian Affairs, the Commissioner of 

10 Reclamation, the Director of the Bureau of 

11 Land Management, and the Director of the 

12 Minerals Management Service, to the extent 

13 they administer or manage any Indian trust as14 sets or funds; 

15 ‘‘(B) administer, in accordance with title 

16 II, all trust properties, funds, and other assets 

17 held by the United States for the benefit of In18 dian tribes and individual members of Indian 

19 tribes; 

20 ‘‘(C) require the development and mainte21 nance of an accurate inventory of all trust 

22 funds and trust assets; 

23 ‘‘(D) ensure the prompt posting of revenue 

24 derived from a trust fund or trust asset for the 

25 benefit of each Indian tribe (or individual mem-
39

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1 ber of each Indian tribe) that owns a beneficial 

2 interest in the trust fund or trust asset; 

3 ‘‘(E) ensure that all trust fund accounts 

4 are audited at least annually, and more fre5 quently as determined to be necessary by the 

6 Deputy Secretary; 

7 ‘‘(F) ensure that the Assistant Secretary 

8 of the Interior for Indian Affairs, the Director 

9 of the Bureau of Land Management, the Com10 missioner of Reclamation, and the Director of 

11 the Minerals Management Service provide to 

12 the Secretary current and accurate information 

13 relating to the administration and management 

14 of trust funds and trust assets; 

15 ‘‘(G) provide for regular consultation with 

16 trust fund account holders on the administra17 tion of trust funds and trust assets to ensure, 

18 to the maximum extent practicable in accord19 ance with applicable law and a Plan approved 

20 under section 202, the greatest return on those 

21 funds and assets for the trust fund account 

22 holders; and 

23 ‘‘(H) enter into contracts and compacts 

24 under section 102 of the Indian Self-Deter25 mination Act (25 U.S.C. 450f) or section 403 
40

•S 16 IS 

1 of the Indian Self Determination and Education 

2 Assistance Act (25 U.S.C. 458cc) to provide for 

3 the management of trust assets and trust funds 

4 by Indian tribes pursuant to a Trust Fund and 

5 Trust Asset Management and Monitoring Plan 

6 developed under section 202 of this Act. 

7 ‘‘(f) AUTHORIZATION OF APPROPRIATIONS.—There 

8 are authorized to be appropriated such sums as are nec9 essary to carry out this section.’’. 

10 (b) CONFORMING AMENDMENTS.—

11 (1) Title III of the American Indian Trust 

12 Fund Management Reform Act of 1994 (25 U.S.C. 

13 4041 et seq.) is amended by striking the title head14 ing and inserting the following: 

15 ‘‘TITLE III—REFORMS RELATING 

16 TO TRUST RESPONSIBILITY’’. 

17 (2) Section 301(1) of the American Indian 

18 Trust Fund Management Reform Act of 1994 (25 

19 U.S.C. 4041(1)) is amended by striking ‘‘by estab20 lishing in the Department of this Interior an Office 

21 of Special Trustee for American Indians’’ and in22 serting ‘‘by directing the Deputy Secretary’’. 

23 (3) Section 303 of the American Indian Trust 

24 Fund Management Reform Act of 1994 (25 U.S.C. 

25 4043) is amended—
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•S 16 IS 

1 (A) by striking the section heading and in2 serting the following: 

3 ‘‘SEC. 303. ADDITIONAL AUTHORITIES AND FUNCTIONS OF 

4 THE DEPUTY SECRETARY.’’; 

5 (B) in subsection (a)(1), by striking ‘‘sec6 tion 302(b) of this title’’ and inserting ‘‘section 

7 302(a)(2)’’; 

8 (C) in subsection (e)—

9 (i) by striking the subsection heading 

10 and inserting the following: 

11 ‘‘(e) ACCESS OF DEPUTY SECRETARY.—’’; and 

12 (ii) by striking ‘‘and his staff’’ and in13 serting ‘‘and staff of the Deputy Sec14 retary’’; and 

15 (D) by striking ‘‘Special Trustee’’ each 

16 place it appears and inserting ‘‘Deputy Sec17 retary’’. 

18 (4) Sections 304 and 305 of the American In19 dian Trust Fund Management Reform Act of 1994 

20 (25 U.S.C. 4044, 4045) are amended by striking 

21 ‘‘Special Trustee’’ each place it appears and insert22 ing ‘‘Deputy Secretary’’. 
42

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1 SEC. 407. ADVISORY BOARD AND TRIBAL TASK FORCE. 

2 The American Indian Trust Fund Management Re3 form Act of 1994 is amended by striking section 306 (25 

4 U.S.C. 4046) and inserting the following: 

5 ‘‘SEC. 306. TRIBAL TASK FORCE ON TRUST REFORM. 

6 ‘‘(a) ESTABLISHMENT.—As soon as practicable after 

7 the date of enactment of this section, the Deputy Sec8 retary shall establish a Tribal Task Force on Trust Re9 form. 

10 ‘‘(b) COMPOSITION.—

11 ‘‘(1) IN GENERAL.—The Task Force shall be 

12 composed of 18 members and 12 alternates, of 

13 which—

14 ‘‘(A) 6 members shall—

15 ‘‘(i) serve as primary members; and 

16 ‘‘(ii) be selected by the Deputy Sec17 retary; 

18 ‘‘(B) 12 members shall—

19 ‘‘(i) serve as primary members; and 

20 ‘‘(ii) be selected by members of feder21 ally-recognized Indian tribes located within 

22 the regions of the Bureau represented by 

23 the members; and 

24 ‘‘(C) the 12 alternates shall—
43

•S 16 IS 

1 ‘‘(i) serve as alternate members for 

2 the members described in subparagraph 

3 (B); and 

4 ‘‘(ii) be selected by members of feder5 ally-recognized Indian tribes located within 

6 the regions of the Bureau represented by 

7 the members. 

8 ‘‘(2) REGIONAL REPRESENTATION.—Each re9 gion of the Bureau shall be represented by a pri10 mary member and alternate member on the Task 

11 Force. 

12 ‘‘(3) TERM.—A member of the Task Force 

13 shall serve for a term of 2 years. 

14 ‘‘(c) DUTIES.—The Task Force, in cooperation with 

15 the Deputy Secretary, shall—

16 ‘‘(1) not later than 1 year after the date of en17 actment of this section, conduct and submit to Con18 gress a report on a study of appropriate standards 

19 and procedures for inventorying and management of 

20 trust assets; and 

21 ‘‘(2) not later than 2 years after the date of en22 actment of this section, identify, and submit to Con23 gress a report that includes recommendations relat24 ing to, modifications to existing law relating to trust 
44

•S 16 IS 

1 reform, including recommendations on matters such 

2 as—

3 ‘‘(A) the need for an independent commis4 sion to oversee the administration of trust 

5 funds and assets; and

6 ‘‘(B) the most beneficial administrative 

7 structure and procedures. 

8 ‘‘(d) FACA.—The Task Force shall not be subject 

9 to the Federal Advisory Committee Act (5 U.S.C. App.). 

10 ‘‘(e) AUTHORIZATION OF APPROPRIATIONS.—There 

11 are authorized to be appropriated such sums as are nec12 essary to carry out this section. 

13 ‘‘(f) TERMINATION OF AUTHORITY.—The Task 

14 Force and authority of the Task Force under this section 

15 terminate on the date that is 3 years after the date of 

16 enactment of the Indian Trust Asset and Trust Fund 

17 Management and Reform Act of 2003.’’. 

18 SEC. 408. REGULATIONS. 

19 (a) IN GENERAL.—Not later than 1 year after the 

20 date of enactment of this Act, the Secretary of the Interior 

21 shall promulgate regulations to carry out the amendments 

22 made by this title. 

23 (b) ACTIVE PARTICIPATION.—

24 (1) IN GENERAL.—All regulations promulgated 

25 under subsection (a) shall be developed through a 
45

•S 16 IS 

1 negotiated rulemaking in accordance with sub2 chapter II of chapter 5, and chapter 7, of title 5, 

3 United States Code (commonly known as the ‘‘Ad4 ministrative Procedure Act’’). 

5 (2) PARTICIPANTS.—With the exception of the 

6 Secretary of the Interior, each participant in the ne7 gotiated rulemaking under paragraph (1) shall be a 

8 federally-recognized Indian tribe. 

9 SEC. 409. NO EFFECT ON CERTAIN JUDICIAL DECISION. 

10 Nothing in this title or any amendment made by this 

11 title limits or otherwise affects any finding, remedy, juris12 diction, authority, or discretion of any court with respect 

13 to Cobell v. Norton, Civ. No. 96–1285 (RCL). 

14 TITLE V—RACIAL PROFILING

15 SEC. 501. SENSE OF THE SENATE ON RACIAL PROFILING. 

16 (a) FINDINGS.—The Senate finds the following: 

17 (1) The vast majority of police officers and 

18 other law enforcement agents nationwide discharge 

19 their duties and protect their communities in a pro20 fessional manner, without bias. 

21 (2) The use by some law enforcement agents of 

22 race, ethnicity, or national origin in deciding which 

23 persons should be subject to traffic stops and other 

24 discretionary law enforcement interventions (referred 

25 to in this section as ‘‘racial profiling’’) is wrong. 
46

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1 Statistical evidence from throughout the United 

2 States demonstrates that such racial profiling is a 

3 real and measurable phenomenon. 

4 (3) The vast majority of individuals subjected 

5 to such stops and interventions based on race, eth6 nicity, or national origin are found to be law-abiding. 

7 Therefore, racial profiling is not an effective means 

8 to uncover criminal activity. 

9 (4) Racial profiling harms individuals subjected 

10 to it because the individuals experience fear, anxiety, 

11 humiliation, anger, resentment, and cynicism when 

12 unjustifiably treated as criminal suspects. 

13 (5) Racial profiling damages the criminal jus14 tice system as a whole by undermining public con15 fidence and trust in the police, the courts, and crimi16 nal law. 

17 (6) President Bush, in his first address to a 

18 joint session of Congress on February 27, 2001, said 

19 that the practice of racial profiling is wrong and 

20 pledged to end the practice. 

21 (7) Attorney General John Ashcroft, as recently 

22 as July 25, 2002, made a commitment to work with 

23 Congress, to get a bill to the President’s desk that 

24 will make clear that racial profiling is wrong and 

25 should be banned in the United States. 
47

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1 (b) SENSE OF THE SENATE.—It is the sense of the 

2 Senate that Congress should enact legislation—

3 (1) to ban the practice of racial profiling; and 

4 (2) to require Federal, State, and local law en5 forcement to take steps to prevent the practice.

6 TITLE VI—PAYCHECK FAIRNESS 

7 SEC. 601. SHORT TITLE. 

8 This title may be cited as the ‘‘Paycheck Fairness 

9 Act’’. 

10 SEC. 602. FINDINGS. 

11 Congress makes the following findings: 

12 (1) Women have entered the workforce in 

13 record numbers. 

14 (2) Even today, women earn significantly lower 

15 pay than men for work on jobs that require equal 

16 skill, effort, and responsibility and that are per17 formed under similar working conditions. These pay 

18 disparities exist in both the private and govern19 mental sectors. In many instances, the pay dispari20 ties can only be due to continued intentional dis21 crimination or the lingering effects of past discrimi22 nation. 

23 (3) The existence of such pay disparities—
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1 (A) depresses the wages of working fami2 lies who rely on the wages of all members of the 

3 family to make ends meet; 

4 (B) prevents the optimum utilization of 

5 available labor resources; 

6 (C) has been spread and perpetuated, 

7 through commerce and the channels and instru8 mentalities of commerce, among the workers of 

9 the several States; 

10 (D) burdens commerce and the free flow of 

11 goods in commerce; 

12 (E) constitutes an unfair method of com13 petition in commerce; 

14 (F) leads to labor disputes burdening and 

15 obstructing commerce and the free flow of 

16 goods in commerce; 

17 (G) interferes with the orderly and fair 

18 marketing of goods in commerce; and 

19 (H) in many instances, may deprive work20 ers of equal protection on the basis of sex in 

21 violation of the 5th and 14th amendments. 

22 (4)(A) Artificial barriers to the elimination of 

23 discrimination in the payment of wages on the basis 

24 of sex continue to exist decades after the enactment 

25 of the Fair Labor Standards Act of 1938 (29 U.S.C. 
49

•S 16 IS 

1 201 et seq.) and the Civil Rights Act of 1964 (42 

2 U.S.C. 2000a et seq.). 

3 (B) Elimination of such barriers would have 

4 positive effects, including—

5 (i) providing a solution to problems in the 

6 economy created by unfair pay disparities; 

7 (ii) substantially reducing the number of 

8 working women earning unfairly low wages, 

9 thereby reducing the dependence on public as10 sistance; 

11 (iii) promoting stable families by enabling 

12 all family members to earn a fair rate of pay; 

13 (iv) remedying the effects of past discrimi14 nation on the basis of sex and ensuring that in 

15 the future workers are afforded equal protection 

16 on the basis of sex; and 

17 (v) ensuring equal protection pursuant to 

18 Congress’ power to enforce the 5th and 14th 

19 amendments. 

20 (5) With increased information about the provi21 sions added by the Equal Pay Act of 1963 and wage 

22 data, along with more effective remedies, women will 

23 be better able to recognize and enforce their rights 

24 to equal pay for work on jobs that require equal 
50

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1 skill, effort, and responsibility and that are per2 formed under similar working conditions. 

3 (6) Certain employers have already made great 

4 strides in eradicating unfair pay disparities in the 

5 workplace and their achievements should be recog6 nized. 

7 SEC. 603. ENHANCED ENFORCEMENT OF EQUAL PAY RE8 QUIREMENTS. 

9 (a) REQUIRED DEMONSTRATION FOR AFFIRMATIVE

10 DEFENSE.—Section 6(d)(1) of the Fair Labor Standards 

11 Act of 1938 (29 U.S.C. 206(d)(1)) is amended by striking 

12 ‘‘(iv) a differential’’ and all that follows through the period 

13 and inserting the following: ‘‘(iv) a differential based on 

14 a bona fide factor other than sex, such as education, train15 ing or experience, except that this clause shall apply only 

16 if—

17 ‘‘(I) the employer demonstrates 

18 that—

19 ‘‘(aa) such factor—

20 ‘‘(AA) is job-related with re21 spect to the position in question; 

22 or 

23 ‘‘(BB) furthers a legitimate 

24 business purpose, except that this 

25 item shall not apply where the 
51

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1 employee demonstrates that an 

2 alternative employment practice 

3 exists that would serve the same 

4 business purpose without pro5 ducing such differential and that 

6 the employer has refused to 

7 adopt such alternative practice; 

8 and 

9 ‘‘(bb) such factor was actually 

10 applied and used reasonably in light 

11 of the asserted justification; and 

12 ‘‘(II) upon the employer succeeding 

13 under subclause (I), the employee fails to

14 demonstrate that the differential produced 

15 by the reliance of the employer on such 

16 factor is itself the result of discrimination 

17 on the basis of sex by the employer. 

18 ‘‘An employer that is not otherwise in compliance 

19 with this paragraph may not reduce the wages of 

20 any employee in order to achieve such compliance.’’. 

21 (b) APPLICATION OF PROVISIONS.—Section 6(d)(1) 

22 of the Fair Labor Standards Act of 1938 (29 U.S.C. 

23 206(d)(1)) is amended by adding at the end the following: 

24 ‘‘The provisions of this subsection shall apply to applicants 

25 for employment if such applicants, upon employment by 
52

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1 the employer, would be subject to any provisions of this 

2 section.’’. 

3 (c) ELIMINATION OF ESTABLISHMENT REQUIRE4 MENT.—Section 6(d) of the Fair Labor Standards Act of 

5 1938 (29 U.S.C. 206(d)) is amended—

6 (1) by striking ‘‘, within any establishment in 

7 which such employees are employed,’’; and 

8 (2) by striking ‘‘in such establishment’’ each 

9 place it appears. 

10 (d) NONRETALIATION PROVISION.—Section 15(a)(3) 

11 of the Fair Labor Standards Act of 1938 (29 U.S.C. 

12 215(a)(3)) is amended—

13 (1) by striking ‘‘or has’’ each place it appears 

14 and inserting ‘‘has’’; and

15 (2) by inserting before the semicolon the fol16 lowing: ‘‘, or has inquired about, discussed, or other17 wise disclosed the wages of the employee or another 

18 employee, or because the employee (or applicant) has 

19 made a charge, testified, assisted, or participated in 

20 any manner in an investigation, proceeding, hearing, 

21 or action under section 6(d)’’. 

22 (e) ENHANCED PENALTIES.—Section 16(b) of the 

23 Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 

24 amended—
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1 (1) by inserting after the first sentence the fol2 lowing: ‘‘Any employer who violates section 6(d) 

3 shall additionally be liable for such compensatory or 

4 punitive damages as may be appropriate, except that 

5 the United States shall not be liable for punitive 

6 damages.’’; 

7 (2) in the sentence beginning ‘‘An action to’’, 

8 by striking ‘‘either of the preceding sentences’’ and 

9 inserting ‘‘any of the preceding sentences of this 

10 subsection’’; 

11 (3) in the sentence beginning ‘‘No employees 

12 shall’’, by striking ‘‘No employees’’ and inserting 

13 ‘‘Except with respect to class actions brought to en14 force section 6(d), no employee’’; 

15 (4) by inserting after the sentence referred to 

16 in paragraph (3), the following: ‘‘Notwithstanding 

17 any other provision of Federal law, any action 

18 brought to enforce section 6(d) may be maintained 

19 as a class action as provided by the Federal Rules 

20 of Civil Procedure.’’; and 

21 (5) in the sentence beginning ‘‘The court in’’—

22 (A) by striking ‘‘in such action’’ and in23 serting ‘‘in any action brought to recover the li24 ability prescribed in any of the preceding sen25 tences of this subsection’’; and 
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1 (B) by inserting before the period the fol2 lowing: ‘‘, including expert fees’’.

3 (f) ACTION BY SECRETARY.—Section 16(c) of the 

4 Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) is 

5 amended—

6 (1) in the first sentence—

7 (A) by inserting ‘‘or, in the case of a viola8 tion of section 6(d), additional compensatory or 

9 punitive damages,’’ before ‘‘and the agree10 ment’’; and 

11 (B) by inserting before the period the fol12 lowing: ‘‘, or such compensatory or punitive 

13 damages, as appropriate’’; 

14 (2) in the second sentence, by inserting before 

15 the period the following: ‘‘and, in the case of a viola16 tion of section 6(d), additional compensatory or pu17 nitive damages’’; 

18 (3) in the third sentence, by striking ‘‘the first 

19 sentence’’ and inserting ‘‘the first or second sen20 tence’’; and 

21 (4) in the last sentence—

22 (A) by striking ‘‘commenced in the case’’ 

23 and inserting ‘‘commenced—

24 ‘‘(1) in the case’’; 
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1 (B) by striking the period and inserting

2 ‘‘; or’’; and 

3 (C) by adding at the end the following: 

4 ‘‘(2) in the case of a class action brought to en5 force section 6(d), on the date on which the indi6 vidual becomes a party plaintiff to the class action’’. 

7 SEC. 604. TRAINING. 

8 The Equal Employment Opportunity Commission 

9 and the Office of Federal Contract Compliance Programs, 

10 subject to the availability of funds appropriated under sec11 tion 609, shall provide training to Commission employees 

12 and affected individuals and entities on matters involving 

13 discrimination in the payment of wages. 

14 SEC. 605. RESEARCH, EDUCATION, AND OUTREACH. 

15 The Secretary of Labor shall conduct studies and 

16 provide information to employers, labor organizations, and 

17 the general public concerning the means available to elimi18 nate pay disparities between men and women, including—

19 (1) conducting and promoting research to de20 velop the means to correct expeditiously the condi21 tions leading to the pay disparities; 

22 (2) publishing and otherwise making available 

23 to employers, labor organizations, professional asso24 ciations, educational institutions, the media, and the

25 general public the findings resulting from studies 
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1 and other materials, relating to eliminating the pay 

2 disparities; 

3 (3) sponsoring and assisting State and commu4 nity informational and educational programs; 

5 (4) providing information to employers, labor 

6 organizations, professional associations, and other 

7 interested persons on the means of eliminating the 

8 pay disparities; 

9 (5) recognizing and promoting the achievements 

10 of employers, labor organizations, and professional

11 associations that have worked to eliminate the pay 

12 disparities; and 

13 (6) convening a national summit to discuss, and 

14 consider approaches for rectifying, the pay dispari15 ties. 

16 SEC. 606. TECHNICAL ASSISTANCE AND EMPLOYER REC17 OGNITION PROGRAM. 

18 (a) GUIDELINES.—

19 (1) IN GENERAL.—The Secretary of Labor shall 

20 develop guidelines to enable employers to evaluate 

21 job categories based on objective criteria such as

22 educational requirements, skill requirements, inde23 pendence, working conditions, and responsibility, in24 cluding decisionmaking responsibility and de facto 

25 supervisory responsibility. 
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1 (2) USE.—The guidelines developed under 

2 paragraph (1) shall be designed to enable employers 

3 voluntarily to compare wages paid for different jobs 

4 to determine if the pay scales involved adequately 

5 and fairly reflect the educational requirements, skill 

6 requirements, independence, working conditions, and 

7 responsibility for each such job with the goal of 

8 eliminating unfair pay disparities between occupa9 tions traditionally dominated by men or women. 

10 (3) PUBLICATION.—The guidelines shall be de11 veloped under paragraph (1) and published in the 

12 Federal Register not later than 180 days after the 

13 date of enactment of this Act. 

14 (b) EMPLOYER RECOGNITION.—

15 (1) PURPOSE.—It is the purpose of this sub16 section to emphasize the importance of, encourage 

17 the improvement of, and recognize the excellence of 

18 employer efforts to pay wages to women that reflect 

19 the real value of the contributions of such women to 

20 the workplace. 

21 (2) IN GENERAL.—To carry out the purpose of 

22 this subsection, the Secretary of Labor shall estab23 lish a program under which the Secretary shall pro24 vide for the recognition of employers who, pursuant 

25 to a voluntary job evaluation conducted by the em-
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1 ployer, adjust their wage scales (such adjustments 

2 shall not include the lowering of wages paid to men) 

3 using the guidelines developed under subsection (a) 

4 to ensure that women are paid fairly in comparison 

5 to men. 

6 (3) TECHNICAL ASSISTANCE.—The Secretary of 

7 Labor may provide technical assistance to assist an 

8 employer in carrying out an evaluation under para9 graph (2). 

10 (c) REGULATIONS.—The Secretary of Labor shall 

11 promulgate such rules and regulations as may be nec12 essary to carry out this section. 

13 SEC. 607. ESTABLISHMENT OF THE NATIONAL AWARD FOR 

14 PAY EQUITY IN THE WORKPLACE. 

15 (a) IN GENERAL.—There is established the Secretary 

16 of Labor’s National Award for Pay Equity in the Work17 place, which shall be evidenced by a medal bearing the 

18 inscription ‘‘Secretary of Labor’s National Award for Pay 

19 Equity in the Workplace’’. The medal shall be of such de20 sign and materials, and bear such additional inscriptions, 

21 as the Secretary of Labor may prescribe. 

22 (b) CRITERIA FOR QUALIFICATION.—To qualify to 

23 receive an award under this section a business shall—

24 (1) submit a written application to the Sec25 retary of Labor, at such time, in such manner, and 
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1 containing such information as the Secretary may 

2 require, including at a minimum information that

3 demonstrates that the business has made substantial 

4 effort to eliminate pay disparities between men and 

5 women, and deserves special recognition as a con6 sequence; and 

7 (2) meet such additional requirements and 

8 specifications as the Secretary of Labor determines 

9 to be appropriate. 

10 (c) MAKING AND PRESENTATION OF AWARD.—

11 (1) AWARD.—After receiving recommendations 

12 from the Secretary of Labor, the President or the 

13 designated representative of the President shall an14 nually present the award described in subsection (a) 

15 to businesses that meet the qualifications described 

16 in subsection (b). 

17 (2) PRESENTATION.—The President or the des18 ignated representative of the President shall present 

19 the award under this section with such ceremonies 

20 as the President or the designated representative of 

21 the President may determine to be appropriate. 

22 (d) BUSINESS.—In this section, the term ‘‘business’’ 

23 includes—

24 (1)(A) a corporation, including a nonprofit cor25 poration; 
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1 (B) a partnership; 

2 (C) a professional association; 

3 (D) a labor organization; and 

4 (E) a business entity similar to an entity de5 scribed in any of subparagraphs (A) through (D); 

6 (2) an entity carrying out an education referral 

7 program, a training program, such as an apprentice8 ship or management training program, or a similar 

9 program; and 

10 (3) an entity carrying out a joint program, 

11 formed by a combination of any entities described in 

12 paragraph (1) or (2). 

13 SEC. 608. COLLECTION OF PAY INFORMATION BY THE 

14 EQUAL EMPLOYMENT OPPORTUNITY COM15 MISSION. 

16 Section 709 of the Civil Rights Act of 1964 (42 

17 U.S.C. 2000e–8) is amended by adding at the end the fol18 lowing: 

19 ‘‘(f)(1) Not later than 18 months after the date of 

20 enactment of this subsection, the Commission shall—

21 ‘‘(A) complete a survey of the data that is cur22 rently available to the Federal Government relating 

23 to employee pay information for use in the enforce24 ment of Federal laws prohibiting pay discrimination 

25 and, in consultation with other relevant Federal 
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1 agencies, identify additional data collections that will 

2 enhance the enforcement of such laws; and 

3 ‘‘(B) based on the results of the survey and 

4 consultations under subparagraph (A), issue regula5 tions to provide for the collection of pay information 

6 data from employers as described by the sex, race, 

7 and national origin of employees. 

8 ‘‘(2) In implementing paragraph (1), the Commission 

9 shall have as its primary consideration the most effective 

10 and efficient means for enhancing the enforcement of Fed11 eral laws prohibiting pay discrimination. For this purpose, 

12 the Commission shall consider factors including the impo13 sition of burdens on employers, the frequency of required 

14 reports (including which employers should be required to 

15 prepare reports), appropriate protections for maintaining 

16 data confidentiality, and the most effective format for the 

17 data collection reports.’’. 

18 SEC. 609. AUTHORIZATION OF APPROPRIATIONS. 

19 There are authorized to be appropriated such sums 

20 as may be necessary to carry out this title.

21 TITLE VII—EMPLOYMENT NON22 DISCRIMINATION 

23 SEC. 701. SHORT TITLE. 

24 This title may be cited as the ‘‘Employment Non-Dis25 crimination Act of 2003’’. 
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1 SEC. 702. PURPOSES. 

2 The purposes of this title are—

3 (1) to provide a comprehensive Federal prohibi4 tion of employment discrimination on the basis of 

5 sexual orientation; 

6 (2) to provide meaningful and effective rem7 edies for employment discrimination on the basis of 

8 sexual orientation; and 

9 (3) to invoke congressional powers, including 

10 the powers to enforce the 14th amendment to the 

11 Constitution, and to regulate interstate commerce 

12 and provide for the general welfare pursuant to sec13 tion 8 of article I of the Constitution, in order to 

14 prohibit employment discrimination on the basis of 

15 sexual orientation. 

16 SEC. 703. DEFINITIONS. 

17 (a) IN GENERAL.—In this title: 

18 (1) COMMISSION.—The term ‘‘Commission’’ 

19 means the Equal Employment Opportunity Commis20 sion. 

21 (2) COVERED ENTITY.—The term ‘‘covered en22 tity’’ means an employer, employment agency, labor 

23 organization, or joint labor-management committee. 

24 (3) EMPLOYEE.—

25 (A) IN GENERAL.—The term ‘‘employee’’ 

26 means—
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1 (i) an employee (as defined in section 

2 701(f) of the Civil Rights Act of 1964 (42 

3 U.S.C. 2000e(f)); 

4 (ii) a Presidential appointee or State 

5 employee to which section 302(a)(1) of the 

6 Government Employee Rights Act of 1991 

7 (2 U.S.C. 1202(a)(1)) applies; 

8 (iii) a covered employee, as defined in 

9 section 101 of the Congressional Account10 ability Act of 1995 (2 U.S.C. 1301) or sec11 tion 411(c) of title 3, United States Code; 

12 or 

13 (iv) an employee or applicant to which 

14 section 717(a) of the Civil Rights Act of 

15 1964 (42 U.S.C. 2000e–16(a)) applies. 

16 (B) EXCEPTION.—The provisions of this 

17 title that apply to an employee or individual 

18 shall not apply to a volunteer who receives no 

19 compensation. 

20 (4) EMPLOYER.—The term ‘‘employer’’ 

21 means—

22 (A) a person engaged in an industry affect23 ing commerce (as defined in section 701(h) of 

24 the Civil Rights Act of 1964 (42 U.S.C. 

25 2000e(h)) who has 15 or more employees (as
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1 defined in subparagraphs (A)(i) and (B) of 

2 paragraph (3)) for each working day in each of 

3 20 or more calendar weeks in the current or 

4 preceding calendar year, and any agent of such 

5 a person, but does not include a bona fide pri6 vate membership club (other than a labor orga7 nization) that is exempt from taxation under 

8 section 501(c) of the Internal Revenue Code of 

9 1986; 

10 (B) an employing authority to which sec11 tion 302(a)(1) of the Government Employee 

12 Rights Act of 1991 applies; 

13 (C) an employing office, as defined in sec14 tion 101 of the Congressional Accountability 

15 Act of 1995 or section 411(c) of title 3, United 

16 States Code; or 

17 (D) an entity to which section 717(a) of 

18 the Civil Rights Act of 1964 applies. 

19 (5) EMPLOYMENT AGENCY.—The term ‘‘em20 ployment agency’’ has the meaning given the term in 

21 section 701(c) of the Civil Rights Act of 1964 (42 

22 U.S.C. 2000e(c)). 

23 (6) LABOR ORGANIZATION.—The term ‘‘labor 

24 organization’’ has the meaning given the term in 
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1 section 701(d) of the Civil Rights Act of 1964 (42 

2 U.S.C. 2000e(d)).

3 (7) PERSON.—The term ‘‘person’’ has the 

4 meaning given the term in section 701(a) of the 

5 Civil Rights Act of 1964 (42 U.S.C. 2000e(a)). 

6 (8) RELIGIOUS ORGANIZATION.—The term ‘‘re7 ligious organization’’ means—

8 (A) a religious corporation, association, or 

9 society; or 

10 (B) a school, college, university, or other 

11 educational institution or institution of learn12 ing, if— 

13 (i) the institution is in whole or sub14 stantial part controlled, managed, owned, 

15 or supported by a religion, religious cor16 poration, association, or society; or 

17 (ii) the curriculum of the institution is 

18 directed toward the propagation of a reli19 gion. 

20 (9) SEXUAL ORIENTATION.—The term ‘‘sexual 

21 orientation’’ means homosexuality, bisexuality, or 

22 heterosexuality, whether the orientation is real or 

23 perceived. 
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1 (10) STATE.—The term ‘‘State’’ has the mean2 ing given the term in section 701(i) of the Civil 

3 Rights Act of 1964 (42 U.S.C. 2000e(i)). 

4 (b) APPLICATION OF DEFINITIONS.—For purposes of 

5 this section, a reference in section 701 of the Civil Rights 

6 Act of 1964—

7 (1) to an employee or an employer shall be con8 sidered to refer to an employee (as defined in para9 graph (3)) or an employer (as defined in paragraph 

10 (4)), respectively, except as provided in paragraph 

11 (2); and 

12 (2) to an employer in subsection (f) of that sec13 tion shall be considered to refer to an employer (as 

14 defined in paragraph (4)(A)). 

15 SEC. 704. DISCRIMINATION PROHIBITED. 

16 (a) EMPLOYER PRACTICES.—It shall be an unlawful 

17 employment practice for an employer—

18 (1) to fail or refuse to hire or to discharge any 

19 individual, or otherwise to discriminate against any 

20 individual with respect to the compensation, terms, 

21 conditions, or privileges of employment of the indi22 vidual, because of such individual’s sexual orienta23 tion; or 

24 (2) to limit, segregate, or classify the employees 

25 or applicants for employment of the employer in any 
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1 way that would deprive or tend to deprive any indi2 vidual of employment or otherwise adversely affect 

3 the status of the individual as an employee, because 

4 of such individual’s sexual orientation. 

5 (b) EMPLOYMENT AGENCY PRACTICES.—It shall be 

6 an unlawful employment practice for an employment agen7 cy to fail or refuse to refer for employment, or otherwise 

8 to discriminate against, any individual because of the sex9 ual orientation of the individual or to classify or refer for 

10 employment any individual on the basis of the sexual ori11 entation of the individual. 

12 (c) LABOR ORGANIZATION PRACTICES.—It shall be 

13 an unlawful employment practice for a labor organiza14 tion—

15 (1) to exclude or to expel from its membership, 

16 or otherwise to discriminate against, any individual 

17 because of the sexual orientation of the individual; 

18 (2) to limit, segregate, or classify its member19 ship or applicants for membership, or to classify or 

20 fail or refuse to refer for employment any individual, 

21 in any way that would deprive or tend to deprive any 

22 individual of employment, or would limit such em23 ployment or otherwise adversely affect the status of 

24 the individual as an employee or as an applicant for 
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1 employment, because of such individual’s sexual ori2 entation; or 

3 (3) to cause or attempt to cause an employer to 

4 discriminate against an individual in violation of this 

5 section. 

6 (d) TRAINING PROGRAMS.—It shall be an unlawful 

7 employment practice for any employer, labor organization, 

8 or joint labor-management committee controlling appren9 ticeship or other training or retraining, including on-the10 job training programs, to discriminate against any indi11 vidual because of the sexual orientation of the individual 

12 in admission to, or employment in, any program estab13 lished to provide apprenticeship or other training. 

14 (e) ASSOCIATION.—An unlawful employment practice 

15 described in any of subsections (a) through (d) shall be 

16 considered to include an action described in that sub17 section, taken against an individual based on the sexual 

18 orientation of a person with whom the individual associ19 ates or has associated. 

20 (f) DISPARATE IMPACT.—Only disparate treatment 

21 claims may be brought under this title. 

22 SEC. 705. RETALIATION PROHIBITED. 

23 It shall be an unlawful employment practice for a cov24 ered entity to discriminate against an individual because 

25 such individual opposed any practice made an unlawful
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1 employment practice by this title, or because such indi2 vidual made a charge, testified, assisted, or participated 

3 in any manner in an investigation, proceeding, or hearing 

4 under this title. 

5 SEC. 706. BENEFITS. 

6 This title does not apply to the provision of employee 

7 benefits to an individual for the benefit of the domestic 

8 partner of such individual. 

9 SEC. 707. COLLECTION OF STATISTICS PROHIBITED. 

10 The Commission shall not collect statistics on sexual 

11 orientation from covered entities, or compel the collection 

12 of such statistics by covered entities. 

13 SEC. 708. QUOTAS AND PREFERENTIAL TREATMENT PRO14 HIBITED. 

15 (a) QUOTAS.—A covered entity shall not adopt or im16 plement a quota on the basis of sexual orientation.

17 (b) PREFERENTIAL TREATMENT.—A covered entity 

18 shall not give preferential treatment to an individual on 

19 the basis of sexual orientation. 

20 (c) ORDERS AND CONSENT DECREES.—Notwith21 standing any other provision of this title, an order or con22 sent decree entered for a violation of this title may not 

23 include a quota, or preferential treatment to an individual, 

24 based on sexual orientation. 
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1 SEC. 709. RELIGIOUS EXEMPTION. 

2 This title shall not apply to a religious organization. 

3 SEC. 710. NONAPPLICATION TO MEMBERS OF THE ARMED 

4 FORCES; VETERANS’ PREFERENCES. 

5 (a) ARMED FORCES.—

6 (1) EMPLOYMENT.—In this title, the term ‘‘em7 ployment’’ does not apply to the relationship be8 tween the United States and members of the Armed 

9 Forces. 

10 (2) ARMED FORCES.—In paragraph (1), the 

11 term ‘‘Armed Forces’’ means the Army, Navy, Air 

12 Force, Marine Corps, and Coast Guard. 

13 (b) VETERANS’ PREFERENCES.—This title does not 

14 repeal or modify any Federal, State, territorial, or local 

15 law creating a special right or preference concerning em16 ployment for a veteran. 

17 SEC. 711. CONSTRUCTION. 

18 (a) EMPLOYER RULES AND POLICIES.—Nothing in 

19 this title shall be construed to prohibit a covered entity 

20 from enforcing rules and policies, if the rules or policies 

21 are designed for, and uniformly applied to, all individuals 

22 regardless of sexual orientation. 

23 (b) ASSOCIATION.—Nothing in this title shall be con24 strued to prohibit any association, or infringe upon any 

25 right of association, guaranteed by the first amendment 
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1 to the Constitution, of any nonprofit, voluntary member2 ship organization. 

3 SEC. 712. ENFORCEMENT. 

4 (a) ENFORCEMENT POWERS.—With respect to the 

5 administration and enforcement of this title in the case 

6 of a claim alleged by an individual for a violation of this 

7 title—

8 (1) the Commission shall have the same powers 

9 as the Commission has to administer and enforce—

10 (A) title VII of the Civil Rights Act of 

11 1964 (42 U.S.C. 2000e et seq.); or

12 (B) sections 302 and 304 of the Govern13 ment Employee Rights Act of 1991 (2 U.S.C. 

14 1202 and 1220); 

15 in the case of a claim alleged by such individual for 

16 a violation of such title, or of section 302(a)(1) of 

17 the Government Employee Rights Act of 1991 (2 

18 U.S.C. 1202(a)(1)), respectively;

19 (2) the Librarian of Congress shall have the 

20 same powers as the Librarian of Congress has to ad21 minister and enforce title VII of the Civil Rights Act 

22 of 1964 (42 U.S.C. 2000e et seq.) in the case of a 

23 claim alleged by such individual for a violation of 

24 such title; 
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1 (3) the Board (as defined in section 101 of the 

2 Congressional Accountability Act of 1995 (2 U.S.C. 

3 1301)) shall have the same powers as the Board has 

4 to administer and enforce the Congressional Ac5 countability Act of 1995 (2 U.S.C. 1301 et seq.) in 

6 the case of a claim alleged by such individual for a 

7 violation of section 201(a)(1) of such Act (2 U.S.C. 

8 1311(a)(1)); 

9 (4) the Attorney General shall have the same 

10 powers as the Attorney General has to administer 

11 and enforce—

12 (A) title VII of the Civil Rights Act of 

13 1964 (42 U.S.C. 2000e et seq.); or 

14 (B) sections 302 and 304 of the Govern15 ment Employee Rights Act of 1991 (2 U.S.C. 

16 1202 and 1220); 

17 in the case of a claim alleged by such individual for 

18 a violation of such title, or of section 302(a)(1) of 

19 the Government Employee Rights Act of 1991 (2 

20 U.S.C. 1202(a)(1)), respectively; 

21 (5) the President, the Commission, and the 

22 Merit Systems Protection Board shall have the same 

23 powers as the President, the Commission, and the 

24 Board, respectively, have to administer and enforce 

25 chapter 5 of title 3, United States Code, in the case 
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1 of a claim alleged by such individual for a violation 

2 of section 411 of such title; 

3 (6) a court of the United States shall have the 

4 same jurisdiction and powers as the court has to en5 force—

6 (A) title VII of the Civil Rights Act of 

7 1964 (42 U.S.C. 2000e et seq.) in the case of 

8 a claim alleged by such individual for a viola9 tion of such title; 

10 (B) sections 302 and 304 of the Govern11 ment Employee Rights Act of 1991 (2 U.S.C. 

12 1202 and 1220) in the case of a claim alleged 

13 by such individual for a violation of section 

14 302(a)(1) of such Act (2 U.S.C. 1202(a)(1)); 

15 (C) the Congressional Accountability Act 

16 of 1995 (2 U.S.C. 1301 et seq.) in the case of 

17 a claim alleged by such individual for a viola18 tion of section 201(a)(1) of such Act (2 U.S.C. 

19 1311(a)(1)); and 

20 (D) chapter 5 of title 3, United States 

21 Code, in the case of a claim alleged by such in22 dividual for a violation of section 411 of such 

23 title.
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1 (b) PROCEDURES AND REMEDIES.—The procedures 

2 and remedies applicable to a claim alleged by an individual 

3 for a violation of this title are—

4 (1) the procedures and remedies applicable for 

5 a violation of title VII of the Civil Rights Act of 

6 1964 (42 U.S.C. 2000e et seq.) in the case of a 

7 claim alleged by such individual for a violation of 

8 such title; 

9 (2) the procedures and remedies applicable for 

10 a violation of section 302(a)(1) of the Government 

11 Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)) 

12 in the case of a claim alleged by such individual for 

13 a violation of such section;

14 (3) the procedures and remedies applicable for 

15 a violation of section 201(a)(1) of the Congressional 

16 Accountability Act of 1995 (2 U.S.C. 1311(a)(1)) in 

17 the case of a claim alleged by such individual for a 

18 violation of such section; and 

19 (4) the procedures and remedies applicable for 

20 a violation of section 411 of title 3, United States 

21 Code, in the case of a claim alleged by such indi22 vidual for a violation of such section. 

23 (c) OTHER APPLICABLE PROVISIONS.—With respect 

24 to a claim alleged by a covered employee (as defined in 

25 section 101 of the Congressional Accountability Act of 
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1 1995 (2 U.S.C. 1301)) for a violation of this title, title 

2 III of the Congressional Accountability Act of 1995 (2 

3 U.S.C. 1381 et seq.) shall apply in the same manner as 

4 such title applies with respect to a claim alleged by such 

5 a covered employee for a violation of section 201(a)(1) of 

6 such Act (2 U.S.C. 1311(a)(1)).

7 (d) PROHIBITION OF AFFIRMATIVE ACTION.—Not8 withstanding any other provision of this section, affirma9 tive action for a violation of this title may not be imposed. 

10 Nothing in this section shall prevent the granting of relief 

11 to any individual who suffers a violation of such individ12 ual’s rights provided in this title. 

13 SEC. 713. STATE AND FEDERAL IMMUNITY. 

14 (a) STATE IMMUNITY.—A State shall not be immune 

15 under the 11th amendment to the Constitution from a suit 

16 described in subsection (b) and brought in a Federal court 

17 of competent jurisdiction for a violation of this title. 

18 (b) REMEDIES FOR STATE EMPLOYEES.—

19 (1) IN GENERAL.—

20 (A) WAIVER.—A State’s receipt or use of 

21 Federal financial assistance for any program or 

22 activity of a State shall constitute a waiver of 

23 sovereign immunity, under the 11th amendment 

24 to the Constitution or otherwise, to a suit 

25 brought by an employee or applicant for em-
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1 ployment of that program or activity under this 

2 title for a remedy authorized under subsection 

3 (c). 

4 (B) DEFINITION.—In this paragraph, the 

5 term ‘‘program or activity’’ has the meaning 

6 given the term in section 606 of the Civil 

7 Rights Act of 1964 (42 U.S.C. 2000d–4a). 

8 (2) OFFICIALS.—An official of a State may be 

9 sued in the official capacity of the official by any 

10 employee or applicant for employment who has com11 plied with the applicable procedures of section 712, 

12 for equitable relief that is authorized under this title. 

13 In such a suit the court may award to the prevailing 

14 party those costs authorized by section 722 of the 

15 Revised Statutes (42 U.S.C. 1988). 

16 (3) EFFECTIVE DATE.—With respect to a par17 ticular program or activity, paragraphs (1) and (2) 

18 apply to conduct occurring on or after the day, after 

19 the date of enactment of this Act, on which a State 

20 first receives or uses Federal financial assistance for 

21 that program or activity. 

22 (c) REMEDIES AGAINST THE UNITED STATES AND

23 THE STATES.—Notwithstanding any other provision of 

24 this Act, in an action or administrative proceeding against 

25 the United States or a State for a violation of this title, 
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1 remedies (including remedies at law and in equity, and 

2 interest) are available for the violation to the same extent 

3 as the remedies are available for a violation of title VII 

4 of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 

5 by a private entity, except that—

6 (1) punitive damages are not available; and 

7 (2) compensatory damages are available to the 

8 extent specified in section 1977A(b) of the Revised 

9 Statutes (42 U.S.C. 1981a(b)). 

10 SEC. 714. ATTORNEYS’ FEES. 

11 Notwithstanding any other provision of this title, in 

12 an action or administrative proceeding for a violation of 

13 this title, an entity described in section 712(a) (other than 

14 paragraph (4) of such section), in the discretion of the 

15 entity, may allow the prevailing party, other than the 

16 Commission or the United States, a reasonable attorney’s 

17 fee (including expert fees) as part of the costs. The Com18 mission and the United States shall be liable for the costs 

19 to the same extent as a private person. 

20 SEC. 715. POSTING NOTICES. 

21 A covered entity who is required to post notices de22 scribed in section 711 of the Civil Rights Act of 1964 (42 

23 U.S.C. 2000e–10) shall post notices for employees, appli24 cants for employment, and members, to whom the provi25 sions specified in section 712(b) of this Act apply, that 
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1 describe the applicable provisions of this title in the man2 ner prescribed by, and subject to the penalty provided 

3 under, section 711 of the Civil Rights Act of 1964. 

4 SEC. 716. REGULATIONS. 

5 (a) IN GENERAL.—Except as provided in subsections 

6 (b), (c), and (d), the Commission shall have authority to 

7 issue regulations to carry out this title. 

8 (b) LIBRARIAN OF CONGRESS.—The Librarian of 

9 Congress shall have authority to issue regulations to carry 

10 out this title with respect to employees and applicants for 

11 employment of the Library of Congress. 

12 (c) BOARD.—The Board referred to in section 

13 712(a)(3) shall have authority to issue regulations to carry 

14 out this title, in accordance with section 304 of the Con15 gressional Accountability Act of 1995 (2 U.S.C. 1384), 

16 with respect to covered employees, as defined in section 

17 101 of such Act (2 U.S.C. 1301). 

18 (d) PRESIDENT.—The President shall have authority 

19 to issue regulations to carry out this title with respect to 

20 covered employees, as defined in section 411(c) of title 3, 

21 United States Code. 

22 SEC. 717. RELATIONSHIP TO OTHER LAWS. 

23 This title shall not invalidate or limit the rights, rem24 edies, or procedures available to an individual claiming 
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1 discrimination prohibited under any other Federal law or 

2 any law of a State or political subdivision of a State. 

3 SEC. 718. SEVERABILITY. 

4 If any provision of this title, or the application of the 

5 provision to any person or circumstance, is held to be in6 valid, the remainder of this title and the application of 

7 the provision to any other person or circumstance shall 

8 not be affected by the invalidity. 

9 SEC. 719. EFFECTIVE DATE. 

10 This title shall take effect 60 days after the date of 

11 enactment of this Act and shall not apply to conduct oc12 curring before the effective date. 

13 TITLE VIII—GENETIC 

14 NONDISCRIMINATION 

15 SEC. 801. SHORT TITLE. 

16 This title may be cited as the ‘‘Genetic Non17 discrimination in Health Insurance and Employment 

18 Act’’.
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1 Subtitle A—Prohibition of Health 

2 Insurance Discrimination on the 

3 Basis of Protected Genetic In4 formation 

5 SEC. 811. AMENDMENTS TO EMPLOYEE RETIREMENT IN6 COME SECURITY ACT OF 1974. 

7 (a) PROHIBITION OF HEALTH INSURANCE DISCRIMI8 NATION ON THE BASIS OF GENETIC SERVICES OR PRO9 TECTED GENETIC INFORMATION.—

10 (1) NO ENROLLMENT RESTRICTION FOR GE11 NETIC SERVICES.—Section 702(a)(1)(F) of the Em12 ployee Retirement Income Security Act of 1974 (29 

13 U.S.C. 1182(a)(1)(F)) is amended by inserting be14 fore the period ‘‘(or information about a request for 

15 or the receipt of genetic services by such individual 

16 or family member of such individual)’’. 

17 (2) NO DISCRIMINATION IN GROUP RATE BASED

18 ON PROTECTED GENETIC INFORMATION.—

19 (A) IN GENERAL.—Subpart B of part 7 of 

20 subtitle B of title I of the Employee Retirement 

21 Income Security Act of 1974 (29 U.S.C. 1185 

22 et seq.) is amended by adding at the end the 

23 following: 
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1 ‘‘SEC. 714. PROHIBITING DISCRIMINATION AGAINST 

2 GROUPS ON THE BASIS OF PROTECTED GE3 NETIC INFORMATION. 

4 ‘‘A group health plan, and a health insurance issuer 

5 offering group health insurance coverage in connection 

6 with a group health plan, shall not deny eligibility to a 

7 group or adjust premium or contribution rates for a group 

8 on the basis of protected genetic information concerning 

9 an individual in the group (or information about a request 

10 for or the receipt of genetic services by such individual 

11 or family member of such individual).’’. 

12 (B) CONFORMING AMENDMENTS.—

13 (i) Section 702(b)(2)(A) of the Em14 ployee Retirement Income Security Act of 

15 1974 (29 U.S.C. 1182(b)) is amended to 

16 read as follows: 

17 ‘‘(A) to restrict the amount that an em18 ployer may be charged for coverage under a 

19 group health plan, except as provided in section 

20 714; or’’.

21 (ii) Section 732(a) of the Employee 

22 Retirement Income Security Act of 1974 

23 (29 U.S.C. 1191a(a)) is amended by strik24 ing ‘‘section 711’’ and inserting ‘‘sub25 sections (a)(1)(F), (b) (with respect to 

26 cases relating to genetic information or in-
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1 formation about a request or receipt of ge2 netic services by an individual or family 

3 member of such individual), (c), (d), (e), 

4 (f), or (g) of section 702, section 711 and 

5 section 714’’. 

6 (b) LIMITATIONS ON GENETIC TESTING AND ON

7 COLLECTION AND DISCLOSURE OF PROTECTED GENETIC

8 INFORMATION.—Section 702 of the Employee Retirement 

9 Income Security Act of 1974 (29 U.S.C. 1182) is amended 

10 by adding at the end the following: 

11 ‘‘(c) GENETIC TESTING.—

12 ‘‘(1) LIMITATION ON REQUESTING OR REQUIR13 ING GENETIC TESTING.—A group health plan, or a 

14 health insurance issuer offering health insurance 

15 coverage in connection with a group health plan, 

16 shall not request or require an individual or a family 

17 member of such individual to undergo a genetic test. 

18 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

19 this part shall be construed to limit the authority of 

20 a health care professional, who is providing treat21 ment with respect to an individual and who is em22 ployed by a group health plan or a health insurance 

23 issuer, to request that such individual or family 

24 member of such individual undergo a genetic test. 

25 Such a health care professional shall not require 
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1 that such individual or family member undergo a ge2 netic test. 

3 ‘‘(d) COLLECTION OF PROTECTED GENETIC INFOR4 MATION.—Except as provided in subsections (f) and (g), 

5 a group health plan, or a health insurance issuer offering 

6 health insurance coverage in connection with a group 

7 health plan, shall not request, require, collect, or purchase 

8 protected genetic information concerning an individual (or 

9 information about a request for or the receipt of genetic 

10 services by such individual or family member of such indi11 vidual). 

12 ‘‘(e) DISCLOSURE OF PROTECTED GENETIC INFOR13 MATION.—A group health plan, or a health insurance 

14 issuer offering health insurance coverage in connection 

15 with a group health plan, shall not disclose protected ge16 netic information about an individual (or information 

17 about a request for or the receipt of genetic services by 

18 such individual or family member of such individual) to—

19 ‘‘(1) any entity that is a member of the same 

20 controlled group as such issuer or plan sponsor of 

21 such group health plan; 

22 ‘‘(2) any other group health plan or health in23 surance issuer or any insurance agent, third party 

24 administrator, or other person subject to regulation 

25 under State insurance laws;
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1 ‘‘(3) the Medical Information Bureau or any 

2 other person that collects, compiles, publishes, or 

3 otherwise disseminates insurance information; 

4 ‘‘(4) the individual’s employer or any plan spon5 sor; or 

6 ‘‘(5) any other person the Secretary may speci7 fy in regulations. 

8 ‘‘(f) INFORMATION FOR PAYMENT FOR GENETIC

9 SERVICES.—

10 ‘‘(1) IN GENERAL.—With respect to payment 

11 for genetic services conducted concerning an indi12 vidual or the coordination of benefits, a group health 

13 plan, or a health insurance issuer offering group 

14 health insurance coverage in connection with a group 

15 health plan, may request that the individual provide 

16 the plan or issuer with evidence that such services 

17 were performed. 

18 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

19 paragraph (1) shall be construed to—

20 ‘‘(A) permit a group health plan or health 

21 insurance issuer to request (or require) the re22 sults of the services referred to in such para23 graph; or 

24 ‘‘(B) require that a group health plan or 

25 health insurance issuer make payment for serv-
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1 ices described in such paragraph where the in2 dividual involved has refused to provide evi3 dence of the performance of such services pur4 suant to a request by the plan or issuer in ac5 cordance with such paragraph. 

6 ‘‘(g) INFORMATION FOR PAYMENT OF OTHER

7 CLAIMS.—With respect to the payment of claims for bene8 fits other than genetic services, a group health plan, or 

9 a health insurance issuer offering group health insurance 

10 coverage in connection with a group health plan, may re11 quest that an individual provide protected genetic informa12 tion so long as such information—

13 ‘‘(1) is used solely for the payment of a claim; 

14 ‘‘(2) is limited to information that is directly re15 lated to and necessary for the payment of such claim 

16 and the claim would otherwise be denied but for the 

17 protected genetic information; and 

18 ‘‘(3) is used only by an individual (or individ19 uals) within such plan or issuer who needs access to 

20 such information for purposes of payment of a 

21 claim. 

22 ‘‘(h) RULES OF CONSTRUCTION.—

23 ‘‘(1) COLLECTION OR DISCLOSURE AUTHORIZED

24 BY INDIVIDUAL.—The provisions of subsections (d) 

25 (regarding collection) and (e) shall not apply to an 
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1 individual if the individual (or legal representative of 

2 the individual) provides prior, knowing, voluntary, 

3 and written authorization for the collection or disclo4 sure of protected genetic information. 

5 ‘‘(2) DISCLOSURE FOR HEALTH CARE TREAT6 MENT.—Nothing in this section shall be construed to 

7 limit or restrict the disclosure of protected genetic 

8 information from a health care provider to another 

9 health care provider for the purpose of providing 

10 health care treatment to the individual involved. 

11 ‘‘(i) DEFINITIONS.—In this section: 

12 ‘‘(1) CONTROLLED GROUP.—The term ‘con13 trolled group’ means any group treated as a single 

14 employer under subsection (b), (c), (m), or (o) of 

15 section 414 of the Internal Revenue Code of 1986. 

16 ‘‘(2) GROUP HEALTH PLAN, HEALTH INSUR17 ANCE ISSUER.—The terms ‘group health plan’ and

18 ‘health insurance issuer’ include a third party ad19 ministrator or other person acting for or on behalf 

20 of such plan or issuer.’’. 

21 (c) ENFORCEMENT.—Section 502 (29 U.S.C. 1132) 

22 is amended by adding at the end the following: 

23 ‘‘(n) VIOLATION OF GENETIC DISCRIMINATION OR

24 GENETIC DISCLOSURE PROVISIONS.—In any action under 

25 this section against any administrator of a group health 
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1 plan, or health insurance issuer offering group health in2 surance coverage in connection with a group health plan 

3 (including any third party administrator or other person 

4 acting for or on behalf of such plan or issuer) alleging 

5 a violation of subsection (a)(1)(F), (b) (with respect to 

6 cases relating to genetic information or information about 

7 a request or receipt of genetic services by an individual 

8 or family member of such individual), (c), (d), (e), (f), or 

9 (g) of section 702, or section 714, the court may award 

10 any appropriate legal or equitable relief. Such relief may 

11 include a requirement for the payment of attorney’s fees 

12 and costs, including the costs of expert witnesses. 

13 ‘‘(o) CIVIL PENALTY.—The monetary provisions of 

14 section 308(b)(2)(C) of Public Law 101–336 (42 U.S.C. 

15 12188(b)(2)(C)) shall apply for purposes of the Secretary 

16 enforcing the provisions referred to in subsection (n), ex17 cept that any such relief awarded shall be paid only into 

18 the general fund of the Treasury.’’. 

19 (d) PREEMPTION.—Section 731 of the Employee Re20 tirement Income Security Act of 1974 (29 U.S.C. 1191) 

21 is amended—

22 (1) in subsection (a)(1), by inserting ‘‘or (e)’’ 

23 after ‘‘subsection (b)’’; and 

24 (2) by adding at the end the following: 
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1 ‘‘(e) SPECIAL RULE IN CASE OF GENETIC INFORMA2 TION.—With respect to group health insurance coverage 

3 offered by a health insurance issuer, the provisions of this 

4 part relating to genetic information (including information 

5 about a request for or the receipt of genetic services by 

6 an individual or a family member of such individual) shall 

7 not be construed to supersede any provision of State law 

8 which establishes, implements, or continues in effect a 

9 standard, requirement, or remedy that more completely—

10 ‘‘(1) protects the confidentiality of genetic in11 formation (including information about a request for 

12 or the receipt of genetic services by an individual or 

13 a family member of such individual) or the privacy 

14 of an individual or a family member of the individual 

15 with respect to genetic information (including infor16 mation about a request for or the receipt of genetic 

17 services by an individual or a family member of such 

18 individual) than does this part; or 

19 ‘‘(2) prohibits discrimination on the basis of ge20 netic information than does this part.’’. 

21 (e) DEFINITIONS.—Section 733(d) of the Employee 

22 Retirement Income Security Act of 1974 (29 U.S.C. 

23 1191b(d)) is amended by adding at the end the following: 

24 ‘‘(5) FAMILY MEMBER.—The term ‘family 

25 member’ means with respect to an individual—
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1 ‘‘(A) the spouse of the individual; 

2 ‘‘(B) a dependent child of the individual, 

3 including a child who is born to or placed for 

4 adoption with the individual; or 

5 ‘‘(C) any other individuals related by blood 

6 to the individual or to the spouse or child de7 scribed in subparagraph (A) or (B). 

8 ‘‘(6) GENETIC INFORMATION.—The term ‘ge9 netic information’ means information about genes, 

10 gene products, or inherited characteristics that may 

11 derive from an individual or a family member of 

12 such individual (including information about a re13 quest for or the receipt of genetic services by such 

14 individual or family member of such individual). 

15 ‘‘(7) GENETIC SERVICES.—The term ‘genetic 

16 services’ means health services, including genetic 

17 tests, provided to obtain, assess, or interpret genetic 

18 information for diagnostic and therapeutic purposes, 

19 and for genetic education and counseling. 

20 ‘‘(8) GENETIC TEST.—

21 ‘‘(A) IN GENERAL.—The term ‘genetic 

22 test’ means the analysis of human DNA, RNA, 

23 chromosomes, proteins, or metabolites that de24 tect genotypes, mutations, or chromosomal 

25 changes. 
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1 ‘‘(B) CERTAIN TESTS.—Notwithstanding 

2 subparagraph (A), the conducting of metabolic 

3 tests that are not intended to reveal protected 

4 genetic information shall not be considered a 

5 violation of section 702(c) for purposes of such 

6 subparagraph regardless of the results of the 

7 tests. Test results that are protected genetic in8 formation shall be subject to the applicable pro9 visions of this part. 

10 ‘‘(9) PROTECTED GENETIC INFORMATION.—The 

11 term ‘protected genetic information’ means—

12 ‘‘(A) information about an individual’s ge13 netic tests; 

14 ‘‘(B) information about genetic tests of 

15 family members of the individual; or 

16 ‘‘(C) information about the occurrence of a 

17 disease or disorder in family members.’’. 

18 (f) LIMITATIONS WITH RESPECT TO DEFINITION.—

19 Section 702 of the Employee Retirement Income Security 

20 Act of 1974 (29 U.S.C. 1182), as amended by subsection 

21 (b), is further amended by adding at the end the following: 

22 ‘‘(j) LIMITATIONS.—As defined in section 933(d)(9), 

23 the term protected genetic information shall not include—

24 ‘‘(1) information about the sex or age of the in25 dividual; 
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1 ‘‘(2) information about chemical, blood, or urine 

2 analyses of the individual, unless these analyses are 

3 genetic tests; or

4 ‘‘(3) information about physical exams of the 

5 individual, and other information that indicates the 

6 current health status of the individual.’’. 

7 (g) AMENDMENT CONCERNING SUPPLEMENTAL EX8 CEPTED BENEFITS.—Section 732(c)(3) of the Employee 

9 Retirement Income Security Act of 1974 (29 U.S.C. 

10 1191a(c)(3)) is amended by inserting ‘‘, other than the 

11 requirements of subsections (a)(1)(F), (b) (in cases relat12 ing to genetic information or information about a request 

13 for or the receipt of genetic services by an individual or 

14 a family member of such individual), (c), (d), (e), (f) and 

15 (g) of section 702 and section 714,’’ after ‘‘The require16 ments of this part’’. 

17 (h) EFFECTIVE DATE.—

18 (1) IN GENERAL.—Except as provided in this 

19 section, this section and the amendments made by 

20 this section shall apply with respect to group health 

21 plans for plan years beginning after October 1, 

22 2003. 

23 (2) SPECIAL RULE FOR COLLECTIVE BAR24 GAINING AGREEMENTS.—In the case of a group 

25 health plan maintained pursuant to one or more col-
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1 lective bargaining agreements between employee rep2 resentatives and one or more employers ratified be3 fore the date of the enactment of this Act, this sec4 tion and the amendments made by this section shall 

5 not apply to plan years beginning before the later 

6 of—

7 (A) the date on which the last of the col8 lective bargaining agreements relating to the 

9 plan terminates (determined without regard to 

10 any extension thereof agreed to after the date 

11 of the enactment of this Act), or 

12 (B) October 1, 2003. 

13 For purposes of subparagraph (A), any plan amend14 ment made pursuant to a collective bargaining 

15 agreement relating to the plan which amends the 

16 plan solely to conform to any requirement of the 

17 amendments made by this section shall not be treat18 ed as a termination of such collective bargaining 

19 agreement. 

20 SEC. 812. AMENDMENTS TO THE PUBLIC HEALTH SERVICE 

21 ACT. 

22 (a) AMENDMENTS RELATING TO THE GROUP MAR23 KET.—
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1 (1) PROHIBITION OF HEALTH INSURANCE DIS2 CRIMINATION ON THE BASIS OF PROTECTED GE3 NETIC INFORMATION OR GENETIC SERVICES.—

4 (A) NO ENROLLMENT RESTRICTION FOR

5 GENETIC SERVICES.—Section 2702(a)(1)(F) of 

6 the Public Health Service Act (42 U.S.C. 

7 300gg–1(a)(1)(F)) is amended by inserting be8 fore the period the following: ‘‘(or information 

9 about a request for or the receipt of genetic 

10 services by an individual or a family member of 

11 such individual)’’. 

12 (B) NO DISCRIMINATION IN GROUP RATE

13 BASED ON PROTECTED GENETIC INFORMA14 TION.—

15 (i) IN GENERAL.—Subpart 2 of part 

16 A of title XXVII of the Public Health 

17 Service (42 U.S.C. 300gg–4 et seq.) is 

18 amended by adding at the end the fol19 lowing: 

20 ‘‘SEC. 2707. PROHIBITING DISCRIMINATION AGAINST 

21 GROUPS ON THE BASIS OF PROTECTED GE22 NETIC INFORMATION. 

23 ‘‘A group health plan, and a health insurance issuer 

24 offering group health insurance coverage in connection 

25 with a group health plan, shall not deny eligibility to a
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1 group or adjust premium or contribution rates for a group 

2 on the basis of protected genetic information concerning 

3 an individual in the group (or information about a request 

4 for or the receipt of genetic services by such individual 

5 or family member of such individual).’’. 

6 (ii) CONFORMING AMENDMENTS.—

7 (I) Section 2702(b)(2)(A) of the 

8 Public Health Service Act (42 U.S.C. 

9 300gg–1(b)(2)(A)) is amended to read 

10 as follows:

11 ‘‘(A) to restrict the amount that an em12 ployer may be charged for coverage under a 

13 group health plan, except as provided in section 

14 2707; or’’.

15 (II) Section 2721(a) of the Pub16 lic Health Service Act (42 U.S.C. 

17 300gg–21(a)) is amended by inserting 

18 ‘‘(other than subsections (a)(1)(F), 

19 (b) (with respect to cases relating to 

20 genetic information or information 

21 about a request or receipt of genetic 

22 services by an individual or family 

23 member of such individual), (c), (d), 

24 (e), (f), or (g) of section 2702 and 
95

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1 section 2707)’’ after ‘‘subparts 1 and 

2 3’’. 

3 (2) LIMITATIONS ON GENETIC TESTING AND ON

4 COLLECTION AND DISCLOSURE OF PROTECTED GE5 NETIC INFORMATION.—Section 2702 of the Public 

6 Health Service Act (42 U.S.C. 300gg–1) is amended 

7 by adding at the end the following: 

8 ‘‘(c) GENETIC TESTING.—

9 ‘‘(1) LIMITATION ON REQUESTING OR REQUIR10 ING GENETIC TESTING.—A group health plan, or a 

11 health insurance issuer offering health insurance 

12 coverage in connection with a group health plan, 

13 shall not request or require an individual or a family 

14 member of such individual to undergo a genetic test. 

15 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

16 this title shall be construed to limit the authority of 

17 a health care professional, who is providing treat18 ment with respect to an individual and who is em19 ployed by a group health plan or a health insurance 

20 issuer, to request that such individual or family 

21 member of such individual undergo a genetic test. 

22 Such a health care professional shall not require 

23 that such individual or family member undergo a ge24 netic test. 
96

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1 ‘‘(d) COLLECTION OF PROTECTED GENETIC INFOR2 MATION.—Except as provided in subsections (f) and (g), 

3 a group health plan, or a health insurance issuer offering 

4 health insurance coverage in connection with a group 

5 health plan, shall not request, require, collect, or purchase

6 protected genetic information concerning an individual (or 

7 information about a request for or the receipt of genetic 

8 services by such individual or family member of such indi9 vidual). 

10 ‘‘(e) DISCLOSURE OF PROTECTED GENETIC INFOR11 MATION.—A group health plan, or a health insurance 

12 issuer offering health insurance coverage in connection 

13 with a group health plan, shall not disclose protected ge14 netic information about an individual (or information 

15 about a request for or the receipt of genetic services by 

16 such individual or family member of such individual) to—

17 ‘‘(1) any entity that is a member of the same 

18 controlled group as such issuer or plan sponsor of 

19 such group health plan; 

20 ‘‘(2) any other group health plan or health in21 surance issuer or any insurance agent, third party 

22 administrator, or other person subject to regulation 

23 under State insurance laws; 
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•S 16 IS 

1 ‘‘(3) the Medical Information Bureau or any 

2 other person that collects, compiles, publishes, or 

3 otherwise disseminates insurance information; 

4 ‘‘(4) the individual’s employer or any plan spon5 sor; or 

6 ‘‘(5) any other person the Secretary may speci7 fy in regulations. 

8 ‘‘(f) INFORMATION FOR PAYMENT FOR GENETIC

9 SERVICES.—

10 ‘‘(1) IN GENERAL.—With respect to payment 

11 for genetic services conducted concerning an indi12 vidual or the coordination of benefits, a group health 

13 plan, or a health insurance issuer offering group 

14 health insurance coverage in connection with a group 

15 health plan, may request that the individual provide 

16 the plan or issuer with evidence that such services 

17 were performed. 

18 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

19 paragraph (1) shall be construed to—

20 ‘‘(A) permit a group health plan or health 

21 insurance issuer to request (or require) the re22 sults of the services referred to in such para23 graph; or 

24 ‘‘(B) require that a group health plan or 

25 health insurance issuer make payment for serv-
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•S 16 IS 

1 ices described in such paragraph where the in2 dividual involved has refused to provide evi3 dence of the performance of such services pur4 suant to a request by the plan or issuer in ac5 cordance with such paragraph. 

6 ‘‘(g) INFORMATION FOR PAYMENT OF OTHER

7 CLAIMS.—With respect to the payment of claims for bene8 fits other than genetic services, a group health plan, or 

9 a health insurance issuer offering group health insurance 

10 coverage in connection with a group health plan, may re11 quest that an individual provide protected genetic informa12 tion so long as such information—

13 ‘‘(1) is used solely for the payment of a claim; 

14 ‘‘(2) is limited to information that is directly re15 lated to and necessary for the payment of such claim 

16 and the claim would otherwise be denied but for the 

17 protected genetic information; and 

18 ‘‘(3) is used only by an individual (or individ19 uals) within such plan or issuer who needs access to 

20 such information for purposes of payment of a 

21 claim. 

22 ‘‘(h) RULES OF CONSTRUCTION.—

23 ‘‘(1) COLLECTION OR DISCLOSURE AUTHORIZED

24 BY INDIVIDUAL.—The provisions of subsections (d) 

25 (regarding collection) and (e) shall not apply to an
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1 individual if the individual (or legal representative 

2 of the individual) provides prior, knowing, voluntary, 

3 and written authorization for the collection or disclo4 sure of protected genetic information. 

5 ‘‘(2) DISCLOSURE FOR HEALTH CARE TREAT6 MENT.—Nothing in this section shall be construed to 

7 limit or restrict the disclosure of protected genetic 

8 information from a health care provider to another 

9 health care provider for the purpose of providing 

10 health care treatment to the individual involved. 

11 ‘‘(i) DEFINITIONS.—In this section: 

12 ‘‘(1) CONTROLLED GROUP.—The term ‘con13 trolled group’ means any group treated as a single

14 employer under subsection (b), (c), (m), or (o) of 

15 section 414 of the Internal Revenue Code of 1986.

16 ‘‘(2) GROUP HEALTH PLAN, HEALTH INSUR17 ANCE ISSUER.—The terms ‘group health plan’ and 

18 ‘health insurance issuer’ include a third party ad19 ministrator or other person acting for or on behalf 

20 of such plan or issuer.’’. 

21 (3) DEFINITIONS.—Section 2791(d) of the Pub22 lic Health Service Act (42 U.S.C. 300gg–91(d)) is 

23 amended by adding at the end the following new 

24 paragraphs: 
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1 ‘‘(15) FAMILY MEMBER.—The term ‘family 

2 member’ means with respect to an individual—

3 ‘‘(A) the spouse of the individual; 

4 ‘‘(B) a dependent child of the individual, 

5 including a child who is born to or placed for 

6 adoption with the individual; and 

7 ‘‘(C) all other individuals related by blood 

8 to the individual or the spouse or child de9 scribed in subparagraph (A) or (B). 

10 ‘‘(16) GENETIC INFORMATION.—The term ‘ge11 netic information’ means information about genes, 

12 gene products, or inherited characteristics that may 

13 derive from an individual or a family member of 

14 such individual (including information about a re15 quest for or the receipt of genetic services by such 

16 individual or family member of such individual). 

17 ‘‘(17) GENETIC SERVICES.—The term ‘genetic 

18 services’ means health services, including genetic 

19 tests, provided to obtain, assess, or interpret genetic 

20 information for diagnostic and therapeutic purposes, 

21 and for genetic education and counselling. 

22 ‘‘(18) GENETIC TEST.—

23 ‘‘(A) IN GENERAL.—The term ‘genetic 

24 test’ means the analysis of human DNA, RNA, 

25 chromosomes, proteins, or metabolites that de-
101

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1 tect genotypes, mutations, or chromosomal 

2 changes. 

3 ‘‘(B) CERTAIN TESTS.—Notwithstanding 

4 subparagraph (A), the conducting of metabolic 

5 tests that are not intended to reveal protected 

6 genetic information shall not be considered a 

7 violation of section 2702(c) or 2754(a) for pur8 poses of such subparagraph regardless of the 

9 results of the tests. Test results that are pro10 tected genetic information shall be subject to 

11 the applicable provisions of this title. 

12 ‘‘(19) PROTECTED GENETIC INFORMATION.—

13 The term ‘protected genetic information’ means—

14 ‘‘(A) information about an individual’s ge15 netic tests;

16 ‘‘(B) information about genetic tests of 

17 family members of the individual; or 

18 ‘‘(C) information about the occurrence of a 

19 disease or disorder in family members.’’. 

20 (4) LIMITATIONS WITH RESPECT TO DEFINI21 TION.—Section 2702 of the Public Health Service 

22 Act (42 U.S.C. 300gg–1), as amended by paragraph 

23 (2), is further amended by adding at the end the fol24 lowing: 
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1 ‘‘(j) LIMITATIONS.—As defined in section 

2 2791(d)(19), the term protected genetic information shall 

3 not include—

4 ‘‘(1) information about the sex or age of the in5 dividual; 

6 ‘‘(2) information about chemical, blood, or urine 

7 analyses of the individual, unless these analyses are 

8 genetic tests; or 

9 ‘‘(3) information about physical exams of the 

10 individual, and other information that indicates the 

11 current health status of the individual.’’. 

12 (b) AMENDMENT RELATING TO THE INDIVIDUAL

13 MARKET.—The first subpart 3 of part B of title XXVII 

14 of the Public Health Service Act (42 U.S.C. 300gg–51 et 

15 seq.) is amended—

16 (1) by redesignating such subpart as subpart 2; 

17 and 

18 (2) by adding at the end the following: 

19 ‘‘SEC. 2753. PROHIBITION OF HEALTH INSURANCE DIS20 CRIMINATION AGAINST INDIVIDUALS ON THE 

21 BASIS OF PROTECTED GENETIC INFORMA22 TION. 

23 ‘‘(a) INELIGIBILITY TO ENROLL.—A health insur24 ance issuer offering health insurance coverage in the indi25 vidual market shall not establish rules for eligibility to en-
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1 roll in individual health insurance coverage that are based 

2 on protected genetic information concerning the individual 

3 (or information about a request for or the receipt of ge4 netic services by such individual or family member of such 

5 individual). 

6 ‘‘(b) IN PREMIUM RATES.—A health insurance issuer 

7 offering health insurance coverage in the individual mar8 ket shall not adjust premium rates on the basis of pro9 tected genetic information concerning an individual (or in10 formation about a request for or the receipt of genetic 

11 services by such individual or family member of such indi12 vidual). 

13 ‘‘SEC. 2754. LIMITATIONS ON GENETIC TESTING AND ON 

14 COLLECTION AND DISCLOSURE OF PRO15 TECTED GENETIC INFORMATION. 

16 ‘‘(a) GENETIC TESTING.—

17 ‘‘(1) LIMITATION ON REQUESTING OR REQUIR18 ING GENETIC TESTING.—A health insurance issuer 

19 offering health insurance coverage in the individual 

20 market shall not request or require an individual or 

21 a family member of such individual to undergo a ge22 netic test. 

23 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

24 this title shall be construed to limit the authority of 

25 a health care professional, who is providing treat-
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1 ment with respect to an individual and who is em2 ployed by a group health plan or a health insurance 

3 issuer, to request that such individual or family 

4 member of such individual undergo a genetic test. 

5 Such a health care professional shall not require 

6 that such individual or family member undergo a ge7 netic test. 

8 ‘‘(b) COLLECTION OF PROTECTED GENETIC INFOR9 MATION.—Except as provided in subsections (d) and (e), 

10 a health insurance issuer offering health insurance cov11 erage in the individual market shall not request, require, 

12 collect, or purchase protected genetic information con13 cerning an individual (or information about a request for 

14 or the receipt of genetic services by such individual or fam15 ily member of such individual). 

16 ‘‘(c) DISCLOSURE OF PROTECTED GENETIC INFOR17 MATION.—A health insurance issuer offering health insur18 ance coverage in the individual market shall not disclose 

19 protected genetic information about an individual (or in20 formation about a request for or the receipt of genetic 

21 services by such individual or family member of such indi22 vidual) to—

23 ‘‘(1) any entity that is a member of the same 

24 controlled group as such issuer or plan sponsor of 

25 such group health plan;
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1 ‘‘(2) any other group health plan or health in2 surance issuer or any insurance agent, third party

3 administrator, or other person subject to regulation 

4 under State insurance laws; 

5 ‘‘(3) the Medical Information Bureau or any 

6 other person that collects, compiles, publishes, or 

7 otherwise disseminates insurance information; 

8 ‘‘(4) the individual’s employer or any plan spon9 sor; or 

10 ‘‘(5) any other person the Secretary may speci11 fy in regulations. 

12 ‘‘(d) INFORMATION FOR PAYMENT FOR GENETIC

13 SERVICES.—

14 ‘‘(1) IN GENERAL.—With respect to payment 

15 for genetic services conducted concerning an indi16 vidual or the coordination of benefits, a health insur17 ance issuer offering health insurance coverage in the 

18 individual market may request that the individual 

19 provide the plan or issuer with evidence that such 

20 services were performed. 

21 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

22 paragraph (1) shall be construed to—

23 ‘‘(A) permit a health insurance issuer to 

24 request (or require) the results of the services 

25 referred to in such paragraph; or 
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•S 16 IS 

1 ‘‘(B) require that a health insurance issuer 

2 make payment for services described in such 

3 paragraph where the individual involved has re4 fused to provide evidence of the performance of 

5 such services pursuant to a request by the plan 

6 or issuer in accordance with such paragraph. 

7 ‘‘(e) INFORMATION FOR PAYMENT OF OTHER

8 CLAIMS.—With respect to the payment of claims for bene9 fits other than genetic services, a health insurance issuer 

10 offering health insurance coverage in the individual mar11 ket may request that an individual provide protected ge12 netic information so long as such information—

13 ‘‘(1) is used solely for the payment of a claim; 

14 ‘‘(2) is limited to information that is directly re15 lated to and necessary for the payment of such claim 

16 and the claim would otherwise be denied but for the 

17 protected genetic information; and

18 ‘‘(3) is used only by an individual (or individ19 uals) within such plan or issuer who needs access to 

20 such information for purposes of payment of a 

21 claim. 

22 ‘‘(f) RULES OF CONSTRUCTION.—

23 ‘‘(1) COLLECTION OR DISCLOSURE AUTHORIZED

24 BY INDIVIDUAL.—The provisions of subsections (c) 

25 (regarding collection) and (d) shall not apply to an 
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1 individual if the individual (or legal representative of 

2 the individual) provides prior, knowing, voluntary, 

3 and written authorization for the collection or disclo4 sure of protected genetic information. 

5 ‘‘(2) DISCLOSURE FOR HEALTH CARE TREAT6 MENT.—Nothing in this section shall be construed to 

7 limit or restrict the disclosure of protected genetic 

8 information from a health care provider to another 

9 health care provider for the purpose of providing 

10 health care treatment to the individual involved. 

11 ‘‘(g) DEFINITIONS.—In this section: 

12 ‘‘(1) CONTROLLED GROUP.—The term ‘con13 trolled group’ means any group treated as a single 

14 employer under subsection (b), (c), (m), or (o) of 

15 section 414 of the Internal Revenue Code of 1986. 

16 ‘‘(2) GROUP HEALTH PLAN, HEALTH INSUR17 ANCE ISSUER.—The terms ‘group health plan’ and 

18 ‘health insurance issuer’ include a third party ad19 ministrator or other person acting for or on behalf 

20 of such plan or issuer.’’. 

21 (c) ENFORCEMENT.—

22 (1) GROUP PLANS.—Section 2722 of the Public 

23 Health Service Act (42 U.S.C. 300gg–22) is amend24 ed by adding at the end the following: 
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1 ‘‘(c) VIOLATION OF GENETIC DISCRIMINATION OR

2 GENETIC DISCLOSURE PROVISIONS.—In any action under 

3 this section against any administrator of a group health 

4 plan, or health insurance issuer offering group health in5 surance coverage in connection with a group health plan 

6 (including any third party administrator or other person 

7 acting for or on behalf of such plan or issuer) alleging 

8 a violation of subsections (a)(1)(F), (b) (with respect to 

9 cases relating to genetic information or information about 

10 a request or receipt of genetic services by an individual 

11 or family member of such individual), (c), (d), (e), (f), or 

12 (g) of section 2702 and section 2707 the court may award 

13 any appropriate legal or equitable relief. Such relief may 

14 include a requirement for the payment of attorney’s fees 

15 and costs, including the costs of expert witnesses. 

16 ‘‘(d) CIVIL PENALTY.—The monetary provisions of 

17 section 308(b)(2)(C) of Public Law 101–336 (42 U.S.C. 

18 12188(b)(2)(C)) shall apply for purposes of the Secretary 

19 enforcing the provisions referred to in subsection (c), ex20 cept that any such relief awarded shall be paid only into 

21 the general fund of the Treasury.’’. 

22 (2) INDIVIDUAL PLANS.—Section 2761 of the 

23 Public Health Service Act (42 U.S.C. 300gg–45) is 

24 amended by adding at the end the following: 
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1 ‘‘(c) VIOLATION OF GENETIC DISCRIMINATION OR

2 GENETIC DISCLOSURE PROVISIONS.—In any action under 

3 this section against any health insurance issuer offering 

4 health insurance coverage in the individual market (in5 cluding any other person acting for or on behalf of such 

6 issuer) alleging a violation of sections 2753 and 2754 the 

7 court in which the action is commenced may award any 

8 appropriate legal or equitable relief. Such relief may in9 clude a requirement for the payment of attorney’s fees and 

10 costs, including the costs of expert witnesses. 

11 ‘‘(d) CIVIL PENALTY.—The monetary provisions of 

12 section 308(b)(2)(C) of Public Law 101–336 (42 U.S.C. 

13 12188(b)(2)(C)) shall apply for purposes of the Secretary 

14 enforcing the provisions referred to in subsection (c), ex15 cept that any such relief awarded shall be paid only into 

16 the general fund of the Treasury.’’. 

17 (d) PREEMPTION.—

18 (1) GROUP MARKET.—Section 2723 of the Pub19 lic Health Service Act (42 U.S.C. 300gg–23) is 

20 amended—

21 (A) in subsection (a)(1), by inserting ‘‘or 

22 (e)’’ after ‘‘subsection (b)’’; and 

23 (B) by adding at the end the following: 

24 ‘‘(e) SPECIAL RULE IN CASE OF GENETIC INFORMA25 TION.—With respect to group health insurance coverage
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1 offered by a health insurance issuer, the provisions of this 

2 part relating to genetic information (including information 

3 about a request for or the receipt of genetic services by 

4 an individual or a family member of such individual) shall

5 not be construed to supersede any provision of State law 

6 which establishes, implements, or continues in effect a 

7 standard, requirement, or remedy that more completely—

8 ‘‘(1) protects the confidentiality of genetic in9 formation (including information about a request for 

10 or the receipt of genetic services by an individual or 

11 a family member of such individual) or the privacy 

12 of an individual or a family member of the individual 

13 with respect to genetic information (including infor14 mation about a request for or the receipt of genetic 

15 services by an individual or a family member of such 

16 individual) than does this part; or 

17 ‘‘(2) prohibits discrimination on the basis of ge18 netic information than does this part.’’. 

19 (2) INDIVIDUAL MARKET.—Section 2762 of the 

20 Public Health Service Act (42 U.S.C. 300gg–46) is 

21 amended—

22 (A) in subsection (a), by inserting ‘‘and ex23 cept as provided in subsection (c),’’ after ‘‘Sub24 ject to subsection (b),’’; and 

25 (B) by adding at the end the following: 
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•S 16 IS 

1 ‘‘(c) SPECIAL RULE IN CASE OF GENETIC INFORMA2 TION.—With respect to individual health insurance cov3 erage offered by a health insurance issuer, the provisions 

4 of this part (or part C insofar as it applies to this part) 

5 relating to genetic information (including information 

6 about a request for or the receipt of genetic services by 

7 an individual or a family member of such individual) shall 

8 not be construed to supersede any provision of State law 

9 (as defined in section 2723(d)) which establishes, imple10 ments, or continues in effect a standard, requirement, or 

11 remedy that more completely—

12 ‘‘(1) protects the confidentiality of genetic in13 formation (including information about a request for 

14 or the receipt of genetic services of an individual or 

15 a family member of such individual) or the privacy 

16 of an individual or a family member of the individual 

17 with respect to genetic information (including infor18 mation about a request for or the receipt of genetic 

19 services by an individual or a family member of such 

20 individual) than does this part (or part C insofar as 

21 it applies to this part); or 

22 ‘‘(2) prohibits discrimination on the basis of ge23 netic information than does this part (or part C in24 sofar as it applies to this part).’’. 
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1 (e) ELIMINATION OF OPTION OF NON-FEDERAL

2 GOVERNMENTAL PLANS TO BE EXCEPTED FROM RE3 QUIREMENTS CONCERNING GENETIC INFORMATION.—

4 Section 2721(b)(2) of the Public Health Service Act (42 

5 U.S. C. 300gg–21(b)(2)) is amended—

6 (1) in subparagraph (A), by striking ‘‘If the 

7 plan sponsor’’ and inserting ‘‘Except as provided in 

8 subparagraph (D), if the plan sponsor’’; and 

9 (2) by adding at the end the following: 

10 ‘‘(D) ELECTION NOT APPLICABLE TO RE11 QUIREMENTS CONCERNING GENETIC INFORMA12 TION.—The election described in subparagraph 

13 (A) shall not be available with respect to the 

14 provisions of subsections (a)(1)(F), (c), (d), (e), 

15 (f), and (g) of section 2702 and section 2707, 

16 and the provisions of section 2702(b) to the ex17 tent that they apply to genetic information (or 

18 information about a request for or the receipt 

19 of genetic services by an individual or a family 

20 member of such individual).’’. 

21 (f) AMENDMENT CONCERNING SUPPLEMENTAL EX22 CEPTED BENEFITS.—

23 (1) GROUP MARKET.—Section 2721(d)(3) of 

24 the Public Health Service Act (42 U.S.C. 300gg–

25 23(d)(3)) is amended by inserting ‘‘, other than the 
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1 requirements of subsections (a)(1)(F), (b) (in cases 

2 relating to genetic information or information about 

3 a request for or the receipt of genetic services by an 

4 individual or a family member of such individual)), 

5 (c), (d), (e), (f) and (g) of section 2702 and section 

6 2707,’’ after ‘‘The requirements of this part’’. 

7 (2) INDIVIDUAL MARKET.—Section 2763(b) of 

8 the Public Health Service Act (42 U.S.C. 300gg–

9 47(b)) is amended—

10 (A) by striking ‘‘The requirements of this 

11 part’’ and inserting the following: 

12 ‘‘(1) IN GENERAL.—Except as provided in para13 graph (2), the requirements of this part’’; and 

14 (B) by adding at the end the following: 

15 ‘‘(2) LIMITATION.—The requirements of sec16 tions 2753 and 2754 shall apply to excepted benefits 

17 described in section 2791(c)(4).’’. 

18 (g) EFFECTIVE DATE.—

19 (1) IN GENERAL.—The amendments made by 

20 this section shall apply with respect to—

21 (A) group health plans, and health insur22 ance coverage offered in connection with group 

23 health plans, for plan years beginning; and 
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1 (B) health insurance coverage offered, 

2 sold, issued, renewed, in effect, or operated in 

3 the individual market, after; 

4 October 1, 2003. 

5 (2) SPECIAL RULE FOR COLLECTIVE BAR6 GAINING AGREEMENTS.—In the case of a group 

7 health plan maintained pursuant to one or more col8 lective bargaining agreements between employee rep9 resentatives and one or more employers ratified be10 fore the date of the enactment of this Act, the 

11 amendments made by this section shall not apply to 

12 plan years beginning before the later of—

13 (A) the date on which the last of the col14 lective bargaining agreements relating to the 

15 plan terminates (determined without regard to 

16 any extension thereof agreed to after the date 

17 of the enactment of this Act); or 

18 (B) October 1, 2003. 

19 For purposes of subparagraph (A), any plan amend20 ment made pursuant to a collective bargaining 

21 agreement relating to the plan which amends the 

22 plan solely to conform to any requirement of the 

23 amendments made by this section shall not be treat24 ed as a termination of such collective bargaining 

25 agreement.
115

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1 SEC. 813. AMENDMENTS TO INTERNAL REVENUE CODE OF 

2 1986. 

3 (a) PROHIBITION OF HEALTH INSURANCE DISCRIMI4 NATION ON THE BASIS OF GENETIC SERVICES OR PRO5 TECTED GENETIC INFORMATION.—

6 (1) NO ENROLLMENT RESTRICTION FOR GE7 NETIC SERVICES.—Section 9802(a)(1)(F) of the In8 ternal Revenue Code of 1986 is amended by insert9 ing before the period ‘‘(or information about a re10 quest for or the receipt of genetic services by such 

11 individual or family member of such individual)’’. 

12 (2) NO DISCRIMINATION IN GROUP RATE BASED

13 ON PROTECTED GENETIC INFORMATION.—

14 (A) IN GENERAL.—Subchapter B of chap15 ter 100 of the Internal Revenue Code of 1986 

16 is amended by adding at the end the following: 

17 ‘‘SEC. 9813. PROHIBITING DISCRIMINATION AGAINST 

18 GROUPS ON THE BASIS OF PROTECTED GE19 NETIC INFORMATION. 

20 ‘‘A group health plan shall not deny eligibility to a 

21 group or adjust premium or contribution rates for a group 

22 on the basis of protected genetic information concerning 

23 an individual in the group (or information about a request 

24 for or the receipt of genetic services by such individual 

25 or family member of such individual).’’. 

26 (B) CONFORMING AMENDMENTS.—
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1 (i) Section 9802(b)(2)(A) of the Inter2 nal Revenue Code of 1986 is amended to 

3 read as follows: 

4 ‘‘(A) to restrict the amount that an em5 ployer may be charged for coverage under a 

6 group health plan, except as provided in section 

7 9813; or’’. 

8 (ii) Section 9831(a) of the Internal 

9 Revenue Code of 1986 is amended by in10 serting ‘‘(other than subsections (a)(1)(F), 

11 (b) (with respect to cases relating to ge12 netic information or information about a 

13 request or receipt of genetic services by an 

14 individual or family member of such indi15 vidual), (d), (e), (f), (g), or (h) of section 

16 9802 or section 9813) after ‘‘chapter’’. 

17 (b) LIMITATIONS ON GENETIC TESTING AND ON

18 COLLECTION AND DISCLOSURE OF PROTECTED GENETIC

19 INFORMATION.—Section 9802 of the Internal Revenue 

20 Code of 1986 is amended by adding at the end the fol21 lowing: 

22 ‘‘(d) GENETIC TESTING.—

23 ‘‘(1) LIMITATION ON REQUESTING OR REQUIR24 ING GENETIC TESTING.—A group health plan may 
117

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1 not request or require an individual or a family 

2 member of such individual to undergo a genetic test. 

3 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

4 this chapter shall be construed to limit the authority 

5 of a health care professional, who is providing treat6 ment with respect to an individual and who is em7 ployed by a group health plan, to request that such 

8 individual or family member of such individual un9 dergo a genetic test. Such a health care professional 

10 shall not require that such individual or family mem11 ber undergo a genetic test. 

12 ‘‘(e) COLLECTION OF PROTECTED GENETIC INFOR13 MATION.—Except as provided in subsections (g) and (h), 

14 a group health plan shall not request, require, collect, or 

15 purchase protected genetic information concerning an in16 dividual (or information about a request for or the receipt 

17 of genetic services by such individual or family member 

18 of such individual). 

19 ‘‘(f) DISCLOSURE OF PROTECTED GENETIC INFOR20 MATION.—A group health plan shall not disclose protected 

21 genetic information about an individual (or information 

22 about a request for or the receipt of genetic services by 

23 such individual or family member of such individual) to—
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1 ‘‘(1) any entity that is a member of the same 

2 controlled group as such issuer or plan sponsor of 

3 such group health plan; 

4 ‘‘(2) any other group health plan or health in5 surance issuer or any insurance agent, third party 

6 administrator, or other person subject to regulation 

7 under State insurance laws; 

8 ‘‘(3) the Medical Information Bureau or any 

9 other person that collects, compiles, publishes, or 

10 otherwise disseminates insurance information; 

11 ‘‘(4) the individual’s employer or any plan spon12 sor; or 

13 ‘‘(5) any other person the Secretary may speci14 fy in regulations. 

15 ‘‘(g) INFORMATION FOR PAYMENT FOR GENETIC

16 SERVICES.—

17 ‘‘(1) IN GENERAL.—With respect to payment 

18 for genetic services conducted concerning an indi19 vidual or the coordination of benefits, a group health 

20 plan may request that the individual provide the 

21 plan with evidence that such services were per22 formed. 

23 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

24 paragraph (1) shall be construed to—
119

•S 16 IS 

1 ‘‘(A) permit a group health plan to request 

2 (or require) the results of the services referred 

3 to in such paragraph; or 

4 ‘‘(B) require that a group health plan 

5 make payment for services described in such 

6 paragraph where the individual involved has re7 fused to provide evidence of the performance of 

8 such services pursuant to a request by the plan 

9 in accordance with such paragraph. 

10 ‘‘(h) INFORMATION FOR PAYMENT OF OTHER

11 CLAIMS.—With respect to the payment of claims for bene12 fits other than genetic services, a group health plan may 

13 request that an individual provide protected genetic infor14 mation so long as such information—

15 ‘‘(1) is used solely for the payment of a claim; 

16 ‘‘(2) is limited to information that is directly re17 lated to and necessary for the payment of such claim 

18 and the claim would otherwise be denied but for the 

19 protected genetic information; and 

20 ‘‘(3) is used only by an individual (or individ21 uals) within such plan or issuer who needs access to 

22 such information for purposes of payment of a 

23 claim. 

24 ‘‘(i) RULES OF CONSTRUCTION.—
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•S 16 IS 

1 ‘‘(1) COLLECTION OR DISCLOSURE AUTHORIZED

2 BY INDIVIDUAL.—The provisions of subsections (e) 

3 (regarding collection) and (f) shall not apply to an 

4 individual if the individual (or legal representative 

5 of, the individual) provides prior, knowing, vol6 untary, and written authorization for the collection 

7 or disclosure of protected genetic information.

8 ‘‘(2) DISCLOSURE FOR HEALTH CARE TREAT9 MENT.—Nothing in this section shall be construed to 

10 limit or restrict the disclosure of protected genetic 

11 information from a health care provider to another 

12 health care provider for the purpose of providing 

13 health care treatment to the individual involved. 

14 ‘‘(j) DEFINITIONS.—In this section: 

15 ‘‘(1) CONTROLLED GROUP.—The term ‘con16 trolled group’ means any group treated as a single 

17 employer under subsections (b), (c), (m), or (o) of 

18 section 414. 

19 ‘‘(2) GROUP HEALTH PLAN, HEALTH INSUR20 ANCE ISSUER.—The terms ‘group health plan’ and 

21 ‘health insurance issuer’ include a third party ad22 ministrator or other person acting for or on behalf 

23 of such plan or issuer.’’. 
121

•S 16 IS 

1 (c) DEFINITIONS.—Section 9832(d) of the Internal 

2 Revenue Code of 1986 is amended by adding at the end 

3 the following: 

4 ‘‘(6) FAMILY MEMBER.—The term ‘family 

5 member’ means with respect to an individual—

6 ‘‘(A) the spouse of the individual; 

7 ‘‘(B) a dependent child of the individual, 

8 including a child who is born to or placed for 

9 adoption with the individual; and 

10 ‘‘(C) all other individuals related by blood 

11 to the individual or the spouse or child de12 scribed in subparagraph (A) or (B). 

13 ‘‘(7) GENETIC INFORMATION.—The term ‘ge14 netic information’ means information about genes, 

15 gene products, or inherited characteristics that may 

16 derive from an individual or a family member of 

17 such individual (including information about a re18 quest for or the receipt of genetic services by such 

19 individual or family member of such individual). 

20 ‘‘(8) GENETIC SERVICES.—The term ‘genetic 

21 services’ means health services, including genetic 

22 tests, provided to obtain, assess, or interpret genetic 

23 information for diagnostic and therapeutic purposes, 

24 and for genetic education and counseling.

25 ‘‘(9) GENETIC TEST.—
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1 ‘‘(A) IN GENERAL.—The term ‘genetic 

2 test’ means the analysis of human DNA, RNA, 

3 chromosomes, proteins, or metabolites that de4 tect genotypes, mutations, or chromosomal 

5 changes. 

6 ‘‘(B) CERTAIN TESTS.—Notwithstanding 

7 subparagraph (A), the conducting of metabolic 

8 tests that are not intended to reveal protected 

9 genetic information shall not be considered a 

10 violation of section 9802(d) for purposes of 

11 such subparagraph regardless of the results of 

12 the tests. Test results that are protected genetic 

13 information shall be subject to the applicable 

14 provisions of this chapter. 

15 ‘‘(10) PROTECTED GENETIC INFORMATION.—

16 The term ‘protected genetic information’ means—

17 ‘‘(A) information about an individual’s ge18 netic tests; 

19 ‘‘(B) information about genetic tests of 

20 family members of the individual; or 

21 ‘‘(C) information about the occurrence of a 

22 disease or disorder in family members. 

23 (d) LIMITATIONS WITH RESPECT TO DEFINITION.—

24 Section 9802 of the Internal Revenue Code of 1986, as 
123

•S 16 IS 

1 amended by subsection (b), is further amended by adding 

2 at the end the following: 

3 ‘‘(k) LIMITATIONS.—As defined in section 

4 9832(d)(10), the term protected genetic information shall 

5 not include—

6 ‘‘(1) information about the sex or age of the in7 dividual; 

8 ‘‘(2) information about chemical, blood, or urine 

9 analyses of the individual, unless these analyses are 

10 genetic tests; or 

11 ‘‘(3) information about physical exams of the 

12 individual, and other information that indicates the 

13 current health status of the individual.’’. 

14 (e) EFFECTIVE DATE.—

15 (1) IN GENERAL.—Except as provided in this 

16 section, this section and the amendments made by 

17 this section shall apply with respect to group health 

18 plans for plan years beginning after October 1, 

19 2003. 

20 (2) SPECIAL RULE FOR COLLECTIVE BAR21 GAINING AGREEMENTS.—In the case of a group 

22 health plan maintained pursuant to one or more col23 lective bargaining agreements between employee rep24 resentatives and one or more employers ratified be25 fore the date of the enactment of this Act, this sec-
124

•S 16 IS 

1 tion and the amendments made by this section shall 

2 not apply to plan years beginning before the later 

3 of—

4 (A) the date on which the last of the col5 lective bargaining agreements relating to the 

6 plan terminates (determined without regard to 

7 any extension thereof agreed to after the date 

8 of the enactment of this Act), or 

9 (B) October 1, 2003. 

10 For purposes of subparagraph (A), any plan amend11 ment made pursuant to a collective bargaining 

12 agreement relating to the plan which amends the 

13 plan solely to conform to any requirement of the 

14 amendments made by this section shall not be treat15 ed as a termination of such collective bargaining 

16 agreement. 

17 SEC. 814. AMENDMENTS TO TITLE XVIII OF THE SOCIAL SE18 CURITY ACT RELATING TO MEDIGAP. 

19 (a) NONDISCRIMINATION.—

20 (1) IN GENERAL.—Section 1882(s)(2) of the 

21 Social Security Act (42 U.S.C. 1395ss(s)(2)) is 

22 amended by adding at the end the following: 

23 ‘‘(E)(i) An issuer of a medicare supple24 mental policy shall not deny or condition the 

25 issuance or effectiveness of the policy, and shall
125

•S 16 IS 

1 not discriminate in the pricing of the policy (in2 cluding the adjustment of premium rates) of an 

3 eligible individual on the basis of protected ge4 netic information concerning the individual (or 

5 information about a request for, or the receipt 

6 of, genetic services by such individual or family 

7 member of such individual). 

8 ‘‘(ii) For purposes of clause (i), the terms 

9 ‘family member’, ‘genetic services’, and ‘pro10 tected genetic information’ shall have the mean11 ings given such terms in subsection (v).’’. 

12 (2) EFFECTIVE DATE.—The amendment made 

13 by paragraph (1) shall apply with respect to a policy 

14 for policy years beginning after October 1, 2003. 

15 (b) LIMITATIONS ON GENETIC TESTING AND ON

16 COLLECTION AND DISCLOSURE OF PROTECTED GENETIC

17 INFORMATION.—

18 (1) IN GENERAL.—Section 1882 of the Social 

19 Security Act (42 U.S.C. 1395ss) is amended by add20 ing at the end the following:

21 ‘‘(v) LIMITATIONS ON GENETIC TESTING AND ON

22 COLLECTION AND DISCLOSURE OF PROTECTED GENETIC

23 INFORMATION.—

24 ‘‘(1) GENETIC TESTING.—
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•S 16 IS 

1 ‘‘(A) LIMITATION ON REQUESTING OR RE2 QUIRING GENETIC TESTING.—An issuer of a 

3 medicare supplemental policy shall not request 

4 or require an individual or a family member of 

5 such individual to undergo a genetic test.

6 ‘‘(B) RULE OF CONSTRUCTION.—Nothing 

7 in this title shall be construed to limit the au8 thority of a health care professional, who is pro9 viding treatment with respect to an individual 

10 and who is employed by an issuer of a medicare 

11 supplemental policy, to request that such indi12 vidual or family member of such individual un13 dergo a genetic test. Such a health care profes14 sional shall not require that such individual or 

15 family member undergo a genetic test. 

16 ‘‘(2) COLLECTION OF PROTECTED GENETIC IN17 FORMATION.—Except as provided in paragraphs (4) 

18 and (5), an issuer of a medicare supplemental policy 

19 shall not request, require, collect, or purchase pro20 tected genetic information concerning an individual 

21 (or information about a request for or the receipt of 

22 genetic services by such individual or family member 

23 of such individual). 

24 ‘‘(3) DISCLOSURE OF PROTECTED GENETIC IN25 FORMATION.—An issuer of a medicare supplemental 
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1 policy shall not disclose protected genetic informa2 tion about an individual (or information about a re3 quest for or the receipt of genetic services by such 

4 individual or family member of such individual) to—

5 ‘‘(A) any entity that is a member of the 

6 same controlled group as such issuer; 

7 ‘‘(B) any issuer of a medicare supple8 mental policy, group health plan or health in9 surance issuer, or any insurance agent, third 

10 party administrator, or other person subject to 

11 regulation under State insurance laws; 

12 ‘‘(C) the Medical Information Bureau or 

13 any other person that collects, compiles, pub14 lishes, or otherwise disseminates insurance in15 formation; 

16 ‘‘(D) the individual’s employer or any plan 

17 sponsor; or 

18 ‘‘(E) any other person the Secretary may 

19 specify in regulations. 

20 ‘‘(4) INFORMATION FOR PAYMENT FOR GE21 NETIC SERVICES.—

22 ‘‘(A) IN GENERAL.—With respect to pay23 ment for genetic services conducted concerning 

24 an individual or the coordination of benefits, an 

25 issuer of a medicare supplemental policy may 
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1 request that the individual provide the issuer 

2 with evidence that such services were per3 formed. 

4 ‘‘(B) RULE OF CONSTRUCTION.—Nothing 

5 in subparagraph (A) shall be construed to—

6 ‘‘(i) permit an issuer to request (or 

7 require) the results of the services referred 

8 to in such subparagraph; or 

9 ‘‘(ii) require that an issuer make pay10 ment for services described in such sub11 paragraph where the individual involved 

12 has refused to provide evidence of the per13 formance of such services pursuant to a re14 quest by the issuer in accordance with such 

15 subparagraph. 

16 ‘‘(5) INFORMATION FOR PAYMENT OF OTHER

17 CLAIMS.—With respect to the payment of claims for 

18 benefits other than genetic services, an issuer of a 

19 medicare supplemental policy may request that an 

20 individual provide protected genetic information so 

21 long as such information—

22 ‘‘(A) is used solely for the payment of a 

23 claim; 

24 ‘‘(B) is limited to information that is di25 rectly related to and necessary for the payment
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1 of such claim and the claim would otherwise be 

2 denied but for the protected genetic informa3 tion; and 

4 ‘‘(C) is used only by an individual (or indi5 viduals) within such issuer who needs access to 

6 such information for purposes of payment of a 

7 claim. 

8 ‘‘(6) RULES OF CONSTRUCTION.—

9 ‘‘(A) COLLECTION OR DISCLOSURE AU10 THORIZED BY INDIVIDUAL.—The provisions of 

11 paragraphs (2) (regarding collection) and (3) 

12 shall not apply to an individual if the individual 

13 (or legal representative of the individual) pro14 vides prior, knowing, voluntary, and written au15 thorization for the collection or disclosure of 

16 protected genetic information. 

17 ‘‘(B) DISCLOSURE FOR HEALTH CARE

18 TREATMENT.—Nothing in this section shall be 

19 construed to limit or restrict the disclosure of 

20 protected genetic information from a health 

21 care provider to another health care provider 

22 for the purpose of providing health care treat23 ment to the individual involved. 

24 ‘‘(7) VIOLATION OF GENETIC DISCRIMINATION

25 OR GENETIC DISCLOSURE PROVISIONS.—In any ac-
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1 tion under this subsection against any administrator 

2 of a medicare supplemental policy (including any 

3 third party administrator or other person acting for

4 or on behalf of such policy) alleging a violation of 

5 this subsection, the court may award any appro6 priate legal or equitable relief. Such relief may in7 clude a requirement for the payment of attorney’s 

8 fees and costs, including the costs of expert wit9 nesses. 

10 ‘‘(8) CIVIL PENALTY.—The monetary provisions 

11 of section 308(b)(2)(C) of Public Law 101–336 (42 

12 U.S.C. 12188(b)(2)(C)) shall apply for purposes of 

13 the Secretary enforcing the provisions of this sub14 section, except that any such relief awarded shall be 

15 paid only into the general fund of the Treasury. 

16 ‘‘(9) SPECIAL RULE IN CASE OF GENETIC IN17 FORMATION.—This subsection (relating to genetic 

18 information or information about a request for, or 

19 the receipt of, genetic services by an individual or a 

20 family member of such individual) shall not be con21 strued to supersede any provision of State law which

22 establishes, implements, or continues in effect a 

23 standard, requirement, or remedy that more com24 pletely—
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1 ‘‘(A) protects the confidentiality of genetic 

2 information (including information about a re3 quest for, or the receipt of, genetic services by 

4 an individual or a family member of such indi5 vidual) or the privacy of an individual or a fam6 ily member of the individual with respect to ge7 netic information (including information about 

8 a request for, or the receipt of, genetic services 

9 by an individual or a family member of such in10 dividual) than does this subsection; or 

11 ‘‘(B) prohibits discrimination on the basis 

12 of genetic information than does this sub13 section. 

14 ‘‘(10) DEFINITIONS.—In this subsection: 

15 ‘‘(A) CONTROLLED GROUP.—The term 

16 ‘controlled group’ means any group treated as 

17 a single employer under subsection (b), (c), 

18 (m), or (o) of section 414 of the Internal Rev19 enue Code of 1986. 

20 ‘‘(B) FAMILY MEMBER.—The term ‘family 

21 member’ means with respect to an individual—

22 ‘‘(i) the spouse of the individual; 

23 ‘‘(ii) a dependent child of the indi24 vidual, including a child who is born to or 

25 placed for adoption with the individual; or 
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1 ‘‘(iii) any other individuals related by 

2 blood to the individual or to the spouse or 

3 child described in clause (i) or (ii). 

4 ‘‘(C) GENETIC INFORMATION.—The term 

5 ‘genetic information’ means information about 

6 genes, gene products, or inherited characteris7 tics that may derive from an individual or a 

8 family member of such individual (including in9 formation about a request for, or the receipt of, 

10 genetic services by such individual or family 

11 member of such individual). 

12 ‘‘(D) GENETIC SERVICES.—The term ‘ge13 netic services’ means health services, including 

14 genetic tests, provided to obtain, assess, or in15 terpret genetic information for diagnostic and 

16 therapeutic purposes, and for genetic education 

17 and counseling. 

18 ‘‘(E) GENETIC TEST.—

19 ‘‘(i) IN GENERAL.—The term ‘genetic 

20 test’ means the analysis of human DNA, 

21 RNA, chromosomes, proteins, or metabo22 lites that detect genotypes, mutations, or 

23 chromosomal changes. 

24 ‘‘(ii) CERTAIN TESTS.—Notwith25 standing subparagraph (A), the conducting 
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1 of metabolic tests that are not intended to 

2 reveal protected genetic information shall 

3 not be considered a violation of paragraph 

4 (1) regardless of the results of the tests. 

5 Test results that are protected genetic in6 formation shall be subject to the applicable 

7 provisions of this subsection. 

8 ‘‘(F) ISSUER OF A MEDICARE SUPPLE9 MENTAL POLICY.—The term ‘issuer of a medi10 care supplemental policy’ includes a third-party 

11 administrator or other person acting for or on 

12 behalf of such issuer. 

13 ‘‘(G) PROTECTED GENETIC INFORMA14 TION.—The term ‘protected genetic informa15 tion’ means—

16 ‘‘(i) information about an individual’s 

17 genetic tests; 

18 ‘‘(ii) information about genetic tests 

19 of family members of the individual; or 

20 ‘‘(iii) information about the occur21 rence of a disease or disorder in family 

22 members. 

23 (2) LIMITATIONS WITH RESPECT TO DEFINI24 TION.—Section 1882(v) of the Social Security Act
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1 (42 U.S.C. 1395ss), as added by paragraph (1), is 

2 amended by adding at the end the following: 

3 ‘‘(11) LIMITATIONS.—As defined in paragraph 

4 (10)(G), the term protected genetic information shall 

5 not include—

6 ‘‘(A) information about the sex or age of 

7 the individual; 

8 ‘‘(B) information about chemical, blood, or 

9 urine analyses of the individual, unless these 

10 analyses are genetic tests; or 

11 ‘‘(C) information about physical exams of 

12 the individual, and other information that indi13 cates the current health status of the indi14 vidual.’’. 

15 (3) CONFORMING AMENDMENT.—Section 

16 1882(o) of the Social Security Act (42 U.S.C. 

17 1395ss(o)) is amended by adding at the end the fol18 lowing: 

19 ‘‘(4) The issuer of the medicare supplemental 

20 policy complies with subsection (s)(2)(E) and sub21 section (v).’’. 

22 (4) EFFECTIVE DATE.—The amendments made 

23 by this subsection shall apply with respect to an 

24 issuer of a medicare supplemental policy for policy 

25 years beginning after October 1, 2003. 
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1 (c) TRANSITION PROVISIONS.—

2 (1) IN GENERAL.—If the Secretary of Health 

3 and Human Services identifies a State as requiring 

4 a change to its statutes or regulations to conform its 

5 regulatory program to the changes made by this sec6 tion, the State regulatory program shall not be con7 sidered to be out of compliance with the require8 ments of section 1882 of the Social Security Act due 

9 solely to failure to make such change until the date 

10 specified in paragraph (4). 

11 (2) NAIC STANDARDS.—If, not later than June 

12 30, 2003, the National Association of Insurance

13 Commissioners (in this subsection referred to as the 

14 ‘‘NAIC’’) modifies its NAIC Model Regulation relat15 ing to section 1882 of the Social Security Act (re16 ferred to in such section as the 1991 NAIC Model 

17 Regulation, as subsequently modified) to conform to 

18 the amendments made by this section, such revised 

19 regulation incorporating the modifications shall be 

20 considered to be the applicable NAIC model regula21 tion (including the revised NAIC model regulation 

22 and the 1991 NAIC Model Regulation) for the pur23 poses of such section. 

24 (3) SECRETARY STANDARDS.—If the NAIC 

25 does not make the modifications described in para-
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1 graph (2) within the period specified in such para2 graph, the Secretary of Health and Human Services 

3 shall, not later than October 1, 2003, make the 

4 modifications described in such paragraph and such 

5 revised regulation incorporating the modifications 

6 shall be considered to be the appropriate regulation 

7 for the purposes of such section. 

8 (4) DATE SPECIFIED.—

9 (A) IN GENERAL.—Subject to subpara10 graph (B), the date specified in this paragraph 

11 for a State is the earlier of—

12 (i) the date the State changes its stat13 utes or regulations to conform its regu14 latory program to the changes made by 

15 this section, or 

16 (ii) October 1, 2003. 

17 (B) ADDITIONAL LEGISLATIVE ACTION RE18 QUIRED.—In the case of a State which the Sec19 retary identifies as—

20 (i) requiring State legislation (other 

21 than legislation appropriating funds) to 

22 conform its regulatory program to the 

23 changes made in this section, but 

24 (ii) having a legislature which is not 

25 scheduled to meet in 2003 in a legislative 
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1 session in which such legislation may be 

2 considered, 

3 the date specified in this paragraph is the first 

4 day of the first calendar quarter beginning after 

5 the close of the first legislative session of the 

6 State legislature that begins on or after July 1, 

7 2003. For purposes of the previous sentence, in 

8 the case of a State that has a 2-year legislative 

9 session, each year of such session shall be 

10 deemed to be a separate regular session of the 

11 State legislature. 

12 Subtitle B—Prohibition of Employ13 ment Discrimination on the 

14 Basis of Protected Genetic In15 formation 

16 SEC. 821. DEFINITIONS. 

17 In this subtitle: 

18 (1) EMPLOYEE; EMPLOYER; EMPLOYMENT

19 AGENCY; LABOR ORGANIZATION; MEMBER.—The 

20 terms ‘‘employee’’, ‘‘employer’’, ‘‘employment agen21 cy’’, and ‘‘labor organization’’ have the meanings 

22 given such terms in section 701 of the Civil Rights 

23 Act of 1964 (42 U.S.C. 2000e), except that the 

24 terms ‘‘employee’’ and ‘‘employer’’ shall also include 

25 the meanings given such terms in section 717 of the 
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1 Civil Rights Act of 1964 (42 U.S.C. 2000e–16). The 

2 terms ‘‘employee’’ and ‘‘member’’ include an appli3 cant for employment and an applicant for member4 ship in a labor organization, respectively. 

5 (2) FAMILY MEMBER.—The term ‘‘family mem6 ber’’ means with respect to an individual—

7 (A) the spouse of the individual;

8 (B) a dependent child of the individual, in9 cluding a child who is born to or placed for 

10 adoption with the individual; or 

11 (C) any other individuals related by blood 

12 to the individual or to the spouse or child de13 scribed in subparagraph (A) or (B). 

14 (3) GENETIC MONITORING.—The term ‘‘genetic 

15 monitoring’’ means the periodic examination of em16 ployees to evaluate acquired modifications to their 

17 genetic material, such as chromosomal damage or 

18 evidence of increased occurrence of mutations, that 

19 may have developed in the course of employment due 

20 to exposure to toxic substances in the workplace, in 

21 order to identify, evaluate, and respond to the ef22 fects of or control adverse environmental exposures 

23 in the workplace. 

24 (4) GENETIC SERVICES.—The term ‘‘genetic 

25 services’’ means health services, including genetic
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1 tests, provided to obtain, assess, or interpret genetic 

2 information for diagnostic and therapeutic purposes, 

3 and for genetic education and counseling. 

4 (5) GENETIC TEST.—

5 (A) IN GENERAL.—The term ‘‘genetic 

6 test’’ means the analysis of human DNA, RNA, 

7 chromosomes, proteins, or metabolites that de8 tect genotypes, mutations, or chromosomal 

9 changes. 

10 (B) CERTAIN TESTS.—Notwithstanding 

11 subparagraph (A), the conducting of metabolic 

12 tests that are not intended to reveal protected 

13 genetic information shall not be considered a 

14 violation of 203(a)(3), 204(3), 205(3), or 

15 206(3) regardless of the results of the tests. 

16 Test results that are protected genetic informa17 tion shall be subject to the applicable provisions 

18 of this subtitle. 

19 (6) PROTECTED GENETIC INFORMATION.—The 

20 term ‘‘protected genetic information’’ means—

21 (A) information about an individual’s ge22 netic tests; 

23 (B) information about genetic tests of fam24 ily members of the individual; or 
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1 (C) information about the occurrence of a 

2 disease or disorder in family members. 

3 SEC. 822. LIMITATIONS WITH RESPECT TO DEFINITION. 

4 As defined in section 821(6), the term protected ge5 netic information shall not include—

6 (1) information about the sex or age of the in7 dividual; or 

8 (2) information about chemical, blood, or urine 

9 analyses of the individual, unless these analyses are 

10 genetic tests. 

11 SEC. 823. EMPLOYER PRACTICES. 

12 (a) IN GENERAL.—It shall be an unlawful employ13 ment practice for an employer (or a worker’s compensa14 tion insurance issuer acting on the employer’s behalf)—

15 (1) to fail or refuse to hire or to discharge any 

16 individual, or otherwise to discriminate against any 

17 individual with respect to the compensation, terms,

18 conditions, or privileges of employment of the indi19 vidual, because of protected genetic information with 

20 respect to the individual or information about a re21 quest for or the receipt of genetic services by such 

22 individual or family member of such individual; 

23 (2) to limit, segregate, or classify the employees 

24 of the employer in any way that would deprive or 

25 tend to deprive any individual of employment oppor-
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1 tunities or otherwise adversely affect the status of 

2 the individual as an employee, because of protected 

3 genetic information with respect to the individual, or 

4 information about a request for or the receipt of ge5 netic services by such individual or family member 

6 of such individual; or 

7 (3) to request, require, collect or purchase pro8 tected genetic information with respect to an indi9 vidual or a family member of the individual except—

10 (A) where used for genetic monitoring of 

11 biological effects of toxic substances in the 

12 workplace, but only if—

13 (i) the employee has provided prior, 

14 knowing, voluntary, and written authoriza15 tion;

16 (ii) the employee is informed of indi17 vidual monitoring results; 

18 (iii) the monitoring conforms to any 

19 genetic monitoring regulations that may be 

20 promulgated by the Secretary of Labor 

21 pursuant to the Occupational Safety and 

22 Health Act of 1970 (29 U.S.C. 651 et 

23 seq.) or the Federal Mine Safety and 

24 Health Act of 1977 (30 U.S.C. 801 et 

25 seq.); and 
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1 (iv) the employer, excluding any li2 censed health care professional that is in3 volved in the genetic monitoring program, 

4 receives the results of the monitoring only 

5 in aggregate terms that do not disclose the 

6 identity of specific employees; or 

7 (B) where health or genetic services are of8 fered by the employer and the employee pro9 vides prior, knowing, voluntary, and written au10 thorization, and only the employee or family 

11 member of such employee receives the results of 

12 such services; or

13 (C) with respect to an applicant who has 

14 been given a conditional offer of employment or 

15 to an employee, an employer may request, re16 quire, collect or purchase the information de17 scribed in section 821(6)(C) if—

18 (i) the request or requirement is con19 sistent with the Americans with Disabil20 ities Act of 1990 (42 U.S.C. 12101 et 

21 seq.) or the Rehabilitation Act of 1973 (29 

22 U.S.C. 701 et seq.); 

23 (ii)(I) the information obtained is to 

24 be used exclusively to assess whether fur25 ther medical evaluation is needed to diag-
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1 nose a current disease, or medical condi2 tion or disorder; and 

3 (II) such current disease, or medical 

4 condition or disorder could prevent the ap5 plicant or employee from performing the 

6 essential functions of the position desired 

7 or held; and 

8 (III) the information described in 

9 such section will not be disclosed to per10 sons other than medical personnel involved 

11 in or responsible for assessing whether fur12 ther medical evaluation is needed to diag13 nose a current disease, or medical condi14 tion or disorder, except as otherwise per15 mitted by this subtitle. 

16 (b) LIMITATION.—In the case of protected genetic in17 formation to which subparagraph (A), (B), or (C) of sub18 section (a)(3) applies, such information may not be used 

19 in violation of paragraph (1) or (2) of subsection (a). 

20 SEC. 824. EMPLOYMENT AGENCY PRACTICES. 

21 It shall be an unlawful employment practice for an 

22 employment agency—

23 (1) to fail or refuse to refer for employment, or 

24 otherwise to discriminate against, any individual be25 cause of protected genetic information with respect
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1 to the individual (or information about a request for 

2 or the receipt of genetic services by such individual 

3 or family member of such individual); 

4 (2) to limit, segregate, or classify individuals or 

5 fail or refuse to refer for employment any individual 

6 in any way that would deprive or tend to deprive any 

7 individual of employment opportunities or would 

8 limit the employment opportunities or otherwise ad9 versely affect the status of the individual as an em10 ployee, because of protected genetic information with 

11 respect to the individual (or information about a re12 quest for or the receipt of genetic services by such 

13 individual or family member of such individual); 

14 (3) to request, require, collect or purchase pro15 tected genetic information with respect to an indi16 vidual (or information about a request for or the re17 ceipt of genetic services by such individual or family 

18 member of such individual); or 

19 (4) to cause or attempt to cause an employer to 

20 discriminate against an individual in violation of this 

21 subtitle. 

22 SEC. 825. LABOR ORGANIZATION PRACTICES. 

23 It shall be an unlawful employment practice for a 

24 labor organization—
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1 (1) to exclude or to expel from the membership 

2 of the organization, or otherwise to discriminate 

3 against, any individual because of protected genetic 

4 information with respect to the individual (or infor5 mation about a request for or the receipt of genetic 

6 services by such individual or family member of such 

7 individual); 

8 (2) to limit, segregate, or classify the members 

9 of the organization, or fail or refuse to refer for em10 ployment any individual, in any way that would de11 prive or tend to deprive any individual of employ12 ment opportunities, or would limit the employment 

13 opportunities or otherwise adversely affect the status 

14 of the individual as an employee, because of pro15 tected genetic information with respect to the indi16 vidual (or information about a request for or the re17 ceipt of genetic services by such individual or family 

18 member of such individual); 

19 (3) to request, require, collect or purchase pro20 tected genetic information with respect to an indi21 vidual (or information about a request for or the re22 ceipt of genetic services by such individual or family 

23 member of such individual); or 
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1 (4) to cause or attempt to cause an employer to 

2 discriminate against an individual in violation of this 

3 subtitle. 

4 SEC. 826. TRAINING PROGRAMS. 

5 It shall be an unlawful employment practice for any 

6 employer, labor organization, or joint labor-management 

7 committee controlling apprenticeship or other training or 

8 retraining, including on-the-job training programs—

9 (1) to discriminate against any individual be10 cause of protected genetic information with respect 

11 to the individual (or information about a request for 

12 or the receipt of genetic services by such individual), 

13 in admission to, or employment in, any program es14 tablished to provide apprenticeship or other training 

15 or retraining; 

16 (2) to limit, segregate, or classify the members 

17 of the organization, or fail or refuse to refer for em18 ployment any individual, in any way that would de19 prive or tend to deprive any individual of employ20 ment opportunities, or would limit the employment

21 opportunities or otherwise adversely affect the status 

22 of the individual as an employee, because of pro23 tected genetic information with respect to the indi24 vidual (or information about a request for or receipt 
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1 of genetic services by such individual or family mem2 ber of such individual); 

3 (3) to request, require, collect or purchase pro4 tected genetic information with respect to an indi5 vidual (or information about a request for or receipt 

6 of genetic services by such individual or family mem7 ber of such individual); or 

8 (4) to cause or attempt to cause an employer to 

9 discriminate against an individual in violation of this 

10 subtitle. 

11 SEC. 827. MAINTENANCE AND DISCLOSURE OF PROTECTED 

12 GENETIC INFORMATION. 

13 (a) MAINTENANCE OF PROTECTED GENETIC INFOR14 MATION.—If an employer (or a worker’s compensation in15 surance issuer acting on the employer’s behalf) possesses 

16 protected genetic information about an employee (or infor17 mation about a request for or receipt of genetic services 

18 by such employee or family member of such employee), 

19 such information shall be treated and maintained as part 

20 of the employee’s confidential medical records.

21 (b) DISCLOSURE OF PROTECTED GENETIC INFORMA22 TION.—An employer (or a worker’s compensation insur23 ance issuer acting on the employer’s behalf) shall not dis24 close protected genetic information (or information about 
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1 a request for or receipt of genetic services by such em2 ployee or family member of such employee) except—

3 (1) to the employee who is the subject of the in4 formation at the request of the employee; 

5 (2) to an occupational or other health re6 searcher if the research is conducted in compliance 

7 with the regulations and protections provided for 

8 under part 46 of title 45, Code of Federal Regula9 tions; 

10 (3) under legal compulsion of a Federal court 

11 order, except that if the court order was secured 

12 without the knowledge of the individual to whom the 

13 information refers, the employer (or a worker’s com14 pensation insurance issuer acting on the employer’s 

15 behalf) shall provide the individual with adequate 

16 notice to challenge the court order unless the court 

17 order also imposes confidentiality requirements; and 

18 (4) to government officials who are inves19 tigating compliance with this subtitle if the informa20 tion is relevant to the investigation. 

21 SEC. 828. CIVIL ACTION. 

22 (a) IN GENERAL.—One or more employees, members 

23 of a labor organization, or participants in training pro24 grams or a labor organization may bring an action in a 

25 Federal or State court of competent jurisdiction against 
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1 an employer (or a worker’s compensation insurance issuer 

2 acting on the employer’s behalf), employment agency, 

3 labor organization, or joint labor-management committee 

4 or training program who commits a violation of this sub5 title. 

6 (b) ENFORCEMENT BY THE EQUAL EMPLOYMENT

7 OPPORTUNITY COMMISSION.—

8 (1) IN GENERAL.—The powers, remedies, and 

9 procedures set forth in sections 705, 706, 707, 709, 

10 710, and 717 of the Civil Rights Act of 1964 (42 

11 U.S.C. 2000e–4, 2000e–5, 2000e–6, 2000e–8, 

12 2000e–9, and 2000e–16) shall be the powers, rem13 edies, and procedures provided to the Equal Employ14 ment Opportunity Commission to enforce this sub15 title. The Commission may promulgate regulations 

16 to implement these powers, remedies, and proce17 dures. 

18 (2) EXHAUSTION OF REMEDIES.—Nothing in 

19 this subsection shall be construed to require that an 

20 individual exhaust the administrative remedies avail21 able through the Equal Employment Opportunity 

22 Commission prior to commencing a civil action 

23 under this section, except that if an individual files 

24 a charge of discrimination with the Commission that 

25 alleges a violation of this subtitle, the individual 
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1 shall exhaust the administrative remedies available 

2 through the Commission prior to commencing a civil 

3 action under this section. 

4 (c) REMEDY.—A Federal or State court may award 

5 any appropriate legal or equitable relief under this section. 

6 Such relief may include a requirement for the payment 

7 of attorney’s fees and costs, including the cost of experts. 

8 SEC. 829. CONSTRUCTION. 

9 Nothing in this subtitle shall be construed to—

10 (1) limit the rights or protections of an indi11 vidual under the Americans with Disabilities Act of 

12 1990 (42 U.S.C. 12101 et seq.), including coverage 

13 afforded to individuals under section 102 of such 

14 Act; 

15 (2) limit the rights or protections of an indi16 vidual under the Rehabilitation Act of 1973 (29 

17 U.S.C. 701 et seq.); 

18 (3) limit the rights or protections of an indi19 vidual under any other Federal or State statute that 

20 provides equal or greater protection to an individual 

21 than the rights accorded under this subtitle; 

22 (4) apply to the Armed Forces Repository of 

23 Specimen Samples for the Identification of Remains; 

24 or 
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1 (5) limit the statutory or regulatory authority 

2 of the Occupational Safety and Health Administra3 tion or the Mine Safety and Health Administration 

4 to promulgate or enforce workplace safety and 

5 health laws and regulations. 

6 SEC. 830. AUTHORIZATION OF APPROPRIATIONS. 

7 There are authorized to be appropriated such sums 

8 as may be necessary to carry out this subtitle. 

9 SEC. 831. EFFECTIVE DATE. 

10 This subtitle shall become effective on October 1, 

11 2003. 

12 Subtitle C—Miscellaneous 

13 Provisions 

14 SEC. 841. SEVERABILITY. 

15 If any provision of this subtitle, an amendment made 

16 by this subtitle, or the application of such provision or 

17 amendment to any person or circumstance is held to be 

18 unconstitutional, the remainder of this subtitle, the 

19 amendments made by this subtitle, and the application of 

20 the provisions of such to any person or circumstance shall 

21 not be affected thereby. 

22 TITLE IX—MEDICAL PRIVACY 

23 SEC. 901. SHORT TITLE. 

24 This title may be cited as the ‘‘Protecting Americans’ 

25 Medical Privacy Act’’. 
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1 SEC. 902. PURPOSE. 

2 The purpose of this title is to restore patient privacy 

3 protections essential for high-quality health care that were 

4 undermined by the Bush Administration’s August 2002 

5 modifications of the December 2000 medical privacy rule. 

6 SEC. 903. RESTORATION OF PRIVACY PROTECTIONS. 

7 (a) CONSENT FOR USES OR DISCLOSURES TO CARRY

8 OUT TREATMENT, PAYMENT, OR HEALTH CARE OPER9 ATIONS.—

10 (1) IN GENERAL.—The modifications made to 

11 sections 164.502, 164.506, and 164.532 of title 45, 

12 Code of Federal Regulations, by the August 2002 

13 medical privacy rule shall have no force or effect. 

14 (2) CLARIFICATION REGARDING INSTANCES

15 WHEN CONSENT IS NOT REQUIRED.— In addition to 

16 the circumstances described in the December 2000 

17 medical privacy rule, and notwithstanding any provi18 sion to the contrary, such sections 164.502, 

19 164.506, and 164.532 shall be construed and ap20 plied so as to permit a health care provider to use 

21 or disclose an individual’s protected health informa22 tion without obtaining the prior consent of the indi23 vidual in the following circumstances: 

24 (A) A health care provider may use or dis25 close an individual’s protected health informa26 tion to fill or dispense a prescription, search for 
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1 drug interactions related to that prescription, 

2 and determine eligibility and obtain authoriza3 tion for payment regarding that prescription, if 

4 the health care provider obtains written consent 

5 from the individual as soon as practicable. 

6 (B) A health care provider may use or dis7 close an individual’s protected health informa8 tion to carry out treatment of that individual 

9 if—

10 (i) the individual and the health care 

11 provider have not had in-person commu12 nication regarding such treatment; 

13 (ii) obtaining consent would be im14 practicable; 

15 (iii) the health care provider deter16 mines, in the exercise of professional judg17 ment, that the individual’s consent is clear18 ly inferred from the circumstances, such as 

19 an order or referral from another health 

20 care provider; and 

21 (iv) the health care provider obtains 

22 written consent from the individual as soon 

23 as practicable. 

24 (b) MARKETING.—
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1 (1) IN GENERAL.—The modifications made by 

2 the August 2002 medical privacy rule to the defini3 tion of the term ‘‘marketing’’ in section 164.501 of 

4 title 45, Code of Federal Regulations, shall have no 

5 force or effect. 

6 (2) TREATMENT OF CERTAIN COMMUNICA7 TIONS.—The exception for oral communications in 

8 paragraph (2)(i) of the definition of the term ‘‘mar9 keting’’ in section 164.501 of title 45, Code of Fed10 eral Regulations, as contained in the December 2000 

11 medical privacy rule, shall have no force or effect. 

12 (3) AUTHORIZATIONS FOR MARKETING.—Sec13 tion 164.508 of title 45, Code of Federal Regula14 tions, shall be construed and applied so as to require 

15 that, if an authorization is required for a use or dis16 closure for marketing, the authorization shall be 

17 considered invalid unless it—

18 (A) uses the term ‘‘marketing’’; 

19 (B) states that the purpose of the use or 

20 disclosure involved is marketing; 

21 (C) describes the specific marketing uses 

22 and disclosures authorized, including whether 

23 the protected health information involved—

24 (i) may be used for purposes internal 

25 to the covered entity; 
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1 (ii) may be disclosed to, and used by, 

2 a business associate of the covered entity; 

3 and 

4 (iii) may be disclosed to, and used by, 

5 any person or entity other than a business 

6 associate of the covered entity; and 

7 (D) states that the use or disclosure of 

8 protected health information for marketing will 

9 directly result in remuneration to the covered 

10 entity from a third party, in any case in which 

11 a covered entity expects, or reasonably should 

12 expect, that such remuneration will occur. 

13 (c) PUBLIC HEALTH.—The modifications made to 

14 section 164.512(b)(1)(iii) of title 45, Code of Federal Reg15 ulations, by the August 2002 medical privacy rule shall 

16 have no force or effect. 

17 SEC. 904. DEFINITIONS; EFFECTIVE DATE. 

18 (a) IN GENERAL.—For purposes of this title: 

19 (1) DECEMBER 2000 MEDICAL PRIVACY RULE.—

20 The term ‘‘December 2000 medical privacy rule’’ 

21 means the final rule on standards for privacy of in22 dividually identifiable health information published 

23 on December 28, 2000, in the Federal Register (65 

24 Fed. Reg. 82462), including the provisions of title 
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1 45, Code of Federal Regulations, revised or added 

2 by such rule. 

3 (2) AUGUST 2002 MEDICAL PRIVACY RULE.—

4 The term ‘‘August 2002 medical privacy rule’’ 

5 means the final rule, published on August 14, 2002, 

6 in the Federal Register (67 Fed. Reg. 53182), that 

7 modified the December 2000 medical privacy rule. 

8 (b) OTHER TERMS DEFINED.—For purposes of this 

9 title: 

10 (1) BUSINESS ASSOCIATE; COVERED ENTITY; 

11 HEALTH CARE PROVIDER.—The terms ‘‘business as12 sociate’’, ‘‘covered entity’’, and ‘‘health care pro13 vider’’ shall have the meanings given such terms in 

14 section 160.103 of title 45, Code of Federal Regula15 tions, as contained in the December 2000 medical 

16 privacy rule. 

17 (2) DISCLOSURE; INDIVIDUAL, PROTECTED

18 HEALTH INFORMATION; TREATMENT; USE.—The 

19 terms ‘‘disclosure’’, ‘‘individual’’, ‘‘protected health 

20 information’’, ‘‘treatment’’, and ‘‘use’’ shall have the 

21 meanings given such terms in section 164.501 of 

22 title 45, Code of Federal Regulations, as contained 

23 in the December 2000 medical privacy rule. 

24 (c) EFFECTIVE DATE; NO REGULATIONS RE25 QUIRED.—This title shall take effect on the date of the 
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1 enactment of this Act and does not require the issuance 

2 of regulations.

3 TITLE X—PROTECTING 

4 AMERICANS’ PRIVACY 

5 SEC. 1001. USE OF DEPARTMENT OF DEFENSE PERSONNEL 

6 OR FUNDS TO COLLECT INTELLIGENCE OR 

7 LAW ENFORCEMENT INFORMATION ON 

8 UNITED STATES CITIZENS INSIDE THE 

9 UNITED STATES. 

10 (a) PROHIBITION ON USE.—Except as specifically 

11 authorized by law, no member of the Armed Forces or ci12 vilian employee of the Department of Defense may partici13 pate in the collection of information on United States citi14 zens inside the United States for intelligence or law en15 forcement purposes. 

16 (b) PROHIBITION ON DEVELOPMENT OF TECH17 NOLOGIES.—The Department of Defense may not carry 

18 out research, development, test, or evaluation on any tech19 nology whose primary purpose is the collection of informa20 tion on United States citizens inside the United States for 

21 intelligence or law enforcement purposes. 

22 (c) PROHIBITION ON USE OF FUNDS.—No funds ap23 propriated or otherwise made available to the Department 

24 of Defense may be obligated or expended for an activity 

25 prohibited by subsection (a) or (b).
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1 TITLE XI—ELECTION REFORM 

2 SEC. 1101. REFORM. 

3 (a) HELP AMERICA VOTE ACT OF 2002.—To carry 

4 out the Help America Vote Act of 2002 (Public Law 107–

5 252)—

6 (1) there is authorized to be appropriated and 

7 there is appropriated, $3,860,200,000, in the 

8 amounts authorized under, and for the fiscal years 

9 specified in, that Act (except for the provisions and 

10 years specified in paragraph (2)); and 

11 (2) there are authorized to be appropriated 

12 such sums as may be necessary to carry out sections 

13 104(e), 292(a) (for fiscal year 2007 and each subse14 quent fiscal year), 296 (for fiscal years 2004 

15 through 2009), and 503(2) (for fiscal year 2004 and 

16 each succeeding fiscal year) of that Act. 

17 (b) HELP AMERICA VOTE FOUNDATION.—To carry 

18 out chapter 1526 of part B of subtitle II of title 36, 

19 United States Code (as added by the Help America Vote 

20 Act of 2002)—

21 (1) there is authorized to be appropriated and 

22 there is appropriated $5,000,000 for fiscal year 

23 2003; and 
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1 (2) there are authorized to be appropriated 

2 such sums as may be necessary for each succeeding 

3 fiscal year.

Æ