2013 New York Consolidated Laws
ISC - Insurance
Article 26 - (2601 - 2615) UNFAIR CLAIM SETTLEMENT PRACTICES; OTHER MISCONDUCT; DISCRIMINATION
2615 - Genetic testing written informed consent.

 
    §  2615.  Genetic  testing written informed consent. (a) No authorized
  insurer or person acting  on  behalf  of  an  authorized  insurer  shall
  request  or  require an individual proposed for insurance coverage to be
  the subject of a genetic test without  receiving  the  written  informed
  consent  of  such  individual  prior  to such testing, in advance of the
  test.
    (b) Written informed consent  to  a  genetic  test  shall  consist  of
  written authorization that is dated and signed and includes at least the
  following:
    (1) a general description of the test;
    (2) a statement of the purpose of the test;
    (3)  a statement that a positive test result is an indication that the
  individual may be  predisposed  to  or  have  the  specific  disease  or
  condition  tested  for  and  may  wish  to  consider further independent
  testing, consult their physician or pursue genetic counseling;
    (4) a general description of each specific disease or condition tested
  for;
    (5) the level of certainty  that  a  positive  test  result  for  that
  disease  or condition serves as a predictor of such disease. If no level
  of certainty has been established, this subparagraph may be disregarded;
    (6) the name of the person or categories of persons  or  organizations
  to whom the test results may be disclosed;
    (7)  a  statement  that  no tests other than those authorized shall be
  performed on  the  biological  sample  and  that  the  sample  shall  be
  destroyed  at the end of the testing process or not more than sixty days
  after the sample was taken; and
    (8) the signature of the individual subject of the test  or,  if  that
  individual  lacks  the  capacity to consent, the signature of the person
  authorized to consent for such individual.
    (c) A general waiver, wherein consent is secured for  genetic  testing
  without  compliance  with  subsection  (b)  of  this  section, shall not
  constitute informed consent.
    (d) Any further disclosure of  genetic  test  results  to  persons  or
  organizations  not  named  on  the informed consent requires the further
  informed consent of the subject of the test.
    (e) In the event that an insurer's adverse  underwriting  decision  is
  based  in  whole  or  in  part  on  the  results  of a genetic test, the
  authorized  insurer  shall  notify  the  individual   of   the   adverse
  underwriting decision and ask the individual to elect in writing, unless
  the  individual  has  already done so, whether to have the specific test
  results disclosed directly to the  individual  or  to  the  individual's
  physician, at the discretion of the individual.
    (f) All records, findings and results of any genetic test performed on
  any person shall be deemed confidential and may not be disclosed without
  the written authorization as described in subsection (g) of this section
  of  the  person  to whom such genetic test relates. This information may
  not  be  released  to  any  person  or  organization  not   specifically
  authorized   by   the  individual  subject  of  the  test.  Unauthorized
  solicitation or possession of such information shall be unlawful, except
  for the unintentional possession of such information as part of a health
  record created prior to the date on which this section shall have become
  a law and provided no action adverse to the interests of the subject are
  taken as a result of such possession.
    (g) Written authorization  to  records,  findings  and/or  results  of
  genetic  tests  that  have been performed prior to the effective date of
  this section, or which was done after the individual had  given  written
  informed  consent  pursuant to this section shall consist of a statement
  which  specifically  requests  genetic  test  records,  findings  and/or

  results,  the  person  or  organizations  to  whom the records, findings
  and/or results shall be  disclosed,  the  signature  of  the  individual
  subject  of the records, findings and/or results of the test or, if that
  person  lacks  the  capacity  to  consent,  the  signature of the person
  authorized to consent for the subject.
    (h) No authorized insurer who lawfully possesses  information  derived
  from  a  genetic  test  on  a biological sample from an individual shall
  incorporate such  information  into  the  records  of  a  non-consenting
  individual  who may be genetically related to the tested individual; nor
  shall any inferences be  drawn,  used,  or  communicated  regarding  the
  possible genetic status of the non-consenting individual.
    (i)  For  the purposes of this section, the term "adverse underwriting
  decision" shall have the same meaning as defined in  section  twenty-six
  hundred  eleven  of  this article and the term "genetic test" shall have
  the same meaning as defined  in  section  seventy-nine-l  of  the  civil
  rights law.
    (j)  If  the superintendent determines after notice and a hearing that
  an authorized insurer or a person acting  on  behalf  of  an  authorized
  insurer  has violated this section, then the superintendent shall levy a
  fine up to five thousand dollars. Also, any authorized insurer or person
  acting on behalf of an authorized insurer who violates the provisions of
  this section shall be subject to the provisions of  article  twenty-four
  of this chapter. Violations of this section shall also be subject to the
  provisions of section one hundred nine of this chapter, except paragraph
  one of subsection (c) of such section.