12 2 STA T .8 8 6PUBLIC LA W 11 0– 2 3 3 —M A Y 21 , 2008 ‘ ‘ (i)an ana lys is ofpr o te ins or m eta b olites t h at d oes not dete c t g enotypes , m u tations, or chromosomal changes
or ‘‘(ii) an analysis of proteins or metabolites that is directly related to a manifested disease, disorder, or pathological condition that could reasonably be detected by a health care professional w ith appropriate training and e x pertise in the field of medicine in v olved . ‘‘( 8 ) GEN E TICS E RV ICES. —T he term ‘genetic services ’ means— ‘‘( A ) a genetic test; ‘‘( B ) genetic counseling (including obtaining, inter - preting, or assessing genetic information); or ‘‘( C ) genetic education. ‘‘( 9 ) U N D ER W RITIN GPU RP O SES.—The term ‘underwriting purposes’ means, with respect to any group health plan, or health insurance coverage offered in connection with a group health plan— ‘‘(A) rules for, or determination of, eligibility (including enrollment and continued eligibility) for benefits under the plan or coverage; ‘‘(B) the computation of premium or contribution amounts under the plan or coverage; ‘‘(C) the application of any pre-existing condition exclu- sion under the plan or coverage; and ‘‘( D ) other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits.’’. (e) ERIS AEN F ORCE M ENT.—Section 502 of the Employee Retire- ment Income Security Act of 1 9 74 (29 U.S.C. 11 3 2) is amended— (1) in subsection (a)( 6 ), by stri k ing ‘‘(7), or (8)’’ and inserting ‘‘(7), (8), or (9)’’; (2) in subsection (b)(3), by striking ‘‘The Secretary’’ and inserting ‘‘Except as provided in subsections (c)(9) and (a)(6) (with respect to collecting civil penalties under subsection (c)(9)), the Secretary’’; and (3) in subsection (c), by redesignating paragraph (9) as paragraph (10), and by inserting after paragraph (8) the fol- lowing new paragraph
‘‘(9) SECRET A RIA L ENFORCEMENT AUT H ORIT Y RELATING TO USE OF GENETIC INFORMATION.— ‘‘(A) GENERAL RULE.—The Secretary may impose a pen- alty against any plan sponsor of a group health plan, or any health insurance issuer offering health insurance coverage in connection with the plan, for any failure by such sponsor or issuer to meet the re q uirements of sub- section (a)(1)( F ), (b)(3), (c), or (d) of section 702 or section 701 or 702(b)(1) with respect to genetic information, in connection with the plan. ‘‘(B) AMOUNT.— ‘‘(i) IN GENERAL.—The amount of the penalty imposed by subparagraph (A) shall be $ 100 for each day in the noncompliance period with respect to each participant or beneficiary to whom such failure relates. ‘‘(ii) N ONCOMPLIANCE PERIOD.—For purposes of this paragraph, the term ‘noncompliance period’ means, with respect to any failure, the period—
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