Genetic Information Nondiscrimination Act Affects How Group Health Plans Use Health Risk Assessments

Bob Marcantonio
Posted: 11/23/2009

Background

The Genetic Information Nondiscrimination Act (GINA), signed into law on May 21, 2008, protects individuals against discrimination, based on their genetic information. GINA is divided into two sections. Title I of GINA prohibits discrimination based on genetic information in health coverage. Title II of GINA prohibits discrimination based on genetic information in employment.

Title I

On Thursday, October 1, 2009, the Departments of Labor, Health and Human Services and Treasury jointly released interim final regulations under Title 1. These rules place significant limitations on Health Risk Assessments (HRAs), and will make many common practices illegal when the new rules become effective on December 7, 2009.

New Prohibitions

The Act’s definition of genetic information includes family medical history, which becomes problematic for HRAs that commonly request this data. While the regulations do not prohibit the gathering of family medical history or other genetic information, they specify certain restrictions on actions by the group health plan. Specifically, the rules prohibit group health plans from:

  • soliciting participation in an HRA prior to enrollment in the group health plan;
  • linking incentives, like reducing premiums or deductibles, issuing credits, or contributing to a Health Reimbursement or Flexible Spending Account in exchange for completing the HRA;
  • using an HRA for preferential participation in disease management programs.

The rules further clarify the use of other questions, which, while not specific to genetic information, implicitly request such information. Any such questions must be accompanied by a statement instructing participants not to provide genetic information.

Bob Marcantonio
Posted: 11/23/2009

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