Healthcare: Department of Labor Issues FAQ on Genetic Information Nondiscrimination Act (GINA)

12.01.10

The Department of Labor recently issued a Frequently Asked Questions (FAQ) article clarifying some of the provisions of the Genetic Information Nondiscrimination Act (GINA). GINA generally prohibits health plans and health insurance issuers from discriminating based on genetic information. GINA also addresses discrimination in employment based on genetic information. The new FAQ addresses the requirements regarding the prohibition of discrimination based on genetic information for group health plans.

The new FAQ clarifies the following GINA issues

  1. GINA is Broader than HIPAA. While HIPAA prohibits Group health plans and health insurance issuers (Plans and Issuers) from imposing preexisting condition exclusions based solely on genetic information and prohibits discrimination in regard to individual eligibility, benefits, or premiums based on any health factor (including genetic information). GINA provides additional protection.
  2. GINA restricts when Plans or Issuers may request, require, or collect genetic information.
  3. Plans and Issuers may not base premiums on genetic information.
  4. Genetic information includes genetic tests, genetic counseling, or genetic education. A genetic test is an analysis of human DNA, RNA, chromosomes, proteins, or metabolites if the analysis detects genotypes, mutations, or chromosomal changes. Analysis of proteins or metabolites directly related to a manifested disease, disorder, or pathological condition are not genetic tests. A manifested disease is generally a condition for which an individual could be reasonably diagnosed by a proper health care professional. A manifested disease is not a diagnosis based principally on genetic information. The FAQ provides the following examples of genetic tests: tests for BRCA1, BRCA2, or a colorectal cancer gene variant. The FAQ clarifies that HIV tests, complete blood counts, cholesterol tests, liver function tests, and alcohol/drug tests are not genetic tests.
  5. Plans and Issuers generally may not request or require an individual to undergo genetic tests. However, GINA does not prohibit a health care professional who is providing health care services from requesting a genetic test. Additionally, a Plan or Issuer may request the results of such a genetic test to determine payment of a claim for benefits as long as the Plan or Issuer only requests the minimum amount of information necessary to determine payment. The FAQ provides the following example. If a Plan normally only covers mammograms for women under age 40 if a high risk of breast cancer exists, the Plan may require that the individual provide genetic test results or family history as evidence of a high risk of breast cancer, as long as the Plan only requests the minimum amount necessary to determine that a high risk justifies the mammogram.
  6. Plans and Issuers may not collect genetic information prior to or in connection with enrollment or for underwriting purposes. Plans and Issuers may not offer rewards in return for the provision of genetic information. An exception exists for incidental collection of genetic information as long as the information is not used for underwriting purposes. This exception for incidental receipt only applies if the Plan or Issuer could not have reasonably anticipated the receipt of genetic information in response to a request or the request explicitly stated that genetic information should not be provided.
  7. The definition of underwriting is very broad under GINA. It includes rules for determination of eligibility for benefits, computation of a premium, contribution amount, discount, rebate, payments in kind, or other premium differential mechanism, the application of preexisting condition exclusion, and other activities related to the creation, renewal or replacement of a health insurance or health benefits contract.
  8. Unlike HIPAA, there is no exception under GINA for very small health plans with less than two participants who are current employees.
  9. Effective Dates. The statutory or provisions of GINA are effective for plan years beginning on or after May 21, 2009. The Regulations implementing GINA are applicable for plan years beginning on or after December 7, 2009. Accordingly, for calendar year plans, the statute and regulations apply as of January 1, 2010.

The author, Hilary L. Velandia, may be contacted at hvelandia@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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