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Genetic Discrimination Law Passed

On May 21, 2008, the President signed the Genetic Information Nondiscrimination Act of 2008 (“GINA”). The new law prohibits discrimination on the basis of genetic information in health insurance and employment. The provisions applicable to group health plans and health insurance issuers are effective for plan years beginning on or after May 21, 2009.

Although HIPAA’s nondiscrimination requirements already prohibit group health plans from discriminating against any individual with respect to eligibility, premiums, or other contributions based on genetic information or other health-status related factors, GINA prohibits group health plans from adjusting premium or contribution amounts for the group based on genetic information. Furthermore, group health plans and insurers cannot require individuals to undergo genetic testing (although individuals can voluntarily agree to participate in certain genetic research). Finally, GINA amends HIPAA’s privacy and security rules to explicitly include genetic information in the definition of protected health information. It also prohibits the use or disclosure of genetic information for underwriting purposes.

Under GINA, “genetic information” is broadly defined to include information about: (1) an individual’s genetic tests, (2) the genetic tests of the individual’s family members, and (3) a family history of a disease or disorder. The term “genetic tests” includes any analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations or chromosomal changes.

Health plans and insurers that inadvertently acquire genetic information are not liable under GINA as long as they do not use the information for underwriting. Furthermore, GINA applies only to the pre-enrollment underwriting process. Once an enrollee has a manifested disease or disorder, pre-existing exclusions can apply to it, and the disease or disorder can be used to increase the employer’s group premium accordingly. Moreover, plans may request genetic information for claims purposes after an individual has enrolled in the plan.

Although GINA’s group health plan provisions do not begin to take effect until next year, it is not too early for plan sponsors to begin planning for its implementation. For example, plan documents, enrollment forms, HIPAA privacy policies and procedures, and privacy notices may all need to be amended.