The Internal Revenue Service, U.S. Dept. of Labor, and U.S. Dept. of Health and Human Services has issued interim final rules on prohibiting discrimination based on genetic information in health insurance coverage and group health plans, to be effective on Dec. 7, 2009.
The rules implement portions of the Genetic Information Nondiscrimination Act of 2008 that generally prohibit a group health plan and a health insurance issuer in the group market from increasing the group premium or contribution amounts based on genetic information; requesting or requiring an individual or family member to undergo genetic testing; and requesting, requiring or purchasing genetic information prior to or in connection with enrollment, or at any time for underwriting purposes.
The definition of “family member” is broadly construed, according to the agencies: “The interim final regulations treat relatives by affinity (such as by marriage or adoption) the same as relatives by consanguinity (relatives who share a common biological ancestor, or blood relatives). The definition also treats relatives who are not full blood relatives (such as half siblings) the same as full blood relatives. In addition, the interim final regulations provide non-exhaustive lists of individuals who are first-, second-, third-, or fourth-degree relatives.” The “non-exhaustive” list includes: first-degree relatives such as parents, spouses, siblings, and children; second-degree relatives such as grandparents, grandchildren, aunts, uncles, nephews, and nieces; third-degree relatives such as great-grandparents, great-grandchildren, great aunts, great uncles, and first cousins; and fourth-degree relatives such as great-great grandparents, great-great grandchildren, and children of first cousins. The agencies are asking for comments on the interim rules by Jan. 5, 2010.
Prior to the issuance of the proposed rules, the ERISA Industry Committee said that limitations under the Health Insurance Portability and Accountability Act regulations, and potential further restrictions under the GINA rules and the Americans with Disabilities Act “could threaten the viability of employer wellness programs.” “Wellness programs use health risk assessments as a basis for developing a program tailored to each individual’s health needs, but that health risk assessments also are in danger of being prohibited by the agencies’ restrictive interpretation of GINA and the ADA,” says ERIC.
DHHS has also issued a proposal to modify the HIPAA privacy rule in accordance with GINA.
