On October 7, 2009, the DOL, IRS, and HHS issued interim final regulations implementing Sections 101 to 103 of the Genetic Information Nondiscrimination Act of 2008 (GINA). For group health plans, these regulations become effective on the first day of the plan year beginning on or after December 7, 2009. For the individual market, the regulations are effective December 7, 2009. The new regulations broaden GINA’s general prohibition on requesting or requiring an individual or their family member to undergo genetic testing. Of note is the new rule that health plans may not provide incentives to induce participants to fill out health risk assessments that ask for family medical history. Under the regulations’ expanded definition of "underwriting purposes", providing an incentive under these circumstances violates GINA’s prohibition against requesting genetic information for underwriting purposes. The regulations also clarify that sponsors and administrator may obtain and use the results of genetic tests to aid in payment determinations so long as they only request the minimum amount of information necessary to make the determination. In nearly all other cases, sponsors and administrators may not request or require that an individual or their family member undergo genetic testing.
To ensure compliance with these new regulations, sponsors and administrators must familiarize themselves with the new regulations and update their policies and procedures. They must also examine their health risk assessments and wellness programs to ensure they do not violate the new rules. A copy of Porter Wright’s Employee Benefits Practice Group’s Law Alert, which addresses some of the major changes included in the regulations, can be found here.
In addition, keep in mind that Title II of GINA, which prohibits employers from discriminating on the basis of genetic information goes into effect on November 21, 2009. Generally, Title II prohibits employers from discharging, refusing to hire, or otherwise taking adverse employment action against applicants or employees based on their genetic information. It also prohibits employers from intentionally acquiring or disclosing genetic information about applicants and employees. Finally, Title II requires employers to maintain any genetic information in its possession separate from employee personnel files in accordance with the medical confidentiality provisions of the ADA.