Financial incentives and penalties are no longer permitted when genetic information is requested on health risk assessments
The definition for "genetic information" is quite broad. As defined, the term includes information about an individual's genetic tests, the genetic tests of family members, or the manifestation of a disease or disorder in family members, which would include family medical history.
The regulations also clarify the act by providing further analysis for the term "underwriting purposes." The act's prohibition on collecting genetic information for underwriting purposes extends to prohibit collecting the information for the purpose of: 1) changing deductibles or cost sharing; 2) providing discounts, rebates and payments in kind; or 3) providing other premium differential mechanisms in return for activities such as completing a health risk assessment or participating in a wellness program.
Group health plans may request a minimum amount of genetic information to make determinations regarding payment. Thus, when an individual seeks a benefit under a group health plan and coverage will be based on whether the benefit is medically appropriate, the determination of medical appropriateness is not within the meaning of "underwriting purposes." In such a case, the plan may collect the relevant genetic information and condition the benefit on that information; however, a plan may request only the minimum information necessary.
Examples provided in the regulations are also helpful:
As the examples demonstrate, group plans should review use of health risk assessments, removing financial incentives or penalties when genetic information is requested. Also, refrain from collecting genetic information for underwriting purposes.
This column is written for informational purposes only and should not be construed as legal advice.
Barry Senterfitt is a managing shareholder at Greenberg Traurig, LLP, Austin, Texas.
Janet Farrer is an associate at Greenberg Traurig LLP, Austin, Texas.