News + Events
The GINA Problem: Does Helping Your Employees Stay Healthy Violate Federal Law?
January 29, 2010
If your New Year’s resolution is to make your company healthier, there are new federal laws of which you should be aware. On October 7, 2009, several federal agencies published interim final rules for Title I of the Genetic Information Nondiscrimination Act (GINA). These rules became effective on December 7, 2009 and January 1 for calendar year plans. Among other requirements, the new rules will:
- Prohibit a group health plan from using genetic information for underwriting purposes;
- Limit a plan’s ability to request or require production of genetic information; and
- Prohibit the collection of genetic information prior to enrollment.
Under the regulations, genetic information includes certain types of family medical information. Since managing wellness and disease management programs often require participants to submit family medical histories, these programs will now come under GINA’s restrictions. For example, if a group health plan requests that enrollees complete a health risk assessment (HRA) which includes family medical questions in order to participate in a wellness program, then the HRA would run afoul of GINA’s prohibitions on the collection of genetic information. Moreover, some group health plans provide financial incentives for individuals who complete HRAs and this practice may run afoul of these new regulations if the HRA requests family medical information.
This is not to say that all use and collection of genetic information is now strictly prohibited, but the new regulations will impact a health plan's ability to implement and manage wellness and disease management programs, especially if these programs involve HRAs. Accordingly, health plans focused on making 2010 a healthy and productive one for all of its participants should update HRA forms and review other internal policies before continuing or implementing wellness or disease management programs. In addition, because genetic information is considered to be protected health information under the HIPAA privacy rules, most health plans will need to revise their privacy policies and notices to reflect that genetic information (unlike other types of protected health information) will not be used or disclosed for underwriting purposes.