Employee Benefits-EBSA Issues Guidance On The Application Of GINA To Health Risk Assessments

The Employee Benefits Security Administration has issued FAQs on the Genetic Information Nondiscrimination Act (“GINA”) (see my blog of 9/28/10). These FAQs discuss, among other things, the application of GINA to health risk assessments (“HRAs”) that may be requested or required by a group health plan. The following points were made.

GINA prohibits a group health plan from collecting genetic information (including family medical history) prior to or in connection with enrollment, or for underwriting purposes. Thus, under GINA, a plan must ensure that any HRA conducted prior to or in connection with enrollment does not collect any genetic information. Under GINA, there is an exception for genetic information that is obtained incidental to the collection of other information. This exception applies: (1) if the genetic information obtained is not used for underwriting purposes, and (2) if it is reasonable to anticipate that the collection will result in the plan receiving health information, the plan explicitly notifies the person providing the information that genetic information should not be provided. As such, when conducting an HRA prior to or in connection with enrollment, the plan should ensure that the HRA explicitly states that genetic information should not be provided.

The plan may use an HRA that requests family medical history, but only if : (a) the individual is asked to furnish the HRA after and unrelated to enrollment in the plan, and (b) there is no premium reduction or any other reward for completing the HRA. The plan may offer a premium discount or other reward for completing an HRA that does not request family medical history or other genetic information, such as information about any genetic tests the individual has undergone. In such case, the plan should ensure that the HRA explicitly states that genetic information should not be provided.

The plan may use two separate HRAs- one that collects genetic information, such as family medical history, which is conducted after and unrelated to enrollment and is not tied to a reward, and another HRA that does not request genetic information, which can be tied to a reward. In addition, under GINA, the plan may also reward:
• participation in an annual physical examination with a physician (or other health care professional) who is providing health care services to the individual, even if the physician may ask for family medical history as part of the examination;
• more favorable cost-sharing for preventive services, including genetic screening; and
• participation in certain disease management or prevention programs. The incentives to participate in such programs must also be available to individuals who qualify for the program but have not volunteered family medical history information through an HRA.