Guest Article

(From the October 4, 2010 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

Discrimination Based on Genetic Information - Labor Department Releases FAQs

An easy-to-understand set of frequently asked questions (FAQs) was released by the Department of Labor on a topic that still causes much confusion: the requirements of the Genetic Information Nondiscrimination Act (GINA) that prohibit discrimination in group health coverage based on genetic information. As employers attempt to structure their group health plans and related wellness programs for a new year, GINA's restrictions are important to understand.

Shortly after interim final regulations were issued under the GINA provisions, discussed whether health risk assessments and wellness programs were still viable. GINA's prohibition against discrimination based on genetic information imposes significant restrictions in that regard. Effective for plan years beginning after December 7, 2009, the GINA regulations flesh out the statutory requirements and squarely establish certain key parameters:

The FAQs go on to clarify that a plan may offer a premium discount or other reward for completion of an HRA that does not request family medical history or other genetic information. They state that the HRA should also specifically state that genetic information should not be provided. Q&A-13. In this regard, the FAQs further explain what constitutes genetic information. Genetic information includes an individual's genetic tests. A genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, if the analysis detects genotypes, mutations or chromosomal changes. It does not include an analysis of proteins or metabolites directly related to a manifested disease, disorder or pathological condition. Genetic tests would, for example, include tests to determine whether an individual has a BRCA1, BRCA2, or colorectal cancer genetic variant. They would not include HIV tests, complete blood count, cholesterol test, liver function test, or test for the presence of alcohol. Q&A-3. Therefore, the granting of premium discounts (or eligibility to participate in a disease management program) could potentially be conditioned on such tests consistent with GINA if the other legal requirements are met.

The FAQS go on to discuss some ramifications beyond wellness plans. For example, GINA prohibits a group health plan from adjusting the group premium or contribution amounts based on the genetic information of a member of the group. However, it does allow a plan to charge a higher overall, blended per-participant premium based on the manifested disease of a participant in the plan. Q&A-6. Also, GINA permits a plan to request and use the results of a genetic test to make a determination regarding payment, as long as only the minimum information necessary to make the determination is requested. Where, for example, the plan covers mammograms for individuals starting at age 40, but also covers individuals between age 30 and 40 with a high risk of breast cancer, the plan may require that an individual under 40 submit genetic tests or family medical history to evidence a high risk of breast cancer in order to have the mammogram claim paid. Q&A-9.

The information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations. If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Bart Massey 202.220.2104, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Deborah Walker 202.879.4955. Copyright 2010, Deloitte.