Employee Health Questionnaire

[Guest hkkelly]

An employer in the state of Texas has asked all covered employees to fill out a heath questionnaire. This is a GENERIC paper form that asks detailed information regarding diagnosis (including mental health) and presciption drugs taken (in my opinion far exceeding "minimum necessary"). They do not state the reason, the audience, nor do they mention the information being given is protected health information. The covered individual asks for clarification and first gets a call from the broker who states they have exhausted their request under HB 2015 and the information is being used for underwriting. After requesting further clarification regarding the form the individual gets an e-mail threatening to cancel COBRA coverage if the form is not filled out. The covered individual has been covered under the current plan for at least 4 years (COBRA FOR 11 months).

Do any of the above scenarios constitute a vioaltion of HIPAA and/or COBRA laws.

Any input would be greatly appreciated.

[Chaz]

These types of programs are generally okay under the HIPAA privacy rules (depending on whether the plan and employer have otherwise complied with the rules), but there are a number of other laws including HIPAA's nondiscrimination rules, the ADA, and GINA that makes what you describe (an involuntary program) definitely problematic. COBRA is not probably not an issue unless COBRA participants are treated differently than active employees. It's difficult to come to any conclusions based on the limited facts that you describe but I imagine a discussion with counsel would be helpful.

[Guest hkkelly]

The point I am referring to in regards to COBRA is the fact they are threatening to cancel coverage if the form is not filled out.

[Chaz]

The point I am referring to in regards to COBRA is the fact they are threatening to cancel coverage if the form is not filled out.

Yes, that might be a problem under HIPAA's nondiscrimination rules. HIPAA permits such questions to be asked as part of a voluntary wellness program but based on your description of the facts, this does not appear to be voluntary.

[GMK]

From this article, regarding GINA regulations, which took effect January 10, 2011,

http://www.martindale.com/labor-employment...son_1216934.htm

"Title I generally prohibits a health plan from discriminating against a covered individual based on genetic information, and from collecting genetic information prior to or in connection with health plan enrollment, or at any time for underwriting purposes."

Genetic information includes employee and family medical history.

And there's a notice the employer has to give the employees.

[masteff]

Just to clarify... is this a form strictly for getting new underwriting quotes or some other type of internal use document?

If it's for getting new underwriiting, I had this problem last fall and ultimately just told the insurance companies that Participant X refused to complete the form but here are the basic demographics on that person. Since 99% of participants completed the forms, we were able to get proper rate quotes despite the absent data.

As I recall, our attorney advised good practice would be for employees to return their questionaires in sealed envelopes that would be given unopened to the insurance companies so that no one here could accidentally see PHI.

[Guest hkkelly]

Just to clarify... is this a form strictly for getting new underwriting quotes or some other type of internal use document?

If it's for getting new underwriiting, I had this problem last fall and ultimately just told the insurance companies that Participant X refused to complete the form but here are the basic demographics on that person. Since 99% of participants completed the forms, we were able to get proper rate quotes despite the absent data.

As I recall, our attorney advised good practice would be for employees to return their questionaires in sealed envelopes that would be given unopened to the insurance companies so that no one here could accidentally see PHI.

The reason for the form was not stated when it was sent out with the enrollment form. There is no mention of any protections nor was a reason given as to the need for information. The employer has also requested the information twice for the current carrier in the last 12 months.