September 24, 2010 – Don’t Forget About GINA!
As most group health plans are reviewing the impact of Health Care Reform on the upcoming plan year, don’t forget about the other mandates. For example, where completion of a health risk assessment (“HRA”) results in a premium reduction, cost sharing adjustment, or any other reward with respect to a group health plan, the Genetic Information
Nondiscrimination Act (“GINA”) imposes limitations. In addition, GINA limits the ability of a group health plan to require the completion of an HRA as a condition of coverage.
New: The Department of Labor recently released FAQs [http://www.dol.gov/ebsa/pdf/faq-GINA.pdf] regarding the application of GINA to group health plans. Many of the FAQs directly relate to the use of HRAs.
Background
GINA generally prohibits discrimination in group health plan coverage based on genetic information. Specifically, a group health plan cannot collect genetic information from an individual (1) prior to or in connection with enrollment, or (2) at any time for purposes of underwriting. As is often the case, the devil is in the definitions.
For purposes of GINA, “genetic information” includes an individual’s genetic tests, genetic tests of family members, manifestation of disease or disorder in family member, or any request for or receipt of genetic services, or participation in clinical research that includes genetic services by the individual or family members. See FAQ 2.
For purposes of GINA, “collect” means to request, require or purchase.
For purposes of GINA, “underwriting” extends beyond activities related to rating and pricing group coverage. It also includes activities regarding eligibility, computation of premiums, and computation of contribution amounts. The latter is specifically described as “including discounts, rebates, payments in kind, or other premium differential mechanisms in return for activities such as completing an HRA or participating in a wellness program.” See FAQ 12.
As Applied to HRAs
HRAs can be very valuable tools in connecting individuals with appropriate medical services. It is not uncommon for wellness programs to use HRAs. In addition, to encourage individuals to complete HRAs, it is not uncommon to offer rewards of various shapes and sizes. GINA does not prohibit the use of all HRAs for all purposes. But depending upon what the HRA asks, when it is used, and what the individual receives for completion of the HRA, GINA may impose restrictions.
In general, GINA focuses on HRAs that collect genetic information (including medical history of family members). This type of HRA cannot —
- be required in order to participate in or be covered under a group health plan. This would violate GINA’s prohibition on collecting genetic information prior to, or in connection with, enrollment.
- be used to provide rewards through a group health plan. This would violate GINA’s prohibition on collecting genetic information for purposes of underwriting.
HRAs that collect genetic information (including medical history of family members) can be used other than in connection with eligibility and enrollment provided they do not provide a reward for completion.
In addition, GINA does not prohibit the use of HRAs that do not collect genetic information. Consequently, HRAs that do not collect genetic information (including medical history of family members) can be used without restriction under GINA. Completion can be required in order for participation. This type of HRA can also be used in connection with rewards under the group health plan.
Note: To address the differential treatment of HRAs based on whether they collect genetic information, some group health plans instituted two HRAs. One HRA collects genetic information. It is not used in connection with eligibility or enrollment and it involves no reward for completion. The other HRA does not collect genetic information and is used (1) in connection with eligibility or enrollment, and (2) involves a reward for completion. This approach is specifically described with approval in the FAQs. See FAQ 14.
HRA Check Up
Before using an HRA as part of a group health plan’s annual enrollment, review it for purposes of GINA compliance. Ask the following questions:
- Does the HRA ask for genetic information?
- Remember genetic information includes medical history of family members
- Is the HRA required in order to be covered under a group health plan?
- Remember if it is required and it asks for genetic information, it violates GINA.
- Does completion of the HRA result in a reward realized through a group health plan?
- Remember financial rewards include premium reductions, employer contributions, etc.
- Remember if the HRA asks for genetic information and provides a reward, it violates GINA.
Remember: Collecting the genetic information is a violation. The time to review your HRA is before it is distributed.
Please contact us if you have any questions regarding the contents of this Alert.