Many employers with wellness program that use health risk assessments will have to modify their assessments to avoid running afoul of the Genetic Information Nondiscrimination Act of 2008 (GINA), under final interim regulations set to appear in the Federal Register on October 7, 2009.

Just in time for open enrollment, the Internal Revenue Service (IRS), the Department of Labor (DOL) and the Department of Health and Human Services (HHS) have issued their much-anticipated regulations – effective for plan years starting on and after December 7, 2009 – applying GINA to group health plans and health insurers.

Overview

Title I of GINA generally prohibits plans and insurers from increasing group premiums and contributions based upon genetic information, requesting or requiring genetic testing, and, importantly to employers, collecting “genetic information” either “prior to or in connection with enrollment” or for “underwriting” purposes. These regulations define the scope of these prohibitions, providing many useful examples of health plan provisions that will help employers design their group health plans to avoid violating GINA. The new regulations, which implement Title I of GINA, amend the Health Insurance Portability and Accountability Act (HIPAA) nondiscrimination rules found in the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code, as well as the HIPAA privacy regulations.

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by Stephanie Smithey and Tim Stanton - Ogletree and Deakins

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