GINA Follow Up

I had the pleasure of speaking on the Genetic Information Nondiscrimination Act, including the final GINA regulations (issued by EEOC last week), last week in Las Vegas at the Advanced Employment Issues Law Symposium.

One question came up in the seminar that I promised to follow up on in the blog. Although my presentation was focused on employer obligations under Title II, the question related to Title I of the statute, which addresses insurers’ obligations under GINA. In general, Title I of GINA provides that health insurers cannot collect genetic information or discriminate based on it in connection with a group health plan. “Genetic Information” is defined to include family medical history. Therefore, a group health insurer cannot require participants to provide family medical history. Nor can they adjust a premium or contribution amount based on genetic information.

This prohibition requires to a health insurance issuer offering group health insurance coverage in connection with a group health plan. It does NOT apply to life insurance, long-term care insurance, or disability insurance. A specific question was asked at the conference regarding AFLAC, because it was believed that AFLAC collected detailed family medical information. AFLAC would most likely be considered disability insurance, not group health insurance; therefore they would be exempted from GINA’s prohibitions on collecting family medical history.

In addition, other questions raised individually after my presentation pointed to a fundamental misconception about GINA as it applies to health insurers. Once an employee has manifested a disease him or herself, we are not talking about genetic information covered by GINA. Therefore, if an employee has, for instance, angina that runs in the family: that is current medical information, not genetic information. A health insurer can “discriminate” by charging higher premiums, etc., based on this information (subject to existing laws on pre-existing conditions) and that would not be a violation of GINA. GINA deals with the potential to acquire diseases in the future, a potential that may be revealed either through genetic tests or a review of family medical history.