On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act (P.L. 110-233) ("GINA"). GINA was enacted due to concerns about abuse of genetic information, given the new opportunities created by advances in genetic research. Congress emphasized its concern about genetic discrimination and inconsistencies in existing law regarding genetic information.

Title I of GINA is the part of this new law that applies to health plans and health insurance. Regulations were recently issued by the Department of the Treasury, the Department of Labor, and the Department of Health and Human Services interpreting and further explaining GINA's application to group health plans. These regulations become effective for plan years beginning on or after December 7, 2009.

Specifically, GINA and the new regulations provide that group health plans may not discriminate on the basis of genetic information by:

  • adjusting premium or contribution amounts;
  • requesting or requiring an individual or family member to undergo a genetic test; or
  • requesting, requiring, or purchasing genetic information for underwriting purposes, or prior to or in connection with enrollment in the group health plan.

Genetic information includes:

  • information about an individual's genetic tests;
  • information about the genetic tests of family members;
  • the manifestation of a disease or disorder in family members (i.e., family medical history);
  • information about any request for, or receipt of, genetic services; and
  • genetic information of fetuses and embryos.

The new law will have a significant impact on a group health plan's ability to offer premium reductions or other rewards for participants who participate in wellness programs or in a health risk assessment ("HRA") that collects or asks for genetic information. For example, an HRA may no longer include questions about family medical history if the employee receives any reward or benefit for completing the HRA. Group health plans should have their wellness programs and health risk assessment forms reviewed by legal counsel and updated to ensure that no GINA violation occurs.

The new law becomes effective for plan years beginning on or after December 7, 2009. It is important to review all health-related questionnaires, wellness program policies and procedures and all HRAs to ensure that a group health plan is in compliance with GINA.