Keeping up with GINA Featured

7:00pm EDT December 26, 2009

After a 13-year debate, the Genetic Information Nondiscrimination Act (GINA) was finally signed into law in May 2008. The act, which went into effect in November 2009, prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future.

“The legislation also prevents employers from using individuals’ genetic information when making hiring, firing, job placement, or promotion decisions,” says Sally Stephens, president of Spectrum Health Systems.

Smart Business spoke with Stephens about what employers need to know about GINA.

Why do business owners need to be aware of GINA?

There are two main practice areas in which an employer must remain compliant with GINA regulations: group health plans and employment practices. GINA amends the Employee Retirement Income Security Act, the Public Health Service Act and the Internal Revenue Code. The new law prohibits plans and insurers from imposing enrollment restrictions and premium adjustments on the basis of genetic information or genetic services, requiring employee contributions to differ on the basis of genetic information, or requesting or requiring an individual to take a genetic test. A health professional is permitted to request an individual to undergo a genetic test.

How can businesses remain compliant in employment practices?

According to GINA, employers may not disclose genetic information except:

  • To the employee or member upon request or to an occupational safety or other health researcher
  • In response to a court order
  • To government officials investigating GINA compliance
  • In connection with the employer’s compliance with medical certification provisions of the federal Family and Medical Leave Act or similar state laws
  • To a public health agency

Are there any programs businesses are currently using that may violate GINA?

Many employers continue to use wellness programs that manage their group health plan costs, recognizing that a healthier work force may lower health care expenditures and increase productivity. Many programs use financial incentives to encourage employees to complete health risk assessments and biometric testing as well as practice healthy behavior.

However, wellness programs that provide rewards for completing HRAs that request genetic information, including family medical history, violate GINA, even if rewards are not based on the assessment outcome. GINA does, however, permit employers to acquire genetic information as part of an employer’s health or genetic services, including services offered as part of a voluntary wellness program and that are not part of open enrollment or health plan underwriting.

What consequences does a business face if it fails to comply with GINA?

If a group health plan or health insurance issuer is out of compliance, there is a $100 penalty per beneficiary for each day of noncompliance. Continuous failure can result in a penalty of $2,500 to $15,000. Penalties will not be assessed if the violation is not willfully negligent and if noncompliance is discovered and corrected within 30 days.

How does the legislation change the way hiring, firing and promotion decisions should be made?

GINA requirements apply to private, state and local government employers with 15 or more employees, and labor unions, employment agencies, joint labor-management training programs, Congress and federal executive branch agencies. Those employers may not refuse to hire and may not terminate or discriminate against or adversely affect any employee on the basis of genetic information. There are some circumstances, however, in which an employer may collect genetic information:

  • Incidental to requesting or requiring an individual’s medical history
  • As part of a wellness program where prior written consent is obtained and disclosure of the genetic information is strictly limited
  • In compliance with the Family and Medical Leave Act certification requirements
  • When purchasing commercial and publicly available documents that include genetic information, excluding medical databases and court records
  • When monitoring the biological effects of toxic substances in the workplace where the individual was informed and has given written consent excluding monitoring required by law
  • When the employer is a forensic laboratory conducting DNA analysis for law enforcement purposes

How can a business ensure it is compliant?

Employers should educate employees by sharing GINA background information. Consult with your benefits adviser. Review company forms and processes, and update those that are noncompliant. Implement polices that will prevent inadvertent release of genetic information, and if information has already been voluntarily released, remove it from employee files and consider updating your employee handbook to reflect these new regulations.

Most important, review your insurance program to ensure the plan does not ask questions that may be considered genetic-related. Make sure your benefits manager and/or consultant negotiates nondiscriminatory health coverage for all employees. Finally, GINA does affect employer wellness programs, so review all wellness and disease management plans to determine how health risk assessments are used and what information is requested, remove any financial incentives or penalties if genetic information is collected in the assessments and remove any genetic information from the assessment if financial incentives or penalties are offered.

Sally Stephens is president of Spectrum Health Systems. Reach her at (317) 573-7600 or sally.stephens@spectrumhs.com.