QUESTION: Our firm wish to conduct a well being danger evaluation previous to enrollment in our group well being plan. Whereas we’d not ask any questions regarding a person’s household medical historical past, can we additional decrease the danger of violating GINA’s prohibition in opposition to assortment of genetic info?

ANSWER: Your well being plan might be able to decrease the danger of violating the Genetic Data Nondiscrimination Act of 2008 (GINA) in case your well being danger evaluation suits throughout the “incidental assortment exception.” Beneath GINA, group well being plans are prohibited from gathering genetic info, both for underwriting functions or previous to or in reference to enrollment. A person’s genetic info means details about (1) the person’s genetic exams; (2) the genetic exams of the person’s relations; and (3) the manifestation of a illness or dysfunction within the particular person’s member of the family (i.e., household medical historical past).

If a plan by the way collects genetic info in reference to acquiring different details about a person, it’s not a GINA violation as long as the knowledge just isn’t used for underwriting functions. This incidental assortment exception is not going to apply whether it is cheap to anticipate that well being info can be obtained except the gathering explicitly states that genetic info shouldn’t be offered. This case could come up with questions sometimes included in well being danger assessments.

For instance, assume {that a} well being danger evaluation doesn’t embody direct questions on a person’s genetic info (together with household medical historical past). Nevertheless, the final query reads, “Is there anything related to your well being that you prefer to us to know or talk about with you?” This kind of query is simply too broad, making it cheap to anticipate that responses could embody genetic info. Subsequently, any genetic info collected in response to such a query wouldn’t fall throughout the incidental assortment exception. However, genetic info collected in response to this query would fall throughout the incidental assortment exception if the query went on to state, “In answering this query, you shouldn’t embody any genetic info. That’s, please don’t embody any household medical historical past or any info associated to genetic testing, genetic companies, genetic counseling, or genetic ailments for which you consider it’s possible you’ll be in danger.” As famous above, nevertheless, the plan could not use any genetic info it obtains by the way for underwriting functions.

For extra info, see EBIA’s HIPAA Portability, Privateness & Safety handbook at Part XI.H (“No Discrimination on the Foundation of Genetic Data”) and EBIA’s Group Well being Plan Mandates handbook at Part XXII.C (“GINA Title I Well being Insurance coverage Nondiscrimination Necessities”).

Contributing Editors: EBIA Employees.