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Agencies Asked to Revise GINA Limits on Health Assessments

By Stephen Miller  11/18/2009

On Nov. 17, 2009, the ERISA Industry Committee (ERIC), an association representing large U.S. employers that provide health benefits to their employees, submitted comments on the interim final rule implementing provisions of the Genetic Information Nondiscrimination Act (GINA). The rule, which prohibits group health plans from discriminating on the basis of genetic information, was issued by the U.S. Departments of Labor, Health and Human Services, and Treasury on Oct. 7, 2009 and is effective for plan years starting on and after Dec. 7, 2009.

GINA prohibits group health plans and insurers from collecting genetic information for underwriting purposes. The regulations state that offering reduced premiums or other rewards for providing genetic information (including the family medical history that often is a routine part of health risk assessments) would be impermissible “underwriting.” (See Do Your Health and Wellness Plans Violate GINA?)

ERIC President Mark Ugoretz, who authored the comments letter, warned that the interim final rule "places new and unforeseen restrictions on health risk assessments that request family medical history and on employees' participation in disease management programs." Ugoretz wrote, "If group health plans are prohibited from offering participants incentives to complete confidential [health risk assessments] that include family medical histories, these programs will become far less effective. Nothing in Title I of GINA or in its legislative history suggests that Congress intended to impose such a restriction. It is ironic that the interim final regulations have interpreted GINA in a way that undermines wellness programs at a time when pending health reform measures emphasize the importance of preventive care and workplace wellness programs, and even mandate wellness benefits for Medicare beneficiaries."

"The interim final regulations have interpreted GINA
 in a way that undermines wellness programs."
-- ERISA Industry Committee


Ugoretz urged a delay in the effective date of the underwriting and enrollment provisions "at least until the agencies have an opportunity to understand the impact on workplace wellness programs and to address the legal and practical concerns that ERIC identified." He emphasized that significant difficulties were created by "the publication of these regulations on October 7, 2009 (more than four months after the statutory deadline), a date by which most companies had already completed the preparation, if not the dissemination, of their open enrollment materials for 2010." Moreover, he pointed out that the public comment period for the regulations closes in January 2010, "a month after the regulations become effective."

"It simply is not possible for large employers to redesign their benefit programs, eliminate incentives previously promised to their employees, recall and reissue printed communications, coordinate with outside vendors, and take the other steps that would be necessary to comply with the new restrictions by January 1, 2010," Ugoretz warned.

In a separate statement, Ugoretz said that "If we truly want to try to trim health care costs in this country, we need to arm employees with the tools to take responsibility for their health and not prevent employers from making these tools available to their workers."

Stephen Milleris an online editor/manager for SHRM.

Related Articles:

Do Your Health and Wellness Plans Violate GINA? SHRM Online Benefits Discipline, October 2009

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