GINA Legislation Requires Caution with Genetic Health Information

Meet GINA, your latest friend from the HR world.

The Genetic Information Non-Discrimination Act (GINA) went into effect late last month, requiring employers to obtain and post notices informing covered individuals of their rights under the new law.

GINA’s purpose is to prevent employer discrimination against employees based on genetic tests and information.

What is Genetic Information?
According to the U.S. Department of Health and Human Services, genetic information is data about the genetic tests of individuals or their family members. Genetic tests include assessments of, among others, DNA, RNA and chromosomes.

Along with non-discrimination provisions of the Health Insurance Portability and Accountability Act (HIPAA), GINA prohibits health insurers and health plan administrators from requesting or requiring genetic information from individuals or their family members, or using the information to make coverage, rate or preexisting condition determinations. In addition, GINA prohibits employers from making hiring, firing or promotion decisions based on genetic information.

What Employers Cannot Do
Under the law, which officially became effective Nov. 21, 2009, employers who do any of the following may be subject to fines and penalties:
-¢ Adjust premium or employee contributions for a group based on genetic information.
-¢ Require or request that an individual or family member take a genetic test.
-¢ Require, request or purchase genetic information for underwriting purposes.
-¢ Require, request or purchase genetic information before an individual enrolls in the plan.
-¢ Use or disclose genetic information for underwriting purposes.

What Employers Should Do
From a practical standpoint it makes sense for employers to:
-¢ Review plan documents to ensure compliance. For example, does your company provide incentives for completing a Health Risk Assessment? If so, documents should reflect that employees will not be discriminated against based on genetic information.
-¢ Amend plan documents as needed.
-¢ Revise your HIPAA privacy notices, procedures, and business associate agreements as necessary.

Frequently, if you ask workers to complete an assessment, you need to provide some incentives. However, it is important to remember that such participation incentives cannot include a waiver of the deductible or reductions in premiums. So, gift cards are no problem, but health care expense reductions are.

Also, if you ask workers to complete an assessment with fun giveaways as an incentive, you can’t use their answers to put workers into disease management programs, as much as you might wish you could do so.

Additional Employer Tips
So, what can you do? According to the IRS, there are specific steps that can be taken.

-¢ If you already cover mammograms for women over 40, cover the screenings for younger women if they are predisposed to breast cancer.
-¢ Offer two assessment options: one with a reward, but without family medical questions, and one with no reward, on which you can ask family medical questions.
-¢ Waive the plan deductible for individuals who complete assessments with the “Anything else you want to tell us?” question, being sure to say explicitly that workers should not include genetic or family medical history information.

And finally, keep in mind that penalties for non-compliance with health care and human resources legislation can be severe. If you have any questions about GINA or other HR compliance issues, be sure to contact a qualified advisor.

Mario Apruzzese is CEO and Janine Gradowski is president of Employees Only, Inc., an Auburn Hills, Mich.-based human resources and employee benefits outsourcing firm. Employees Only is one of the 2009 Metro Detroit’s 101 Best & Brightest Companies to Work For. They can be reached at [email protected] or [email protected].

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Richard Blanchard
Rick is the Managing Editor of Corp! magazine. He has worked in reporting and editing roles at the Port Huron Times Herald, Lansing State Journal and The Detroit News, where he was most recently assistant business editor. A native of Michigan, Richard also worked in Washington state as a reporter, photographer and editor at the Anacortes American. He received a bachelor of arts from the University of Michigan and a master’s in accountancy from the University of Phoenix.