On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act of 2008 (GINA), which modifies a number of existing laws and adds a number of new laws to the United States Code. As with existing state law discussed below, the law contains limitations on the use of genetic testing for certain insurance purposes, including underwriting and premium adjustments, and also restricts the use of genetic testing by insurers. These restrictions are contained in modifications to ERISA as well as other sections of the United States Code, and are applicable to group health plans and health insurers, insurers offering insurance to individuals, medigap insurers, and other insurers.
GINA also changes several aspects of the Health Insurance Portability and Accountability Act (HIPAA), including changes to the definitions under the HIPAA privacy rule to include genetic information and new definitions regarding genetic testing, among others.
Employers also are restricted in the type of information they can obtain from employees. Subject to certain exceptions, employers cannot request, require, or purchase genetic information regarding an employee or a family member. There also are specific genetic privacy restrictions on genetic information that is collected by employers. The restrictions on employers are applicable to government employees as well.
While portions of the law are effective in the near term, others will not be effective for up to 18 months. Additionally, there are a number of rule changes that must occur, including changes to HIPAA, and additional regulations that must be generated.
State and federal genetic privacy laws are important considerations for your business and care must be taken to ensure compliance.
If you would like to discuss this topic in further detail, please contact a Foley attorney or the following individual:
Andrew B. Serwin
San Diego, California