By Michelle Sullivan, Holland & Hart LLP
Kathleen Sebelius, U.S. Department of Health and Human Services (HHS) secretary, issued a statement on October 2 indicating that employers awaiting guidance before implementing changes to medical plans required by the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 should not expect regulations to be issued until January 2010 — after the law goes into effect for calendar-year plans. In the absence of regulations, plan sponsors should make a reasonable “good-faith” effort to adhere to the law’s intent.
On the other hand, the U.S. Departments of Labor, HHS, and the Treasury issued final interim regulations in connection with the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits discrimination in group health plan coverage based on genetic information and is effective for plan years beginning after May 21, 2009 (January 1, 2010, for calendar-year plans). The GINA regulations also may affect the administration of wellness programs and health risk assessments (HRAs). Open enrollment periods are beginning soon or have already begun. Plan sponsors should act quickly to ensure compliance with the new guidance.
Rewards Prohibited
GINA prohibits plans from collecting genetic information (including family medical history) prior to or in connection with enrollment or for underwriting purposes. “Enrollment” is defined as the effective date of coverage under the plan, and “underwriting” is broadly defined to include providing discounts, rebates, or other benefits.
Thus, plans are generally prohibited from offering rewards (such as a premium reduction or reimbursement for health expenses) in return for collection of genetic information. Information collected, including an individual’s family medical history as part of an HRA, is considered “genetic information” under the GINA regulations. Therefore, any HRA that is a health plan or part of a health plan that inquires about an individual’s family medical history would be subject to the GINA regulations and cannot be used to support any type of underwriting adjustment.
Also, an employer cannot condition enrollment in the plan upon completion of an HRA that includes genetic information unless the information is necessary to determine whether the program or benefit is medically appropriate (and then, only the minimum necessary to make the determination may be requested).
The EEOC on HRAs
In other recently issued guidance, the Equal Employment Opportunity Commission (EEOC) issued an opinion letter stating that it regards disability-related questions contained in HRAs as potentially violating the Americans with Disabilities Act (ADA). The EEOC noted that employers may ask disability-related questions only if the questions are job-related and consistent with business necessity.
Although the EEOC has not taken a formal position on the matter to date, the letter indicates that asking questions about depression or various medical conditions (e.g., asthma, cancer, or heart disease) as a prerequisite to obtaining reimbursement for health expenses “does not appear to be job-related and consistent with business necessity.” Therefore, the simple fact that such questions are asked on a questionnaire that must be answered, regardless of the content of the answer, could run afoul of the ADA.
Compliance
To comply with GINA, group health plan sponsors should review their HRAs and other wellness programs and modify them as necessary so that genetic information is not requested prior to or in connection with plan enrollment. Rewards should not be given for providing genetic information, including family history. Rewards may be provided for completing HRAs, so long as genetic information is not requested.
If a plan sponsor would like to collect genetic information for other purposes outside of underwriting or wellness rewards (for example, for wellness outreach), it might consider offering two HRAs, one that requests genetic information and one that does not. The one that requests genetic information should only be offered after enrollment, be completely unrelated to enrollment, and offer no reward.
To comply with the EEOC’s recent opinion letter, HRAs also may need to be redesigned to allow a participant to decline to answer any questions that are disability-related. These would include not only questions seeking information on diseases but also questions regarding medication usage and alcohol consumption.
Michelle Sullivan is Of Counsel with Holland & Hart LLP’s Billings, Montana, office. She practices in the areas of Business Litigation and Labor & Employment. You can find other attorneys whose practice areas include employee benefits at Holland & Hart’s Benefits Law Group.