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Careful Documentation by Employers Necessary to Avoid Potential GINA Pitfalls

by Leah Greene, JD, LLM on April 8th, 2014

In 2010, Congress enacted the Affordable Care Act (ACA), guaranteeing health insurance coverage for anyone who applies. Has it made the protections guaranteed by the Genetic Information Nondiscrimination Act (GINA) superfluous?

Congress enacted GINA in 2008 to protect individuals who have undergone genetic testing to determine if they are at risk for developing such diseases, such as cancer, that may be hereditary. GINA applies to health insurers and employers.

A health insurer may not request, require or use genetic information to decide an individual’s eligibility, premium, contribution amounts or coverage terms for health insurance. GINA also bars an insurer from using an individual’s genetic information in a discriminatory manner, even if that insurer did not intend to obtain that information.

Employers with 15 or more employees are barred from discriminating against employees based on genetic information. An employer may not terminate or fail to promote an otherwise qualified employee based on that type of information, however innocently learned.

Lawyers who represent employers should advise their clients never to ask an employee about his or her family history. It is not a violation of the law if an employer inadvertently learns about an individual’s family health history. In addition, if an employer needs medical information for an Americans With Disabilities Act accommodation or family leave request, the employer should include safe harbor language in that request. The safe harbor language should state that the employer is barred from asking about genetic information and instruct the employee not to include any genetic information in response to that request.

It might appear that the ACA’s guarantee of coverage overrules GINA because it prohibits denial of coverage for preexisting health conditions. In addition, the ACA prohibits insurers from charging premiums based on factors such as the individual’s health, gender and other information.

The ACA applies only to health insurance issuers in the individual and small group markets. GINA applies to these groups plus self-insured group health plans or insurers in the large group market. The ACA does not apply to contribution amounts, but GINA does.

The ACA limits the determination of premiums to a few factors such as age or geographic area. It prohibits adjustment of premiums even after manifestation of a genetic disease. GINA allows health insurers to change premium rates after manifestation of disease, including diseases that were predicted by genetic testing. The insurer may also make decisions regarding the individual’s eligibility for its insurance after a diagnosis. The tension between these two provisions has not been tested in court.

For Texas Lawyers

The number of complaints regarding genetic information discrimination is extremely low compared to race, age and gender discrimination complaints received by the U.S. Equal Employment Opportunity Commission, but it’s growing. A 2014 Westlaw search for GINA cases revealed a total of 45 cases that addressed the statute substantively. Courts dismissed all but one due to pleadings defects. Last year, in Williamson v. Fermi National Accelerator Laboratory, the U.S. District Court for the Northern District of Illinois allowed a lawsuit to move forward because the employer required information regarding the employees’ family medical history. Pre-suit, the EEOC determined the employer has discriminated based on genetic information.

Because the number of GINA claims is growing, lawyers should remain vigilant in monitoring for potential violations.

Counsel for plaintiffs: If an individual believes an employer has discriminated against him or her for genetic reasons, counsel for the employee should ask whether the employee disclosed—inadvertently or in response to a request—family health history or genetic information to determine if the claim will survive a dismissal motion. To overcome a dismissal, the pleadings must show the employer requested or learned of genetic information, and then discriminated against the employee based on that information.

Counsel for employers: Review the clients’ employment applications, procedures for forwarding health insurance applications to the insurer and criteria for promotion. Educate clients regarding how managers should handle conversations with employees who volunteer information about family health history. Managers should avoid asking further questions so their knowledge of an employee’s family health history is not imputed to the employer.

If the employer terminates an employee or passes him over for a promotion after he discloses family health history, the employer could be open to a lawsuit if there is no other apparent reason for that decision, which underscores the importance of including safe harbor language in any forms or applications that request medical information. If an employer is planning layoffs or promotions, it should document the reasons to confirm that genetic information was not a consideration.

Counsel for physicians and health insurers: Physicians in health management organizations can order genetic tests without violating GINA. If the insurer requires physicians to forward the results, then the physician may do so without violating GINA. The insurer may not use that information to change premiums or contribution amounts.

Physicians still should order the genetic testing they believe is necessary to help a patient. If the insurance company requires of the results to determine payment of the claim for benefits, the physician must report them. The health plan must request the minimum amount of information to make the payment determination. If an individual’s premiums or contribution amounts change after that report, then the individual should consider contacting their insurer personally to ask about the reason for the change or have a lawyer involved in that discussion.

Despite some of the overlapping provisions, GINA’s broader scope provides protection for a greater number of individuals. Monitoring GINA litigation will show whether it is effective in preventing insurance rate hikes and employment discrimination based on an individual’s family health history.

Reprinted with permission from the March 17, 2014 edition of Texas Lawyer. © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

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From → Health Law