Do your health assessment questions violate new GINA law? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Do your health assessment questions violate new GINA law?

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in Compensation and Benefits,Discrimination and Harassment,Employee Benefits Program,Human Resources

It’s time to take a fresh look at the health questionnaires you hand out to employees as part of your wellness program.

New federal regulations that prohibit discrimination against people with congenital medical conditions mean employers and health benefits providers must immediately review health risk assessments (HRAs) to make sure they don’t ask employees to reveal protected information.

The rules could hinder the effectiveness of wellness benefits programs that try to identify employees’ potential health problems and then prescribe preventive measures.

No more HRA incentives

The departments of Labor, Health and Human Services, the Treasury—the agencies in charge of administering and enforcing the Genetic Information Nondiscrimination Act of 2008 (GINA) —published the regulations in October.

They also forbid group health plans and their employer “sponsors” from offering incentives for employees to complete HRAs that ask about family medical histories. The new rules apply to plan years that begin on or after Dec. 7, 2009.

For compensation and benefits professionals, the new rules mean an end to paying or offering discounts to employees who participate in HRAs that request family medical information. For example, it’s now illegal to cut premiums or deductibles for employees who agree to fill out questionnaires that ask whether relatives have had cancer, heart disease or diabetes.

According to a PricewaterhouseCoopers survey, 64% of employers currently offer such incentives for employees to complete HRAs, a practice that was steadily increasing until now.

Industry experts agree that having access to family medical information can help insurers promote better employee health.

But GINA was enacted specifically to prohibit group health plans from using genetic information to screen out policyholders who might wind up incurring high medical expenses.

“Today’s genetic technologies yield data that are vital to helping Americans make personal, medical decisions,” said Labor Secretary Hilda L. Solis. “It is essential that we protect such information and ensure it is not misused by health plans or insurers.”

What employers should do

As a practical matter, the new rules mean plan sponsors must:

  • Review HRAs and any associated wellness policies to ensure they comply with GINA’s prohibition on collecting genetic information.
  • Make sure wellness and health programs do not use genetic information to screen employees for eligibility.

Your health insurance carrier or wellness plan provider can help make sure you are in compliance, but employers could still be liable—and forced to pay as much as $50,000 for each violation. If in doubt, consult your attorney.

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