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Warning To Employers: If Your Health Risk Assessment Violates GINA, You May Have To Tell The IRS (And Pay Excise Taxes).

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GINA and Health Risk Assessments

As reported in an earlier Jones Day Commentary entitled "Open Enrollment Alert--No Reward Goes Unpunished," the Departments of Treasury, Labor, and Health and Human Services jointly issued interim final rules to implement certain provisions of the Genetic Information Nondiscrimination Act ("GINA"), including the prohibition on the collection of genetic information by group health plans and group health insurance issuers. These rules, which apply to plan years beginning on or after December 7, 2009, have an immediate impact on the information that can be requested from individuals prior to or in connection with enrollment or for underwriting purposes, particularly the continued use of health risk assessments and wellness programs.

The GINA rules prohibit a group health plan or group health insurance issuer from collecting genetic information (family history information, among other things) as part of a wellness program or health risk assessment if the group health plan or group health insurance issuer provides certain rewards to the individual for providing the information, or if the information is collected prior to or as part of enrollment in the plan. Although it is not entirely clear what rewards are prohibited, it is clear that premium discounts, changes in deductibles, rebates, and other incentives provided under the health plan are not permitted for plan years beginning on or after December 7, 2009. Many group health plans and group health insurance issuers have already collected or are currently collecting such information in connection with enrollments for the upcoming 2010 plan year and...

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