10/14/2009
Norbert F. Kugele,
Scott M. Hancock
If the health risk assessment (HRA) that you use for your company's wellness program includes questions about family medical history, it may need revising. Even if it doesn't directly ask for family history, but asks open ended questions that may prompt a response about family medical history, it may be a problem.
New regulations under the Genetic Information Nondiscrimination Act (GINA) prohibit group health plans from providing rewards to individuals who complete a health risk assessment as part of a wellness program if the health risk assessment seeks genetic information, including information about the individual's family medical history. In addition, the health plan cannot collect genetic information prior to or in connection with enrollment. These new regulations go into effect for 2010.
If you use a health risk assessment in connection with your wellness program, you will need to evaluate the HRA and possibly make some changes. Here are some questions you should ask about your health risk assessment:
Does the health risk assessment seek genetic information? For example, does it include genetic tests, such as for certain gene variants? Does it ask questions about family medical history, or include open ended questions (such as: “Is there anything else you think we should know about you?”) that may invite a response that includes family medical history?
Does your wellness program offer a reward of any kind for completing the health risk assessment? A reward may take the form of a lower premium, a cash rebate, a gift certificate, or a lower deductible/copay for those who complete the HRA.
When do individuals take the health risk assessment? Are those who are new to the plan asked or permitted to complete the HRA before their coverage under the health plan begins? If so, the HRA cannot be used to collect any genetic information—even if there is no reward.
The new rules clarify that your health risk assessment can still seek genetic information if no reward is provided, completing the HRA is voluntary, and the HRA is not completed until after a new participant is covered under your health plan. But if your plan offers a reward, then the HRA may not directly or indirectly seek genetic information (although you could put questions seeking genetic information into a separate, voluntary HRA for which there is no reward.)
If you need assistance reviewing your wellness program for compliance with GINA, or have other questions about wellness programs, please contact a member of Warner's Employee Benefits Group.
