WELLNESS PROGRAMS AFFECTED BY INTERIM REGULATIONS

By: Kathleen Bray

On October 1, 2009, the Internal Revenue Service, Department of Labor and Center for Medicare and Medicaid Services, issued joint interim final regulations under the Genetic Information Non-Discrimination Act (GINA). It seems like only yesterday we talked about this Act being passed with a future effective date, but now we face regulations that affect group health plans for plan years beginning on and after December 6, 2009. GINA prohibits group health plans from collecting genetic information, which specifically includes family medical history. This obviously affects voluntary wellness programs, which often include health risk assessments that typically would request family medical history and possibly other genetic information. Wellness programs often offer rewards for participation, such as lower rates. This would be a violation of GINA. This is true even if the rewards are not based on the outcome of the assessment or the amount of the reward. The proposed regulations provide an exception for group health plans in general if there is incidental collection of genetic information, but only if the plans health risk assessment explicitly states that genetic information should not be provided. The proposed regulations contain safe harbor language for this purpose. Group health plans sponsoring wellness programs that request genetic information will need to work closely with their wellness suppliers to insure the wellness programs comply with these interim regulations.

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