by John C. Stivarius, Jr.
Although the Genetic Information Nondiscrimination Act (GINA) of 2008 took effect on May 21, 2008, the regulations have taken some time for the various Departments of the government to write and develop. Recently, the Internal Revenue Service, through the Department of the Treasury, issued a set of regulations governing subtitle K of GINA, which affects the type of questions that employers may ask of employees and potential new hires and candidates for employment. Subtitle K covers group health plan requirements originally regulated under the Health Insurance Portability and Accountability Act (HIPAA).These interim rules, which will take effect 60 days after the October 1 issuance date, will impact group health plans for plan years beginning on or after December 7, 2009. What this means is that for employers that have open enrollment periods for group plans for the year 2010 - and have already started the process - these employers should be aware of the impact of the new regulations relating to GINA. Health related questions regarding family history, and health risk assessments in which employers have been providing incentives for the employees to participate during this enrollment period, must be very carefully scrutinized to make certain the questioning is in compliance with the regulations issued by the IRS and meet the intent of GINA.
The regulations provide that financial incentives seeking family history are not allowed. The regulations prohibit even the collection of genetic information prior to enrollment. If the information is used for providing medical treatment or determining claims it may still be collected.
The employers could be subject to a minimum fine of $2500 for failure to comply with GINA regulations. The maximum penalty for unintentional violations is capped at 10% of the amount paid by the employer for the group health plan during the prior year or $500,000, whichever is less. There is no cap for a violation that is found to be the result of willful neglect or intentional misconduct. The entire text of the interim final rule may be viewed at www.federalregister.gov (http://www.federalregister.gov). If you need assistance on these matters or have any questions, please contact your Elarbee Thompson attorney.