Ensuring Your Wellness Programs Do Not Violate GINA

It has come to our attention recently that many wellness programs are not in compliance with the Genetic Information Nondiscrimination Act (GINA) regulations, which went into effect in January of this year. Group insurers and employers must construct such programs carefully to ensure that they don’t run afoul of GINA’s prohibitions.

GINA prohibits the request of genetic information (which includes family medical history) by classified employers or group health insurers, but includes an exception for voluntary wellness programs under certain conditions. Health risk assessment (HRA) questionnaires are often included as part of a wellness program solicit genetic information, and often seek information that would be considered genetic information under GINA, e.g., “Does your family have any history of cancer, heart disease, or other illness?” Following passage of the law, it was not entirely clear what constituted “voluntary” versus “involuntary” wellness programs, and whether or not monetary incentives offered for participation rendered the program involuntary. The regulations issued in late November 2010 and now in effect addressed this question specifically.

Employers and insurers will not be in violation of GINA if they are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered. The same goes if completion of the HRA makes the employee eligible for a raffle with prizes.

If, for example, a workplace wellness program requires employees to fill out HRAs, and the HRA contains common questions requesting family medical information, or even broad questions such as “Are there any other health matters that you would like to discuss?” the insurer and the employer could, under certain circumstances, be in violation of GINA.

Employers and insurers can work around these GINA prohibitions to create an effective wellness program. The most straightforward approach is to have no rewards offered in connection with completion of the HRA (assuming the HRA contains genetics or family-history related questions).

Another method of getting around the prohibition on pre-enrollment HRAs with genetic or family history questions–and one suggested by the regulations–is to create a two-part HRA. The first part would be stripped of any questions related to the person’s genetics or family history, and given out before health plan enrollment and may have a reward attached. There would be no reward conditioned on completion of the second part of the HRA, which may contain questions about family medical history.

In order to truly strip the HRA of questions relating to genetics, vague questions such as “Is there anything else relevant to your health that you would like us to know or discuss with you?” should be followed up with these instructions, provided in the regulations:

In answering this question, you should not include any genetic information. That is, please do not include any family medical history or any information related to genetic testing, genetic services, genetic counseling, or genetic diseases for which you believe you may be at risk.

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