Genetic Nondiscrimination Laws in Health Insurance

By Joseph J. Wang
JWang@central.uh.edu

For the third consecutive year, the United States Congress has sought to pass comprehensive legislation banning genetic discrimination in employment and health insurance. On February 13, 2001, the Genetic Nondiscrimination in Health Insurance and Employment Act (S.318 & H.R.602) was introduced in the Senate by Senator Tom Daschle (D-SD) and in the House by Representative Louise Slaughter (D-NY).

The bill has two major provisions to prevent genetic discrimination in health insurance. First, the bill proposes to prohibit the use of genetic information in determining eligibility or in adjusting premium rates. Second, a health insurer "shall not request, require, collect, or purchase protected genetic information concerning an individual (or information about a request for or the receipt of genetic services by such individual or family member of such individual)." These restrictions would apply to both group and individual health insurance markets. See the full text available at http://thomas.loc.gov/.

For many Americans, a federal law banning genetic discrimination in health insurance makes perfect sense. Who wouldn’t want protection against this type of discrimination? This legislation does have its critics, however. Prohibiting insurance companies from using genetic information for underwriting purposes may ultimately result in a much smaller individual health insurance market with much higher prices through a process of adverse selection. The group health insurance market could be affected as well. See Seth J. Chandler, The Genetic Information Nondiscrimination in Health Insurance Act of 1999: Too Fast and Too Federal? available at
Genetics/000803Nondiscrimination.html.

Currently, the only federal law that protects individuals from genetic discrimination in health insurance is the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA does so in two major ways: (1) including genetic information as a factor that may not be used to deny or limit coverage in a group health insurance market; and (2) excluding genetic information from being considered as a preexisting condition.

Although HIPAA takes steps toward preventing genetic discrimination, the scope of the law is limited. HIPAA only provides greatest protection in the group health insurance market. HIPAA also provides protection for those moving from the group health insurance market to the individual market as well as for those who already have coverage in the individual market. However, a person seeking coverage in the individual health insurance market could be denied from or charged more for coverage based on his or her genetic information. Lack of federal protection for genetic discrimination in the individual health insurance market is a gaping gap.

State law in most jurisdictions provides more protection against genetic discrimination than federal law by further protecting those seeking coverage in the individual health insurance market. The following table is a 50-state survey of state genetic nondiscrimination laws in health insurance:
 
 
 
 

STATE

 
 
 

STATUTE

Prohibits discrimination on the basis of genetic tests and/or genetic information
Applies to the individual health insurance market
Includes family history in definition of "genetic information"
Alabama Ala. Code §§27-21A-7, 27-52-20, 27-53-1 et seq.
X1,2
X
 
Alaska Alaska Stat. §21.54.100
X
   
Arizona Ariz. Rev. Stat. Ann. §§20-1379, 20-2310.
X
X4
YES3
Arkansas Ark. Code Ann. §§23-79-119,

23-86-306

X
X4
 
California Cal. Health & Safety Code §1374.7;

Cal. Ins. Code §742.405

X2
X
 
Colorado Colo. Rev. Stat. Ann.

§§10-3-1104.7, 10-16-214

X2
X
 
Connecticut Conn. Gen. Stat. Ann. §38a-816
X
X
YES
Delaware Del. Code Ann. tit.18, §2317;

Del. Code Ann. Tit.18, §3607

X
X4
YES
District of Columbia D.C. Code Ann. §§31-3302.1 et seq., 31-3303.1 et seq.
X
X4
 
Florida Fla. Stat. Ann. §627.4301
X2
X
NO6
Georgia Ga. Code Ann. §§33-54-1 et seq.
X2
X
 
Hawaii Haw. Rev. Stat. Ann. §431:10A-118
X2
X
YES
Idaho Idaho Code §§41-4701 et seq.,

41-5201 et seq.

X
X4
 
Illinois 215 Ill. Comp. Stat. Ann.

513/10 et seq.

X2
X
 
Indiana Ind. Code Ann. §§27-8-26-1 et seq.
X2
X
 
Iowa Iowa Code Ann. §§513B.9A, 513C.8
X
X5
 
Kansas Kan. Stat. Ann. §40-2259
X2
X
 
Kentucky Ky. Rev. Stat. Ann. §304.12-085
X2
X
 
Louisiana La. Rev. Stat. Ann. §22:213.7
X2
X
YES3
Maine Me. Rev. Stat. Ann. tit. 24-A, §2159-C
X2
X
YES
Maryland Md. Code Ann., Ins. §27-909
X2
X
YES
Massachusetts Mass. Gen. Laws Ann. ch.175, §108H
X2
X
NO
Michigan Mich. Comp. Laws Ann. §500.3407b
X2,7
NO
Minnesota Minn. Stat. Ann. §72A.139
X2
X
 
Mississippi8        
Missouri Mo. Ann. Stat. §§375.1300 et seq.
X2
X
NO6
Montana Mon. Code Ann. §§33-18-901 et seq.
X2
X
NO6
Nebraska Neb. Rev. Stat. §§44-787, 44-6916
X
X4
 
Nevada Nev. Rev. Stat. §689A.417
X2
X
NO
New Hampshire N.H. Rev. Stat. Ann.

§§141-H:1 et seq.

X2
X
 
New Jersey N.J. Stat. Ann. §17B:30-12
X2
X
YES
New Mexico N.M. Stat. Ann. §§24-21-1 et seq.
X
X
YES
New York N.Y. Ins. Law §§3216, 4305
X
X4
 
North Carolina N.C. Gen. Stat. §§58-3-215,

58-68-35, 58-68-60 et seq.

X
X4
YES
North Dakota N.D. Cent. Code §§26.1-36.3-01 et

seq., 26.1-36.4-05

X
X4
 
Ohio Ohio Rev. Code Ann. §3901.49
X2
X
 
Oklahoma Okla. Stat. Ann. tit.36, §3614.1
X9
X
NO6
Oregon Or. Rev. Stat. §§659.700, 746.135
X
X
NO
Pennsylvania        
Rhode Island R.I. Gen. Laws §§27-18-52, 27-50-3
X2
X
YES3
South Carolina S.C. Code Ann. §§38-93-10 et seq.
X2
X
YES
South Dakota S.D. Codified Laws §58-17-82
X
X4
 
Tennessee Tenn. Code Ann. §§56-7-2701 et

seq., 56-7-2809, 56-7-2810

X2
X
NO6
Texas Tex. Ins. Code Ann. art. 21.73
X2
 
YES13
Utah10        
Vermont Vt. Stat. Ann. tit.18, §§9331 et seq.
X2,11
X
NO
Virginia Va. Code Ann. §§38.2-508.4,

38.2-3430.1 et seq.

X
X4
YES
Washington12        
West Virginia W.Va. Code §33-15-2b
X
X4
 
Wisconsin Wis. Stat. Ann. §631.89
X2
X
 
Wyoming Wyo. Stat. Ann. §§14-2-109,

26-19-306

X14
 
YES15
1 Prohibits genetic test to determine predisposition for cancer

2 Prohibits using, requiring, and/or requesting genetic tests and/or information

3 "Genetic information" expressly includes "family history"

4 Insurer may limit or discontinue coverage in the individual market, but must do so uniformly without regard to "health status-related factors" which include "genetic information" (A HIPAA provision for the individual market).

5 See Iowa Code Ann. §513C.8 where benefits for the standard health benefit plan for the individual market are substantially similar to those as provided under chapter 513B with respect to small group coverage.

6 "Genetic information" expressly excludes "family history"

7 Used in the context of expense-incurred hospital, medical, or surgical policies or certificate delivered, issued for delivery, or renewed in this state

8 See Miss. Code Ann. §83-63-11 prohibiting small employer health benefit plans from transferring or otherwise providing coverage to a nonrenewed class unless done without regard to case characteristics, claims experience, health status, or duration of coverage.

9 Prohibits requiring or requesting a genetic test

10 See Utah Code Ann. §31A-30-106 prohibiting individual and small employer health plans from transferring a covered insured into or out of a class of business unless done so without regard to case characteristics, claims experience, health status, or duration of coverage.

11 Prohibits conditioning insurance on the results of genetic testing of a member of the individual’s family 

12 See Wash. Rev. Code Ann. §48.46.060 prohibiting canceling or failing to renew HMO enrollment for reasons relating solely to age, sex, race, or health status.

13 Effective September 1, 2001, "genetic information" means information that is obtained from or based on a scientific or medical determination of the presence or absence in an individual of a genetic characteristic; or derived from the results of a genetic test performed on that individual. This new definition of "genetic information could possibly include family history.

14 See Wyo. Stat. Ann. § 26-19-107 where "health status related factors" are defined in the group and blanket disability context as including "genetic information."

15 "Genetic information" defined in the context of paternity actions.

As of August 2001, forty-six states and the District of Columbia have enacted laws that protect individuals against genetic discrimination. Only Mississippi, Pennsylvania, Utah, and Washington have no general genetic nondiscrimination laws in health insurance.

In almost every state that has laws prohibiting genetic discrimination, the laws apply in both the group and individual health insurance markets. But in Alaska, Texas, and Wyoming, genetic anti-discrimination laws apply only in the group health insurance context leaving many individuals without protection.

Finally, the scope of protection is dependent on the definition of "genetic information" in the statutory language. If its definition is broader, the scope of protection is broader. In a majority of states, the definition of "genetic information" includes "family history." In a minority of states, the definition of "genetic information" either omits "family history" or expressly excludes it. Consequently, states that include "family history" as part of "genetic information" provide greater genetic nondiscrimination protection.

For more information on state laws and legislation regarding genetic information and health insurance, see the National Human Genome Research Institute website available at http://www.nhgri.nih.gov/Policy_and_public_affairs/Legislation/insure.htm.

08/31/01