New Jersey Administrative Code
Title 11 - INSURANCE
Chapter 4 - ACTUARIAL SERVICES
Subchapter 23 - MINIMUM STANDARDS FOR MEDICARE SUPPLEMENT COVERAGE
Section 11:4-23.24 - Prohibition against use of genetic information and requests for genetic testing
Universal Citation: NJ Admin Code 11:4-23.24
Current through Register Vol. 56, No. 24, December 18, 2024
(a) For all policies with policy years beginning on or after May 21, 2009, the following provisions concerning the use of genetic information and requests for genetic testing shall apply:
1. An issuer of a
Medicare supplement policy or certificate shall not deny or condition the
issuance or effectiveness of the policy or certificate (including the
imposition of any exclusion of benefits under the policy based on a
pre-existing condition) on the basis of the genetic information with respect to
such individual.
2. An issuer of a
Medicare supplement policy or certificate shall not discriminate in the pricing
of the policy or certificate (including the adjustment of premium rates) of an
individual on the basis of the genetic information with respect to such
individual.
3. Nothing in (a)1
and/or 2 above shall be construed to limit the ability of an issuer, to the
extent otherwise permitted by law, to:
i. Deny
or condition the issuance or effectiveness of the policy or certificate or
increase the premium for a group based on the manifestation of a disease or
disorder of an insured or applicant; or
ii. Increase the premium for any policy
issued to an individual based on the manifestation of a disease or disorder of
an individual who is covered under the policy (in such case, the manifestation
of a disease or disorder in one individual cannot also be used as genetic
information about other group members and to further increase the premium for
the group).
4. An issuer
of a Medicare supplement policy or certificate shall not request or require an
individual or a family member of such individual to undergo a genetic
test.
5. An issuer of a Medicare
supplement policy or certificate may obtain and use the results of a genetic
test in making a determination regarding payment (as defined at
45
CFR 164.501 for the purposes of applying the
regulations promulgated under part C of Title XI and section 264 of the Health
Insurance Portability and Accountability Act of 1996, as may be revised from
time to time) consistent with (a)1 and 2 above.
6. For purposes of carrying out (a)5 above,
an issuer of a Medicare supplement policy or certificate may request only the
minimum amount of information necessary to accomplish the intended
purpose.
7. Notwithstanding (a)4
above, an issuer of a Medicare supplement policy may request, but not require,
that an individual or a family member of such individual undergo a genetic test
if each of the following conditions is met:
i.
The request is made pursuant to research that complies with part 46 of Title
45, Code of Federal Regulations, or equivalent Federal regulations, and any
applicable State or local law or regulations for the protection of human
subjects in research;
ii. The
issuer clearly indicates to each individual, or in the case of a minor child,
to the legal guardian of such child, to whom the request is made that:
(1) Compliance with the request is voluntary;
and
(2) Non-compliance will have no
effect on enrollment status or premium or contribution amounts;
iii. No genetic information
collected or acquired under this subsection shall be used for underwriting,
determination of eligibility to enroll or maintain enrollment status, premium
rates, or the issuance, renewal, or replacement of a policy or
certificate;
iv. The issuer
notifies the Secretary in writing that the issuer is conducting activities
pursuant to the exception provided for under this Subsection, including a
description of the activities conducted; and
v. The issuer complies with such other
conditions as the Secretary may by regulation require for activities conducted
under this subsection.
8. An issuer of a Medicare supplement policy
or certificate shall not request, require, or purchase genetic information for
underwriting purposes.
9. An issuer
of a Medicare supplement policy or certificate shall not request, require, or
purchase genetic information with respect to any individual prior to such
individual's enrollment under the policy in connection with such
enrollment.
10. If an issuer of a
Medicare supplement policy or certificate obtains genetic information
incidental to the requesting, requiring, or purchasing of other information
concerning any individual, such request, requirement, or purchase shall not be
considered a violation of (a)9 above if such request, requirement, or purchase
is not in violation of (a)8 above.
11. For the purposes of this section only:
i. "Issuer of a Medicare supplement policy or
certificate" includes a third-party administrator, or other person acting for
or on behalf of such issuer.
ii.
"Family member" means, with respect to an individual, any other individual who
is a first-degree, second-degree, third-degree, or fourth-degree relative of
such individual.
iii. "Genetic
information" means, with respect to any individual, information about such
individual's genetic tests, the genetic tests of family members of such
individual, and the manifestation of a disease or disorder in family members of
such individual. Such term includes, with respect to any individual, any
request for, or receipt of, genetic services, or participation in clinical
research which includes genetic services, by such individual or any family
member of such individual. Any reference to genetic information concerning an
individual or family member of an individual who is a pregnant woman includes
genetic information of any fetus carried by such pregnant woman, or with
respect to an individual or family member utilizing reproductive technology and
includes genetic information of any embryo legally held by an individual or
family member. The term "genetic information" does not include information
about the sex or age of any individual.
iv. "Genetic services" means a genetic test,
genetic counseling (including obtaining, interpreting, or assessing genetic
information), or genetic education.
v. "Genetic test" means an analysis of human
DNA, RNA, chromosomes, proteins, or metabolites, that detect genotypes,
mutations, or chromosomal changes. The term "genetic test" does not mean an
analysis of proteins or metabolites that does not detect genotypes, mutations,
or chromosomal changes; or an analysis of proteins or metabolites that is
directly related to a manifested disease, disorder, or pathological condition
that could reasonably be detected by a health care professional with
appropriate training and expertise in the field of medicine involved.
vi. "Underwriting purposes" means:
(1) Rules for, or determination of,
eligibility (including enrollment and continued eligibility) for benefits under
the policy;
(2) The computation of
premium or contribution amounts under the policy;
(3) The application of any pre-existing
condition exclusion under the policy; and
(4) Other activities related to the creation,
renewal, or replacement of a contract of health insurance or health
benefits.
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