Current through Register Vol. 35, No. 18, September 24, 2024
This Section applies to all policies with policy years
beginning on or after May 21, 2009.
A.
Use of genetic testing - exclusion and discrimination. An issuer
of a Medicare Supplement policy or certificate;
(1) 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;
and
(2) 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.
B.
Use of disease or disorder in setting group premium rates. Nothing
in Subsection A shall be construed to limit the ability of an issuer, to the
extent otherwise permitted by law, from
(1)
Denying or conditioning the issuance or effectiveness of the policy or
certificate or increasing the premium for a group based on the manifestation of
a disease or disorder of an insured or applicant; or
(2) Increasing 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).
C.
Request for genetic testing prohibited. 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.
D.
Permitting use of genetic
testing. Subsection C of this section shall not be construed to preclude
an issuer of a Medicare Supplement policy or certificate from obtaining and
using the results of a genetic test in making a determination regarding payment
(as defined 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) and
consistent with Subsection A.
E.
For purposes of carrying out Subsection D of this section, an issuer of a
Medicare Supplement policy or certificate may request only the minimum amount
of information necessary to accomplish the intended purpose.
F. Notwithstanding Subsection C of this
section, 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:
(1) 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.
(2) 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:
(a)
compliance with the request is voluntary; and
(b) non-compliance will have no effect on
enrollment status or premium or contribution amounts.
(3) 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.
(4) 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.
(5) The issuer complies
with such other conditions as the secretary may by regulation require for
activities conducted under this subsection.
G. An issuer of a Medicare Supplement policy
or certificate shall not request, require, or purchase genetic information for
underwriting purposes.
H. 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.
I. 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 Subsection H of this section if such request,
requirement, or purchase is not in violation of Subsection G of this
section.
J. For the purposes of
this section only:
(1)
"Issuer of a
Medicare Supplement policy or certificate" includes third-party
administrator, or other person acting for or on behalf of such
issuer.
(2)
"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.
(3)
"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,
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.
(4)
"Genetic services" means a
genetic test, genetic counseling (including obtaining, interpreting, or
assessing genetic information), or genetic education.
(5)
"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.
(6)
"Underwriting purposes"
means,
(a) Rules for, or determination of,
eligibility (including enrollment and continued eligibility) for benefits under
the policy;
(b) The computation of
premium or contribution amounts under the policy;
(c) The application of any pre-existing
condition exclusion under the policy; and
(d) Other activities related to the creation,
renewal, or replacement of a contract of health insurance or health
benefits.
