Current through Register Vol. 63, No. 9, September 1, 2024
(1) This
section applies to all policies with policy years beginning on or after May 21,
2009.
(2) An issuer of a Medicare
supplement policy or certificate shall not:
(a) 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 the individual; or
(b) 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 the individual.
(3) Nothing in section (2) of this
rule shall be construed to limit the ability of an issuer, to the extent
otherwise permitted by law, from
(a) 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
(b) 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 may not 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 the individual to undergo a genetic
test.
(5) Section (4) of this rule
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 section (2) of this rule.
(6) For purposes of carrying out section (5)
of this rule, 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 section (4) of this rule, an issuer of a Medicare supplement
policy may request, but not require, that an individual or a family member of
the individual undergo a genetic test if each of the following conditions is
met:
(a) 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
regulation for the protection of human subjects in research.
(b) The issuer clearly indicates to each
individual, or in the case of a minor child, to the legal guardian of the
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.
(c) No genetic information collected or
acquired under this section may 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.
(d) The issuer notifies the Secretary of
Health and Human Services in writing that the issuer is conducting activities
pursuant to the exception provided for under this section, including a
description of the activities conducted.
(e) The issuer complies with such other
conditions as the Secretary of Health and Human Services may by regulation
require for activities conducted under this section.
(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 the
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 section (9) of this rule if such request,
requirement, or purchase is not in violation of section (8) of this
rule.
(11) As used in this rule:
(a) "Issuer of a Medicare supplement policy
or certificate" includes third-party administrator, or other person acting for
or on behalf of such issuer.
(b)
"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.
(c)
(A) "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. "Genetic information"
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.
(B) "Genetic information" does not include
information about the sex or age of any individual.
(d) "Genetic services" means a genetic test,
genetic counseling (including obtaining, interpreting, or assessing genetic
information), or genetic education.
(e) "Genetic test" means an analysis of human
DNA, RNA, chromosomes, proteins, or metabolites, that detect genotypes,
mutations, or chromosomal changes. "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.
(f) "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.
Stat. Auth.: ORS
743.683
Stats. Implemented: ORS
743.010 &
743.683
