1358.24
. This section applies to all contracts that become
effective on or after May 21, 2009.
(a) In addition to the requirements set forth under Sections
1365.5 and 1374.7, an issuer of a Medicare supplement contract shall
adhere to the requirements imposed by the federal Genetic Information
Nondiscrimination Act of 2008 (Public Law 110-233), as follows:
(1) The issuer shall not deny or condition the issuance or
effectiveness of the contract, including the imposition of any
exclusion of benefits under the contract based on a preexisting
condition, on the basis of the genetic information with respect to
that individual or a family member of the individual.
(2) The issuer shall not discriminate in the pricing of the
contract, including the adjustment of prepaid or periodic charges, of
an individual on the basis of the genetic information with respect
to that individual or a family member of the individual.
(b) Nothing in subdivision (a) shall be construed to limit the
ability of an issuer, to the extent otherwise permitted by law, to do
any of the following:
(1) Deny or condition the issuance or effectiveness of the
contract or increase the prepaid or periodic charge for a group based
on the manifestation of a disease or disorder of an enrollee,
subscriber, or applicant.
(2) Increase the prepaid or periodic charge for any contract
issued to an individual based on the manifestation of a disease or
disorder of an individual who is covered under the contract. For
purposes of this paragraph, the manifestation of a disease or
disorder in one individual shall not also be used as genetic
information about other group members and to further increase the
prepaid or periodic charge for the group.
(c) An issuer of a Medicare supplement contract shall not request
or require an individual or a family member of that individual to
undergo a genetic test.
(d) Subdivision (c) shall not be construed to preclude an issuer
of a Medicare supplement contract 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 subdivision (a).
(e) For purposes of carrying out subdivision (d), an issuer of a
Medicare supplement contract may request only the minimum amount of
information necessary to accomplish the intended purpose.
(f) An issuer of a Medicare supplement contract shall not request,
require, seek, or purchase genetic information for underwriting
purposes.
(g) An issuer of a Medicare supplement contract shall not request,
require, seek, or purchase genetic information with respect to any
individual or a family member of that individual prior to the
individual's enrollment under the contract in connection with that
enrollment.
(h) If an issuer of a Medicare supplement contract obtains genetic
information incidental to the requesting, requiring, or purchasing
of other information concerning any individual or a family member of
that individual, the request, requirement, or purchase shall not be
considered a violation of subdivision (g) if the request,
requirement, or purchase is not in violation of subdivision (f).
However, the issuer shall not use any genetic information obtained
under this section for any prohibited purpose described in this
section or in Sections 1365.5 and 1374.7.
(i) For the purposes of this section, the following definitions
shall apply:
(1) "Issuer of a Medicare supplement contract" includes a
third-party administrator, or other person acting for or on behalf of
an 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 the individual.
(3) "Genetic information" means, with respect to any individual,
information about the individual's genetic tests, the genetic tests
of family members of the individual, and the manifestation of a
disease or disorder in family members of the individual. The 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 the individual or any family member of
the 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 that 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 education,
genetic counseling, including obtaining, interpreting, or assessing
genetic information.
(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" includes all of the following:
(A) Rules for, or determination of, eligibility, including
enrollment and continued eligibility, for benefits under the
contract.
(B) The computation of prepaid or periodic charges or contribution
amounts under the contract.
(C) The application of any preexisting condition exclusion under
the contract.
(D) Other activities related to the creation, renewal, or
replacement of a contract of health insurance or health benefits.