687B.223 - Prohibitions regarding genetic information and genetic testing

687B.223. Prohibitions regarding genetic information and genetic testing

1. An issuer of a policy to supplement Medicare or a certificate:

(a) Shall not deny or condition the issuance or effectiveness of the policy or certificate, including, without limitation, the imposition of any exclusion of benefits under the policy based on a preexisting condition, on the basis of the genetic information of a person; and

(b) Shall not discriminate in the pricing of the policy or certificate, including, without limitation, the adjustment of the premium rates, of a person on the basis of the genetic information of the person.

2. Nothing in subsection 1 shall be construed to limit the ability of an issuer of a policy to supplement Medicare or a certificate, to the extent otherwise permitted by law, from:

(a) Denying or conditioning the issuance or effectiveness of a 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 a person based on the manifestation of a disease or disorder of a person who is covered under the policy. The manifestation of a disease or disorder in one person cannot also be used as genetic information about other group members and to further increase the premium for the group.

3. An issuer of a policy to supplement Medicare or a certificate shall not request or require a person or a family member of the person to undergo a genetic test.

4. The provisions in subsection 3 must not be construed to preclude an issuer of a policy to supplement Medicare or a 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, 42 U.S.C. §§ 1320 d et seq., and note to 42 U.S.C. § 1320d-2, as may be revised from time to time, and consistent with the provisions of subsection 1.

5. For the purposes of carrying out subsection 4, an issuer of a policy to supplement Medicare or a certificate may request only the minimum amount of information necessary to accomplish the intended purpose.

6. Notwithstanding the provisions of subsection 3, an issuer of a policy to supplement Medicare or a certificate may request, but not require, that a person or a family member of the person undergo a genetic test if:

(a) The request is made pursuant to research that complies with 45 C.F.R. § 46.101 et seq., or equivalent federal regulations, and any applicable state or local law or regulations for the protection of human subjects in research;

(b) The issuer clearly indicates to each person, 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) Noncompliance will have no effect on enrollment status or premium or contribution amounts;

(c) Any genetic information collected or acquired under this subsection is not 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 the United States Department of Health and Human Services 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

(e) The issuer complies with such other conditions as the Secretary of the United States Department of Health and Human Services may, by regulation, require for activities conducted under this subsection.

7. An issuer of a policy to supplement Medicare or a certificate shall not request, require or purchase genetic information for underwriting purposes.

8. An issuer of a policy to supplement Medicare or a certificate shall not request, require, or purchase genetic information with respect to any person before the person's enrollment under the policy in connection with such enrollment.

9. If an issuer of a policy to supplement Medicare or a certificate obtains genetic information incidental to the requesting, requiring or purchasing of other information concerning any person, such request, requirement or purchase must not be considered a violation of the provisions of subsection 8 if such request, requirement or purchase is not in violation of the provisions of subsection 7.

10. As used in this section:

(a) "Family member" means, with respect to a person, any other person who is a first degree, second degree, third degree or fourth degree relative of the person.

(b) "Genetic information" means, with respect to any person, information about a genetic test of the person, the genetic tests of family members of the person, and the manifestation of a disease or disorder in family members of the person, and any request for, or receipt of, genetic services, or participation in clinical research which includes genetic services, by the person or any family member of the person. Any reference to "genetic information" concerning a person or family member of the person who is a pregnant woman includes, without limitation, genetic information of any fetus carried by such pregnant woman, or, with respect to the person or family member utilizing reproductive technology, includes, without limitation, genetic information of any embryo legally held by the person or family member. The term does not include information about the sex or age of a person.

(c) "Genetic services" means a genetic test, genetic education and genetic counseling, including obtaining, interpreting or assessing genetic information.

(d) "Genetic test" means an analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations or chromosomal changes. The term does not include:

(1) An analysis of proteins or metabolites that does not detect genotypes, mutations or chromosomal changes; or

(2) 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 applicable field of medicine.

(e) "Issuer of a policy to supplement Medicare or a certificate" includes third-party administrator, or other person acting for or on behalf of such issuer.

(f) "Underwriting purposes" means:

(1) Rules for, or determination of, eligibility, including, without limitation, 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 preexisting 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.

Added to NAC by Comm'r of Insurance by R049-09, eff. 10-27-2009

NRS 679B.130, 687B.430

The following state regulations pages link to this page.