Section 760IAC3-19.1-1. Prohibition against discrimination, use of genetic information, and requests for genetic testing

   (a) This section applies to all policies with policy years beginning on or after May 21, 2009.

  (b) The following definitions apply for purposes of this section only:

(1) "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.

(2) "Genetic information" means, with respect to any individual, information about the following:

(A) The individual's genetic tests.

(B) The genetic tests of family members of the individual.

(C) The manifestation of a disease or disorder in family members of the individual.

(D) Any request for, or receipt of, genetic services.

(E) Any participation in clinical research that 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 the pregnant woman, or with respect to an individual or family member utilizing an assisted reproductive technology, includes genetic information of any embryo legally held by the individual or family member. The term shall not include information about the sex or age of any individual.

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

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

(A) does not detect genotypes, mutations, or chromosomal changes; or

(B) 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.

(5) "Issuer of a Medicare supplement policy" includes a third party administrator or other person acting for or on behalf of the issuer.

(6) "Underwriting purposes" includes the following:

(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 preexisting condition exclusion under the policy.

(D) Other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits.

  (c) An issuer of a Medicare supplement policy shall not:

(1) deny or condition the issuance or effectiveness of the policy, including the imposition of any exclusion of benefits under the policy based on a preexisting condition; or

(2) discriminate in the pricing of the policy, including the adjustment of premium rates, of an individual on the basis of the genetic information with respect to the individual.

  (d) Nothing in subsection (c) shall be construed to limit the ability of an issuer of a Medicare supplement policy, to the extent otherwise permitted by law, from either of the following:

(1) Denying or conditioning the issuance or effectiveness of the policy or increasing the premium for a group based on the manifestation of a disease or disorder of an insured or applicant.

(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 (1) individual cannot also be used as genetic information about other group members and to further increase the premium for the employer.

  (e) An issuer of a Medicare supplement policy shall not request or require an individual or a family member of the individual to undergo a genetic test.

  (f) Subsection (e) shall not be construed to preclude an issuer of a Medicare supplement policy 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 by the Secretary 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 (c).

  (g) For purposes of subsection (f), an issuer of a Medicare supplement policy may request only the minimum amount of information necessary to accomplish the intended purpose.

  (h) Notwithstanding subsection (e), 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:

(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 the child, to whom the request is made that:

(A) compliance with the request is voluntary; and

(B) noncompliance will have no effect on:

(i) enrollment status;

(ii) premium amounts; or

(iii) contribution amounts.

(3) No genetic information collected or acquired under this subsection shall be used for any of the following:

(A) Underwriting.

(B) Determination of eligibility to enroll or maintain enrollment status.

(C) Premium rating.

(D) The issuance, renewal, or replacement of a policy.

(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.

  (i) An issuer of a Medicare supplement policy shall not request, require, or purchase genetic information for underwriting purposes.

  (j) An issuer of a Medicare supplement policy shall not request, require, or purchase genetic information with respect to any individual prior to the individual's enrollment under the policy in connection with the enrollment.

  (k) If an issuer of a Medicare supplement policy obtains genetic information incidental to the requesting, requiring, or purchasing of other information concerning any individual, the request, requirement, or purchase shall not be considered a violation of subsection (j) if the request, requirement, or purchase is not in violation of subsection (i). (Department of Insurance; 760 IAC 3-19.1-1; filed Jul 27, 2009, 10:36 a.m.: 20090826-IR-760090211FRA; readopted filed Nov 20, 2015, 9:25 a.m.: 20151216-IR-760150341RFA)