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GINA (Genetic Information Non-Discrimination Act) Loopholes?

February 16th, 2009 by Andrew Yates

The purpose of an anti-discrimination law is to prevent obvious social injustice, not to force the target selection and the protected trait to be statistically independent.

I’m sick and tired of lame attempts to poke holes in the 2008 Genetic Information Non-Discrimination Act (GINA) without citations. The law states:

Title 1, Sec. 101, (a)(3)(A):

IN GENERAL. —For purposes of this section, a group health plan, and a health insurance issuer offering group health insurance coverage in connection with a group health plan, may not adjust premium or contribution amounts for the group covered under such plan on the basis of genetic information.

and

Title 1, Sec. 101, (c)(1):

LIMITATION ON REQUESTING OR REQUIRING GENETIC TESTING. —A group health plan, and a health insurance issuer offering health insurance coverage in connection with a group health plan, shall not request or require an individual or a family member of such individual to undergo a genetic test.

If you or anyone else has a specific complaint regarding the word of the law regarding its coverage of “genetic discrimination” in health insurance, then cite the law. I’m not confident that GINA is effective legislation, and I’d be delighted to discuss GINA intelligently. Otherwise, GINA seems straightforward to me: health insurance companies cannot discriminate based on genetic information. (A conversation about the futility of enforcement in the health industry unwilling and unable to change —and powerful enough to continue not to do so— is another topic.)

However, I’ll quickly address the most common GINA complaints:

GINA is unenforceable

That’s a problem of enforcement and the state of the health care industry, not the text of the law. What more can the law do other than define what’s legal? If your argument is that penalties are not sufficiently putative, first produce evidence that the law is being willfully violated, and then produce evidence that violation of the law is a net economic gain despite penalties and litigation risk. Further, how much is too much punishment? If a GINA violation is so bad, why not increase fines to millions? To imprisonment? To what?

Personally, I think that the law will be effective at preventing blatant discrimination as defined in the law. That is, an HMO will not order genetic tests for all members, adjust premiums based on that genetic data, and document the adjustment as such. However, perfectly forbidding all “genetic discrimination” is nonsense since all of human health is in some way associated with genetics. Again, the purpose of an anti-discrimination law is to prevent obvious social injustice, not to force the target selection and the protected trait to be statistically independent.

GINA is ineffective because discrimination is not impossible since genetic information can be released voluntarily, through coercion, by inference, etc.

Are you suggesting that it should be illegal for individuals to enter private contracts between themselves or to share their private medical information with proper consent?

GINA does not cover life insurance

While health care insurance reimburses for medical services rendered, life insurance pays in cash. Thus, explicitly creating a disparity in risk disclosure between buyers and underwriters creates an arbitrage opportunity that others could exploit. That is, businesses could “game” life insurance, for example, by buying life insurance contracts that the businesses judge to be undervalued from genetic data legally screened from life insurance underwriters. This “opportunity” for arbitrage on human life creates all sorts of unpleasant moral hazards, and while I’m obviously “pro-justice” (who is anti-justice?), I actually support the legislation’s decision to exclude life insurance from GINA until the implications of genetics are better understood in life insurance underwriting.

I’ve purposely excluded the employer genetic testing provision because skilled labor jobs discriminate by the brand and level of your college degree, and I don’t know much about companies that employ unskilled labor.

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