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Genetic bias bill sparks liability concerns

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Genetic bias bill sparks liability concerns

WASHINGTON—Employers fear that a bill designed to prevent the misuse of genetic information for insurance and employment purposes could expose them to new and unjustified liabilities.

But a leading proponent of the Genetic Information Nondiscrimination Act holds that such fears are overblown.

The bipartisan measure, introduced in the current Congress by Reps. Louise Slaughter, D-N.Y., and Judy Biggert, R-Ill., has about 200 co-sponsors.

The House Education and Labor Committee gave its approval to the bill on Feb. 14. The measure would amend several federal laws, including the Employee Retirement Income Security Act, to prohibit health insurance enrollment and premium discrimination based on genetic information and would prohibit genetic testing as a prerequisite for insurance. The bill would also make discriminating against an employee on the basis of genetic information an unlawful employment practice, and would extend medical privacy and confidentiality rules to the disclosure of genetic information.

The bill's different enforcement mechanisms, however, concern employers. Paul Dennett, vp-health policy at the American Benefits Council in Washington, pointed out that group health plans governed by ERISA would not face the possibility of punitive or monetary compensatory damages if they violated the law.

But "there is a much broader range of remedies" available to those alleging unlawful employment practices, said Mr. Dennett.

"The concern we have is there is ambiguity about whether the remedies available," regarding employment practices, also could be brought into play for alleged violations by a group health plan or insurer, he said. "We think that the intent of the bill is to allow health plan issues to be resolved under the existing regulatory and judicial scheme established by ERISA." Still, "it's not clear that the broader" employment practices remedies aren't banned for health plan issues, he said.

Mike Eastman, executive director-labor policy for the U.S. Chamber of Commerce in Washington, also noted that employers could face both punitive and monetary damages for genetic discrimination if the bill becomes law.

"We're opposed to the bill," he said, but added that the Chamber has "never said 'no way' as far as legislation goes." He said the employer group understands the fear that some people would have about the misuse of their genetic information.

"We want people to make medical decisions made on medicine, not on fear," he said.

"If there must be legislation, then it must be narrowly drawn to prevent the possibility of frivolous litigation and implementation problems," said Mr. Eastman.

Mr. Dennett said that questions remain over "whether the definition of genetic information could overly restrict the ability of health plans to get routine information about plan administration. There's concern that necessary information for plan operations is precluded."

The bill does not, however, impact workers compensation.

"AIA worked several years ago to make sure language was included so the legislation would not affect workers comp," said a spokesman for the Washington-based American Insurance Assn.

A proponent of the bill said that the potential misuse of genetic information has been growing increasingly worrisome for the general public.

Since the first genetic information nondiscrimination bill was introduced 12 years ago, there has been "an increase in the fear that individuals have" that their health insurer or employer will receive their genetic information, said Sharon Terry, president and chief executive officer of the Washington-based Genetic Alliance, a group that backs the bill. She said opinion polls demonstrate how deeply that fear runs in some people, with some respondents refusing to participate in clinical trials for fear their genetics will be used against them.

Ms. Terry also disputed contentions that the bill was too broad. "The bill was too broad from their (employers') perspective, but in 2003 the Senate drastically altered this bill and now it's very narrow," she said.

Similar legislation won the approval of the Senate Health, Education, Labor and Pensions Committee on Jan. 31.