26 USC 9802 - Prohibiting discrimination against individual participants and beneficiaries based on health status

U.S Code last checked for updates: Nov 25, 2024

§ 9802.

Prohibiting discrimination against individual participants and beneficiaries based on health status

(a)

In eligibility to enroll

(1)

In general

Subject to paragraph (2), a group health plan may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan based on any of the following factors in relation to the individual or a dependent of the individual:

(A)

Health status.

(B)

Medical condition (including both physical and mental illnesses).

(C)

Claims experience.

(D)

Receipt of health care.

(E)

Medical history.

(F)

Genetic information.

(G)

Evidence of insurability (including conditions arising out of acts of domestic violence).

(H)

Disability.

(2)

No application to benefits or exclusions

To the extent consistent with section 9801, paragraph (1) shall not be construed—

(A)

to require a group health plan to provide particular benefits (or benefits with respect to a specific procedure, treatment, or service) other than those provided under the terms of such plan; or

(B)

to prevent such a plan from establishing limitations or restrictions on the amount, level, extent, or nature of the benefits or coverage for similarly situated individuals enrolled in the plan or coverage.

(3)

Construction

(b)

In premium contributions

(1)

In general

(2)

Construction

Nothing in paragraph (1) shall be construed—

(A)

to restrict the amount that an employer may be charged for coverage under a group health plan except as provided in paragraph (3); or

(B)

to prevent a group health plan from establishing premium discounts or rebates or modifying otherwise applicable copayments or deductibles in return for adherence to programs of health promotion and disease prevention.

(3)

No group-based discrimination on basis of genetic information

(A)

In general

(B)

Rule of construction

(c)

Genetic testing

(1)

Limitation on requesting or requiring genetic testing

(2)

Rule of construction

(3)

Rule of construction regarding payment

(A)

In general

(B)

Limitation

(4)

Research exception

Notwithstanding paragraph (1), a group health plan may request, but not require, that a participant or beneficiary undergo a genetic test if each of the following conditions is met:

(A)

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.

(B)

The plan clearly indicates to each participant or beneficiary, or in the case of a minor child, to the legal guardian of such beneficiary, to whom the request is made that—

(i)

compliance with the request is voluntary; and

(ii)

non-compliance will have no effect on enrollment status or premium or contribution amounts.

(C)

No genetic information collected or acquired under this paragraph shall be used for underwriting purposes.

(D)

The plan notifies the Secretary in writing that the plan is conducting activities pursuant to the exception provided for under this paragraph, including a description of the activities conducted.

(E)

The plan complies with such other conditions as the Secretary may by regulation require for activities conducted under this paragraph.

(d)

Prohibition on collection of genetic information

(1)

In general

(2)

Prohibition on collection of genetic information prior to enrollment

(3)

Incidental collection

(e)

Application to all plans

(f)

Special rules for church plans

A church plan (as defined in section 414(e)) shall not be treated as failing to meet the requirements of this section solely because such plan requires evidence of good health for coverage of—

(1)

both any employee of an employer with 10 or less employees (determined without regard to section 414(e)(3)(C)) and any self-employed individual, or

(2)

any individual who enrolls after the first 90 days of initial eligibility under the plan.

This subsection shall apply to a plan for any year only if the plan included the provisions described in the preceding sentence on July 15, 1997, and at all times thereafter before the beginning of such year.

(g)

Genetic information of a fetus or embryo

Any reference in this chapter to genetic information concerning an individual or family member of an individual shall—

(1)

with respect to such an individual or family member of an individual who is a pregnant woman, include genetic information of any fetus carried by such pregnant woman; and

(2)

with respect to an individual or family member utilizing an assisted reproductive technology, include genetic information of any embryo legally held by the individual or family member.

(Added Pub. L. 104–191, title IV, § 401(a), Aug. 21, 1996, 110 Stat. 2078; amended Pub. L. 105–34, title XV, § 1532(a), Aug. 5, 1997, 111 Stat. 1085; Pub. L. 110–233, title I, § 103(a)–(c), May 21, 2008, 122 Stat. 896, 897; Pub. L. 113–295, div. A, title II, § 220(aa), Dec. 19, 2014, 128 Stat. 4037.)

cite as: 26 USC 9802