Medicare supplement insurance: genetic information and genetic testing limits on issuers

Rule 10.24 of the Mississippi Insurance Department's Medicare supplement regulation applies to all policies with policy years beginning on or after May 21, 2009. An issuer of a Medicare supplement policy or certificate may not deny or condition the issuance or effectiveness of the policy or certificate, including through an exclusion of benefits based on a pre-existing condition, on the basis of genetic information about the individual.

An issuer of a Medicare supplement policy or certificate may not discriminate in the pricing of the policy or certificate, including the adjustment of premium rates, on the basis of an individual's genetic information. An issuer of a Medicare supplement policy or certificate may not request or require an individual or a family member of the individual to undergo a genetic test.

An issuer of a Medicare supplement policy or certificate may not request, require or purchase genetic information for underwriting purposes, or with respect to an individual before the individual's enrollment in connection with that enrollment. For purposes of Rule 10.24 the term issuer of a Medicare supplement policy or certificate includes a third-party administrator or other person acting for or on behalf of the issuer.

Rule 10.24 does not limit an issuer, to the extent otherwise permitted by law, from denying or conditioning the issuance or effectiveness of the policy or certificate or increasing the premium for a group based on the manifestation of a disease or disorder of an insured or applicant. An issuer may obtain and use the results of a genetic test in making a determination regarding payment, consistent with the limits on denying, conditioning and pricing coverage on genetic information.

When an issuer obtains and uses genetic test results for a payment determination, the issuer may request only the minimum amount of information necessary to accomplish the intended purpose. An issuer of a Medicare supplement policy may request, but not require, that an individual or a family member undergo a genetic test if each of five stated conditions is met.

The first condition is that the request is made pursuant to research that complies with Part 46 of Title 45 of the 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.

The second condition is that the issuer clearly indicates to each individual, or to the legal guardian of a minor child, that compliance with the request is voluntary and that non-compliance will have no effect on enrollment status or premium or contribution amounts.

The third condition is that no genetic information collected or acquired under the research exception is 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. The fourth condition is that the issuer notifies the Secretary in writing that the issuer is conducting activities under the research exception, including a description of the activities conducted.

The fifth condition is that the issuer complies with such other conditions as the Secretary may by regulation require for activities conducted under the research exception. Obtaining genetic information incidental to requesting, requiring or purchasing other information about an individual is not a violation of the limit on pre-enrollment requests if the request, requirement or purchase is not in violation of the limit on requests for underwriting.

The regulation applies to Medicare supplement policies delivered or issued for delivery in Mississippi and to certificates issued under group Medicare supplement policies that have been delivered or issued for delivery in Mississippi. The regulation does not apply to a policy or contract of one or more employers or labor organizations, or of the trustees of a fund established by one or more employers or labor organizations, for their employees, former employees or members.

The regulation's definition of issuer includes insurance companies, fraternal benefit societies, health care service plans, health maintenance organizations, and any other entity delivering or issuing for delivery in Mississippi Medicare supplement policies or certificates. The regulation defines the Secretary as the Secretary of the United States Department of Health and Human Services.

The regulation states that it is issued under the commissioner's authority in sections 83-9-103 and 83-9-105 of the Mississippi Code. Rule 10.26 states that the regulation and its amendments are effective on June 30, 2009 and after January 1, 2020.