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Determining Compliance with the GINA Provisions in Part 7 of ERISA

Does the plan comply with GINA's prohibition on collection of genetic information, prior to or in connection with enrollment?

A plan cannot collect genetic information prior to an individual's effective date of coverage under that plan or coverage, nor in connection with the rules for eligibility that apply to that individual. See 29 CFR 2590.702-1(d)(2)(i).

Whether or not an individual's information is collected prior to that individual's effective date of coverage is determined at the time of collection.

Exception for incidental collection:

  • If a plan obtains genetic information incidental to the collection of other information concerning any individual, the collection is not a violation, as long as the collection is not for underwriting purposes. See 29 CFR 2590.702-1(d)(2)(ii)(A).
  • However, the incidental collection exception does not apply in connection with any collection where it is reasonable to anticipate that health information would be received, unless the collection explicitly states that genetic information should not be provided. See 29 CFR 2590.702-1(d)(2) (ii)(B).