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# Legislative Bulletin..........................................\..........March 5, 2008

**Contents:**

> H.R. 1424---Paul Wellstone Mental Health and Addiction Equity Act

H.R. 1424, the Paul Wellstone Mental Health and Addiction Equity Act
(sponsored by Rep. Patrick Kennedy, D-RI), is scheduled to be considered
on the House floor on Wednesday, March 5, 2008, under a [closed
rule]{.underline}.

The rule provides for two hours of general debate, waives all points of
order against consideration of the bill, except those regarding PAYGO
and earmarks, waives all points of order against the bill
itself---except the PAYGO rule---and allows the Chair to postpone
consideration of the legislation at any time during its consideration.
The rule allows one motion to recommit with or without instructions.

At the time of engrossment, the rule would also direct the Clerk to
insert the text of H.R. 493, the Genetic Information Non-Discrimination
Act, at the end of H.R. 1424 as new matter.

For a summary of the underlying bill, see a separate RSC document
released yesterday.

**RSC Staff Contact**: Chris Jacobs;
<christopher.jacobs@mail.house.gov>; (202) 226-8585

**LEGISLATION TO BE ADDED TO THE BILL UNDER THE RULE**

H.R. 493---Genetic Information Nondiscrimination Act of 2007

*(Slaughter, D-NY)*

**[Summary]{.underline}**: H.R. 493 would prohibit the use of genetic
information by employers in employment decisions and by health insurers
and health plans in making enrollment determinations and setting
insurance premiums. The specific provisions of the bill are summarized
below.

-   Amends the Employee Retirement Income Security Act (ERISA), the
    Public Health Service Act, and the Internal Revenue Code to prohibit
    a group health plan, and a health insurance issuer offering group
    health insurance coverage in connection with a group health plan,
    from the following:

    -   Adjusting premium or contribution amounts for the group covered
        under the plan on the basis of genetic information;

    -   Requiring an individual or a family member of that individual to
        undergo a genetic test;

    -   Requesting, requiring, or purchasing genetic information for
        underwriting purposes; and

    -   Requesting, requiring, or purchasing genetic information with
        respect to any individual prior to that individual's enrollment
        under the plan or coverage in connection with their enrollment.

> The bill allows for certain research exceptions to the above
> prohibitions.

-   Defines an individual or a family member for purposes of this Act
    as:

    -   The fetus inside of a pregnant mother; and

    -   Any embryo legally held by the individual or family member (with
        respect to assisted reproductive technology).

-   Defines genetic test as: "an analysis of human DNA, RNA,
    chromosomes, proteins, or metabolites, that detects genotypes,
    mutations, or chromosomal changes." The definition does not include
    the following:

    -   "An analysis of proteins or metabolites that does not detect
        genotypes, mutations, or chromosomal changes; or

    -   "An analysis of proteins or metabolites that is directly related
        to a manifested disease, disorder, or pathological condition
        that could reasonably be detected by a health care professional
        with appropriate training and expertise in the field of medicine
        involved."

-   Imposes a penalty against any plan sponsor or group health plan for
    failure to meet requirements with respect to genetic information in
    connection with their health plan. The penalty would be \$100 each
    day in noncompliance with respect to each participant to whom such
    failure relates. Under certain circumstances, the penalty could not
    be less than \$2,500. In addition, the Secretary could waive the
    penalty under certain circumstances.

-   Prohibits a health insurance issuer in the individual market from
    doing the following:

    -   Establishing rules for the eligibility of any individual to
        enroll in individual health insurance coverage based on genetic
        information;

    -   Adjusting premium or contribution amounts for an individual on
        the basis of genetic information concerning the individual or a
        family member of the individual;

    -   Imposing any preexisting condition exclusion based on the basis
        of genetic information, with respect to their coverage;

    -   Requesting or requiring an individual or family member to
        undergo a genetic test;

    -   Requesting, requiring or purchasing genetic information for
        underwriting purposes; and

    -   Collecting genetic information with respect to any individual
        prior to the individual's enrollment under the plan.

-   Prohibits an issuer of a Medicare supplemental policy from the
    following:

    -   Denying or conditioning the issuance of a policy and from
        discriminating in the pricing of the policy of an individual on
        the basis of genetic information;

    -   Requesting or requiring an individual or family member to
        undergo a genetic test; and

    -   Requesting, requiring or purchasing genetic information for
        underwriting purposes.

-   Directs the National Association of Insurance Commissioners (NAIC)
    to modify its NAIC model regulations to mirror the above
    prohibitions required by this Act.

-   Directs the Secretary of Health and Human Services to revise the
    Health Insurance Portability and Accountability Act (HIPAA) private
    regulations to be consistent with provisions in this Act, affecting
    the use of genetic information.

-   Prohibits employers, employment agencies, and labor organizations
    from the following:

    -   Refusing to hire an employee or discriminating against an
        employee because of genetic information related to that
        individual;

    -   Limiting, segregating or classifying employees in any way that
        would deprive or adversely affect the status of the employee in
        light of their genetic information; and

    -   Requiring or purchasing genetic information, except in certain
        circumstances.

**[Additional Information]{.underline}**: In Committee Report
[110-28](http://www.congress.gov/cgi-lis/cpquery/3?cp110:./temp/~cp110HO8Rx&sid=cp110HO8Rx&item=3&sel=DOC&hd_count=4&xform_type=3&r_n=hr028p1.110&&sid=cp110HO8Rx&&),
Part 1, several Republican Members outlined extensive concerns in the
Minority Views section of the report. The following is a small excerpt
from the Minority Views portion of the report.

> "Advocates of federal genetic nondiscrimination legislation argue that
> such legislation is necessary to ensure that individuals avail
> themselves of genetic testing without fear of reprisal in their
> employment or health insurance coverage. Others argue that the case
> has not yet been made that federal legislation is prudent or
> necessary---there has been no evidence of large-scale employer genetic
> testing or discrimination---and in any case, if federal legislation is
> to be adopted, it should be carefully drawn to address real concerns
> and not lead to frivolous litigation, inconsistent or contradictory
> standards, or undue burden on employers. Finally, many question
> whether existing federal laws and regulations provide adequate
> protection from the potential of genetic nondiscrimination. In
> addition, more than half of the states have enacted laws that restrict
> the use of genetic information in health insurance and employment
> decisions."

**[Committee Action]{.underline}**: H.R. 493 was introduced on January
16, 2007, and referred to the House Committees on Education and Labor,
Energy and Commerce, and Ways and Means. The Education and Labor
Committee held a mark-up and reported the bill, as amended, by voice
vote on February 14, 2007. The Energy and Commerce Committee held a
mark-up and reported the bill, as amended, on March 23, 2007. The Ways
and Means Committee held a mark-up and reported the bill, as amended, by
voice vote on March 21, 2007. The bill was passed on April 25, 2007 by a
vote of 420 to three.

**[Possible Conservative Concerns]{.underline}**: In addition to the
broader question of the bill's necessity (as discussed above), some
conservatives may be concerned that the bill's imprecise language may
provide regulatory confusion for business---and an avenue for potential
lawsuits for sponsors of group health insurance---in several key
respects:

-   Title I imposes requirements on health plans regarding insurance
    coverage, while Title II imposes requirements on employers regarding
    employment and related hiring decisions. However, there is no
    explicit language clarifying that group health insurance plan
    sponsors may not be subjected to the more expansive remedies
    provided by Title II, which provides for rulemaking by the Equal
    Employment Opportunity Commission (EEOC), and remedies before the
    same body and, ultimately, federal courts. In fact, during floor
    debate on H.R. 493, Congressman Rob Andrews (D-NJ)
    [suggested](http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2007_record&page=H4098&position=all)
    that "employers, including to the extent employers control or direct
    benefit plans, are subject to the requirements of Title II of this
    bill"---including the much broader definition of genetic test and
    tougher penalties associated with that title. This lack of clarity
    could lead to additional lawsuits, through use of the broader
    remedies available in Title II that are intended to be reserved for
    employers who violate their employees' civil rights, not for
    employees seeking to litigate group health plan disputes.

-   The bill does not include a "business necessity" exemption for
    employers, consistent with the Americans with Disabilities Act, to
    ensure that businesses are not punished for non-discriminatory use
    of their workers' genetic information. For example, a new exemption
    for law enforcement usage of genetic information during employee DNA
    testing, was added to the bill just prior to House
    consideration---even though the bill has been introduced for over a
    decade. Because there may be additional scenarios yet unforeseen
    that may require similar exemptions, lack of a general business
    necessity exemption could subject businesses to unnecessary and
    costly litigation.

-   Lastly, the bill as written does not clearly distinguish whether
    "manifested" diseases are covered by GINA provisions. In general,
    health plans can receive information about whether an individual has
    a manifested disease, and these facts can be used during the
    underwriting process for individual and small group coverage in some
    states. Lack of clarity in the language would disrupt
    long-established underwriting processes for *diseases already
    manifested* in patients---which is not consistent with the bill's
    focus on genetic *information*.

**[Cost to Taxpayers]{.underline}**: According to CBO, enacting H.R. 493
"would increase the number of individuals who obtain health insurance by
about 600 people per year, nearly all of whom would obtain insurance in
the individual market. The bill would affect federal revenues because
the premiums paid by some of those newly insured individuals would be
tax-deductible." As such, CBO estimates that the bill would reduce
revenues by less than \$500,000 in each year from 2008 through 2017, by
\$1 million over the 2008-2012 period, and by \$2 million over the 2008
through 2017 period.

In addition, CBO states, that "the bill's requirements would apply to
Medicare supplemental insurance, which would affect direct spending for
Medicare." However, CBO estimates that the bill would have no
significant effect on direct spending. Finally, CBO estimates that H.R.
493 would result in discretionary costs of less than \$500,000 in FY
2008, and \$2 million over the FY 2008 through FY 2017 period.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: Yes. According to CBO, the bill
would "preempt some state laws that establish confidentiality standards
for generic information, and would restrict how state and local
governments use such information in employment practices and in the
provision of health care to employees." In addition, CBO explains that
the bill "contains private-sector mandates on health insurers, health
plans, employers, labor unions, and other organizations."

**RSC Staff Contact**: Chris Jacobs;
<christopher.jacobs@mail.house.gov>; (202) 226-8585.