In sum, an employer’s health care plan that provides mental health or addiction disorder benefits must provide parity in both financial requirements (e.g., deductibles, copayments, coinsurance and out-of-pocket expenses) and treatment. Mental health benefits must be no more restricted than other covered medical benefits. There can be no separate cost-sharing or network requirements or scope and duration limitations that apply only to mental health benefits.

MPHA also contains several disclosure requirements, including providing the reason for denial of benefits upon the request of a plan participant or beneficiary.

There are two exemptions available to plan sponsors:

1. Smaller employers with 50 or fewer employees are generally exempt from MHPA requirements; and

2. There are one-year exemptions available if the increased cost of complying with MHPA exceeds certain percentages. But this exemption has very specific requirements, including extensive documentation of the financial impact and consent to agency inspection of the plan’s relevant benefits records for up to six years after exemption certification.

The DOL, along with the Treasury and the Department of Health and Human Services, has been charged with issuing guidelines and interpretative rules within one year of MHPA’s enactment. Regardless of whether or not the DOL meets this deadline, however, covered plans must comply with MHPA in the plan year beginning after the one-year anniversary of MHPA’s enactment. For most plans, this means the effective date begins on January 1, 2010.

So what should you do now? Contact your employment or benefits attorney to implement a compliant plan that fits your operations and budget before enforcement begins next year. Non-compliance carries significant penalties, and the IRS may continue to impose an excise tax on any plan for failure to comply with MHPA’s requirements. Moreover, you can anticipate that the DOL will issue more detailed procedures and requirements in its anticipated rules.

The Centers for Medicare and Medicaid Services (CMS) announced the settlement last week. The lawsuit was filed on behalf of 6.2 million “dual eligible” Medicaid beneficiaries. Under the 2003 Medicare law, dual eligibles are supposed to receive assistance for buying prescription drugs, but beneficiaries were charged up to $75 or more, as opposed to co-payments of fewer than $5, because agencies, insurers, and pharmacies didn’t share information about beneficiaries’ low-income status.

As part of the settlement, agencies and companies will share this information, with time limits placed on submitting names and processing claims.

In sum, GINA prohibits health insurance companies from using genetic information to set premiums or determine enrollment eligibility. Employers, with very few exceptions, cannot use genetic information in hiring, firing or promotion decisions and must maintain any genetic information strictly confidential in compliance with the ADA (medical records) and HIPAA. As for enforcement, procedures and damages –– think ADA. In other words, private employers with fifteen or more employees are subject to GINA. The Equal Employment Opportunity Commission (EEOC) will be charged with investigating complaints, and the procedure and remedies are mostly identical to other federal anti-discrimination laws.

The law will go into effect in November 2009, by which time the Department of Labor is supposed to have enacted its regulations for GINA.

What in the World Do I Care About Genetics? While genetic testing for employment purposes is not regularly used by most of our clients, most do require post-offer medical examinations and verification of absences and FMLA time. Studies cited in support of GINA show that nearly two-thirds of major U.S. companies require medical examinations of new hires, of which 14% conduct tests for susceptibility to workplace hazards, among other things. The federal government for several years has prohibited the federal government from requiring genetic testing or from considering a person’s genetic information in hiring or promotion decisions. Plus, there are labs actively marketing to employers in connection with disability and workers’ compensations claims. GINA significantly proscribes the use of any testing with a genetic component.

Does Texas Have a Similar State Law? Well, yes, Virginia…it does! Texas is one of 31 states (according to National Human Genome Research Institute) that have already adopted laws regarding genetic discrimination in the workplace. Texas’ law has been in effect since 1997. Parallel to GINA, Texas law:

• Provides for protection against discrimination by employers with 15 or more employees, employment agencies, or labor unions based on information about an individual’s genetic characteristics or on the refusal of an individual to take a genetic test or submit a family health history.

• Provides a civil penalty if a person improperly discloses genetic information.

• Employers must keep genetic testing confidential unless an individual specifically authorizes release of such information, or unless they are required to release information pursuant to a court order, or otherwise required by law.

What Difference Will This Make If I Don’t Require Genetic Testing? Like any other anti-discrimination law, employers will want to have a clear written policy as well as procedures prohibiting conduct in violations of GINA as well as educate workers on what is not prohibited by the Act.

Does GINA Affect Our Employee Wellness Program? Yes. Under both HIPAA and, now, GINA, employers may use both personal health and genetic information as part of a qualified wellness program. Wellness programs generally reward participants for reaching a desired health outcome … giving up smoking or losing weight, for example, or carrying out a specified exercise regime. You can see the U.S. Department of Labor’s new rules for creating workplace wellness programs that comply with existing HIPAA law (no doubt soon to be amended to include GINA).

To prevent employers from practicing “back door discrimination,” a wellness plan must meet very specific requirements. Check with your legal counsel regarding wellness programs to keep your plan “legally healthy.”

Little Known Fact: Per the National Human Genome Research Institute, everyone probably has at least six genetic mutations placing them at greater risk for some disease. Although these mutations do not necessarily mean that a disease will develop, researchers said, that the person is more likely to get the disease than someone without the genetic mutation.

The House voted 414-1 for GINA last Thursday, a week after the legislation passed the Senate on a 95-0 vote. The only member of Congress to vote against the bill was Rep. Ron Paul, R-Texas. Click here to read the complete text of GINA.