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Genetic Testing and the Future of Disability Insurance: Ethics, Law & Policy

Published online by Cambridge University Press:  01 January 2021

Extract

Genetic testing poses fundamental questions for insurance. Testing can predict a low probability of future illness and disability, which can help promote the insurability of individuals with a family history of genetic risk, but it can also invite insurers to reject applicants, increase premiums, exclude people with certain illnesses and disabilities, and otherwise adjust the underwriting processes for individuals with certain genotypes. In the workplace, these issues may cause employers who offer or pay for insurance to alter their hiring behavior, either by selecting those with desirable genetic makeup or rejecting, dismissing, or reassigning those who carry an unwanted risk, ultimately threatening employability and the safety net that insurance is intended to provide.

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Special Supplement
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Copyright © American Society of Law, Medicine and Ethics 2007

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References

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Only a few states' statutes on genetic discrimination in insurance specifically apply to disability income insurance. See, e.g., Ariz. Rev. Stat. Ann. § 20448 (2006); Cal. Ins. Code §§ 10146–10149.1 (West 2006) (requiring informed consent before genetic tests are conducted for disability insurance underwriting); Ky. Rev. Stat. Ann. § 304.12–085(3) (West 2006) (providing that disability insurers may not request genetic information, but not specifying that such insurers may not use already obtained genetic information for disability insurance purposes); Me. Rev. Stat. Ann. tit. 24-A, § 2159-C(3) (2006) (allowing insurers to use genetic information for disability insurance, but not permitting unfair discrimination based on that information); Mont. Code Ann. § 33-18-903(3) (2005); Vt. Stat. Ann. tit. 18, §§ 9331, 9934 (2006). In some states it is unclear whether genetic discrimination laws apply to disability income insurance. See, e.g., Mich. Comp. Laws § 500.3407b (2006); N.J. Stat. Ann. § 17B:30–12(F) (West 2006) (explaining that unfair discrimination includes the “application of the results of a genetic test [in a manner] not reasonably related to anticipated claim experience”); Wyo. Stat. § 26-19-107 (2006) (addressing genetic information's use in group policies, but not individual policies). However, there are many states that specifically exclude disability income insurance from their coverage. See, e.g., Ark. Code. Ann. § 23-66-320 (West 2006); Colo. Rev. Stat. Ann. § 10-3-1104.7 (West 2006); Conn. Gen. Stat. §§ 38(A).816, 38(A).469 (2006); Del. Code. Ann. Tit.18, § 2317 (2006); Fla. Stat. Ann. § 627.4301(2)(C) (West 2006); Ga. Code Ann. § 33-54-7 (West 2006); Haw. Rev. Stat. § 431:10A-118 (2005); Idaho Code Ann. § 41–2221 (2006); Ind. Code Ann. § 27-8-26-1 (West 2006); Kan. Stat. Ann. § 40–2259(C) (2005); La. Rev. Stat. Ann. § 22:213.7(G) (2006); Md. Code Ann. [Ins.] § 27–909 (West 2006); Minn. Stat. §§ 62A.011, 72A.139 (2006); Mo Rev. Stat. §375.1303 (2006); Neb. Rev. Stat. § 44–787 (2005); N.H. Rev. Stat. Ann. §§ 141-H:1, 3, 4 (2006); N.M. Stat. Ann. § 24-21-3 (West 2006); N.C. Gen. Stat. § 58-3-215 (2006); N.Y. Ins. Law. § 2615 (McKinney 2006); Okla. Stat. Ann. Tit. 36, § 3614.1 (2006); Or. Rev. Stat. §§ 746.135, 192.531 (West 2005); R.I. Gen. Laws §§ 27-18-52, 27-18-52.1 (2005); S.C. Code Ann. § 38-93-20 (2005); S.D. Codified Laws §§ 58-1-24, 58-1-25, 58-18-87 (2006); Texas Ins. Code Ann. § 21.73 (Vernon 2006); Va. Code Ann. § 38.2–508.4 (2006); Wis. Stat. §§ 632.749, 631–89(3) (2005).Google Scholar
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Contemplating an extension of the regulatory framework of HIPAA to disability insurance, Robert Jerry has advocated for just this sort of reform, suggesting that the distinction between group and individual insurance might serve as the appropriate basis on which to draw a line between segments of the disability insurance market in which insurers can and cannot use genetic information. Jerry, R. H. II, “Life, Health and Disability Insurance: Understanding the Relationships,” Journal of Law, Medicine & Ethics 35, no. 2, Supplement (2007): 7988.Google Scholar
See also Testimony of Rowe, John W. M.D., Chairman and CEO, Aetna, Inc., before the House Judiciary Subcommittee on the Constitution, September 12, 2002, available at <http://www.aetna.com/news/2002/pr_20020912.htm> (last visited February 23, 2007) (health plans should not determine eligibility based on genetic testing, “[r]equest or require genetic testing results as a condition to providing…coverage…[or] [u]se genetic testing for risk selection or risk classification”).+(last+visited+February+23,+2007)+(health+plans+should+not+determine+eligibility+based+on+genetic+testing,+“[r]equest+or+require+genetic+testing+results+as+a+condition+to+providing…coverage…[or]+[u]se+genetic+testing+for+risk+selection+or+risk+classification”).>Google Scholar