See NIH-DOE Working Group on Ethical, Legal, and Social Implications of Human Genome Research, Genetic Information and Health Insurance: Report of the Task Force on Genetic Information and Insurance, NIH Pub. No. 93-3686, May 10, 1993. For other analyses of genetics and health insurance, see Office of Technology Assessment, U.S. Congress, Genetic Tests and Health Insurance: Results of a Survey – Background Paper, OTA-BP-BA-98 (Washington, D.C.: U.S. Government Printing Office, October 1992); Murray, T. H., “Genetics and the Moral Mission of Health Insurance,” Hastings Center Report 22, no. 6 (1992): 12–17; Kass, N. E., “Insurance for the Insurers: The Use of Genetic Tests,” Hastings Center Report 22, no. 6 (1992): 6–11; Jacobi, J. V., “Symposium: Genes and Disability: Defining Health and the Goals of Medicine: Genetic Discrimination in a Time of False Hopes,” Florida State University Law Review 30 (2003): 363–399, at 391; Jecker, N. S., “Genetic Testing and the Social Responsibility of Private Health Insurance Companies,” Journal of Law, Medicine & Ethics 21 (1993): 109–116; Hudson, K. L. et al., “Genetic Discrimination and Health Insurance: An Urgent Need for Reform,” Science 270 (1996): 391–393; Jacobi, J. V., “The Ends of Health Insurance,” University of California Davis Law Review 30 (1997): 311–404; Glazier, A. K., “Genetic Predispositions, Prophylactic Treatments and Private Health Insurance: Nothing Is Better Than a Good Pair of Genes,” American Journal of Law & Medicine 23 (1997): 45–68; Kass, N. E., “The Implications of Genetic Testing for Health and Life Insurance,” in Rothstein, M. A., ed., Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era (New Haven: Yale University Press, 1997): 299–316; Abraham, K. S., “Understanding Prohibitions Against Genetic Discrimination in Insurance,” Jurimetrics 40 (1999): 123–128; Hall, M. A. and Rich, S. S., “Laws Restricting Health Insurers' Use of Genetic Information: Impact on Genetic Discrimination,” American Journal of Human Genetics 66 (1999): 293–307.Google Scholar

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See, e.g., Ark. Code Ann. §23-66-320 (West 2006) (exempting life insurers); Colo. Rev. Stat. Ann. §10-3-1104.7 (West 2006); Ind. Code Ann. §27-8-26-1 (LexisNexis 2006) (exempting life insurers); La. Rev. Stat. Ann. §22:213.7(G) (2006) (exempting life insurers); Me. Rev. Stat. Ann. tit. 24, §2159-C (2006) (allowing insurers issuing life insurance to use genetic information in a manner reasonably related to anticipated claims); Md. Code Ann., [Ins.] §27–909 (West 2006) (exempting life insurers); Minn. Stat. § 72A.139 (2006); Neb. Rev. Stat. §44–787 (2005); N.H. Rev. Stat. Ann. §§141-H:4, 141-H:5 (2006); N.M. Stat. Ann. §24-21-4 (2006) (exempting life insurers); Wis. Stat. § 631.89(3) (West 2005). For commentary see, for example, Bornstein, R., “Genetic Discrimination, Insurability and Legislation: A Closing of the Legal Loopholes,” Journal of Law and Policy 4 (1996): 551–610, at 589 (arguing that state laws are moving away from restrictions on the use of genetic information in life insurance); Johnson, A. and Calvo, C., “Life, Disability and Long-Term Care Insurance,” in National Council of State Legislatures Genetics Brief 9 (2002) (existing laws restrict rather than ban use of genetic information in life insurance); Cox, K. et al., “Model Act for Genetic Privacy and Control (MAGPAC),” Iowa Law Review 88 (2002): 121–161 (model act allowing life insurers to use genetic information for underwriting but not other purposes).Google Scholar

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For commentators addressing genetic testing in disability insurance, see Berry, R. M., “The Human Genome Project and the End of Insurance,” University of Florida Journal of Law and Public Policy 7 (1996): 205–256; Pokorski, R. J., “Insurance Underwriting in the Genetic Era,” American Journal of Human Genetics 60 (1997): 205–216; Lehpomer, P. J., “Principles of Risk: Health, Disability, Life,” in Genetic Testing: Implications for Insurance (Schaumberg, IL: The Actuarial Foundation, 1998): 5–8; McGoodwin, W. L., “Genetic Testing in Life and Disability Insurance,” Brief, Fall 1998: at 24; Meyer, R. J., “General Position of the American Council of Life Insurance on Genetic Information and Genetic Tests and Life and Disability Income Insurance,” Journal of Insurance Regulation (1998): 66; Pokorski, R. J., “Fairness, Equity, and Justice,” in Genetic Testing: Implications for Insurance (Schaumberg, IL: The Actuarial Foundation, 1998): 79–83; Jerry, R., “Health Insurers' Use of Genetic Information: A Missouri Perspective on a Changing Regulatory Landscape,” Missouri Law Review 64 (1999): 759–788; see Johnson, and Calvo, , supra note 4; Daniels, supra note 5.Google Scholar

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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. § 20–448 (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): 79–88.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