February 10, 2020

Florida House Passes Bill Prohibiting Life Insurer Use of Genetic Information

By Josephine Cicchetti and Gail J. Kamal

On January 29, the Florida House of Representatives passed a bill (HB 1189) that would prohibit life and long-term care insurers from canceling, limiting, or denying coverage or adjusting premium rates based on genetic information.

Specifically, the bill would amend Florida Statute 627.4301, which currently prohibits the use of genetic information in the health insurance context. The current statute, much like the federal Genetic Information Nondiscrimination Act, prohibits health insurers from using consumers’ genetic information to make decisions about eligibility for health insurance or the health insurance premium, contribution amounts, or coverage terms. However, the statute presently contains an express carve out for life insurers, stating that its restrictions do “not apply to the underwriting or issuance of a life insurance policy, disability income policy, long-term care policy, accident-only policy, hospital indemnity or fixed indemnity policy, dental policy, or vision policy.”

As passed by the Florida House, HB 1189 would drastically change that. As amended, the statute would remove the carve outs for life, disability, and long-term care insurance. Specifically, the statute would state, “In the absence of a diagnosis of a condition related to genetic information, health insurers, life insurers, and long-term care insurers authorized to transact insurance in this state may not cancel, limit, or deny coverage or establish differentials in premium rates, based on such information.” Additionally, those insurers would be prohibited from requiring or soliciting genetic information, using genetic test results, or considering a person’s decisions or actions relating to genetic testing in any manner for any insurance purpose.

The Senate has also taken up this issue, where a companion bill (SB 1564) is similarly moving quickly and is currently on the Judiciary Committee’s agenda. That bill specifies that “genetic information” includes the results of direct-to-consumer commercial genetic testing. However, the Senate bill outlines with greater detail than the House bill how genetic information may be used by life insurers. For example, the Senate bill provides that life insurers may use genetic information for underwriting purposes only if (1) genetic information is contained in the medical record, (2) the use of any genetic testing results is limited to what is in the medical record, (3) the genetic information is relevant to a potential medical condition that impacts mortality or morbidity risk, and (4) the genetic information is related to expected mortality or morbidity based on sound actuarial principles or reasonably expected experience.

If passed by both houses, a Florida bill along these lines would become the latest of several states including California, Vermont, and Maine to restrict the use of genetic information by life insurers. However, the Senate bill provides more clarity as to what are considered permitted or prohibited actions relating to genetic information. Some critics of the bill (particularly the House version) view it as too broad and prohibitive, which could lead to disruption in the market and higher prices for consumers. Faegre Drinker will continue to monitor these developments.

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