San Diego Business Journal
June 27, 2008
A simple cheek swab and a few hundred dollars can reveal a person's predisposition to everything from breast cancer to hair loss.
The information is fairly easy to obtain and is becoming more simplistic to process, in part because of systems used by San Diego-based Illumina Inc. Illumina supplies gene-reading technologies to Mountain View-based 23andMe Inc. and deCode genetics of Iceland, which are personal genomics companies.
But complications exist when it comes to an individual's right to privacy. Differing opinions about whether employers and other health insurers should be privy to information about a person's predisposition to disease and other health conditions has created a push for state and federal guidelines on the matter.
On May 21, President Bush signed the Genetic Information Nondiscrimination Act of 2008 into law, essentially modifying existing laws and adding new ones to better protect an individual's privacy. The law prohibits group health plans and health insurers from denying coverage to healthy individuals based solely on their genetic predisposition to developing diseases or conditions. It also bars insurers from raising premiums on health plans based on genetic predisposition.
Andrew Serwin, a San Diego partner with Foley & Lardner LLP and chair of the law firm's privacy, security and information management practice, says the rapid evolution of genetic research prompted reaction at the federal level.
"I think it wasn't an issue that was a hot button issue in the past," Serwin said. "But now that the science has advanced more ... that is why you see some activity on the issue."
Tools to sequence DNA have evolved rapidly in recent years, ever since the multinational effort to map the human genome, known as the Human Genome Project.
Today, microarrays used by companies such as Illumina have the ability to scan for more than 1 million genetic markers in a matter of hours.
The federal government, which failed to pass similar legislation in congressional sessions dating back to the early 1990s, took up the issue again following concerns about the prevalence of genetic information.
State laws have already sought to regulate the use or misuse of genetic test results in regard to health and life insurance.
WellPoint Inc., a large, publicly traded health insurer that contracts with the Blue Cross and Blue Shield Association, says it does not use predictive genetic information to set premium rates or as a condition of eligibility for coverage.
While health insurers have been quick to point out that they don't intend to use genetic information for underwriting and premium adjustment purposes, some employers have suggested they could benefit from the information.
Serwin says changes to the definitions under the Health Insurance Portability and Accountability Act of 1996, known as HIPAA, to include genetic information and new definitions regarding genetic testing, among others, may not take effect for up to a year.
Once effective, Serwin says the new law could serve as an impetus for increased insurance discrimination lawsuits in the state.
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