By Anya Prince
Insurers have long been in the business of selling a variety of life insurance products to their customers, but a new trend has them promoting wellness and encouraging customers to make healthy lifestyle choices through benefits programs. John Hancock’s Vitality program, for example, offers customers a free Fitbit, savings on annual life insurance premiums, and other discounts and perks for meeting fitness goals.
Other insurers are joining in this wellness game, offering their own versions of incentives and access to wearables in exchange for fitness goals. At first blush, these programs are a classic win-win situation similar to that behind workplace wellness programs. Customers/employees get free wearables. Win! Customers/employees (ideally) live longer due to healthy lifestyle choices. Win! Life insurers/employers have customers that pay premiums for more years before they die and a claim is paid out. Win!
Of course, hidden beneath the surface are host of concerns about privacy, how insurers will use the data, and equitable access to the benefits of the program for all consumers. Yet, in spite of these concerns—or perhaps because of the backend ways that insurers can use the copious data collected—such insurance wellness programs are likely to continue to grow.
One potential area of growth for life insurer wellness programs is into the direct-to-consumer (DTC) genetic testing arena. Several DTC companies are beginning to market genetic testing products to life insurers, with the goal of them then offering the products to their consumers. As with the wearable programs, any genetic testing in the insurance realm raises a host of privacy and data use concerns. While insurance consumer may only receive information about a handful of genetic conditions, what data would the insurance company have access to? Would they be able to sequence the whole genome? If so, how would they use that data to track claims and how would they incorporate that into current or future underwriting?
It is not new for life insurers to utilize existing genetic information of their applicants. While most life insurers do not ask applicants whether they have ever taken a genetic test, they can learn genetic information from medical records or during follow-up on applications questions about family history. What is new is insurers potentially acting as a third party intermediary in the commercial genetic testing space. Given the novelty of such an arrangement, the regulatory landscape overseeing such programs is murky at best. For example, the three primary laws that regulate employer-sponsored wellness programs, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Patient Protection and Affordable Care Act (ACA), either clearly or arguably do not apply to life-insurer wellness programs. Other state laws, such as unfair discrimination and anti-rebate laws, could potentially apply, but have not been tested in this arena.
Therefore, policyholders who access genetic testing through life insurance wellness programs may have little protection with regards to privacy and control over how their data is subsequently used by the life insurers. Greater regulation is needed in this space to protect policyholders from discrimination, privacy violations, and the potential for coercion.
This post is part of a digital symposium hosted by Bill of Health in conjunction with the Petrie-Flom Center’s 2019 Annual Conference, “Consuming Genetics: Ethical and Legal Considerations of New Technologies.”
Anya Prince is an Associate Professor of Law at the University of Iowa College of Law and a member of the University of Iowa Genetics Cluster.