26 U.S.C. § 9802 — Prohibiting discrimination against indi-

Page 4177 TITLE 26—INTERNAL REVENUE CODE § 9802 sistance provided on or after that date, with certain ex- ceptions, see section 3 of Pub. L. 111–3, set out as an Ef- fective Date note under section 1396 of Title 42, The Public Health and Welfare. EFFECTIVE DATE OF 1997 AMENDMENT Amendment by Pub. L. 105–34 applicable with respect to group health plans for plan years beginning on or after Jan. 1, 1998, see section 1531(c) of Pub. L. 105–34, set out as a note under section 4980D of this title. EFFECTIVE DATE Pub. L. 104–191, title IV, § 401(c), Aug. 21, 1996, 110 Stat. 2082, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [enacting this subtitle] shall apply to plan years beginning after June 30, 1997. ‘‘(2) DETERMINATION OF CREDITABLE COVERAGE.— ‘‘(A) PERIOD OF COVERAGE.— ‘‘(i) IN GENERAL.—Subject to clause (ii), no period before July 1, 1996, shall be taken into account under chapter 100 of the Internal Revenue Code of 1986 (as added by this section) in determining cred- itable coverage. ‘‘(ii) SPECIAL RULE FOR CERTAIN PERIODS.—The Secretary of the Treasury, consistent with section 104 [42 U.S.C. 300gg–92 note], shall provide for a process whereby individuals who need to establish creditable coverage for periods before July 1, 1996, and who would have such coverage credited but for clause (i) may be given credit for creditable cov- erage for such periods through the presentation of documents or other means. ‘‘(B) CERTIFICATIONS, ETC.— ‘‘(i) IN GENERAL.—Subject to clauses (ii) and (iii), subsection (e) of section 9801 of the Internal Rev- enue Code of 1986 (as added by this section) shall apply to events occurring after June 30, 1996. ‘‘(ii) NO CERTIFICATION REQUIRED TO BE PROVIDED BEFORE JUNE 1, 1997.—In no case is a certification re- quired to be provided under such subsection before June 1, 1997. ‘‘(iii) CERTIFICATION ONLY ON WRITTEN REQUEST FOR EVENTS OCCURRING BEFORE OCTOBER 1, 1996.—In the case of an event occurring after June 30, 1996, and before October 1, 1996, a certification is not re- quired to be provided under such subsection unless an individual (with respect to whom the certifi- cation is otherwise required to be made) requests such certification in writing. ‘‘(C) TRANSITIONAL RULE.—In the case of an indi- vidual who seeks to establish creditable coverage for any period for which certification is not required be- cause it relates to an event occurring before June 30, 1996— ‘‘(i) the individual may present other credible evi- dence of such coverage in order to establish the pe- riod of creditable coverage; and ‘‘(ii) a group health plan and a health insurance issuer shall not be subject to any penalty or en- forcement action with respect to the plan’s or issuer’s crediting (or not crediting) such coverage if the plan or issuer has sought to comply in good faith with the applicable requirements under the amendments made by this section. ‘‘(3) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREE- MENTS.—Except as provided in paragraph (2), in the case of a group health plan maintained pursuant to 1 or more collective bargaining agreements between em- ployee representatives and one or more employers rati- fied before the date of the enactment of this Act [Aug. 21, 1996], the amendments made by this section shall not apply to plan years beginning before the later of— ‘‘(A) the date on which the last of the collective bargaining agreements relating to the plan termi- nates (determined without regard to any extension thereof agreed to after the date of the enactment of this Act), or ‘‘(B) July 1, 1997. For purposes of subparagraph (A), any plan amendment made pursuant to a collective bargaining agreement re- lating to the plan which amends the plan solely to con- form to any requirement added by this section shall not be treated as a termination of such collective bar- gaining agreement. ‘‘(4) TIMELY REGULATIONS.—The Secretary of the Treasury, consistent with section 104, shall first issue by not later than April 1, 1997, such regulations as may be necessary to carry out the amendments made by this section. ‘‘(5) LIMITATION ON ACTIONS.—No enforcement action shall be taken, pursuant to the amendments made by this section, against a group health plan or health in- surance issuer with respect to a violation of a require- ment imposed by such amendments before January 1, 1998, or, if later, the date of issuance of regulations re- ferred to in paragraph (4), if the plan or issuer has sought to comply in good faith with such require- ments.’’ § 9802. Prohibiting discrimination against indi- vidual participants and beneficiaries based on health status (a) In eligibility to enroll (1) In general Subject to paragraph (2), a group health plan may not establish rules for eligibility (includ- ing continued eligibility) of any individual to enroll under the terms of the plan based on any of the following factors in relation to the individual or a dependent of the individual: (A) Health status. (B) Medical condition (including both physical and mental illnesses). (C) Claims experience. (D) Receipt of health care. (E) Medical history. (F) Genetic information. (G) Evidence of insurability (including conditions arising out of acts of domestic vi- olence). (H) Disability. (2) No application to benefits or exclusions To the extent consistent with section 9801, paragraph (1) shall not be construed— (A) to require a group health plan to pro- vide particular benefits (or benefits with re- spect to a specific procedure, treatment, or service) other than those provided under the terms of such plan; or (B) to prevent such a plan from estab- lishing limitations or restrictions on the amount, level, extent, or nature of the bene- fits or coverage for similarly situated indi- viduals enrolled in the plan or coverage. (3) Construction For purposes of paragraph (1), rules for eligi- bility to enroll under a plan include rules de- fining any applicable waiting periods for such enrollment. (b) In premium contributions (1) In general A group health plan may not require any in- dividual (as a condition of enrollment or con- tinued enrollment under the plan) to pay a premium or contribution which is greater than such premium or contribution for a simi- larly situated individual enrolled in the plan on the basis of any factor described in sub- Page 4178 TITLE 26—INTERNAL REVENUE CODE § 9802 section (a)(1) in relation to the individual or to an individual enrolled under the plan as a dependent of the individual. (2) Construction Nothing in paragraph (1) shall be con- strued— (A) to restrict the amount that an em- ployer may be charged for coverage under a group health plan except as provided in paragraph (3); or (B) to prevent a group health plan from es- tablishing premium discounts or rebates or modifying otherwise applicable copayments or deductibles in return for adherence to programs of health promotion and disease prevention. (3) No group-based discrimination on basis of genetic information (A) In general For purposes of this section, a group health plan may not adjust premium or con- tribution amounts for the group covered under such plan on the basis of genetic infor- mation. (B) Rule of construction Nothing in subparagraph (A) or in para- graphs (1) and (2) of subsection (d) shall be construed to limit the ability of a group health plan to increase the premium for an employer based on the manifestation of a disease or disorder of an individual who is enrolled in the plan. In such case, the mani- festation of a disease or disorder in one indi- vidual cannot also be used as genetic infor- mation about other group members and to further increase the premium for the em- ployer. (c) Genetic testing (1) Limitation on requesting or requiring ge- netic testing A group health plan may not request or re- quire an individual or a family member of such individual to undergo a genetic test. (2) Rule of construction Paragraph (1) shall not be construed to limit the authority of a health care professional who is providing health care services to an in- dividual to request that such individual under- go a genetic test. (3) Rule of construction regarding payment (A) In general Nothing in paragraph (1) shall be con- strued to preclude a group health plan from obtaining and using the results of a genetic test in making a determination regarding payment (as such term is defined for the purposes of applying the regulations promul- gated by the Secretary of Health and Human Services under part C of title XI of the So- cial Security Act and section 264 of the Health Insurance Portability and Account- ability Act of 1996, as may be revised from time to time) consistent with subsection (a). (B) Limitation For purposes of subparagraph (A), a group health plan may request only the minimum amount of information necessary to accom- plish the intended purpose. (4) Research exception Notwithstanding paragraph (1), a group health plan may request, but not require, that a participant or beneficiary undergo a genetic test if each of the following conditions is met: (A) The request is made pursuant to re- search that complies with part 46 of title 45, Code of Federal Regulations, or equivalent Federal regulations, and any applicable State or local law or regulations for the pro- tection of human subjects in research. (B) The plan clearly indicates to each par- ticipant or beneficiary, or in the case of a minor child, to the legal guardian of such beneficiary, to whom the request is made that— (i) compliance with the request is vol- untary; and (ii) non-compliance will have no effect on enrollment status or premium or con- tribution amounts. (C) No genetic information collected or ac- quired under this paragraph shall be used for underwriting purposes. (D) The plan notifies the Secretary in writing that the plan is conducting activi- ties pursuant to the exception provided for under this paragraph, including a descrip- tion of the activities conducted. (E) The plan complies with such other con- ditions as the Secretary may by regulation require for activities conducted under this paragraph. (d) Prohibition on collection of genetic informa- tion (1) In general A group health plan shall not request, re- quire, or purchase genetic information for un- derwriting purposes (as defined in section 9832). (2) Prohibition on collection of genetic infor- mation prior to enrollment A group health plan shall not request, re- quire, or purchase genetic information with respect to any individual prior to such individ- ual’s enrollment under the plan or in connec- tion with such enrollment. (3) Incidental collection If a group health plan obtains genetic infor- mation incidental to the requesting, requiring, or purchasing of other information concerning any individual, such request, requirement, or purchase shall not be considered a violation of paragraph (2) if such request, requirement, or purchase is not in violation of paragraph (1). (e) Application to all plans The provisions of subsections (a)(1)(F), (b)(3), (c), and (d) and subsection (b)(1) and section 9801 with respect to genetic information, shall apply to group health plans without regard to section 9831(a)(2). (f) Special rules for church plans A church plan (as defined in section 414(e)) shall not be treated as failing to meet the re- Page 4179 TITLE 26—INTERNAL REVENUE CODE § 9803 quirements of this section solely because such plan requires evidence of good health for cov- erage of— (1) both any employee of an employer with 10 or less employees (determined without regard to section 414(e)(3)(C)) and any self-employed individual, or (2) any individual who enrolls after the first 90 days of initial eligibility under the plan. This subsection shall apply to a plan for any year only if the plan included the provisions de- scribed in the preceding sentence on July 15, 1997, and at all times thereafter before the be- ginning of such year. (g) Genetic information of a fetus or embryo Any reference in this chapter to genetic infor- mation concerning an individual or family mem- ber of an individual shall— (1) with respect to such an individual or fam- ily member of an individual who is a pregnant woman, include genetic information of any fetus carried by such pregnant woman; and (2) with respect to an individual or family member utilizing an assisted reproductive technology, include genetic information of any embryo legally held by the individual or family member. (Added Pub. L. 104–191, title IV, § 401(a), Aug. 21, 1996, 110 Stat. 2078; amended Pub. L. 105–34, title XV, § 1532(a), Aug. 5, 1997, 111 Stat. 1085; Pub. L. 110–233, title I, § 103(a)–(c), May 21, 2008, 122 Stat. 896, 897; Pub. L. 113–295, div. A, title II, § 220(aa), Dec. 19, 2014, 128 Stat. 4037.) Editorial Notes REFERENCES IN TEXT The Social Security Act, referred to in subsec. (c)(3)(A), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Part C of title XI of the Act is classified generally to part C (§ 1320d et seq.) of subchapter XI of chapter 7 of Title 42, The Public Health and Welfare. For complete classi- fication of this Act to the Code, see section 1305 of Title 42 and Tables. Section 264 of the Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (c)(3)(A), is section 264 of Pub. L. 104–191, which is set out as a note under section 1320d–2 of Title 42, The Pub- lic Health and Welfare. AMENDMENTS 2014—Subsecs. (f), (g). Pub. L. 113–295 redesignated subsec. (f) relating to genetic information of a fetus or embryo as (g). 2008—Subsec. (b)(2)(A). Pub. L. 110–233, § 103(a)(1), in- serted ‘‘except as provided in paragraph (3)’’ before semicolon. Subsec. (b)(3). Pub. L. 110–233, § 103(a)(2), added par. (3). Subsecs. (c) to (e). Pub. L. 110–233, § 103(b), added sub- secs. (c) to (e). Former subsec. (c) redesignated (f) relat- ing to special rules for church plans. Subsec. (f). Pub. L. 110–233, § 103(c), added subsec. (f) relating to genetic information of a fetus or embryo. Pub. L. 110–233, § 103(b), redesignated subsec. (c) as (f) relating to special rules for church plans. 1997—Subsec. (c). Pub. L. 105–34 added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110–233, title I, § 103(f)(2), May 21, 2008, 122 Stat. 899, provided that: ‘‘The amendments made by this section [enacting section 9834 of this title and amending this section and section 9832 of this title] shall apply with respect to group health plans for plan years beginning after the date that is 1 year after the date of the enactment of this Act [May 21, 2008].’’ EFFECTIVE DATE OF 1997 AMENDMENT Pub. L. 105–34, title XV, § 1532(b), Aug. 5, 1997, 111 Stat. 1085, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall take effect as if included in the amendments made by section 401(a) of the Health Insurance Portability and Account- ability Act of 1996 [Pub. L. 104–191].’’ REGULATIONS Pub. L. 110–233, title I, § 103(f)(1), May 21, 2008, 122 Stat. 899, provided that: ‘‘The Secretary of the Treas- ury shall issue final regulations or other guidance not later than 12 months after the date of the enactment of this Act [May 21, 2008] to carry out the amendments made by this section [enacting section 9834 of this title and amending this section and section 9832 of this title].’’ EFFECTIVE DATE Section applicable to plan years beginning after June 30, 1997, see section 401(c) of Pub. L. 104–191, set out as a note under section 9801 of this title. § 9803. Guaranteed renewability in multi- employer plans and certain multiple em- ployer welfare arrangements (a) In general A group health plan which is a multiemployer plan (as defined in section 414(f)) or which is a multiple employer welfare arrangement may not deny an employer continued access to the same or different coverage under such plan, other than— (1) for nonpayment of contributions; (2) for fraud or other intentional misrepre- sentation of material fact by the employer; (3) for noncompliance with material plan provisions; (4) because the plan is ceasing to offer any coverage in a geographic area; (5) in the case of a plan that offers benefits through a network plan, because there is no longer any individual enrolled through the employer who lives, resides, or works in the service area of the network plan and the plan applies this paragraph uniformly without re- gard to the claims experience of employers or a factor described in section 9802(a)(1) in rela- tion to such individuals or their dependents; or (6) for failure to meet the terms of an appli- cable collective bargaining agreement, to renew a collective bargaining or other agree- ment requiring or authorizing contributions to the plan, or to employ employees covered by such an agreement. (b) Multiple employer welfare arrangement For purposes of subsection (a), the term ‘‘mul- tiple employer welfare arrangement’’ has the meaning given such term by section 3(40) of the Employee Retirement Income Security Act of 1974, as in effect on the date of the enactment of this section. (Added Pub. L. 104–191, title IV, § 401(a), Aug. 21, 1996, 110 Stat. 2079.)