While BIPA remains a popular cause of action, the plaintiff class action bar is now filing class actions against insurers under GIPA, the Illinois Genetic Information Privacy Act ¹, for using “genetic information” for underwriting purposes. Section 20 of GIPA provides in relevant part that an “insurer” shall not use protected health information that is “genetic information” for underwriting purposes, including the assessment of an individual’s eligibility or the computation of premium or contribution amounts. ² GIPA defines “genetic information” to include “the manifestation of a disease or disorder in family members.” ³

GIPA defines “underwriting purposes” as: (1) rules for, or determination of, eligibility (including enrollment and continued eligibility) for, or determination of, benefits under the plan, coverage, or policy (including changes in deductibles or other cost-sharing mechanisms in return for activities such as completing a health risk assessment or participating in a wellness program); (2) the computation of premium or contribution amounts under the plan, coverage, or policy (including discounts, rebates, payments in kind, or other premium differential mechanisms in return for activities, such as completing a health risk assessment or participating in a wellness program); (3) the application of any pre-existing condition exclusion under the plan, coverage, or policy; and (4) other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits. ⁴

Plaintiffs in the recently filed class actions have alleged that insurers are requiring applicants for life policies to undergo physical exams in which they are required to answer questions regarding their family medical history and that this information is disclosed to the insurer. Plaintiffs contend these family medical histories are genetic information under GIPA. Plaintiffs allege that insurers are using this genetic information to assess eligibility for life insurance coverage and to compute the premium for the policy in violation of Section 20 of GIPA.

GIPA provides for statutory damages of the greater of $2,500 or actual damages for a negligent violation of the Act, or the greater of $15,000 or actual damages for an intentional or reckless violation of the Act. ⁵ GIPA also allows a prevailing plaintiff to recover attorney’s fees and costs and for injunctive relief. In the context of a class action, the statutory damages can quickly add up to significant amounts.

GIPA class actions were recently filed in Cook and DuPage counties against four life insurance companies. One potential flaw in the theory of these complaints is that Section 20 of GIPA applies only to an “insurer,” which is a defined term under GIPA. Insurer is defined as: (i) an entity that is subject to the jurisdiction of the Director of Insurance and (ii) a managed care plan.” ⁶ While a life insurer is subject to the jurisdiction of the Director of Insurance, it is not a managed care plan (which is also a defined term in Section 10 of GIPA). Therefore an argument can be advanced that Section 20 of GIPA does not apply to life insurers.

While the battle plays out over whether life insurers are subject to Section 20 of GIPA, it is likely other insurers will face similar GIPA class actions.

[1] 410 ILCS 513/1 et seq.
[2] 410 ILCS 513/20(b). 
[3] 410 ILCS 513/10. 
[4] 410 ILCS 513/20 (b)(1-4). 
[5] 410 ILCS 513/40(a)(1)&(2).
[6] 410 ILCS 513/10.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.