Background:

Organ transplants are surgical procedures in which functioning human organs are transferred to persons experiencing organ failure. Donated organs (otherwise known as anatomical gifts) are matched with persons needing organs through organ procurement organizations and the United Network for Organ Sharing.

Organ transplants are performed in organ transplant centers. Prior to a transplant, an organ transplant center evaluates the patient to ensure that the patient is suitable for the transplant. Criteria used by transplant centers can include medical history, physical examination, psychological examination, and compatibility tests.

Health care facilities are prohibited from discriminating against patients on the basis of disability by federal and state law, including the federal Americans with Disabilities Act, the federal Rehabilitation Act, and the state Law Against Discrimination.

Summary of Bill:

Discrimination Prohibitions.

A health care provider or entity responsible for matching anatomical gift donors and recipients may not, solely on the basis of a qualified individual's mental or physical disability:

deem the individual ineligible to receive an anatomical gift or organ transplant;
deny medical or related organ transplantation services;
refuse to refer the individual to a transplant center or other related specialist for evaluation or organ transplantation;
refuse to place an individual on an organ transplant waiting list;
place an individual at a lower position on an organ transplant waiting list; or
decline insurance coverage for any procedure associated with the receipt of the anatomical gift.

An entity may take a person's disability into account when making treatment or coverage recommendations or decisions to the extent that a physician has evaluated the person and found that his or her physical or mental disability is medically significant to the provision of the anatomical gift. A person's inability to comply with post-transplant medical requirements is not medically significant if he or she has the necessary support system to comply with those requirements.

A health care provider or entity responsible for matching anatomical gift donors and recipients must make reasonable modifications to policies, practices, or procedures, when necessary to make transplant-related services available to qualified individuals with disabilites, unless doing so would fundamentally alter the nature of the services. The provider or entity must also take necessary steps to ensure that no qualified individual with a disability is denied transplant-related services because of the absence of auxiliary aids and services, unless doing so would fundamentally alter the nature of the services being offered or would result in an undue burden.

The requirements imposed on health care providers or entities responsible for matching anatomical gift donors and recipients do not require referrals or recommendations for, or the performance of, medically inappropriate organ transplants.

Enforcement.

A person who has been subjected to prohibited discrimination may bring a civil action in a court of competent jurisdiction to enjoin further violations and recover costs of the suit, including reasonable attorneys' fees. The court must give such an action priority and proceed expeditiously with the action.

Definitions.

A qualified individual is defined as a person who meets the essential eligibility requirements for the receipt of an anatomical gift with or without available support networks, auxiliary aids and services, or reasonable modifications to policies or practices.

Auxiliary aids and services include effective methods of delivering materials to persons with hearing or vision impairments, provision of information in a format that is accessible for persons with cognitive, neurological, developmental, or intellectual disabilities, provision of supported decision-making services, and acquisition or modification of equipment or devices.

Reasonable modifications to policies or practices include communication with persons responsible for post-surgical and post-transplantation care and consideration of support networks available to the qualified individual.

Supported decision making means the use of a support person to assist a qualified individual in making decisions, communicate information to the individual, or ascertain the individual's wishes. Supported decision making includes the inclusion of any person chosen by the qualified individual (including an attorney or health care proxy), permitting the individual to designate a person to support the person to communicate, process information, or make medical decisions, providing auxiliary aids and services to facilitate the individual's ability to communicate and process health-related information, providing information to persons designated by the individual, providing health information that is readily understandable by the individual, and working with court-appointed guardians or other individuals responsible for making medical decisions on behalf of the individual to ensure that he or she is included in health care decisions and that medical decisions are in accordance with his or her expressed interests.