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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
ENGROSSED SENATE
BILL NO. 378 By: Rosino, Stanley and
Hamilton of the Senate
and
Bush, Martinez, Townley and
Munson of the House
An Act relating to organ donation and anatomical
gifts; creating Everett ’s Law; providing short title;
defining terms; specifying applicability of act;
prohibiting certain acts by covered entity; allowing
covered entity to take disability into account under
certain conditions; prohibiting covered entity from
considering certain factor under specified condition;
requiring covered entity to make certain
modifications to policies, practices or procedures;
requiring covered entity to ensure certain
protections related to medical services; construing
act; requiring certain compliance with federal law;
providing for certain civil action; requiring court
to give certain priority and expedited review;
authorizing court to grant certain relief; providing
intent; defining terms; prohibiting certain actions
by health carrier; specifying that certain amendment
to collective bargaining agreement does not
constitute termination; construing act; providing for
codification; and providing an effective date .
BE IT ENACTED BY THE PEOP LE OF THE STATE OF OKLAHOMA:
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SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 2200.28 of Title 63, unless
there is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as “Everett’s Law”.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 2200.29 of Title 63, unless
there is created a duplication in numbering, reads as follows:
As used in this act:
1. “Anatomical gift” means a donation of all or part of a human
body to take effect after the donor ’s death for the purpose of
transplantation or transfusion ;
2. “Auxiliary aids or services ” means an aid or service that is
used to provide info rmation to an individual with a cognitive,
developmental, intellectual, neurological or physical disability and
is available in a format or manner that allows the individual to
better understand the information. An auxiliary aid or service may
include:
a. qualified interpreters or other effective methods of
making aurally delivered materials available to
persons with hearing impairments ,
b. qualified readers, taped texts, texts in accessible
electronic format or other effective methods of making
visually delivered materials available to persons with
visual impairments,
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c. supported decision-making services, including:
(1) the use of a support individual to communicate
information to the individual with a disability,
ascertain the wishes of the individua l, or assist
the individual in making decisions ,
(2) the disclosure of information to a legal
guardian, authorized representative or another
individual designated by the individual with a
disability for such purpose, as long as the
disclosure is consistent wit h state and federal
law including the Health Insurance Portability
and Accountability Act of 1996, 42 U.S.C. 1320d
et seq. and any regulations promulgated by the
United States Department of Health and Human
Services to implement the act ,
(3) if an individual has a court-appointed guardian
or other individual responsible for making
medical decisions on behalf of the individual,
any measures used to ensure that the individual
is included in decisions involving the
individual’s health care and that medical
decisions are in accordance with the individual ’s
own expressed interests , or
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(4) any other aid or service that is used to provide
information in a format that is easily
understandable and accessible to individuals with
cognitive, neurological, developmental or
intellectual disabilities, including assistive
communication technology ;
3. “Covered entity” means:
a. any licensed provider of health care services
including licensed health care practitioners,
hospitals, nursing facilities, laboratories,
intermediate care facilities, psychiatric residential
treatment facilities, institutions for individuals
with intellectual or developmental disabilities and
prison health centers , or
b. any entity responsible for matching anatomical gift
donors to potential recipients ;
4. “Disability” has the meaning stated in the Americans with
Disabilities Act of 1990, as amended by the ADA Amendments Act of
2008, 42 U.S.C. § 12102 ;
5. “Organ transplant” means the transplantation or transfusion
of a part of a human body into the bo dy of another for the purpose
of treating or curing a medical condition ; and
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6. “Qualified recipient” means an individual who has a
disability and meets the essential eligibility requirements for the
receipt of an anatomical gift with or without any of th e following:
a. individuals or entities available to support and
assist the individual with an anatomical gift or
transplantation,
b. auxiliary aids or services , or
c. reasonable modifications to the policies, practices or
procedures of a covered entity in cluding modifications
to allow for either or both of the following:
(1) communication with one or more individuals or
entities available to support or assist with the
recipient’s care and medication after surgery or
transplantation, or
(2) consideration of support networks available to
the individual including family, friends and home
and community-based services including home and
community-based services funded through Medicaid,
Medicare, another health plan in which the
individual is enrolled or any prog ram or source
of funding available to the individual, when
determining whether the individual is able to
comply with post-transplant medical requirements.
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SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statut es as Section 2200.30 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. The provisions of this section shall apply to all stages of
the organ transplant process.
B. A covered entity shall not, solely on the basis of an
individual’s disability:
1. Consider the individual ineligible to receive an anatomical
gift or organ transplant ;
2. Deny medical services or other services related to organ
transplantation including diagnostic services, evaluation, surgery,
counseling, post-operative treatment and services ;
3. Refuse to refer the individual to a transplant center or
other related specialist for the purpose of being evaluated for or
receiving an organ transplant ;
4. Refuse to place a qualified recipient on an organ tra nsplant
waiting list;
5. Place a qualified recipient on an organ transplant waiting
list at a lower priority position than the position at which the
individual would have been placed if the individual did not have a
disability; or
6. Refuse to accept health insurance coverage for any procedure
associated with being evaluated for or receiving an anatomical gift
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or organ transplant including post -transplantation and post -
transfusion care.
C. Notwithstanding subsection B of this section, a covered
entity may take an individual ’s disability into account when making
treatment or coverage recommendations or decisions, solely to the
extent that the disability has been found by a physician or surgeon,
following an individualized evaluation of the individual, to b e
medically significant to the receipt of the anatomical gift.
D. If an individual has the necessary support system to assist
the individual in complying with post -transplant medical
requirements, a covered entity shall not consider the individual ’s
inability to independently comply with post -transplant medical
requirements to be medically significant for the purposes of
subsection C of this section.
E. A covered entity shall make reasonable modifications to its
policies, practices or procedures to allow individuals with
disabilities access to transplantation -related services including
diagnostic services, surgery, coverage, post -operative treatment and
counseling, unless the entity can demonstrate that making such
modifications would fundamentally alter t he nature of such services.
F. A covered entity shall take steps necessary to ensure that
an individual with a disability is not denied medical services or
other services related to organ transplantation including diagnostic
services, surgery, post -operative treatment or counseling, due to
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the absence of auxiliary aids or services, unless the covered entity
demonstrates that taking the steps would fundamentally alter the
nature of the medical services or other services related to organ
transplantation or w ould result in an undue burden for the covered
entity.
G. Nothing in this section shall be construed to require a
covered entity to make a referral or recommendation for or perform a
medically inappropriate organ transplant.
H. A covered entity shall oth erwise comply with the
requirements of Titles II and III of the Americans with Disabilities
Act of 1990, as amended by the ADA Amendments Act of 2008.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes a s Section 2200.31 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. Whenever it appears that a covered entity has violated or is
in violation of any of the provisions of this act, the affected
individual may commence a civil action for injunctive and other
equitable relief against the covered entity for purposes of
enforcing compliance with this act. The action may be brought in
the district court for the county where the affected individual
resides or resided or was de nied the organ transplant or referral.
B. In an action brought under this act, the court shall give
priority on its docket and expedited review, and may grant
injunctive or other equitable relief including:
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1. Requiring auxiliary aids or services to be m ade available
for a qualified recipient ;
2. Requiring the modification of a policy, practice or
procedure of a covered entity ; or
3. Requiring facilities be made readily accessible to and
usable by a qualified recipient.
C. Nothing in this act is intended to limit or replace
available remedies under the Americans with Disabilities Act or any
other applicable law.
D. This act does not create a right to compensatory or punitive
damages against a covered entity.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 2200.32 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. For purposes of this section:
1. “Covered person” means a policyholder, subscriber, enrol lee,
member or individual covered by a health benefit plan ;
2. “Health benefit plan” means a policy, contract, certificate,
or agreement entered into, offered or issued by a health carrier to
provide, deliver, arrange for, pay for or reimburse any of the costs
of health care services. Health benefit plan shall not include a
plan providing coverage for excepted benefits and short term
policies that have a term of less than twelve (12) months; and
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3. “Health carrier” means an entity subject to the insuranc e
laws and regulations of this state, or subject to the jurisdiction
of the Insurance Commissioner, that contracts or offers to contract
to provide, deliver, arrange for, pay fo r or reimburse any of the
costs of health care services including through a hea lth benefit
plan as defined in this section, and shall include a sickness and
accident insurance company, a health maintenance organization, a
preferred provider organization or any similar entity, or any other
entity providing a plan of health insurance o r health benefits.
B. A health carrier that provides coverage for anatomical
gifts, organ transplants or related treatment and services shall
not:
1. Deny coverage to a covered person solely on the basis of the
person’s disability;
2. Deny to a patient eligibility, or continued eligibility, to
enroll or to renew coverage under the terms of the health benefit
plan, solely for the purpose of avoiding the requirements of this
section;
3. Penalize or otherwise reduce or limit the reimbursement of
an attending provider, or provide monetary or nonmonetary incentives
to an attending provider, to induce such provider to provide care to
an insured or enrollee in a manner inconsistent with this section ;
or
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4. Reduce or limit coverage benefits to a patient for the
medical services or other services related to organ transplantation
performed pursuant to this section as determined in consultation
with the attending physician and patient.
C. In the case of a health benefit plan maintained pursuant to
one or more collective bargaining agreements between employee
representatives and one or more employers, any plan amendment made
pursuant to a collective bargaining agreement relating to the plan
which amends the plan solely to conform to any requirement imposed
pursuant to this section shall not be treated as a termination of
the collective bargaining agreement.
D. Nothing in this section shall be construed to require a
health carrier to provide coverage for a medically inappropriate
organ transplant.
E. The Insurance Commissioner shall promulgate rules to
implement the provisions of this section.
SECTION 6. This act shall become effective November 1, 2021.
COMMITTEE REPORT BY: COMMITTEE ON INSURANCE, dated 04/01/2021 - DO
PASS.