H.B. No. 119
AN ACT
relating to prohibiting organ transplant recipient discrimination
on the basis of certain disabilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Subchapter S, Chapter 161, Health
and Safety Code, is amended to read as follows:
SUBCHAPTER S. ALLOCATION OF KIDNEYS AND OTHER ORGANS AVAILABLE FOR
TRANSPLANT
SECTION 2. Section 161.471, Health and Safety Code, is
amended to read as follows:
Sec. 161.471. DEFINITIONS [DEFINITION]. In this
subchapter:
(1) "Auxiliary aids and services" means:
(A) qualified interpreters or other effective
methods of making aurally delivered materials available to
individuals with hearing impairments;
(B) qualified readers, taped texts, or other
effective methods of making visually delivered materials available
to individuals with visual impairments;
(C) provision of information in a format readily
accessible and understandable to individuals with cognitive,
neurological, developmental, or intellectual disabilities;
(D) acquisition or modification of equipment or
devices; and
(E) other services and actions similar to those
described by Paragraphs (A), (B), (C), and (D).
(2) "Disability" has the meaning assigned by the
Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et
seq.).
(3) "Health care facility" means a facility licensed,
certified, or otherwise authorized to provide health care in the
ordinary course of business, including a hospital, nursing
facility, laboratory, intermediate care facility, mental health
facility, transplant center, and any other facility for individuals
with intellectual or developmental disabilities.
(4) "Health care provider" means an individual or
facility licensed, certified, or otherwise authorized to provide
health care in the ordinary course of business or professional
practice, including a physician, hospital, nursing facility,
laboratory, intermediate care facility, mental health facility,
transplant center, and any other facility for individuals with
intellectual or developmental disabilities.
(5) "Organ [, "organ] procurement organization" means
an organization that is a qualified organ procurement organization
under 42 U.S.C. Section 273 that is currently certified or
recertified in accordance with that federal law.
SECTION 3. Subchapter S, Chapter 161, Health and Safety
Code, is amended by adding Section 161.473 to read as follows:
Sec. 161.473. DISCRIMINATION ON BASIS OF DISABILITY
PROHIBITED. (a) A health care provider may not, solely on the
basis of an individual's disability:
(1) determine an individual is ineligible to receive
an organ transplant;
(2) deny medical or other services related to an organ
transplant, including evaluation, surgery, counseling, and
postoperative treatment;
(3) refuse to refer the individual to a transplant
center or other related specialist for evaluation or receipt of an
organ transplant; or
(4) refuse to place the individual on an organ
transplant waiting list or place the individual at a position lower
in priority on the list than the position the individual would have
been placed if not for the individual's disability.
(b) Notwithstanding Subsection (a), a health care provider
may consider an individual's disability when making a treatment
recommendation or decision solely to the extent that a physician,
following an individualized evaluation of the potential transplant
recipient, determines the disability is medically significant to
the organ transplant. This section does not require a referral or
recommendation for, or the performance of, a medically
inappropriate organ transplant.
(c) A health care provider may not consider an individual's
inability to independently comply with post-transplant medical
requirements as medically significant for the purposes of
Subsection (b) if the individual has:
(1) a known disability; and
(2) the necessary support system to assist the
individual in reasonably complying with the requirements.
(d) A health care facility shall make reasonable
modifications in policies, practices, or procedures as necessary to
allow individuals with a disability access to organ
transplant-related services, including transplant-related
counseling, information, or treatment, unless the health care
facility can demonstrate that making the modifications would
fundamentally alter the nature of the services or would impose an
undue hardship on the facility. Reasonable modifications in
policies, practices, and procedures may include:
(1) communicating with persons supporting or
assisting with the individual's postsurgical and post-transplant
care, including medication; and
(2) considering the support available to the
individual in determining whether the individual is able to
reasonably comply with post-transplant medical requirements,
including support provided by:
(A) family;
(B) friends; or
(C) home and community-based services, including
home and community-based services funded by:
(i) Medicaid;
(ii) Medicare;
(iii) a health plan in which the individual
is enrolled; or
(iv) any other program or source of funding
available to the individual.
(e) A health care provider shall make reasonable efforts to
comply with the policies, practices, and procedures, as applicable,
developed by a health care facility under Subsection (d), as
necessary to allow an individual with a known disability access to
organ transplant-related services, including transplant-related
counseling, information, or treatment, unless the health care
provider can demonstrate that compliance would fundamentally alter
the nature of the services or would impose an undue hardship on the
health care provider.
(f) A health care provider shall make reasonable efforts to
provide auxiliary aids and services to an individual with a known
disability seeking organ transplant-related services, including
organ transplant-related counseling, information, or treatment, as
necessary to allow the individual access to those services, unless
the health care provider can demonstrate that providing the
transplant-related services with auxiliary aids and services
present would fundamentally alter the transplant-related services
provided or would impose an undue hardship on the health care
provider.
(g) A health care provider shall comply with the
requirements of the Americans with Disabilities Act of 1990 (42
U.S.C. Section 12101 et seq.) to the extent that Act applies to a
health care provider. This subsection may not be construed to
require a health care provider to comply with that Act if the Act
does not otherwise require compliance by the health care provider.
(h) This section applies to each stage of the organ
transplant process.
(i) A violation of this section is grounds for disciplinary
action by the regulatory agency that issued a license, certificate,
or other authority to a health care provider who committed the
violation. Before a regulatory agency may take disciplinary action
against a health care provider for a violation, the applicable
regulatory agency shall:
(1) notify the health care provider of the agency's
finding that the health care provider has violated or is violating
this section or a rule adopted under this section; and
(2) provide the health care provider with an
opportunity to correct the violation without penalty or reprimand.
(j) A physician who in good faith makes a determination that
an individual's disability is medically significant to the organ
transplant, as described by Subsection (b), does not violate this
section.
(k) A health care provider who in good faith makes a
treatment recommendation or decision on the basis of a physician's
determination that an individual's disability is medically
significant to the organ transplant, as described by Subsection
(b), does not violate this section.
SECTION 4. Not later than January 1, 2022, the executive
commissioner of the Health and Human Services Commission shall
adopt any rules necessary to implement Subchapter S, Chapter 161,
Health and Safety Code, as amended by this Act.
SECTION 5. This Act takes effect September 1, 2021.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 119 was passed by the House on March
25, 2021, by the following vote: Yeas 145, Nays 0, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 119 on May 3, 2021, by the following vote: Yeas 144, Nays 0, 1
present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 119 was passed by the Senate, with
amendments, on April 29, 2021, by the following vote: Yeas 31,
Nays 0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor