87R2906 EAS-D
By: White H.B. No. 473
A BILL TO BE ENTITLED
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" includes:
(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
accessible to individuals with cognitive, neurological,
developmental, or intellectual disabilities;
(D) provision of supported decision-making
services;
(E) acquisition or modification of equipment or
devices; and
(F) other similar services and actions.
(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 provider" means:
(A) 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, and any other facility for
individuals with intellectual or developmental disabilities; and
(B) an organ procurement organization.
(4) "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.
(5) "Supported decision making" means the use of a
support person to assist an individual in making medical decisions,
communicate information to the individual, or ascertain an
individual's wishes, including:
(A) allowing the individual's attorney-in-fact
or agent under a medical power of attorney or any person the
individual selects to be included in communications related to the
individual's medical care;
(B) permitting the individual to designate a
person to support the individual in communicating, processing
information, or making medical decisions;
(C) providing auxiliary aids and services to
assist the individual in communicating and processing
health-related information, including the use of assistive
communication technology;
(D) providing information to persons designated
by the individual in a manner consistent with the Health Insurance
Portability and Accountability Act of 1996 (Pub. L. No. 104-191),
regulations adopted under that Act, and other applicable laws and
regulations governing disclosure of health information;
(E) providing health information in a format that
is readily understandable by the individual; and
(F) if the individual has a court-appointed
guardian or other individual responsible for making medical
decisions on behalf of the individual, ensuring that the individual
is included in decisions involving the individual's health care and
that medical decisions are made in accordance with the individual's
expressed interests.
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 an organ
transplant;
(4) refuse to place an 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; or
(5) decline insurance coverage for any procedure
associated with the organ transplant, including post-transplant
care.
(b) Notwithstanding Subsection (a), a health care provider
may consider an individual's disability when making a treatment or
coverage recommendation or decision solely to the extent that a
physician or surgeon, following an individualized evaluation of the
potential 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 the necessary support system
to assist the individual in complying with the requirements.
(d) A health care provider shall make reasonable
modifications in policies, practices, or procedures as necessary to
make services, including transplant-related counseling,
information, coverage, or treatment, available to an individual
with a disability, unless the health care provider can demonstrate
that making the modifications would fundamentally alter the nature
of the services. Reasonable modifications may include:
(1) communicating with persons responsible for
supporting an individual with postsurgical and post-transplant
care, including medication; and
(2) considering the support available to the
individual in determining whether the individual is able to 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) the medical assistance program
established under Chapter 32, Human Resources Code;
(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 ensure that an individual
with a disability is not denied services, including
transplant-related counseling, information, coverage, or
treatment, because auxiliary aids and services are absent unless
the health care provider can demonstrate that providing the
services with auxiliary aids and services present would
fundamentally alter the services provided or would impose an undue
burden on the health care provider.
(f) A health care provider shall comply with the
requirements of Titles II and III of the Americans with
Disabilities Act of 1990 (42 U.S.C. Section 12131 et seq.).
(g) This section applies to each stage of the organ
transplant process.
(h) 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.
SECTION 4. Not later than December 1, 2021, 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.