MISSISSIPPI LEGISLATURE

2020 Regular Session

To: Public Health and Human Services

By: Representatives Yancey, Powell, Anderson (122nd), Brown (20th), Crawford

House Bill 414

(As Passed the House)

AN ACT TO ENACT COLE'S LAW TO PROHIBIT DISCRIMINATION AGAINST RECIPIENTS OF AN ANATOMICAL GIFT OR ORGAN TRANSPLANT BASED ON DISABILITY; TO DEFINE CERTAIN TERMS FOR THE ACT; TO PROVIDE REQUIREMENTS FOR COVERED ENTITIES; TO PROVIDE FOR THE RELIEF PROVIDED BY THE ACT; TO PROVIDE CERTAIN REQUIREMENTS OF INSURERS; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  This act shall be known and may be cited as "Cole's Law."

     SECTION 2.  The Legislature finds that:

          (a)  A mental or physical disability does not diminish a person's right to health care;

          (b)  The "Americans with Disabilities Act of 1990," 42 U.S.C. Section 12101, prohibits discrimination against persons with disabilities, yet many individuals with disabilities still experience discrimination in accessing critical health care services;

          (c)  In other states nationwide, individuals with mental and physical disabilities have been denied life­saving organ transplants based on assumptions that their lives are less worthy, that they are incapable of complying with post-transplant medical requirements, or that they lack adequate support systems to ensure compliance with post-transplant medical requirements;

          (d)  Although organ transplant centers must consider medical and psychosocial criteria when determining if a patient is suitable to receive an organ transplant, transplant centers that participate in Medicare, Medicaid, and other federally funded programs are required to use patient selection criteria that results in a fair and nondiscriminatory distribution of organs; and

          (e)  Mississippi residents in need of organ transplants are entitled to assurances that they will not encounter discrimination on the basis of a disability.

     SECTION 3.  For purposes of this act, the following terms shall have the following meanings unless the context clearly indicates otherwise:

          (a)  "Disability" has the meaning stated in the Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008, at 42 U.S.C. Section 12102.

          (b)  "Auxiliary aids or services" means an aid or service that is used to provide information 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:

              (i)  Qualified interpreters or other effective methods of making aurally delivered materials available to persons with hearing impairments;

               (ii)  Qualified readers, taped texts, texts in accessible electronic format, or other effective methods of making visually delivered materials available to persons with visual impairments;

              (iii)  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 individual, 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 with state and federal law, including the federal "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; and

                   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.

          (c)  "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 the following:

              (i)  Individuals or entities available to support and assist the individual with an anatomical gift or transplantation;

              (ii)  Auxiliary aids or services;

              (iii)  Reasonable modifications to the policies, practices, or procedures of a covered entity, including modifications to allow for either or both of the following:

                   1.  Text Box: Communication with one or more individuals or entities available to support or assist with the recipient's care and medication after surgery or transplantation; and/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 program or source of funding available to the individual, when determining whether the individual is able to comply with post-transplant medical requirements.

          (d)  "Anatomical gift" means a donation of all or part of a human body, including but not limited to eye or tissue, to take effect after the donor's death for the purpose of transplantation or transfusion.

          (e)  "Organ transplant" means the transplantation or transfusion of a part of a human body into the body of another for the purpose of treating or curing a medical condition.

          (f)  "Covered entity" means:

              (i)  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

              (ii)  Any entity responsible for matching anatomical gift donors to potential recipients.

     SECTION 4.  (1)  The provisions of this section shall apply to all stages of the organ transplant process.

     (2)  A covered entity shall not, solely on the basis of an individual's disability:

          (a)  Consider the individual ineligible to receive an anatomical gift or organ transplant;

          (b)  Deny medical services or other services related to organ transplantation, including diagnostic services, evaluation, surgery, counseling, post-operative treatment and services;

          (c)  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;

          (d)  Refuse to place a qualified recipient on an organ transplant waiting list;

          (e)  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

          (f)  Refuse insurance coverage for any procedure associated with being evaluated for or receiving an anatomical gift or organ transplant, including post-transplantation and post-transfusion care.

     (3)  Notwithstanding subsection (2) 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 be medically significant to the provision of the anatomical gift.

     (4)  If an individual has the necessary support system to assist the individual in complying with post-transplant medical requirements, a covered entity may not consider the individual's inability to independently comply with post-transplant medical requirements to be medically significant for the purposes of subsection (3) of this section.

     (5)  A covered entity must 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 the nature of such services.

     (6)  A covered entity must 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 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 would result in an undue burden for the covered entity.

     (7)  Nothing in this section shall be deemed to require a covered entity to make a referral or recommendation for or perform a medically inappropriate organ transplant.

     (8)  A covered entity shall otherwise 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 5.  (1)  Whenever it appears that a covered entity has violated or is violating 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 circuit or county court for the county where the affected individual resides or resided or was denied the organ transplant or referral.

     (2)  In an action brought under this act, the court must give priority on its docket and expedited review, and may grant injunctive or other equitable relief, including:

          (a)  Requiring auxiliary aids or services to be made available for a qualified recipient;

          (b)  Requiring the modification of a policy, practice or procedure of a covered entity; or

          (c)  Requiring facilities be made readily accessible to and usable by a qualified recipient.

     (3)  Nothing in this act is intended to limit or replace available remedies under the ADA or any other applicable law.

     (4)  This act does not create a right to compensatory or punitive damages against a covered entity.

     SECTION 6.  (1)  For purposes of this section, the following terms shall have the following meanings unless the context clearly indicates otherwise:

          (a)  "Covered person" means a policyholder, subscriber, enrollee, member, or individual covered by a health benefit plan.

          (b)Text Box:   "Health benefit plan" means a policy, contract, certificate, or agreement entered into, offered, or issued by a health insurance issuer 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.

          (c)  "Health insurance issuer" means an entity subject to the insurance laws and regulations of this state, or subject to the jurisdiction of the Commissioner of Insurance, that contracts or offers to contract to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services, including through a health 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 or health benefits.

     (2)  A health insurance issuer that provides coverage for anatomical gifts, organ transplants, or related treatment and services shall not:

          (a)  Deny coverage to a covered person solely on the basis of the person's disability;

          (b)  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;

          (c)  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

          (d)  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.

     (3)  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.

     (4)  Nothing in this section shall be deemed to require a health insurance issuer to provide coverage for a medically inappropriate organ transplant.

     SECTION 7.  The Legislature hereby declares that the life of a person with a disability who needs an organ transplant is as worthy and valuable as the life of a person with no disability who needs the same medical service.

     SECTION 8.  This act shall take effect and be in force from and after its passage.