SF 3035

as introduced - 91st Legislature (2019 - 2020) Posted on 02/20/2020 02:44pm

A bill for an act
relating to human rights; requiring nondiscrimination in access to transplants;
prescribing penalties; proposing coding for new law in Minnesota Statutes, chapter
363A.

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

Section 1.

new text begin [363A.50] PUBLIC POLICY.
new text end

new text begin The legislature finds that:
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new text begin (1) a mental or physical disability does not diminish a person's right to health care;
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new text begin (2) the Americans with Disabilities Act of 1990 prohibits discrimination against persons
with disabilities, yet many individuals with disabilities still experience discrimination in
accessing critical health care services;
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new text begin (3) individuals with mental and physical disabilities have historically been denied
life-saving organ transplants based on assumptions that their lives are less worthy, that they
are incapable of complying with post-transplant medical regimens, or that they lack adequate
support systems to ensure such compliance;
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new text begin (4) 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 result in a fair and nondiscriminatory distribution of
organs; and
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new text begin (5) Minnesota residents in need of organ transplants are entitled to assurances that they
will not encounter discrimination on the basis of a disability.
new text end

Sec. 2.

new text begin [363A.51] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Terms. new text end

new text begin For purposes of this section, the following terms have the
meanings given unless the context clearly requires otherwise.
new text end

new text begin Subd. 2. new text end

new text begin Anatomical gift. new text end

new text begin "Anatomical gift" has the meaning given in section 525A.02,
subdivision 4.
new text end

new text begin Subd. 3. new text end

new text begin Auxiliary aids and services. new text end

new text begin "Auxiliary aids and services" include, but are not
limited to:
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new text begin (1) qualified interpreters or other effective methods of making aurally delivered materials
available to individuals with hearing impairments;
new text end

new text begin (2) qualified readers, taped texts, or other effective methods of making visually delivered
materials available to individuals with visual impairments;
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new text begin (3) the provision of information in a format that is accessible for individuals with
cognitive, neurological, developmental, or intellectual disabilities;
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new text begin (4) the provision of supported decision-making services; and
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new text begin (5) the acquisition or modification of equipment or devices.
new text end

new text begin Subd. 4. new text end

new text begin Covered entity. new text end

new text begin "Covered entity" means:
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new text begin (1) 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
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new text begin (2) any entity responsible for matching anatomical gift donors to potential recipients.
new text end

new text begin Subd. 5. new text end

new text begin Disability. new text end

new text begin "Disability" has the meaning given in the Americans with Disabilities
Act of 1990, as amended by the Americans with Disabilities Act Amendments Act of 2008,
United States Code, title 42, section 12102.
new text end

new text begin Subd. 6. new text end

new text begin Qualified individual. new text end

new text begin "Qualified individual" means an individual who, with
or without available support networks, the provision of auxiliary aids and services, or
reasonable modifications to policies or practices, meets the essential eligibility requirements
for the receipt of an anatomical gift.
new text end

new text begin Subd. 7. new text end

new text begin Reasonable modifications to policies or practices. new text end

new text begin "Reasonable modifications
to policies or practices" include, but are not limited to:
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new text begin (1) communication with individuals responsible for supporting an individual with
postsurgical and post-transplantation care, including medication; and
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new text begin (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, in determining
whether the individual is able to comply with post-transplant medical requirements.
new text end

new text begin Subd. 8. new text end

new text begin Supported decision making. new text end

new text begin "Supported decision making" means the use of
a support person to assist an individual in making medical decisions, to communicate
information to the individual, or to ascertain an individual's wishes. Supported decision
making may include:
new text end

new text begin (1) including the individual's attorney-in-fact, health care proxy, or any person of the
individual's choice in communications about the individual's medical care;
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new text begin (2) permitting the individual to designate a person of their choice for the purposes of
supporting that individual in communicating, processing information, or making medical
decisions;
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new text begin (3) providing auxiliary aids and services to facilitate the individual's ability to
communicate and process health-related information, including the use of assistive
communication technology;
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new text begin (4) providing information to persons designated by the individual, consistent with the
provisions of the Health Insurance Portability and Accountability Act of 1996, United States
Code, title 42, section 1301 et seq., and other applicable laws and regulations governing
disclosure of health information;
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new text begin (5) providing health information in a format that is readily understandable by the
individual; and
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new text begin (6) working with a court-appointed guardian or other individual responsible for making
medical decisions on behalf of the individual to ensure that the individual is included in
decisions involving the individual's own health care and that medical decisions are in
accordance with the individual's own expressed interests.
new text end

Sec. 3.

new text begin [363A.52] PROHIBITION OF DISCRIMINATION.
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new text begin (a) A covered entity may not, solely on the basis of a qualified individual's mental or
physical disability:
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new text begin (1) deem an individual ineligible to receive an anatomical gift or organ transplant;
new text end

new text begin (2) deny medical or related organ transplantation services, including evaluation, surgery,
counseling, and postoperative treatment and care;
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new text begin (3) refuse to refer the individual to a transplant center or other related specialist for the
purpose of evaluation or receipt of an organ transplant;
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new text begin (4) refuse to place an individual on an organ transplant waiting list or place the individual
at a lower-priority position on the list than the position at which the individual would have
been placed if not for the individual's disability; or
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new text begin (5) decline insurance coverage for any procedure associated with the receipt of the
anatomical gift, including post-transplantation care.
new text end

new text begin (b) Notwithstanding paragraph (a), 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 physical or mental disability has been found by a physician, following
an individualized evaluation of the potential recipient to be medically significant to the
provision of the anatomical gift. The provisions of this section may not be deemed to require
referrals or recommendations for, or the performance of, medically inappropriate organ
transplants.
new text end

new text begin (c) If an individual has the necessary support system to assist the individual in complying
with post-transplant medical requirements, an individual's inability to independently comply
with those requirements may not be deemed to be medically significant for the purposes of
paragraph (b).
new text end

new text begin (d) A covered entity must make reasonable modifications to policies, practices, or
procedures, when such modifications are necessary to make services such as
transplantation-related counseling, information, coverage, or treatment available to qualified
individuals with disabilities, unless the entity can demonstrate that making such modifications
would fundamentally alter the nature of such services.
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new text begin (e) A covered entity must take such steps as may be necessary to ensure that no qualified
individual with a disability is denied services such as transplantation-related counseling,
information, coverage, or treatment because of the absence of auxiliary aids and services,
unless the entity can demonstrate that taking such steps would fundamentally alter the nature
of the services being offered or result in an undue burden.
new text end

new text begin (f) A covered entity must otherwise comply with the requirements of Titles II and III of
the Americans with Disabilities Act of 1990 and the Americans with Disabilities Act
Amendments Act of 2008.
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new text begin (g) The provisions of this section apply to each part of the organ transplant process.
new text end

Sec. 4.

new text begin [363A.53] ENFORCEMENT.
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new text begin (a) Any individual who has been subjected to discrimination in violation of sections
363A.50 to 363A.52 may initiate a civil action in a court of competent jurisdiction to enjoin
further violations and recover the cost of the suit including reasonable attorney fees.
new text end

new text begin (b) The court must accord priority on its calendar and expeditiously proceed with an
action brought under sections 363A.50 to 363A.52.
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new text begin (c) Nothing in this section is intended to limit or replace available remedies under the
Americans with Disabilities Act of 1990 and the Americans with Disabilities Act
Amendments Act of 2008 or any other applicable law.
new text end