[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3301 Introduced in Senate (IS)]
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117th CONGRESS
1st Session
S. 3301
To prohibit discrimination on the basis of mental or physical
disability in cases of organ transplants.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 2, 2021
Mr. Rubio (for himself and Ms. Hassan) introduced the following bill;
which was read twice and referred to the Committee on Health,
Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To prohibit discrimination on the basis of mental or physical
disability in cases of organ transplants.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Charlotte Woodward Organ Transplant
Discrimination Prevention Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The Americans with Disabilities Act of 1990, section
504 of the Rehabilitation Act of 1973, and section 1557 of the
Patient Protection and Affordable Care Act prohibit
discrimination against individuals with disabilities in organ
transplantation and the allocation of organs.
(2) Despite those prohibitions, there are findings and
cases that show, as is documented by the National Council on
Disability and others, that individuals with disabilities are
being denied organ transplants and related services based
solely on the fact that those individuals have a disability.
(3) More than 25 States have crafted State-level policy to
prohibit organ transplant discrimination against individuals
with disabilities. Federal action, however, is required to
protect individuals with disabilities and to enforce existing
law regardless of the State in which they live.
(4) The current situation, with continuing cases of
discrimination against individuals with disabilities, calls for
further clarity by Congress about which actions constitute
discrimination under current law, which entities are covered,
and the remedies available to individuals experiencing
potential discrimination.
(5) Licensed providers of health care services that provide
organ transplants and related services in exchange for medical
fees are engaging in an economic transaction with patients that
occurs in or substantially impacts interstate commerce.
(6) There are 11 geographic regions that are used in the
national administration of organ allocation in the United
States, with organs being transported across State lines for
transplantation procedures.
(7) Discrimination in organ transplantation limits
individuals with disabilities from participating in health care
transactions in a manner that allows equal access to interstate
commerce.
(8) The existence of discrimination against individuals
with disabilities in the provision of organ transplantation and
related services burdens the flow of organs through legal
channels of interstate commerce.
SEC. 3. DEFINITIONS.
In this Act:
(1) Auxiliary aids and services.--The term ``auxiliary aids
and services'' includes--
(A) qualified interpreters or other effective
methods of making aurally delivered materials available
to individuals with a hearing impairment;
(B) qualified readers, taped texts, or other
effective methods of making visually delivered
materials available to individuals with a visual
impairment;
(C) information in a format that is accessible for
individuals with a cognitive, neurological,
developmental, or intellectual disability;
(D) supported decisionmaking services; and
(E) acquisition or modification of equipment or
devices.
(2) Covered entity.--The term ``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, that--
(i) is in interstate commerce; or
(ii) provides health care services in a
manner that--
(I) substantially affects or has a
substantial relation to interstate
commerce; or
(II) includes use of an instrument
(including an instrument of
transportation or communication) of
interstate commerce; or
(B) any transplant center or entity responsible for
matching human organ donors to potential recipients
that is in interstate commerce, or that provides the
matching services in a manner described in subparagraph
(A)(ii).
(3) Disability.--The term ``disability'' has the meaning
given the term in section 3 of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12102).
(4) Human organ.--The term ``human organ'' has the meaning
given the term in section 301(c) of the National Organ
Transplant Act (42 U.S.C. 274e(c)).
(5) Organ transplant.--The term ``organ transplant'' means
the transplantation or transfusion of a donated human organ
into the body of another human for the purpose of treating or
curing a medical condition.
(6) Qualified individual.--The term ``qualified
individual'' means an individual who, with or without a support
network, provision of auxiliary aids and services, or
reasonable modifications to policies or practices, meets
eligibility requirements for the receipt of a human organ.
(7) Reasonable modifications to policies or practices.--The
term ``reasonable modifications to policies or practices''
includes--
(A) communication with individuals responsible for
supporting an individual with postsurgical or other
care following an organ transplant or related services,
including support with medication; and
(B) consideration, in determining whether an
individual will be able to comply with health
requirements following an organ transplant or receipt
of related services, of support networks available to
the individual, including family, friends, and
providers of home and community-based services,
including home and community-based services funded
through the Medicare or Medicaid program under title
XVIII or XIX, respectively, of the Social Security Act
(42 U.S.C. 1395 et seq., 1396 et seq.), another health
plan in which the individual is enrolled, or any
program or source of funding available to the
individual.
(8) Related services.--The term ``related services'' means
services related to an organ transplant that consist of--
(A) evaluation;
(B) counseling;
(C) treatment, including postoperative treatment,
and care;
(D) provision of information; and
(E) any other service recommended or required by a
physician.
(9) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(10) Supported decisionmaking.--The term ``supported
decisionmaking'' means the use of a support person to assist an
individual in making health care decisions, communicate
information to the individual, or ascertain an individual's
wishes. Such term includes--
(A) the inclusion of the individual's attorney-in-
fact or health care proxy, or any person of the
individual's choice, in communications about the
individual's health care;
(B) permitting the individual to designate a person
of the individual's choice for the purposes of
supporting that individual in communicating, processing
information, or making health care decisions;
(C) providing auxiliary aids and services described
in subparagraph (A), (B), (C), or (E) of paragraph (1)
to facilitate the individual's ability to communicate
and process health-related information, including
providing use of assistive communication technology;
(D) providing health information to persons
designated by the individual, consistent with the
regulations promulgated under section 264(c) of the
Health Insurance Portability and Accountability Act of
1996 (42 U.S.C. 1320d-2 note) 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) working with a court-appointed guardian or
other individual responsible for making health care
decisions on behalf of the individual, to ensure that
the individual is included in decisions involving the
health care of the individual and that health care
decisions are in accordance with the individual's own
expressed interests.
(11) Support network.--The term ``support network'' means,
with respect to a person, one or more individuals who are--
(A) selected by the person or by the person and the
guardian of the person, to provide assistance to that
person or guidance to that person in understanding
issues, making plans for the future, or making complex
decisions; and
(B) who may include the family members, friends,
unpaid supporters, members of the religious
congregation, and appropriate personnel at a community
center, of or serving the person.
SEC. 4. PROHIBITION OF DISCRIMINATION.
(a) In General.--Subject to subsection (b), a covered entity may
not, solely on the basis of a qualified individual's mental or physical
disability--
(1) determine that the individual is ineligible to receive
an organ transplant or related services;
(2) deny the individual an organ transplant or related
services;
(3) refuse to refer the individual to an organ transplant
center or other related specialist for the purpose of receipt
of an organ transplant or other related services;
(4) refuse to place the 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 disability of the
individual; or
(5) decline insurance coverage for the individual for any
procedure associated with the receipt of an organ transplant or
for related services, which procedure or services,
respectively, would be covered under such insurance for such
individual if not for the disability of the individual.
(b) Exception.--
(1) In general.--
(A) Medically significant disabilities.--
Notwithstanding subsection (a), a covered entity may
take a qualified individual's physical or mental
disability into account when making a health care
treatment or coverage recommendation or decision,
solely to the extent that the disability has been found
by a physician, following an individualized evaluation
of the potential recipient, to be medically significant
to the receipt of the organ transplant or related
services, as the case may be.
(B) Construction.--Subparagraph (A) shall not be
construed to require a referral or recommendation for,
or the performance of, a medically inappropriate organ
transplant or medically inappropriate related services.
(2) Clarification.--If a qualified individual has the
necessary support network to provide a reasonable assurance
that the individual will be able to comply with health
requirements following an organ transplant or receipt of
related services, as the case may be, the individual's
inability to independently comply with those requirements may
not be construed to be medically significant for purposes of
paragraph (1).
(c) Reasonable Modifications.--A covered entity shall make
reasonable modifications to policies or practices (including
procedures) of such entity if such modifications are necessary to make
an organ transplant or related services available to qualified
individuals with disabilities, unless the entity can demonstrate that
making such modifications would fundamentally alter the nature of such
policies or practices.
(d) Clarifications.--
(1) No denial of services because of absence of auxiliary
aids and services.--A covered entity shall take such steps as
may be necessary to ensure that a qualified individual with a
disability is not denied a procedure associated with the
receipt of an organ transplant or related services, and
insurance coverage for the individual is not declined for a
procedure or services described in section 4(a)(5), 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 procedure or services being offered or
would result in an undue burden on the entity.
(2) Compliance with other law.--Nothing in this Act shall
be construed--
(A) to prevent a covered entity from providing
organ transplants or related services at a level that
is greater than the level that is required by this
section; or
(B) to limit the rights of an individual with a
disability under, or to replace or limit the scope of
obligations imposed by, the Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq.) including the
provisions added to such Act by the ADA Amendments Act
of 2008, section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794), section 1557 of the Patient Protection
and Affordable Care Act (42 U.S.C. 18116), or any other
applicable law.
(3) Application to each part of process.--The provisions of
this section apply to each part of the organ transplant process
and the process for receipt of related services.
SEC. 5. ENFORCEMENT.
(a) In General.--Any individual who alleges that a qualified
individual was subject to a violation of section 4 by a covered
entity--
(1) may bring a claim regarding the allegation to the
Office for Civil Rights of the Department of Health and Human
Services, for expedited resolution; and
(2) whether or not such a claim is brought under paragraph
(1) or a violation is found pursuant to paragraph (1), may
bring a civil action in a district court of the United States
for injunctive or other equitable relief, including the relief
described in subsection (b), against such covered entity to
obtain compliance of such covered entity with such section.
(b) Relief Available.--The injunctive and equitable relief
available in a civil action brought under subsection (a)(2), with
respect to a covered entity, includes--
(1) requiring auxiliary aids and services to be made
available by such entity;
(2) requiring reasonable modifications to policies or
practices (including procedures) of such entity; or
(3) requiring that a facility of such entity be made
readily accessible and usable.
(c) Expedited Review.--In the case of a civil action brought under
subsection (a)(2), with respect to a covered entity, the district court
in which such action is brought shall advance on its docket and
expedite review and disposition of such action.
(d) Rule of Construction.--Nothing in this section is intended to
limit or replace available remedies under the Americans with
Disabilities Act of 1990 or any other applicable law.
SEC. 6. EFFECT ON OTHER LAWS.
Nothing in this Act shall be construed to supersede any provision
of any State or local law that provides greater rights to qualified
individuals with respect to organ transplants than the rights
established under this Act.
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