31-1-24. Organ transplant protections for individuals with disabilities; civil relief for violations.

As used in this Code section, the term:#

1. (1)

   “Anatomical gift” means a donation of any part or all of a human body conditioned upon the donor’s death for the purpose of transplantation or transfusion.#

2. (2)

   “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 such individual to better understand such information. An auxiliary aid or service may include:#

   1. (A)

      Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;#

   2. (B)

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

   3. (C)

      Supported decision-making services, including:#

      1. (i)

         The use of a support personnel to communicate information to the individual with a disability, ascertain the wishes of such individual, or assist such individual in making decisions;#

      2. (ii)

         The disclosure of information to a legal guardian, authorized representative, or another individual designated by the individual with a disability for such purpose, so 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. Section 1320d, et seq., and any regulations promulgated by the United States Department of Health and Human Services to implement such act;#

      3. (iii)

         When an individual with a disability has a court appointed guardian or other person responsible for making medical decisions on behalf of such 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 accord with the individual’s own expressed interests; and#

      4. (iv)

         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 any form of communication technology.#

3. (3)

   “Covered entity” means:#

   1. (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 such licensed individuals or facilities providing health care services to incarcerated persons with disabilities; and#

   2. (B)

      Any entity responsible for matching anatomical gift donors to potential recipients.#

4. (4)

   “Disability” has the same meaning as provided for in the Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008, 42 U.S.C. Section 12102.#

5. (5)

   “Organ transplant” means the transplantation or transfusion of a part of a human body into the body of another human for the purpose of treating or curing a medical condition.#

6. (6)

   “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:#

   1. (A)

      Individuals or entities available to support and assist the recipient with an anatomical gift or transplantation;#

   2. (B)

      Auxiliary aids or services; or#

   3. (C)

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

      1. (i)

         Communication with one or more individuals or entities available to support or assist with the recipient’s care and medication after surgery or transplantation; or#

      2. (ii)

         Consideration of support networks available to the recipient, 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 recipient is enrolled, or any program or source of funding available to the recipient, when determining whether the recipient is able to comply with posttransplant medical requirements.#

1. (1)

   The provisions of this Code section shall apply to all stages of the organ transplant process.#

2. (2)

   A covered entity shall not, solely on the basis of an individual’s disability:#

   1. (A)

      Consider the individual ineligible to receive an anatomical gift or organ transplant;#

   2. (B)

      Deny medical services or other services related to organ transplantation, including diagnostic services, evaluation, surgery, counseling, and postoperative treatment and services;#

   3. (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;#

   4. (D)

      Refuse to place a qualified recipient on an organ transplant waiting list;#

   5. (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 such individual did not have a disability; or#

   6. (F)

      Refuse insurance coverage for any procedure associated with being evaluated for or receiving an anatomical gift, including posttransplantation and posttransfusion care.#

3. (3)

   Notwithstanding paragraph (2) of this subsection, 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 individual’s disability has been found by a physician, following an evaluation of such individual, to be medically significant to the provision of the anatomical gift.#

4. (4)

   If an individual has the necessary support system to assist such individual in complying with posttransplant medical requirements, a covered entity may not consider the individual’s inability to independently comply with posttransplant medical requirements to be medically significant for the purposes of paragraph (3) of this subsection.#

5. (5)

   A covered entity shall make reasonable modifications to its policies, practices, or procedures to allow individuals with disabilities access to transplantation related services, including diagnostic services, surgery, coverage, postoperative treatment, and counseling, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such services.#

6. (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, postoperative 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. (7)

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

8. (8)

   A covered entity shall 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, 42 U.S.C. Section 12102.#

1. (1)

   When it appears that a covered entity has violated or is violating any provision of this Code section, the affected individual may commence a civil action for injunctive and other equitable relief against such covered entity for purposes of enforcing compliance with this Code section. Such action may be brought in the district court for the county where the affected individual resides or resided or was denied the organ transplant or referral.#

2. (2)

   In an action brought under paragraph (1) of this Code section, the court shall give priority on its docket and expedited review, and may grant injunctive or other equitable relief, including:#

   1. (A)

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

   2. (B)

      Requiring the modification of a policy, practice, or procedure of a covered entity; or#

   3. (C)

      Requiring facilities be made readily accessible to and usable by a qualified recipient.#

3. (3)

   Nothing in this Code section is intended to limit or replace available remedies under the Americans with Disabilities Act of 1990, as amended, or any other applicable law.#

4. (4)

   This Code section does not create a right to compensatory or punitive damages against a covered entity.#