Florida Senate - 2020 SB 1556
By Senator Bean
4-01472B-20 20201556__
1 A bill to be entitled
2 An act relating to nondiscrimination in organ
3 transplants; creating s. 765.523, F.S.; defining
4 terms; prohibiting certain entities from making
5 certain determinations or engaging in certain actions
6 related to organ transplants solely on the basis of an
7 individual’s disability; specifying an instance where
8 certain entities may consider an individual’s
9 disability, with an exception; requiring certain
10 entities to make reasonable modifications in their
11 policies, practices, and procedures under certain
12 circumstances, with an exception; requiring certain
13 entities to take certain necessary steps to ensure an
14 individual with a disability is not denied services,
15 with exceptions; providing a cause of action for
16 injunctive and other relief; providing construction;
17 creating ss. 627.64197, 627.65736, and 641.31075,
18 F.S.; prohibiting insurers, nonprofit health care
19 service plans, and health maintenance organizations
20 that provide coverage for organ transplants from
21 denying coverage solely on the basis of an
22 individual’s disability under certain circumstances;
23 providing construction; defining the term “organ
24 transplant”; providing an effective date.
25
26 WHEREAS, the Americans with Disabilities Act prohibits
27 discrimination against individuals with disabilities, yet many
28 individuals with disabilities still experience discrimination in
29 accessing critical health care services, and
30 WHEREAS, in other states nationwide, individuals with
31 mental or physical disabilities have historically been denied
32 lifesaving organ transplants based on assumptions that their
33 lives are less worthy, that they are incapable of complying with
34 posttransplant medical requirements, or that they lack adequate
35 support systems to ensure compliance with posttransplant medical
36 requirements, and
37 WHEREAS, although organ procurement organizations must
38 consider medical and psychosocial criteria when determining if a
39 patient is suitable to receive an organ transplant, organ
40 procurement organizations that participate in Medicare and other
41 federally funded programs are required to use patient selection
42 criteria that result in a fair and nondiscriminatory
43 distribution of organs, and
44 WHEREAS, residents of this state in need of organ
45 transplants are entitled to assurances that they will not
46 encounter discrimination on the basis of a disability, NOW,
47 THEREFORE,
48
49 Be It Enacted by the Legislature of the State of Florida:
50
51 Section 1. Section 765.523, Florida Statutes, is created to
52 read:
53 765.523 Discrimination in access to anatomical gifts and
54 organ transplants prohibited.—
55 (1) As used in this section, the term:
56 (a) “Auxiliary aids and services” means:
57 1. Qualified interpreters or other effective methods of
58 making aurally delivered materials available to individuals with
59 hearing impairments.
60 2. Qualified readers, recorded texts, texts in an
61 accessible electronic format, or other effective methods of
62 making visually delivered materials available to individuals
63 with visual impairments.
64 3. Supported decisionmaking services, including any of the
65 following:
66 a. The use of a support person to assist an individual in
67 making medical decisions, communicating information to the
68 individual, or ascertaining his or her wishes.
69 b. The provision of information to a person designated by
70 the individual, consistent with the Health Insurance Portability
71 and Accountability Act and other applicable laws and rules
72 governing the disclosure of health information.
73 c. If an individual has a court-appointed guardian or other
74 legal representative authorized to make health care decisions on
75 his or her behalf, any measures used to ensure that the guardian
76 or legal representative is included in decisions involving the
77 individual’s health care and that medical decisions are in
78 accordance with the individual’s own expressed interests.
79 d. Any other aid or service that is used to provide
80 information in a format that is readily understandable and
81 accessible to individuals with cognitive, neurological,
82 developmental, or intellectual disabilities.
83 (b) “Covered entity” means any of the following:
84 1. A licensed health care practitioner as defined in s.
85 456.001.
86 2. A health care facility as defined in s. 408.07.
87 3. A residential facility licensed under chapter 393.
88 4. An institutional medical unit in a correctional
89 facility.
90 5. Any other entity responsible for potential recipients of
91 an anatomical gift.
92 (c) “Disability” means, with respect to an individual, a
93 physical or mental impairment that substantially limits one or
94 more major life activities of the individual, a record of the
95 individual having such impairment, or the individual being
96 regarded as having such impairment.
97 (d) “Organ transplant” means the transplantation or
98 transfusion of a part of a human body into the body of another
99 individual for the purpose of treating or curing a medical
100 condition.
101 (e) “Qualified individual” means an individual who has a
102 disability and meets the eligibility requirements for the
103 receipt of an anatomical gift, regardless of:
104 1. The support networks available to the individual;
105 2. The provision of auxiliary aids and services; or
106 3. Reasonable modifications to the policies or practices of
107 a covered entity, including modifications to allow:
108 a. Communication with the persons responsible for
109 supporting the individual with his or her postsurgical and
110 posttransplant care, including medication; and
111 b. The consideration of support networks available to the
112 individual, including family, friends, and home and community
113 based services funded through Medicare, the state’s Medicaid
114 managed medical assistance program, or another health plan in
115 which the individual is enrolled or any program or source of
116 funding available to the individual, in determining whether the
117 individual is able to comply with posttransplant medical
118 requirements.
119 (2) A covered entity may not do any of the following solely
120 on the basis of an individual’s disability:
121 (a) Consider a qualified individual ineligible to receive
122 an anatomical gift or organ transplant.
123 (b) Deny medical or other services related to an organ
124 transplant, including evaluation, surgery, counseling, and
125 posttransplant treatment and services.
126 (c) Refuse to refer the individual to an organ procurement
127 organization or a related specialist for the purpose of
128 evaluation or receipt of an organ transplant.
129 (d) Refuse to place a qualified individual on an organ
130 transplant waiting list.
131 (e) Place a qualified individual at a lower priority
132 position on an organ transplant waiting list than the position
133 at which the qualified individual would have been placed if not
134 for the disability.
135 (3)(a) A covered entity may take an individual’s disability
136 into account if, following an individualized evaluation of him
137 or her, a physician finds the individual’s disability to be
138 medically significant to the provision of the anatomical gift,
139 but only to the extent that the covered entity is making
140 treatment or coverage recommendations or decisions for the
141 individual.
142 (b) If an individual has the necessary support system to
143 assist him or her in complying with posttransplant medical
144 requirements, a covered entity may not consider the individual’s
145 inability to independently comply with the posttransplant
146 medical requirements to be medically significant for the
147 purposes of paragraph (a).
148 (4) A covered entity shall make reasonable modifications in
149 policies, practices, or procedures when the modifications are
150 necessary to allow an individual with a disability access to
151 services, including transplant-related counseling, information,
152 coverage, or treatment, unless the covered entity can
153 demonstrate that making the modifications would fundamentally
154 alter the nature of the services.
155 (5) A covered entity shall take such steps as may be
156 necessary to ensure that an individual with a disability is not
157 denied services, including transplant-related counseling,
158 information, coverage, or treatment, due to the absence of
159 auxiliary aids and services, unless the covered entity can
160 demonstrate that taking the steps would fundamentally alter the
161 nature of the services being offered or would result in an undue
162 burden on the covered entity.
163 (6) If a covered entity violates this section, the
164 qualified individual who is affected by the violation may bring
165 an action in the appropriate circuit court for injunctive or
166 other equitable relief.
167 (7) This section may not be construed to require a covered
168 entity to make a referral or recommendation for or perform a
169 medically inappropriate organ transplant.
170 Section 2. Section 627.64197, Florida Statutes, is created
171 to read:
172 627.64197 Nondiscrimination of coverage for organ
173 transplants.—A health insurance policy issued, delivered, or
174 renewed on or after July 1, 2020, in this state by an insurer
175 which provides coverage for organ transplants on an expense
176 incurred basis may not deny coverage for an organ transplant
177 solely on the basis of an insured’s disability. This section may
178 not be construed to require such insurer to provide coverage for
179 an organ transplant that is not medically necessary. For
180 purposes of this section, the term “organ transplant” has the
181 same meaning as in s. 765.523.
182 Section 3. Section 627.65736, Florida Statutes, is created
183 to read:
184 627.65736 Nondiscrimination of coverage for organ
185 transplants.—A group health insurance policy delivered, issued,
186 or renewed on or after July 1, 2020, in this state by an insurer
187 or nonprofit health care services plan which provides coverage
188 for organ transplants on an expense-incurred basis may not deny
189 coverage for an organ transplant solely on the basis of an
190 insured’s disability. This section may not be construed to
191 require such insurer or nonprofit health care service plan to
192 provide coverage for an organ transplant that is not medically
193 necessary. For purposes of this section, the term “organ
194 transplant” has the same meaning as in s. 765.523.
195 Section 4. Section 641.31075, Florida Statutes, is created
196 to read:
197 641.31075 Nondiscrimination of coverage for organ
198 transplants.—A health maintenance contract issued or renewed on
199 or after July 1, 2020, in this state by a health maintenance
200 organization which provides coverage for organ transplants may
201 not deny coverage for an organ transplant solely on the basis of
202 a subscriber’s disability. This section may not be construed to
203 require such health maintenance organization to provide coverage
204 for an organ transplant that is not medically necessary. For
205 purposes of this section, the term “organ transplant” has the
206 same meaning as in s. 765.523.
207 Section 5. This act shall take effect July 1, 2020.