Bill S.2921

FILED ON: 6/1/2022

SENATE . . . . . . . . . . . . . . No. 2921

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act relative to preventing discrimination against persons with disabilities in the provision of health care.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 1 of chapter 151B of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by striking out, in line 138, the word “handicap” and inserting in place thereof the following word:- disability.

SECTION 2. Section 4 of said chapter 151B, as so appearing, is hereby amended by adding the following subsection:-

20. (a) As used in this subsection, the following words shall have the following meaning unless the context clearly requires others:

“Disability”, shall have the same meaning as defined in section 1 of chapter 151B.

“Short-term survival”, an individual’s assessed probability of surviving an acute illness from which they are presently suffering and being successfully discharged from a hospital or other inpatient medical facility.

(b) It shall be an unlawful practice:

(i) For any public or private entity or agency of the commonwealth, to approve or implement a plan for the distribution of scarce healthcare resources during a crisis, including, but not limited to, crisis standards of care implemented during a public health emergency, that deny an individual lifesaving treatment or place an individual at reduced priority for lifesaving treatment if such a determination is based on: (A) a presumption that an individual has a reduced quality of life due to a disability or chronic health condition; (B) a presumption that an individual’s life is less worth saving due to a disability or chronic health condition; or (C) any measure, metric, or third party analysis which has the effect of setting a value for the life of an individual or individuals with a specific disability or medical diagnosis that is less than the value given to the life of an individual or individuals without a disability; provided however that this subsection shall not prohibit such a plan from considering an individual’s prospects for short-term survival in determining whether they are prioritized for care.

(ii) For any public or private entity or agency of the commonwealth, to withhold any medical treatment to an individual based on: (A) a presumption that an individual has a reduced quality of life due to a disability or chronic health condition; (B) a presumption that an individual’s life is less worth saving due to a disability or chronic health condition; or (C) any measure, metric, or third party analysis which has the effect of setting a value for the life of an individual or individuals with a specific disability or medical diagnosis that is less than the value given to the life of an individual or individuals without a disability.

(iii) For any public or private entity or agency of the commonwealth, when determining whether a healthcare treatment should be available within a formulary, or determining the value of a healthcare treatment, to employ a measure or metric which assigns a reduced value to the life extension provided by a treatment based on a pre-existing disability or chronic health condition of the individuals whom the treatment would benefit.

(iv) For a hospital or other entity engaged in the provision of healthcare to: (A) condition the provision of treatment on an individual having an order to not resuscitate, advance directive or any instruction relating to the administration, withholding or withdrawing of life-sustaining procedures or artificially administered nutrition and hydration; (B) communicate to any individual or person acting on behalf of the individual, before or after admission to the hospital, that treatment is conditioned on the individual having an order to not resuscitate, an advance directive or any instruction relating to the administration, withholding or withdrawing of life-sustaining procedures or artificially administered nutrition and hydration; (C) suggest to any individual, or person acting on behalf of the individual, who contacts the hospital regarding treatment for the individual that admission or treatment is conditioned on the individual having an order to not resuscitate, an advance directive or any instruction relating to the administration, withholding or withdrawing of life-sustaining procedures or artificially administered nutrition and hydration; or (D) discriminate in any other way against an individual based on whether the individual has an order to not resuscitate, an advance directive or any instruction relating to the administration, withholding or withdrawing of life-sustaining procedures or artificially administered nutrition and hydration.

(c) This subsection shall not prohibit a hospital from providing written materials and information about advance directives to an individual or prohibit a licensed health care professional from engaging in a discussion with an individual about the written materials and information, so long as the professional does not disproportionately advise an individual to sign an advanced directive based on the race, ethnicity, gender, sexuality, or disability status of said individual.

(d) Nothing in this subsection shall prevent healthcare practitioners, hospitals or other healthcare entities from providing a medically appropriate course of treatment to an individual that they believe will extend that individual’s life, improve their symptoms or alleviate pain and suffering.

(e) The secretary of health and human services shall promulgate regulations to implement this subsection.

SECTION 3. The secretary of health and human services shall promulgate regulations for the implementation of subsection 20 of section 4 of chapter 151B not later than 60 days after the effective date of this act.