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The 190th General Court of the Commonwealth of Massachusetts

Section 236: Nondiscrimination in access to organ transplantation

[ Text of section added by 2016, 328 effective March 2, 2017. See, also, Section 236 added by 2016, 332, Sec. 1 effective upon the earlier of issuance of guidance to hospitals or November 8, 2017, below.]

  Section 236. (a) As used in this section, the following words shall have the following meanings, unless the context clearly requires otherwise:--

  "Auxiliary aids and services'', auxiliary aids and services as defined in the Americans with Disabilities Act of 1990 as amended by 42 U.S.C. 12103.

  "Covered entity'', a 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.

  "Disability'', a disability as defined in the Americans with Disabilities Act of 1990 as amended by 42 U.S.C. 12102.

  "Organ transplant'', the transplantation or transfusion of a part of a human body into the body of another for the purpose of treating or curing a medical condition.

  "Qualified individual'', an individual who, with or without the support networks available to them, 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.

  "Reasonable modification'' or "reasonable modifications to policies or practices'', may include, but shall not be limited to including: (i) communication with individuals responsible for supporting an individual with postsurgical and posttransplantation care, including medication; (ii) 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 an individual is enrolled or any program or source of funding available to the individual, in determining whether the individual is able to comply with posttransplant medical requirements.

  (b) A covered entity shall not, solely on the basis of a qualified individual's mental or physical disability:

  (i) deem an individual ineligible to receive an anatomical gift or organ transplant;

  (ii) deny medical and other services related to organ transplantation, including evaluation, surgery, counseling, postoperative treatment and services;

  (iii) refuse to refer the individual to a transplant center or other related specialist for the purpose of evaluation for or receipt of an organ transplant;

  (iv) refuse to place an individual on an organ transplant waiting list or place an individual at a lower-priority position on the waiting list than the position at which the individual would have been placed if not for the individual's disability; or

  (v) decline insurance coverage for any procedure associated with the receipt of the anatomical gift, including posttransplantation care.

  (c) Notwithstanding subsection (b), 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 or surgeon, following an individualized evaluation of the potential recipient, to be medically significant to the provision of the anatomical gift.

  Nothing in this section shall be deemed to require referrals or recommendations for or authorize the performance of medically inappropriate organ transplants.

  (d) If an individual has the necessary support system to assist the individual in complying with posttransplant medical requirements, an individual's inability to independently comply with those requirements shall not be deemed to be medically significant for the purposes of subsection (c).

  (e) A covered entity shall make reasonable modifications to its policies, practices or procedures when such modifications are necessary to make services, including 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.

  (f) A covered entity shall take such steps as may be necessary to ensure that no qualified individual with a disability is denied services, including 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 such services being offered or would result in an undue burden.

  (g) A covered entity shall otherwise comply with the requirements of Titles II and III of the Americans with Disabilities Act, including the 2008 amendments to that act.

  (h) This section shall apply to each part of the organ transplant process.

  (i) (1) Any person subjected to discrimination in violation of subsection (b) or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of said subsection (b) may bring an action in the appropriate court for injunctive or other equitable relief.

  (2) The attorney general shall investigate alleged violations of this section and shall undertake periodic reviews of compliance of covered entities.

  If the attorney general has reasonable cause to believe that: (i) a person or group of persons is engaged in a pattern or practice of discrimination under this section; or (ii) a person or group of persons has been discriminated against under this section and such discrimination raises an issue of general public importance, the attorney general may commence a civil action in an appropriate state court.

  (3) In a civil action commenced under this subsection, the court may:

  (i) grant such equitable relief as it considers appropriate, to the extent required by this section;

  (ii) grant injunctive, temporary, preliminary or permanent relief;

  (iii) require an auxiliary aid or service or the modification of a policy, practice or procedure or require an alternative method;

  (iv) require that facilities shall be made readily accessible to and usable by individuals with disabilities;

  (v) award such other relief as the court considers appropriate, including monetary damages to aggrieved persons.

  In addition, the court may assess a civil penalty against a covered entity of not more than $50,000 for a first violation and not more than $100,000 for a second or subsequent violation. For the purposes of determining whether a first or subsequent violation has occurred, a determination in a single action, by either a judgment or settlement, that the covered entity has engaged in more than 1 discriminatory act shall be counted as a single violation.

  (j) The department may adopt regulations to implement this section.

Chapter 111: Section 236. Designation of caregiver to receive patient health information and discharge plan

[ Text of section added by 2016, 332, Sec. 1 effective upon the earlier of issuance of guidance to hospitals or November 8, 2017. See 2016, 332, Sec. 3. See, also, Section 236 added by 2016, 328 effective March 2, 2017, above.]

  Section 236. (a) For the purposes of this section, the following words shall have the following meanings, unless the context clearly requires otherwise:

  "Aftercare'', assistance provided by a caregiver to a patient after the patient's discharge from a hospital to the patient's residence; provided, however, that "aftercare'' shall include tasks that are limited to the patient's condition at the time of discharge that will not be performed by a licensed health care provider, including basic medical tasks, such as assistance with oral medications and operating medical equipment.

  "Caregiver'', an individual, 18 years of age or older, who is duly designated as a caregiver by a patient pursuant to this section and is willing and physically able to provide aftercare to a patient in the patient's residence.

  "Discharge'', a patient's exit or release from a hospital to the patient's residence following an inpatient admission.

  "Entry'', a patient's inpatient admission to a hospital to receive medical care.

  "Hospital'', the teaching hospital of the University of Massachusetts Medical School and a hospital licensed pursuant to section 51 that contains a majority of medical/surgical, pediatric, obstetric and maternity beds as defined by the department of public health.

  "Patient'', an individual, 18 years of age or older, who is admitted to a hospital as an inpatient.

  "Residence'', a dwelling that the patient considers to be the patient's home at the time of discharge; provided, however, that "residence'' shall not include a hospital, nursing home, skilled nursing facility, hospice or other facility that provides a post-acute level of care.

  (b) A hospital shall provide each patient who is competent and capable as determined by the treating health care provider or, if there is a court-appointed guardian of the patient, the guardian with an opportunity to designate a caregiver prior to the patient's discharge or transfer in a time frame that is consistent with the discharge or transfer planning process within the hospital.

  The designation, along with contact information for the caregiver, shall be documented in the patient's medical record. The designated caregiver shall be provided with access to the patient's health information and discharge plan, when applicable, if the patient or the court-appointed guardian for the patient has authorized a release of such information in compliance with the Health Insurance Portability and Accountability Act of 1996 and the commonwealth's privacy laws and regulations and in accordance with the hospital's established procedures for obtaining the authorization.

  If a patient is unconscious or incapacitated upon entry into a hospital and does not have a court-appointed guardian, the hospital shall provide the patient, upon recovery of consciousness and capacity, with the opportunity to designate a caregiver. The designated caregiver may be changed by a court-appointed guardian, if any, or by the patient at any time if the patient is competent and capable, as determined by the treating health care provider and the change is provided to the appropriate hospital personnel prior to the patient's discharge or transfer.

  A patient or the patient's court-appointed guardian shall not be required to designate a caregiver and nothing in this section shall require a person so designated to perform any aftercare tasks for a patient.

  (c) A hospital shall notify a patient's designated caregiver of the patient's discharge or transfer as soon as practicable upon issuance of a discharge or transfer order by the patient's treating health care provider. The hospital shall provide the designated caregiver with a copy of the patient's discharge plan and discuss the patient's aftercare needs; provided, however, that a hospital shall not provide such notification or release such information unless an authorization for the notification and release has been provided to the hospital; and provided further, that the hospital shall not provide the notification or release of information if otherwise directed by the patient or a court-appointed guardian for the patient.

  The discussion with a caregiver relative to after care shall occur in a manner agreed to by the caregiver and the hospital; provided, however, that such discussion shall take into consideration: (i) the severity of the patient's condition; (ii) the setting in which aftercare is to be delivered; and (iii) the urgency of the need for caregiver services.

  The discussion of aftercare shall include: (i) a general demonstration of the known aftercare tasks with an opportunity for the caregiver and the patient to ask questions and receive answers about the aftercare tasks prior to discharge; (ii) information about available community resources and long-term care support services near the patient's residence that may be used to support the discharge plan, as appropriate; and (iii) the hospital contact information to address follow-up questions about aftercare tasks following the patient's discharge from that hospital.

  (d) Nothing in this section shall interfere with the rights of an agent operating pursuant to a valid health care proxy or a court-appointed guardian.

  (e) This section shall not create a private right of action against a health care provider as defined in section 1, or a contractor to a health care provider or mandate a new scope of practice or licensure requirement for a health care provider for any actions or conversations that may occur pursuant to this section. The health care provider shall not be required to determine the ability of a caregiver to understand or perform any of the aftercare tasks described in this section.

  (f) This section shall not interfere with or delay the discharge, transfer or medical care provided to a patient if the hospital is not able to contact or provide notice or information to a designated caregiver prior to the discharge, transfer, or receipt of medical care.