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The 190th General Court of the Commonwealth of Massachusetts

AN ACT PROVIDING FOR NONDISCRIMINATION IN ACCESS TO ORGAN TRANSPLANTATION.

     Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:
     Chapter 111 of the General Laws is hereby amended by adding the following section:-
     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

Approved, December 2, 2016