Hb 128: Prohibition of Discrimination Against Potential Organ Transplant Recipients

• Jurisdiction: Georgia,United States
• Citation: Vol. 38 No. 1
• Publication year: 2022
• topic: Civil Rights,Insurance Law,Health Law

HB 128: Prohibition of Discrimination Against Potential Organ Transplant Recipients

Sarah Beach
sbeach5@student.gsu.edu

Anne Marie Simoneaux
asimoneaux2@student.gsu.edu

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health

General Provisions: Amend Chapter 1 of Title 31 of the Official Code of Georgia Annotated Relating to General Provisions Regarding Health, so as to Prohibit Providers from Discriminating Against Potential Organ Transplant Recipients Due Solely to the Physical or Mental Disability of the Potential Recipient to Provide for Definitions; Provide for Exceptions; Provide for Referrals and Recommendations; Provide for Compliance with Federal Requirements; Provide for Civil Action and Relief; Amend Chapter 24 of Title 33 of the Official Code of Georgia Annotated, Related to Insurance Generally, so as to Prohibit Health Insurers from Discriminating against Potential Organ Transplant Recipients Due Solely to the Physical or Mental Disability of the Potential Recipient; Provide for Definitions; Provide for Health Benefit Plans and Collective Bargaining; Provide for Applicability; Amend Chapter 39 of Title 31 of the Official Code of Georgia Annotated, Relating to Cardiopulmonary Resuscitation, so as to Revise Parental Requirement for Consent; Revise a Definition; Provide for a Short Title; Provide for Legislative Findings; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 31-1-24 (new); 31-39-2 (amended); 31-39-4 (amended); 33-24-59.30 (amended)

Bill Number: HB 128

Act Number: 244

Georgia Laws: 2021 Ga. Laws 546

Summary: The Act functions to prohibit discrimination by health care providers and insurers against potential organ transplant recipients due to physical or mental disabilities. Also known as Gracie's Law, the Act provides a pathway through local courts to enforce compliance, and an affected individual

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may bring a civil action for injunctive and other equitable relief. In addition, the Act incorporates Simon's Law, which provides that an order to not resuscitate a minor child can only be issued with the consent of the minor's parents.

Effective Date: July 1, 2021

History

In 2019, Erin and David Nobles of Washington County, Georgia, discovered that their four-month-old child Gracie, born with Down syndrome and a heart defect, would require open-heart surgery.¹ But the Nobles family faced a second troubling quandary: should the surgery fail and Gracie require a transplant, could her disability impact her ability to receive a transplant?² People with disabilities in need of a transplant are often subject to "policies that exclude them as candidates or discrimination by physicians and centers that may brand them as lower priority."³

Thankfully, Gracie's surgery was successful, and her family did not personally have to find the answer to that question—but Gracie's parents felt propelled by their new "awareness" of the discrimination that people with disabilities face to "push for greater protections for people living with an intellectual or developmental disability."⁴ Although the Americans with Disabilities Act (ADA) provides protections against discrimination by granting access through federal

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courts, no similar level of protection is available through Georgia state courts.⁵

Erin and David approached State Representative Rick Williams (R-145th) to aid in their fight. Since then, they have worked closely together on a bill that creates "an immediate pathway through local courts" for affected individuals to pursue claims of discrimination by a provider or insurer.⁶ In conjunction with six cosponsors, Representative Williams originally introduced legislation, colloquially known as Gracie's Law, in the 2019-2020 session of the Georgia General Assembly.⁷ After a unanimous vote in the House of Representatives and while waiting for a hearing before the Georgia Senate Health and Human Services Committee, the bill's progress stalled when the COVID-19 pandemic brought the legislative session to a halt.⁸ Representative Williams reintroduced Gracie's Law, however, as House Bill (HB) 128 in the 2020-2021 session.⁹

Bill Tracking of HB 128

Consideration and Passage by the House

Representative Rick Williams (R-145th) sponsored HB 128 in the House with Representatives Mack Jackson (D-128th), Danny Mathis (R-144th), Lauren McDonald (R-26th), Alan Powell (R-32nd), and Philip Singleton (R-71st) cosponsoring.¹⁰ The House read the bill for the first time on January 27, 2021, and for a second time the next day on January 28, 2021.¹¹ The bill was assigned to the House Health & Human Services Committee, and the Committee reported favorably on

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February 10, 2021.¹² On February 16, 2021, the House read HB 128 for a third time and subsequently passed it by a vote of 166 to 0.¹³

Consideration and Passage by the Senate

Senator Clint Dixon (R-45th) sponsored HB 128 in the Senate.¹⁴ The Senate first read the bill and referred it to the Senate Health and Human Services Committee on February 17, 2021.¹⁵ On March 25, 2021, the Committee reported favorably on the bill, and the Senate then read the bill for a second time.¹⁶

On March, 29, 2021, the Senate tabled, removed, and read the bill for a third time.¹⁷ That same day, Senator Dixon introduced a floor amendment along with Senators Russ Goodman (R-8th), Emanuel Jones (D-10th), Butch Miller (R-49th), and Chuck Payne (R-54th).¹⁸ The amendment added a second section to the bill and reorganized the section numbers accordingly.¹⁹ The amendment designated that only the first section would be referred to as Gracie's Law.²⁰ The second section added the requirement of parental consent for orders of non-resuscitation of a child.²¹ This amendment incorporated language from the former HB 212, referred to as Simon's Law, that never made it out of the Senate Committee of Health and Human Services.²² The Senate voted 52 to 0 to pass the bill as amended.²³

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On March 31, 2021, the House voted 163 to 1 to pass the new version of HB 128.²⁴ The House sent the final bill to Governor Brian Kemp (R) on April 9, 2021, and he signed it into law as Act 224 on May 6, 2021.²⁵ The Act's effective date is July 1, 2021.²⁶

The Act

The Act amends the following portions of the Official Code of Georgia Annotated: Chapter 1 of Title 31, relating to general provisions regarding health; Chapter 24 of Title 33, relating to insurance generally; and Chapter 39 of Title 31, relating to cardiopulmonary resuscitation.²⁷ The Act's overall purpose is to "prohibit providers from discriminating against potential organ transplant recipients due solely to the physical or mental disability of the potential recipient."²⁸

Section 1-1

Section 1-1 titles Part I of the Act as Gracie's Law.²⁹

Section 1-2

Section 1-2 of the Act lists the General Assembly's findings in support of the Act. Subsection (1) acknowledges that a "mental or physical disability does not diminish a person's right to health care," and subsection (2) recognizes that, despite the protections that the ADA affords, many people with disabilities nevertheless "experience discrimination in accessing critical health care services."³⁰ Subsection (3) highlights some of the discriminatory reasons used to deny organ transplants for people with disabilities in other states, which, as subsection (4) indicates, are inappropriate selection criteria for

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federally funded programs to use in evaluating transplant candidates.³¹ Subsection (5) concludes this section by stating that Georgia residents are "entitled to assurances that they will not encounter discrimination on the basis of a disability.".³²

Section 1-3

Section 1-3 of the Act amends Chapter 1 of Title 31 to add section 24.³³ Subsection (a) provides the definitions for all terms used in Code section 31-1-24.³⁴ Subsection (b) sets forth the primary substance of the Act and prohibits any covered entity from considering an individual ineligible for organ transplant solely on the basis of the individual's disability.³⁵ The Act further proscribes five other practices related to organ transplant, such as refusing to refer a patient and placing a candidate lower on a waiting list solely on the basis of the candidate's disability.³⁶ The Act carefully articulates, however, that physicians may still consider an individual's disability when "medically significant" to the transplant.³⁷ At the same time, the Act requires that covered entities make "reasonable modifications to [their] policies, practices, or procedures" to ensure access to transplant and related services but only to the extent that such efforts would not "fundamentally alter" the nature of the covered entity's services or result in an "undue burden."³⁸

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