An Act to prohibit forms of discrimination in access to organ transplantation.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That a NEW SECTION be added to title 20:

Terms used in this chapter mean:

(1) "Auxiliary aids and services,":

(a) Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;

(b) Qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;

(c) Provision of information in a format that is accessible for individuals with cognitive, neurological, developmental, or intellectual disabilities;

(d) Provision of supported decision making services;

(e) Acquisition or modification of equipment or devices; and

(f) Other similar services and actions;

(2) "Anatomical gift," a donation of all or part of a human body, to take effect after the donor’s death, for the purpose of transplantation or transfusion;

(3) "Covered entity,":

(a) Any licensed health care practitioners, hospitals, nursing facilities, laboratories, intermediate care facilities, psychiatric residential treatment facilities, institutions for individuals with intellectual or developmental disabilities, prison health centers, and any other licensed providers of health care services, as that term is defined in § 21-68-1; or

(b) Any entity responsible for matching anatomical gift donors to potential recipients;

(4) "Disability," as defined in 42 U.S.C. § 12102 (2021);

(5) "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;

(6) "Qualified individual," a person who, with or without a support network, 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;

(7) "Reasonable modification to policies or practices":

(a) Communication with individuals responsible for supporting an individual with post-surgical and post-transplantation care, including medication; and

(b) Consideration of support networks available to the individual in determining whether the individual can comply with post-transplant medical requirements;

(8) "Supported decisionmaking," use of a support person to assist an individual in making medical decisions, communicate information to the individual, or ascertain an individual’s wishes by:

(a) Including the individual’s attorney-in-fact, health care proxy, or any person of the individual’s choice in communications about the individual’s medical care;

(b) Permitting the individual to assign a person of their choice for the purposes of supporting that individual in communicating, processing information, or making medical decisions;

(c) Providing of auxiliary aids and services to facilitate the individual’s ability to communicate and process health-related information, including use of assistive communication technology;

(d) Providing information to persons designated by the individual, consistent with the provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1301 et seq., as effective January 1, 2022, and other applicable laws and regulations governing disclosure of health information;

(e) Providing health information in a format that is readily understandable by the individual;

(f) If the individual has a court-appointed guardian or other individual responsible for making medical decisions on behalf of the individual, taking measures to ensure that the individual is included in decisions involving the individual's health care and that medical decisions are in accordance with the individual’s own expressed interests.

Section 2. That a NEW SECTION be added to title 20:

With the exception of section 3 of this Act, a covered entity may not, solely on the basis of a qualified individual’s mental or physical disability:

(1) Deem an individual ineligible to receive an anatomical gift or organ transplant;

(2) Deny evaluation, surgery, counseling, post-operative treatment and services, or any other medical services related to organ transplantation;

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

(4) Refuse to place an individual on an organ transplant waiting list, or placement of the individual at a lower-priority position on the list than the position at which he or she would have been placed if not for his or her disability; or

(5) Decline insurance coverage for any procedure associated with the receipt of the anatomical gift, including post-transplantation care.

Section 3. That a NEW SECTION be added to title 20:

Notwithstanding section 2 of this Act, a covered entity may take an individual’s disability into account when making treatment or coverage recommendations or decisions, 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. The provisions of this section may not be deemed to require referrals or recommendations for, or the performance of, medically inappropriate organ transplants.

If an individual has the necessary support system to assist the individual in complying with post-transplant medical requirements, an individual’s inability to independently comply with those requirements is not medically significant for the purposes of this section.

Section 4. That a NEW SECTION be added to title 20:

A covered entity shall:

(1) Make reasonable modifications in policies, practices, or procedures, when necessary to make services available to qualified individuals with disabilities, unless the entity can demonstrate that making the modifications would fundamentally alter the nature of such services; and

(2) Ensure that no qualified individual with a disability is denied service, unless the entity can demonstrate that the qualified individual's request would fundamentally alter the nature of the services offered or would result in an undue burden.

Section 5. That a NEW SECTION be added to title 20:

A violation of this chapter is an unfair or discriminatory practice and is enforced against under chapter 20-13. In addition to the relief provided in § 20-13-42, compensatory, punitive, and liquidated damages may be assessed against the respondent, in the manner remedies are authorized in 42 U.S.C. §§ 12131 et seq., effective January 1, 2022.